HKSAR v. Loo Jer Ling

DCCC 916/2012

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 916 OF 2012

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REASONS FOR SENTENCE

1.The defendant pleads guilty to one charge of using a false instrument, contrary to section 73 of the Crimes Ordinance, Chapter 200 (charge 1) and one charge of possessing false instruments, contrary to section 75(1) of the Crimes Ordinance (charge 2).

2.In summary on the 3rd August this year the defendant, a visitor from Malaysia, arrived in Hong Kong.  The same day the defendant went to the “Studio A” Apple Premium Reseller in The Park Lane shopping centre in Causeway Bay, where she used a forged credit card to purchase a computer notebook valued at $9,188.  The staff suspecting the card was a forgery reported the matter to the police. 

3.The defendant was asked to wait in the shop but instead left without collecting the card.  A staff member followed the defendant until she was intercepted by the police.  The police found from the defendant’s wallet a further two forged credit cards.  Under caution the defendant admitted she knew the cards were forged and that they had been given to her by an unknown male.  In court the defendant says she was given the cards after her arrival in Hong Kong. 

4.In passing sentence I take into account the factors which a sentencing judge will need to consider in credit card frauds as set out by the Court of Appeal in R v Chan Siu To [1996] 2 HKCLR 128, including the size of the operation; the planning that had gone into perpetrating the fraud and whether the accused played a major role.  The factors were not intended however to be exhaustive but provide valuable assistance to the court.  The courts have repeatedly stressed that deterrent sentences are to be imposed. 

5.Where the facts of the offence point to a small unsophisticated operation, involving one or a few forged cards uncomplicated by other evidence materially linking the offender to a larger operation, a starting point of 3 years or less may be appropriate (see HKSAR v Tu I Lang CACC 464/2006; HKSAR v Wong Chin Hang CACC 409/2008 and HKSAR v Chan Ka Chung CACC 379/2010 cited by Mr Lee).

6.Whilst each case is to be decided on its own facts the Court of Appeal have upheld starting points higher than 3 years imprisonment for similar offending, see for example HKSAR v Kita Yasushi & another CACC 470/2006 as applied in HKSAR v Luo Xiuhong CACC 339/2010.  The Court of Appeal held that a starting point of 3 years and 6 months imprisonment was appropriate for those who come to Hong Kong armed with forged credit cards.  I note in both those cases the defendants also possessed forged passports, which fact is absent in the present case. 

7.Further I am aware of the recent decision of the Court of Appeal in HKSAR v Hoong Pang Chong CACC 344/2011, a case also cited by     Mr Lee.  Although the reasons for sentence are in Chinese I have had the benefit of my interpreter translating the reasons to me.  This was also a case of a Malaysian citizen coming to Hong Kong and using a forged credit card.  The Court again said a starting point of 3 years and 6 months imprisonment was appropriate.

8.I have carefully considered everything said by Mr Lee on behalf of the defendant together with the content of the defendant’s letter.  I take into account the defendant is only 21 and has a clear record in both    Hong Kong and Malaysia.  However this carries little weight where the offender is a visitor and commits crimes on the very day she arrives in Hong Kong.

9.On the facts I accept the defendant was involved in what can be described as a small-scale operation, involving three forged credit cards.  Mr Lee submits that a starting point of no more than 3 years is appropriate.  Whilst there is no evidence the defendant came to Hong Kong with the forged credit cards, she nevertheless within hours of arriving in Hong Kong was using a forged credit card.  This, I am satisfied, is an aggravating feature of the case thereby adding an international dimension to the case, as does the fact the defendant was clearly connected to an international operation, who arranged her trip to Hong Kong. 

10.In all the circumstances I am satisfied the proper starting point after trial on each charge is 3 years and 6 months imprisonment.  I am further satisfied that an overall starting point for using one forged credit card and possessing two more forged credit cards is also 3 years and 6 months imprisonment.

11.Giving the defendant full credit for her pleas of guilty she is convicted and sentenced to 2 years and 4 months imprisonment concurrent on each charge.