HKSAR v. Ooi Boon Har

DCCC 1011/2012

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 1011 OF 2012

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REASONS FOR SENTENCE

1.The defendant pleads guilty to three charges of using a false instrument, contrary to section 73 of the Crimes Ordinance, Chapter 200 (charges 1-3) and one charge of possessing false instruments, contrary to section 75(1) of the Crimes Ordinance (charge 4).

2.In summary on the 2nd September this year the defendant, a Malaysian citizen, arrived in Hong Kong from the Mainland.  The same day at about 8:00 p.m. the defendant, together with a male, went to the Christian Dior shop at No. 1 Peking Road in Tsim Sha Tsui, where she used a forged American Express card to purchase a handbag valued at $34,000. 

3.Suspecting the card was a forgery staff of Christian Dior checked with the card centre.  After the card centre confirmed the card was a forgery the staff discreetly reported the case to patrolling police officers who entered the shop and arrested the defendant (charge 1).  The defendant was taken to the police station where her handbag was searched.  Inside the handbag was a white envelope containing 17 more forged credit cards (charge 4). 

4.Police investigation revealed that two of these cards had been used earlier the same day to buy clothing from the Ralph Lauren shop in Harbour City.  The cards were used by the defendant, acting together with a male, at 6:49 p.m. and 7:04 p.m. to buy clothing valued at $9,790 and   $7,450 (charges 2 & 3).

5.Under caution the defendant admitted that together with a man named Jason, who had given her the credit cards in Shenzen, she purchased the goods from Christian Dior and Ralph Lauren.  The defendant said she would receive a reward of 5% commission.

6.I have carefully considered everything said by Mr Chan on behalf of the defendant together with the content of the defendant’s letter.  I take into account the defendant has a young child to look after in Malaysia and that she committed these offences due to financial need to support her family, having recently lost her job as an accounts clerk, which she had held for 12 years.  I take into account the defendant has a clear record, however this carries little weight where the offender is a visitor and commits crimes on the very day she arrives in Hong Kong.

7.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; whether there is an international dimension; 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.  

8.Mr Chan submits that a starting point of 3 years and 6 months is appropriate.  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; and HKSAR v Wong Chin Hang CACC 409/2008).

9.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 several forged credit cards. 

10.In Kita Yasushi there were two defendants each with four forged credit cards.  In Luo Xiuhong the defendant also had four forged credit cards.  I note however in both those cases the defendants also possessed forged passports in the same name as the forged credit cards, which fact is absent in the present case.  In both cases, however, this resulted in the imposition of 4 months imprisonment consecutive to the sentence for the forged credit card offences.

11.Further I am aware of the recent decision of the Court of Appeal in HKSAR v Hoong Pang Chong CACC 344/2011.  This case came to my attention earlier this year when sentencing another Malaysian citizen for using forged credit cards.  Hoong Pang Chong, who was also a Malaysian citizen, came to Hong Kong with three forged credit cards.  The Court of Appeal again said a starting point of 3 years and 6 months imprisonment was appropriate.

12.The difference in the present case, however, is that the defendant had a total of 18 forged credit cards, three of which were actually used.  In my view the number of cards makes this case more serious than the cases just cited for which longer sentences are appropriate.

13.In HKSAR v Sun Chun-lei CACC 476/2002 the defendant was stopped by the police in Tsim Sha Tsui and found in possession of fourteen forged credit cards, which were in two different names.  The defendant was a visitor from Taiwan, who together with two others came to Hong Kong to use the forged credit cards.  The other two each had three forged credit cards and a forged passport in the same names as the forged credit cards found in the possession of the defendant.

14.The Court of Appeal said this was a well-organized syndicate with an international dimension, involving three defendants carrying twenty forged credit cards and two forged passports, which were intended to be used to make purchases from expensive shops in Hong Kong.  In upholding a total sentence imposed after trial of 5 years and 6 months imprisonment, the Court of Appeal said this was not a day too long.

15.A starting point of 6 years imprisonment was upheld in HKSAR v Bin Kei Chi & another CACC 181/2005 for possession of 25 forged credit cards at the airport, the cards having been put in the check-in luggage for use in Korea.

16.In HKSAR v Cheng Sui-yin CACC 468/2005 the defendant was found in possession of 14 forged credit cards when stopped at the Arrival Hall of the Lowu border control point.  The use of the cards had resulted in a total loss of US$42,000.  The Court of Appeal was of the view that the sentence imposed by the trial judge of 4 years and 6 months imprisonment, was in no sense manifestly excessive and dismissed the appeal against sentence.

17.In determining the starting point I take into account that the defendant was arrested having used a forged credit card to buy a handbag valued at $34,000. When her handbag was searched 17 more forged credit cards were found, two of which were used that day to obtain clothing valued at $17,140, which clothing has been recovered. 

18.No doubt had the police not arrested the defendant she would have continued to use the forged credit cards, together with the male she called Jason.  Clearly the potential for loss was substantial.  Further the defendant obtained the cards on the Mainland and came to Hong Kong to use them thereby adding an international dimension to the case.

19.In all the circumstances I am satisfied the proper starting point after trial is 3 years and 6 months imprisonment on each of charges 1, 2 and 3 and 4 years and 6 months imprisonment on charge 4.  I am further satisfied that an overall starting point of 5 years imprisonment is appropriate, which properly reflects the defendant’s criminality on all charges.

20.Giving the defendant full credit for her pleas of guilty she is convicted and sentenced on charges 1, 2 & 3 to 2 years and 4 months imprisonment, concurrent on each charge and on charge 4 to 3 years imprisonment of which 12 months is to be served consecutively to charges 1, 2 & 3 and 2 years concurrent.