HKSAR v. Phang Yew Kang

DCCC 1110/2012

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 1110 OF 2012

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Reasons for Sentence

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1.Defendant, you have pleaded guilty to one offence of using a false instrument, contrary to section 73 of the Crimes Ordinance.

2.You admitted that on 18 October 2012 at the DFS Shop at Chinachem Golden Plaza, Mody Road, Tsim Sha Tsui, Kowloon, you together with a person unknown used a false credit card, that is an American Express credit card, in the name of one Wong Sze-yan, with the intention of inducing the saleslady there to accept it as genuine. 

3.On that day at about 5.25 pm, you and another male entered the DFS Shop and wandered around the shop together finally selecting seven pieces of cosmetic items.  You then brought those items to the cashier counter.  You presented the false American Express card to make payment to the value of $9,400. 

4.The saleslady realized that the name on the credit card appeared to be a female, however, you are a male.  She therefore felt suspicious and reported the case to the security staff.  For the shop staff to enable the security staff to get ready to take action, she deliberately took her time to process the transaction.  You and the unknown male asked her why it was taking so long.  The saleslady replied that she was waiting for a code from the credit card company.  The unknown male then walked away and out of the store.  You remained there. 

5.You then asked for the transaction to be cancelled.  This was duly done and you then walked out of the store.  However, you were stopped by the security staff.  Police then arrived and you were arrested.

6.You told the police officer under caution, that you owed a guy named David a lot of money due to illegal horse gambling and David asked you to use the forged credit card to make purchases in lieu of the payment for the debt. 

7.Upon searching you the police seized the false credit card which you had presented to pay for the goods. 

8.Mr John Necholas has made full and very thorough mitigation on your behalf today.  I have taken into account all that he has said on your behalf.

9.You are a Malaysian and are 42 years of age. You have a clear record.  You have a Master’s degree from Monash University in Australia in marketing.  You have been employed in China since 2010 as a businessman sourcing IC products.  You are a divorcee and have two young children.  You do however have a girlfriend from Hong Kong although you both live in Shenzhen, China.  When you were working in Shenzhen, you earned 13,000 Renminbi a month.

10.I am informed by Mr Necholas that the reason why you committed this offence was not what you had in fact told the police but was because you had been a guarantor of a loan and the lenders had put pressure on you to repay the loan.  You came over to Hong Kong to talk about repayment of the loan however you were eventually persuaded to commit this offence.

11.Those are the reasons behind which you have put forward to committing the offence.  As I expressed whilst Mr Necholas was mitigating, I do find that to be rather surprising that a very well educated person like yourself who was guaranteeing a loan of $20,000, earning 13,000 RMB, would be pressurized or threatened to come from China to Hong Kong and be so easily influenced or pressured to committing such a serious offence. Nevertheless, I find your reasons for committing this offence very sceptical.  What I am here to do is however sentence you for the offence you have committed.

12.As I am sure Mr Necholas has informed you, this is a very serious offence in Hong Kong.  There are guidelines set down by the Court of Appeal in this type of case.  Those cases of using false credit card cases, are that of HKSAR v Tu I Lang CACC464/2006, The Queen v Chan Sui To, Criminal Appeal No 115 of 1996, and your counsel, Mr Necholas, has submitted to me the case of my learned brother, as he then was, Deputy District Judge Dufton, in DCCC 1189/2010, HKSAR v Ng Chi Yeung & 2 others.

13.The general factors which a sentencing court and a judge will take into consideration of credit card frauds were set out very clearly in the case of Chan Sui To.  Those factors clearly include the size of the operation, whether it was a small or sophisticated operation, whether it involved one or many credit cards, whether there was an international dimension and whether the accused played a major role.  Those factors were not intended to be exhaustive, it provided assistance to the court when sentencing offenders.

14.The facts of this case point at least to a small and unsophisticated operation involving only one forged credit card.  You are not linked to a large operation although on the facts of this case, there was another person with you.  Although it is your case that you did not come to Hong Kong to commit a crime, you certainly came from China to Hong Kong and then committed this offence.  I, however, will not take that into account as an international dimension.

15.The court of appeal held that for this type of operation, a starting point of 3 years’ imprisonment or less would be appropriate after trial.  In this case, defendant, I consider that a sentence of 3 years after trial is appropriate.

16.Defendant, you have pleaded guilty, you have saved the court much time, you have shown the court your remorse, and in those circumstances, defendant, you are given the full one-third discount.  Defendant you shall be sentenced to a period of 2 years’ imprisonment.