HKSAR v. Ontiang Attarod and Another

DCCC 1261/2011

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO.1261 OF 2011

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Reasons for Sentence

1.There are 2 defendants in this case. Both are of Thai nationality and both pleaded guilty to respective charges of using a false instrument, contrary to s.73 of the Crimes Ordinance, Cap.200 and s.3(1)[1] of the Aviation Security Ordinance, Cap.494. D1 pleaded guilty to charges 1, 3, 5 and 6 while D2 pleaded guilty to charges 2, 4 and 7.

Facts

2.The defendants used forged credit cards to purchase duty free goods on board different flights of Hong Kong Airlines Limited.

Charges 1 and 3

3.D1 bought $5,240 worth of goods on flight HX768 from Bangkok to Hong Kong on 12^th August 2011 with a Visa credit card (exhibit E1).

4.On the same day, D1 boarded flight HX518 in Hong Kong to fly to Hanoi. She bought $5,490 worth of goods on this flight with a different Visa credit card (exhibit E2). Both credit cards were later seized and examined and confirmed to be forged.

Charges 5 and 6

5.2 days later, on 14^th August, D1, together with D2,  were seen boarding a flight from Hanoi to Hong Kong (HX519). The air stewardess (“PW5”) who handled the transaction for D1 on the previous flight (HX518) recognized D1 because a notice was issued the day before identifying D1 as using forged credit card to purchase goods on the flights of the airline.

6.On this flight, D1 requested to buy duty free goods. When D1 presented the forged credit card (E2) she used in charge 3 to pay for the goods, PW5 requested D1’s passport for inspection. PW5 then photographed D1’s passport with her mobile phone and then returned the forged credit card to D1, telling D1 that the credit card was rejected by the credit card company.

7.D1 then presented anther forged credit card (E1) for payment. This was the forged credit card that she used in charge 1.  Again, PW5 took a photo of the forged credit card and told D1 that the approval for this credit card was not able to be obtained. PW5 then returned this credit card to D1.

Charge 7: D2

8.D1 then asked D2 for a credit card (exhibit E10) to pay for the goods and handed it to PW5 for payment of the goods. D1 also told D2 to present her Thailand passport to PW5 for verification. D2 did so and PW5 took photos of the passport and the credit card and then told D1 that approval was not granted by the MasterCard company. Both this forged credit card and the passport were returned to D2.

9.PW5 reported the encounter to her superior and Police was notified before the flight reached Hong Kong.

Charge 2

10.D2 on 12^th August 2011 boarded flight HX796 in Bangkok for Hong Kong. While on the flight, D2 bought duty free goods from an air stewardess (“PW3”). D2 used a forged credit card to pay for the goods. This credit card was in fact the same card (E10) which was later used in flight HX519 where D1 asked D2 for the card to pay for goods after PW5 told D1 that approval for D1’s card was not granted.

11.The payment was approved and transaction completed. $2,510 worth of duty free goods were purchased by D2 with the forged credit card.

Charge 4

12.One day later, on 13^th August 2011, D2 boarded flight HX518 in Hong Kong for Hanoi. While in flight, D2 requested to purchase duty free goods and offered to pay with the same forged credit card (E10) mentioned above. The purchase was successful and D2 bought $2,360 worth of duty free goods with the forged credit card.

Video recorded interviews

13.The defendants were arrested on 14^th August when HX519 landed in Hong Kong. Under caution, both D1 and D2 claimed that they did not know that the credit cards they were using were forged cards.

14.In subsequent video recorded interviews, D1 admitted that the flight ticket and credit cards were arranged and provided by a male named “Ah Tim”. Ah Tim told her that the credit cards were ‘affiliated cards’ but not counterfeits. D1 was told that she will be remunerated by Ah Tim upon passing the duty free goods purchased by her to Ah Tim. The reward from Ah Tim was Thai Baht $2,000. All the travelling expenses incurred were paid by Ah Tim.

15.In D2’s video recorded interviews, D2 admitted that she had used the credit card but that she did not know it was forged. The forged credit card she used was given to her by an African male known to her as “Boss” at the airport in Bangkok on 11^th August 2011. D2 came to know Boss through her friend. Boss told her she will be remunerated. Boss told D2 that he was not able to depart to other countries due to problems of his nationality and so he employed other people to make the purchases for him. D2 further admitted to using the forged credit card to make the purchases on board flight HX796 and HX518 on 12^th and 13^th August respectively.

Previous convictions

16.The defendants are both of clear record in Hong Kong.

Mitigation

D1

17.D1 is 26 years old and a 3^rd year university student, studying for a Computer and Commercial Degree. She has a 9 year old daughter and has been a single mother since 2008. D1 is now residing with her 56 year old father, 52 years old mother and 16 year old younger brother in Thailand. D1 was living on the income from her parents’ food store, which can barely support the family.

D2
D2 is 28 years old. She was educated up to Form 3 level and starting working at when she was 17. She used to work in a garment factory by day earning 6,000 Baht per month and as a waitress by night earning 3,500 per month. D2 has 3 sons aged 10, 6 and 3. She is divorced and has been a single mother since 2008. D2 resides in Thailand with her 65 year old retired father who suffers from liver problem and her 60 year old mother who suffers from arthritis.

18.Mr. Cheng for the defendants pointed out similar mitigating factors including their guilty pleas and their clear record. Both the defendants committed the offences out of greed. The using of the false instruments was of a relatively small scale. They both used their own identifications and it would be “inevitable that they would be caught once evidence came to light”. Both played a minor role in the fraud, they were not the masterminds and they did not make the forged credit cards. Lastly, all the properties purchased with the forged credit cards were recovered. 

Sentencing cases

19.I was referred to 2 sentencing cases. In The Queen v Chan Sui-to & Another, CACC 115/1996, the Court of Appeal set out some factors for consideration in the approach to sentencing cases involving credit card fraud:

“13. A number of authorities were cited to us to indicate the level of sentences for credit card frauds. It is not easy to reconcile the sentences, but in general we apprehend that a sentencing judge would need to consider various factors including:

1. The size of the operation e.g. whether it involves large sums of money, whether it concerned a large number of persons or forged credit cards.

2. The planning that has gone into perpetrating the fraud, whether it is elaborate or simple, whether technical skills were used, and to what extent.

3. Whether there is an international dimension.

4. Whether the accused played a major role, e.g. running a syndicate, engaging in actual manufacture, organising the use of forged cards, or whether he is a mere "cog in the wheel" as a courier or a custodian or keeper.

5. Whether there is a plea of guilty.

14. In considering whether large sums of money were involved, we would suggest that, at the present cost of living, amounts up to $50,000 may be considered relatively small, amounts from $50,000 to $150,000 medium, and amounts above that may be considered large.

15. We now look at some of the authorities, bearing in mind the factors suggested above. It goes without saying that the five factors mentioned above are not intended to be an exhaustive list.”

20.The other case referred to is the case of HKSAR v Tu I Lang, CACC 464/2006. I find that this is the case more applicable to our present circumstances. There the Court of Appeal stated that while there are no guidelines sentence for small scale credit card fraud cases, they suggested that in small unsophisticated cases, a 3 year starting point is appropriate. It is my view that the international element and the sophistication in the organization of the fraud make our present case slightly more serious than that of Tu I Lang.

Sentence

21.The defendants were instructed to make the purchases on the plane, no doubt those behind the operation was hoping and expecting that the cabin crew handling the transactions would be too busy and time pressed to notice that the cards may be forged credit cards. This was in fact what happened in relation to charges 1 to 4 where the purchases had gone through and approval granted from the relevant credit card companies.

22.The defendants are clearly just foot soldiers of a more sophisticated organization. Those in control have the money to pay for the air tickets and travelling expenses of the defendants, indicating that they must be of at least some scale.

23.The defendants said they did not know that the cards were forged but I reject his based on what they said under caution in their video recorded interviews. D1 herself said she was suspicious that Ah Tim could apply for the cards without any income proof, while D2 saw that Boss was able to apply for the credit card on her behalf immediately after she agreed to work for him. They must have known that the credit cards were forged.

24.There is a clear international element in both D1 and D2’s situation. They are both Thailand citizens, they took the flights with the sole purpose of committing the crimes.

25.The number of credit cards involved are however small. 2 for D1 and 1 for D2. This must therefore be classified as a small scale operation, even though the organization showed some sophistication.

26.The amount of money involved in relation to D1 was HK$10,730, and in relation to D2 $4,870. These are small sums.

27.Bearing in mind all the circumstances mentioned above, including their mitigation, I find that in relation to each of the charges that D1 and D2 faces, a starting point of 3 and half years’ imprisonment is appropriate.

28.I will grant them both the full 1/3 discount for their guilty plea and reduce this to 28 months’ imprisonment on each charge.

Totality

29.On the point of totality, I have to differ slightly with Mr. Cheng for the defendants who asked that the sentences to be made wholly concurrent. I find that in relation to D1, charges 1 and 3 took place on different flights, while charges 5 and 6 on the same flight. There must be some reflection in the sentence of the fact that D1 had chosen to repeat what she had done on a different flight.

30.In relation to D1, therefore, I will order that 6 months of charge 1 to be served consecutively to the rest of the sentences, which are to be served concurrently.

31.For similar reason, in relation D2, I order that 6 months of charge 2 to be served consecutively to the rest of the sentence which are to be served concurrently.

32.D1 and D2 is therefore each sentenced to a total of 34 months’ imprisonment.

[1]3(1) Any act or omission taking place on board a Hong Kong-controlled aircraft while in flight elsewhere than in or over Hong Kong which, if taking place in Hong Kong, would constitute an offence under the law of Hong Kong shall constitute that offence.