HKSAR v. Shair Wai Tong

HCMA 630/2012

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO. 630 OF 2012

(ON APPEAL FROM ESCC 2874/2012)

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Before: Hon Fung J in Court

Date of Hearing: 27 November 2012

Date of Judgment: 27 November 2012

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J U D G M E N T

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1.The Appellant Shair Wai Tong pleaded guilty before Magistrate David Dufton Esq to one charge of possession of equipment for making false instrument (ie a magnetic card reader).

The facts

2.The Appellant was a manager/senior waiter of a Japanese restaurant.  He was given a magnetic reader in order to extract credit card information from customers.  He was promised a reward of $500 for each set of information extracted.  He had tried it but was not very successful.  He talked to his colleague about it which eventually led to the report of the case to the police.

Reasons of the Magistrate

3.The Magistrate viewed the Appellant’s role as serious because he made it possible for others to manufacture false cards for subsequent purchases.  The Magistrate took into account what the Appellant told the probation officer in the background report that he was asked to do it 40 times. The Magistrate said that it would be very serious if the Appellant had been successful for extracting 40 sets of information.  He took 18 months as the starting point, and reduced it to 12 months upon plea. 

Grounds of Appeal

4.The Appellant submitted that the sentence was too harsh. He was divorced for 2 years, and had to look after a six years old child. At the moment, his aged parents are looking after his child, and the present case had hit him hard financially as well as affecting the welfare of the child. Those matter were already contained in his background report.

Discussion

5.Credit card offences are looked upon seriously by the Court.  In R v CHAN Sui-ho & Anor [1996] 2 HKCLR 128, the Court of Appeal laid down several factors for general consideration in sentencing:

(1)  Size of operation, eg amount of money and number of persons and false cards involved;

(2)  Extent of planning and use of technical skills;

(3)  International dimension;

(4)  Role of the accused, whether running of a syndicate or mere “cog in the wheel” as courier or keeper

(5)  Whether plea of guilty.

Those Appellants were involved in possession and use of false instrument and possession of equipment and received sentences of 3 years upwards.

6.The Magistrate took into account that the Appellant had told prosecution officer that he was asked to extract 40 sets of information. This matter was apparently not ventilated with counsel in mitigation. 

7.Be that as it may, the Magistrate was well entitled to take into account the Appellant was promised a reward of $500 per endeavour, which goes without saying that the more the merrier.

8.Being responsible for checking the bill in the restaurant and so obtaining the credit card information is very serious, because there would be no watching over and one could do it so many times in a rather safe environment.

9.In HKSAR v Wong Ka-Chi & Anor HCMA 1063/2002 (dated 4 February 2003), the two Appellants pleaded guilty to conspiracy to pass around 2 card readers for purposes similar to the Appellant here.  They received sentences of 16 and 15 months (the 1 month reduction was in aid of assistance to the authority). 

10.In the event, the sentence of 12 months upon plea is not manifestly excessive, and the appeal is dismissed.

Miss Joey Ma, Public Prosecutor, for the Respondent

The Appellant, in person