HKSAR v. Wong Kwun Cheong

DCCC 1357/2011

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 1357 OF 2011

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Reasons for Sentence

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1.The defendant has pleaded guilty to one count of conspiracy to use false instruments, contrary to section 73, 159A and 159C of the Crimes Ordinance, Cap 200, the false instruments in question being two false credit cards. The offence occurred within a very short period of time – between 30 and 31 August 2012, and involved 2 credit cards and his co-conspirators as named in the particulars of charge are Wu Ching Kwan and Pang Yu Yuen.

2.Facts admitted by the defendant disclosed that a covert operation mounted by the Organized Crime & Triad Bureau commenced in May 2010, wherein an undercover police officer, DPC 8520 Pang Yu Yuen, PW1 herein, came to know the defendant.  At about 2100 hours on 30/8/2010, Wu called PW1 and asked him to ‘swipe card’, ie use a false credit card to make transactions, and asked PW1 whether he would join him, and that he would receive HK$1,000 commission for every fraudulent transaction of HK$10,000.  PW1 agreed and met Wu at 1354 hours on 31/8/2010 at the Shatin New Town Plaza. Whilst with PW1, Wu received a telephone call from the defendant and the three of them met on the 2^nd floor of the Shatin New Town Plaza and went to the male toilet situated next to shop 438 named ‘Porter’. Inside the toilet, the defendant handed to Wu a red packed (E1) and said that he would tell them later where to swipe the card.  The defendant then handed a piece of paper, E2, to Wu and told him to go to ‘Eu Yan Sang’ and purchase the items listed on the paper.  The defendant then left.  Wu handed the red packet, E1, and the piece of paper, E2, to PW1 together with a pen, E5, and told him there were two credit cards in the red packet and to practise his signature on a paper before signing on the back of the two credit cards.  PW1 opened the red packet and saw that it contained the two false credit cards as set out in the particulars of the charge, and both cards bore the name of ‘Ng Chun Yeung’.  When Wu and PW1 left the male toilet, the defendant appeared and instructed PW1 and Wu to go to ‘Eu Yan Sang’ at the Shatin Plaza.  Wu and PW1 then went to the ‘Eu Yan Sang’ at Shatin Plaza.  PW1 and Wu went there and Wu told a staff member what he wanted and handed the list, E2, to the staff member. Wu told PW1 to settle the payment of HK$7,402.80 with one of the false credit cards and PW1 did so.  After the transaction was successfully completed, the staff member passed to PW1 two receipts (E3-E4) and the purchased items while a female staff member handed 25 pieces of coupons valued at HK$250 to Wu.  After leaving the shop, Wu handed the purchased items to the defendant in the male toilet.  The defendant instructed PW1 and Wu to go to a game shop at Lucky Plaza, Shatin.  They did so, and upon entering the shop, ‘the Universe Game Box’, Wu told a staff member that he wanted to buy three sets of ‘PSP’, a handheld game device, and two game discs worth HK$8,000.  Wu told PW1 to settle the bill.  PW1 handed one of the false credit cards to the staff member, who indicated he had to check with the credit card centre to obtain an approval code as the transaction amount was large.  Wu complained it was too troublesome to check the code and PW1 and Wu left the shop without completing the transaction.  After leaving the shop, PW1 told Wu he was scared and did not want to continue and returned the credit cards to Wu, but retained E1 to E5.  PW1 then returned to the police safe house where he handed the exhibits E1 to E5 over and these were retained in the OCTB property office.  The defendant was located on 2/11/2011 and arrested in Shatin.  Under caution, he remained silent.  He was positively identified by PW1 at an identification parade conducted at the Mongkok Police Station on 16/11/2011.  The defendant’s left thumb print was found on the shopping list Exhibit P2.

3.I was satisfied beyond all reasonable doubt that the facts admitted by the defendant supported the charge and accordingly, I convicted him of the charge.

4.The Defendant is now aged 29 years.  He is married and his wife is a housewife.  They have no children.  He is presently unemployed.  He used to work as a transportation worker and kitchen worker, and immediately before his arrest he worked as a cashier, earning $8,000 a month. He has been unemployed since shortly after his arrest for the present offence in November 2011. He has tried to find employment but has had difficulties because of his education background – he was educated to Form 5 in Hong Kong.  When he was employed, he used to contribute $2-3,000 a month to his parents and paternal grandmother, but since his unemployment, his contribution has been much less.  He was raised by his paternal grandmother, who died about a month ago, and her funeral rites have not yet been completed.  It was submitted that he was remorseful, as reflected by his plea, and defence counsel Mr. Li sought leniency on behalf of the defendant.  Mr Li submitted that the defendant was only a helper – he had admitted the facts and his role was to deliver the cards and give directions as to which shop to go to and collect the goods bought using the false credit cards – he only received $1,000 for his role and was a cog in the wheel.  Counsel submitted that the property purchased using the false credit card was only $7,402.80 and there were only two false credit cards involved, putting the operation at the lower end of the scale.

5.The defendant’s criminal record dates back to 2004.  He has 2 previous convictions, but nothing similar to the present offence.  His most recent offence was in 2012, for an offence of criminal damage, when he was sentenced to 3 weeks’ imprisonment and ordered to pay compensation of $500.

6.I have carefully considered all that has been urged upon me in mitigation on behalf of the defendant.  Save for his plea, there is really little mitigation of weight before me.

7.In HKSAR v Tu I Lang, CACC 464/2006, the Court of Appeal referred to the decision of R v Chan Sui To [1996] 2 HKCLR 128 at 134:

“8. It is true that in R v Chan Sui To [1996] 2 HKCLR 128 at 134, this court said in dealing with the range of sentences imposed for credit card offences in various cases cited to it:

“Allowing for the different facts and the varying degrees of culpability, it is impossible to formulate a set of principles of sentencing from those decisions. We think however that it would be helpful to the courts if they were guided by some criterion. We would therefore suggest that an accused who plays an active but not necessarily a key role in a medium size operation involving between $50,000 and $150,000, with no elaborate planning and equipment, and without an international dimension, should receive a sentence of five to six years after trial. Sentences may be adjusted upwards or downwards according to the circumstances.”

It is equally true that in a number of other cases involving the simple possession or use of a small number of credit cards, this court has approved starting point of sentences of three years’ imprisonment, where the operation involved can be fairly described as small scale.”

8.The Court further said:-

“10. Where the facts of the offence point to a small unsophisticated operation, involving only one or a few forged cards uncomplicated by other evidence linking the offender to a larger operation, then a starting point of three years’ imprisonment or less would be appropriate.”

9.Offences involving forged credit cards are all serious offences.  I need only to quote the judgment of Litton J.A. in R v Kwan Ying Ho, CACC 527/1992 that:

“Credit card frauds have in recent years been an insidious poison in the community. It affects a large number of citizens. It erodes the credit card system and damages Hong Kong’s standing in the international community.”

10.In HKSAR v Cheung Ka Wo, Johnny, CACC 136/2001, Stuart Moore, V-P, in dismissing an appeal where a starting point of 3 years’ imprisonment was used, said:-

“11. It is well known that in this jurisdiction severe sentences are given to those who commit offences of the kind with which we are presently concerned as a deterrent to others who are like-minded. One justification for this is that the integrity of the credit card system is highly important in this day and age and the confidence which people, as Mr. Madigan pointed out in the course of his argument, are entitled to place on this aspect of modern commercial life is necessarily eroded by others who attempt to beat the system by fraudulent methods.”

11.The defendant herein delivered the two false credit cards to Wu and PW1 and directed them which shops to go to make purchases.  He also collected the goods purchased using the false credit card after the first successful transaction.  Clearly he was a part of a syndicate involved in using forged credit cards to obtain goods, although I accept that this is not a case involving an international dimension.  The value of the goods involved is not large.  However, it is the potential for loss which is the most important consideration.  Here, the operation was called off because PW1 told Wu he was scared and did not want to continue to use the cards after the second transaction which was aborted because the shop said it needed to obtain an approval code.  Had PW1 not said he was scared and did not want to continue, the cards in my view would no doubt have been used elsewhere to obtain further goods.

12.The defendant may have been a mere cog in this operation.  However, in my view he was a vital cog.  Without people like the defendant being prepared to do what he did, the operation would not have got off the ground.  The court takes a very serious view of people who do what the defendant herein did.

13.As I have said, the only mitigation of weight before me really is the defendant’s plea of guilty, which reflect his remorse.

14.I take as a starting point three years’ imprisonment, discount this by one-third to reflect his plea and sentence him to two years’ imprisonment on the charge.