HKSAR v. Mah Kah Loon

DCCC 269/2013

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 269 OF 2013

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Reasons for Sentence

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1.The Defendant (“D”), a Malaysian national, pleaded guilty before me to four charges of “Using a False Instrument” (Charges 1 to 4) and one of “Possessing a False Instrument” (Charge 5). All offences took place on 21^st December 2012. Charges 1 to 4 concern a forged American Express OPTIMA Card in the name of ANG KIM HOE (“Card 1”), Charge 5 concerns one forged American Express Card in the name of MAH KAH LOON (“Card 2”).

2.D arrived in Hong Kong on 16^th December 2012. 

Charges 1, 2 and 5

3.On the 21^st December 2012, D and a female (“WP”) visited a Fortress electrical appliance shop and wished to purchase a mobile phone valued at HK$5,698.  At this juncture, WP tendered Card 1 to complete the purchase and was successful.

4.Soon after this transaction, D and WP wished to purchase another mobile phone of the same model.  WP again tendered Card 1 for effecting payment.  However, when the sales person called the card centre to obtain the authorization code for Card 1, he was told to report to the police.  When a report was made, WP quickly left the shop but D was stopped by shop staff pending the arrival of police officers.

5.Police officers arrived at the scene and arrested D.  The police found on D, inside his jacket pocket Card 2. 

6.D was subsequently interviewed under caution and he admitted that:

· He knew that Card 1 and Card 2 were forged and that it was illegal to use them;

· He does not know WP other than WP being a Malaysian national and that he met WP for the first time;

· He had used the forged credit card with WP; and

· He and WP were each given a credit card by the creditor to make purchases to offset his debt but he does not know the creditor and has no means to contacting him.

Charges 3 and 4 - Other Transactions with Card 1

7.Investigation revealed that Card 1 was also used at a Gucci store in Elements Mall and at a Links of London shop in the IFC Mall on the 21^st December 2012.

8.Both transactions were successfully processed.   The value of the goods purchased at Gucci and Links of London was $7,650 and $5,580 respectively.

9.CCTV captured D visiting the two shops with WP and the latter handing over a credit card for payment and signing on the payment slip.

10.In a subsequent ID parade, the shop staff of the two shops positively identified D to be with WP when the transactions were made with Card 1 in their respective shops.

11.D has a clear record in Hong Kong.

12.D was born in Malaysia and is now 28 years old.  He had received Form 5 education.  He worked as an electrician and decoration worker in Malaysia. 

13.D is married, he resided with his wife and parents in Malaysia.

14.Mr Raffell tells me in mitigation that the most important mitigating factor is the guilty pleas of D.  D, who has no criminal record in Hong Kong and in Malaysia, got himself into this mess through gambling.  He was in debt of over $20,000, D was told by his creditor that he could use the credit cards to pay off the debt.

15.Mr Raffell submits the role of D was that of a secondary party.  WP was the one who tendered the forged credit card for payment.  D was not the prime mover, he only held the credit card and acted as an assistant to WP.  Though D arrived in Hong Kong on the 16^th, he only started to use the forged credit cards on the 21^st December 2012; he did not start the shopping spree as soon as he arrived in Hong Kong. 

16.Mr Raffell submits that all five offences stemmed from one connected course of conduct and he urges me to bear in mind the totality principle.

17.In sentencing D, I have borne in mind the nature of the offences, the facts as admitted by D and all the matters urged on D’s behalf by counsel.

18.The offences committed by D are very serious in nature. 

19.In Attorney General v Chan Piu Sang and another [1994] 1 HKCLR 211, Silke VP, giving the judgment of the court said at page 214 at letter 5:

“This court has emphasized on more than one occasion the serious nature of this type of offence. As was said by Macdougall JA in R v Wong Fu Keung, Criminal Appeal No 5 of 1991 (unreported) at page 5:

‘It is a notorious fact that the illegal use of credit cards has become widespread. Those who are engaged in this type of activity can expect to be dealt with severely by the courts.’

As my brother Litton JA said in R v Kwai Ying Ho, Criminal Appeal No 527 of 1992 (unreported) at page 5:

‘Credit card frauds have in recent years been an insidious poison in the community. It affects a large number of citizens. It erodes the credit card system and damages Hong Kong’s standing in the international community.’

While these latter words were applied to charges of conspiracy, we would, with respect, adopt them in this court in relation to the generality of credit card frauds.”

20.In R v Chan Sui To and another [1996] 2 HKCLR 128, a case of credit card fraud, Sir T L Yang, CJ, at page 134, line A, said:

“We would therefore suggest that an accused who plays an active, but not necessarily a key role in a medium size operation involving between $50,000 and $150,000, with no elaborate planning and equipment, and without an international dimension, should receive a sentence of five to six years after trial. Sentences may be adjusted upwards or downwards according to circumstances.”

21.It was also stated in that appeal:

“The sum of money involved is of course only one of the factors to be taken into account. It is not even the most significant factor.”

22.In HKSAR v Cheung Ka Wo Johnny CACC136/2001 (unreported), the Court of Appeal confirmed that it is the potential for losses which is the most important consideration. 

23.In the present case, D played an active though not the leading role in a medium size operation.  Charges 1 to 4 were committed by D and WP together, D accompanied WP on all occasions and he was in possession of another forged credit card, ie the subject matter of Charge 5.  There was clearly an international dimension.  D and WP travelled all the way to Hong Kong to commit the offences in question. 

24.With all these factors in mind, for Charges 1 to 4, a starting point of 3 years’ imprisonment is appropriate.  D is entitled to one-third reduction for his guilty pleas and clear record. 

25.For Charge 5, a starting point of 18 months’ imprisonment is appropriate.  D is entitled to one-third reduction for his guilty plea and clear record.

26.For the reasons given, on Charges 1 to 4, I sentence D to two years imprisonment for each of the offence. 

27.On Charge 5, I sentence D to one year imprisonment.

28.I take into consideration the totality principle.  A total term of two and a half years imprisonment should sufficiently reflect the overall culpability of D for all five offences.  I order the sentences for Charges 1 to 4 should run concurrently with each other but 6 months of the sentence for Charge 5 should run consecutively to the sentences for Charges 1 to 4.  D has to serve a total term of two and a half years imprisonment for all five offences.

Please refer to CACC209/2013 for the relevant appeal(s) to the Court of Appeal.