HKSAR v. Lim Chung Hoong

DCCC 1038/2012

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 1038 OF 2012

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Reasons for Sentence

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PLEA

1.The defendant pleads guilty to Charge 1, theft; Charge 2, attempting to obtain property by deception; and Charge 3, possessing false instruments.

FACTS

Charge 1

2.Around noon on 5 September 2012 the defendant went to Chow Tai Fook Jewellery Company Limited at 625-629 Nathan Road.  He purchased a gold necklace at $16,749.  He managed to pay with a  forged credit card.  The staff who served the defendant was a Mr Sze.

Charge 2

3.Around 10.25 am on 13 September 2012 the defendant went to Chow Sang Sang Jewellery Company Limited at 42 Yun Ping Road, Causeway Bay, to purchase a gold necklace value at $14,642.  He produced an Hbc Mastercard in the name of Wong Kok-wai (Card 1) to make payment.  The staff there made inquiry with the card centre and learned that the credit card was a forged one.  They made a report to the police.  The police came and arrested the defendant.

Charge 3

4.Police found in the defendant’s wallet four other forged credit cards (Cards 2 to 5), namely a Citibank MasterCard, a Bank of America VISA card; a BankAmericard VISA card and a Platinum VISA card.  All the cards were in the name of Wong Kok-wai.  The police also found the Chow Tai Fook staff, i.e., Mr Sze’s name card on the defendant’s person.  Mr Sze was the staff in Chow Tai Fook who served the defendant on 5 September 2012.

Admission

5.Under caution the defendant said he did not know the person Wong Kok-wai.  He just found the five credit cards in a hotel toilet in Shenzhen, China.  He signed on those cards in order to make purchases with the cards.  The defendant said he used the forged Hbc Mastercard to buy the gold necklace in Charge 2 with the intention of selling it for money to buy an air ticket to go back to Malaysia.  He also admitted that he had used a sixth credit card in the name of Wong Kok-wai to buy the gold necklace in Charge 1. He found that card together with Cards 1 to 5 in the same hotel toilet in Shenzhen.  He had already discarded the sixth forged credit card after the purchase in Charge 1.  He had sold the necklace in Charge 1 in Shenzhen for Renminbi 3,000.  The defendant told the police that he knew what he had done was illegal.

Record

6.The defendant has a clear record in Hong Kong.

Mitigation

7.Defence counsel says the defendant is still 20 years old, being born on 4 August 1992 in Malaysia.  The defendant is not academically good and with some delay he is now studying in the first year of a two-year business course in a college in Malaysia.

8.Counsel says the defendant went with a friend from Malaysia to China during the first semester break.  The defendant arrived at China on 27 July 2012.  He stayed in Shenzhen and came to Hong Kong for the first time on 4 August 2012.

9.Immigration record shows that the defendant travelled in and out of Hong Kong rather frequently between the months of August and September.  Between 4 August 2012 and 9 September 2012 the defendant had come to Hong Kong on 17 occasions.  His trips were short.  They were basically just stays for some hours here before the defendant went back to China through Lo Wu on each occasion.  On 7 September 2012 and 9 September 2012 the defendant even just stayed here for slightly more than an hour each time.  He last came to Hong Kong on 13 September 2012 at around 8.51 am.  About one and a half hours later, he committed Charge 2.  In the case of Charge 1, the defendant arrived at around 10.19 am on 5 September 2012.  Less than 2 hours later he committed Charge 1.

10.Counsel explains for the defendant saying that the defendant chose to live in Shenzhen due to cheaper accommodation there. The defendant came to Hong Kong frequently just for fun and entertainment and sometimes he made purchases here, so each time the defendant would just stay for some hours before returning to his Shenzhen accommodation.  Counsel says that on 7 September 2012 the defendant came here only to find he did not have sufficient cash with him so he returned to China, and on 9 September 2012 the defendant just crossed the border to make purchase in a nearby area. Counsel says the defendant’s frequent and short trips here might look suspicious but there is still no evidence of anything sinister.  She says even if this court does not believe the defendant’s explanation there is nothing more than suspicion as to why the defendant so travelled in and out of Hong Kong during that period.

11.Counsel says the defendant found all the cards by chance in that Shenzhen hotel toilet.  The defendant needed money at that time so he committed the offences out of immature stupidity.

12.Counsel says the defendant needed about HK$2,000 to buy an air ticket in order to go back to Malaysia so he committed the first offence.  Unfortunately, the defendant had the proceeds he got in Charge 1 stolen so he committed the second offence.

13.Counsel says the defendant is now remorseful. She submits that it is hard for the defendant being a foreigner to remain imprisoned in Hong Kong.  The defendant has been detained for 5 months already since his arrest in September.  He very much wants to go back to Malaysia to be reunited with his family and to further his studies.

14.Counsel tenders the mitigation letters written by the defendant himself, his father and his aunt.  All plea for leniency.

Case Law

15.The prosecutor asks the court to follow what the Court of Appeal says in Chan Sui To, CACC 115/1996.  The Court of Appeal in that case has not laid down any tariff but very helpfully mentioned in paragraph 13 in that case some important factors for sentence consideration. They include the size of the operation, the planning, any international dimension, the accused’s role and his plea.

16.The Court of Appeal in Chan Sui To has referred to a number of cases decided earlier.  All those cases indicated heavy punishment for offences involving forged credit cards.

17.On the other hand, defence counsel refers me to the case of Tu I Lang, CACC 464/2006.  Tu was aged 31, he pleaded guilty to using a forged credit card and possessing two other forged credit cards. The sentencing judge adopted 4 years’ imprisonment for each charge, giving the appellant one-third discount for his plea of guilty, the sentence came to 32 months’ imprisonment on each charge.  The two sentences were ordered to run concurrently.

18.Tu was a Taiwanese national.  He arrived at Hong Kong the day before he attempted to buy a mobile phone with a forged credit card.  He had two other forged credit cards with him when he was arrested.  The Court of Appeal in Tu I Lang remarks that the number of forged credit cards involved would be the most significant factor in sentencing.  The court further says that for a small unsophisticated operation involving a few forged cards uncomplicated by other evidence materially linking the offender to a larger operation, a starting point of 3 years’ imprisonment or less would be appropriate.  The Court of Appeal in Tu’s case says whilst some suspicion must be attached to the appellant’s arriving at Hong Kong only the day before he committed the offence, the facts only revealed a small scale operation with no international dimensions or other aggravating factors involved.  The court finally reduced the sentence on each charge to 2 years’ imprisonment; both terms were to run concurrently.

Sentence

19.In the present case, a total of six cards were involved.

20.The five cards seized by police in relation to Charge 2 and Charge 3 were inspected in court.

21.Defence counsel comments that those five cards were not a seriously sophisticated production.  The “valid since” days were not clear on the cards.  The Platinum card, Card 5, does not even have the name of the issuing institute.  Counsel also says that there might not be such a genuine credit card called BankAmericard.  She is referring to Card 4.

22.I agree that the five cards were not made to the highest standards.  Some had poor printing.  However, some people, especially the less than careful shop staff, might still be deceived by such cards.

23.Some suspicion can be attached to the defendant’s travelling in and out of Hong Kong, as pointed out in paragraph 9 here, but there is no sufficient evidence that the defendant had made any purchase with any forged credit card on those occasions apart from the 5 September occasion relating to Charge 1.  I give the defendant the benefit of the doubt, i.e., any international link or dimension has not been proved by the prosecution.

24.So this case boils down to a young Malaysian making two purchases here each time with a forged credit card.  He succeeded in Charge 1 but got caught in Charge 2.  He also had four other forged credit cards with him (Charge 3).

25.All cards were in the name of the same person, Wong Kok-wai.  The defendant says he found all the cards in a Shenzhen toilet. That is quite incredible because I do not think any villain would just dump those cards so casually or handle them so carelessly as to leave them out in a public place.  But even so, I cannot say the defendant must be working for any syndicate, not to mention an international one.

26.The defendant is young, only aged 20.  He has a clear record in Hong Kong.  His father is very concerned with him now.  His counsel has done what she can in her mitigation.

27.The defendant is a foreigner so in his case there is no use for this court to call for any institutional report for him. The offences he has committed are serious.  Immediate imprisonment is unavoidable.  After considering all the facts and mitigation, I adopt 3 years’ imprisonment as the starting point for each charge.  I give the defendant one-third discount for his plea of guilty on each count.  I further give the defendant a further discount of 2 months for his voluntary admission in relation to Charge 1.  Without such admission he cannot be successfully prosecuted for that charge.  Thus, on Charge 1, the defendant is sent to prison for 22 months; Charge 2, 24 months; Charge 3, 24 months.  Having considered the nature of these three offences and the principle of totality, I think I should order all the three terms of imprisonment to run concurrently.  I so order.