HKSAR v. Ponark Irince

DCCC 255/2013

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 255 OF 2013

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Reasons for Sentence

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1.The defendant was charged with two counts of using a false instrument and one count of possessing forged credit cards. She pleaded guilty to all the charges. 

Brief facts

2.On 16 January 2013 the defendant took a flight on Dragonair, flight number KA874, from Hong Kong to Shanghai.  The flight was operated by Hong Kong Dragon Airlines Limited, which was registered in Hong Kong in accordance with the Convention on International Aviation and the Civil Aviation Ordinance, Cap.448.

3.While the defendant was onboard the said flight, the defendant used two forged credit cards to make two purchases.  At 1420 hours on the day, the defendant used a false Standard Chartered Bank VISA card numbered 4193-0230-0286-2648 in her own name to purchase a bottle of cream worth HK$3,750.  The transaction was successful. 

4.Shortly afterwards, the defendant used another false Citibank MasterCard numbered 5579-2090-2341-6420 in her own name to buy two items with the total value of HK$3,520.  This time the transaction was successful too.

5.At the material time the aircraft was elsewhere than in or over Hong Kong.

6.On 17 January 2013 the airline was informed that the above transactions were invalid because the credit cards so used were forged.  Upon passenger check, the identity of the defendant was disclosed and confirmed.

7.On 17 January 2013 the defendant took the flight on KA831 back from Shanghai to Hong Kong.

8.Upon arrival in Hong Kong, the defendant was arrested.  The police found three false credit cards on the defendant.  Two of them had been used to commit the offence in Charges 1 and 2 respectively. The third one is a Standard Chartered Bank MasterCard numbered 5109-8205-2702-8427, also in the defendant’s name.

9.The stolen properties relating to Charges 1 and 2 were found in the defendant’s luggage.

10.Under caution the defendant admitted that her Nigerian male friend used her particulars to make these credit cards.  She did not apply for these cards.  Her friend knew that she had no money, hence asked her to buy specific items on the plane.  The defendant would get THB$5,000 as a reward.  The credit cards were given to the defendant by this Nigerian male.

11.On 16 January 2013 she took the flight from Bangkok to Singapore and then to Hong Kong.  From Hong Kong she flew to Shanghai.  She took the flight back to Hong Kong from Shanghai on 17 January.

12.Government Chemist confirmed that all three credit cards are forged ones.

13.The defendant is a Thai-passport holder. She entered Hong Kong on 16 January 2013 at 10:15 am and departed at 11:56 am on the same day.  She entered Hong Kong on the following day.

Mitigation

14.The defendant submitted her own lengthy mitigation letter and one that was written by her boyfriend. 

15.Her parents were separated when the defendant was 7 years old.  The defendant is now aged 37 and is a single mother raising her own son who is now aged 14.  She has a degree of Bachelor of Science in Nursing from a university in Sweden.  She had been working in various fields in Thailand and sounded to have a promising career. 

16.Despite having a supportive boyfriend, the defendant needed money to support her son.  The defendant was introduced to a person who eventually asked the defendant to use the false credit cards that she got at the airport in Thailand.  The defendant was asked to use each of these cards for HK$5,000.  As the defendant was scared on the return journey back to Hong Kong, she did not use any of the false credit cards. 

17.Her boyfriend, Peter Williams, wrote to mitigate for the defendant.  They met in December 2011 and during 2012 he gave help to the defendant financially and saw the defendant as a person of kindness and genuine good character. 

18.The defendant had a clear record in Hong Kong and she committed the offence because of her tight financial situation. 

19.Counsel for the defendant submitted that the present case is small operation involving only three credit cards.  The total value of the purchases amounted to only HK$7,200-odd. 

20.Defence counsel also referred to the two cases mentioned by the prosecution, namely, HKSAR v Tu I Lang, CACC 464/2006, and HKSAR v Hoong Pang Chong, CACC 344/2011.  It was submitted that the third charge can be taken as part and parcel of the whole scheme.

Sentence

21.The defendant had a clear record in Hong Kong. 

22.She came to Hong Kong as a visitor and flew to Shanghai soon after arrival.  She made use of the journey on flight to use the false credit cards.

23.A close examination of the three false credit cards shows that there is no data chip in these credit cards, which would make it impossible for the merchants to seek approval for the transaction had the purchase was done on ground.  It seems that the credit cards were designed for the use of the old-style imprint mechanism, whereby prior approval may not be required. 

24.It was a calculated move for the defendant to use the credit cards on the plane and no doubt there is an international element in this offence.  The defendant came to Hong Kong from Thailand and she got these cards abroad.

25.When asked, I was told there is no information as to the actual account holders and the country of origin of those accounts appear on the credit cards.  These cards were tailor-made with the name of the defendant imprinted thereon.

26.The substantial mitigating factor for the defendant is her guilty plea, for which she would have one-third discount on sentence.  

27.In this case, three false credit cards were involved and this can be regarded as a small-scale operation.  The value of the commodities so obtained is one of the considerations for sentencing purpose. It is not the most important one.  All the stolen properties were recovered. 

28.Taking all factors into account and after considering the sentencing cases abovementioned, I would be lenient to the defendant. 

29.I would take 3 years as the starting point for both Charges 1 and 2.  With the defendant’s plea, the sentence would be reduced to 2 years, which is to be served concurrently.

30.Regarding Charge 3, apart from the two false credit cards that the defendant had used earlier on, one more false card was located.  The third one is also in the name of the defendant. 

31.I would take 2 years as the starting point and, with plea, it is reduced to 16 months.

32.I have to consider the totality principle and I order that 3 months of the third sentence is to be served consecutively to the other sentence.

33.To conclude, I sentence the defendant to an imprisonment term of 2 years and 3 months.