HKSAR v. Lo Ho Yin Roy

DCCC 678/2013

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 678 OF 2013

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REASONS FOR SENTENCE

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1.The defendant pleads guilty to one charge of possessing false instruments, namely 5 forged credit cards all bearing his name, contrary to s 75(1) of the Crimes Ordinance, Cap 200.

2.According to the agreed Summary of Facts, the defendant was intercepted at the departure immigration counter of Macau Ferry Terminal in Sheung Wan and was found to have the aforesaid forged credit cards in his wallet.  Under caution, the defendant said that he was asked by a person called “Ah Kai” to take the forged credit cards to Macau to make purchases and he was promised 10% of the purchases as his rewards.  The defendant said that he knew that a person called “Fei Lung” would greet him in Macau and bring him to make purchases.  The defendant said he committed the offence in order to repay the debts of his family.

3.The defendant is now aged 20.  He was 19 at the time of offence.  He has two previous and none of them is similar.  Ms Ip, who acts for the defendant, tells me that the defendant committed the offence because of the mounting gambling debts of his mother who even asked him to borrow money from financial companies on her behalf.  Ms Ip realistically accepts that apart from the timely plea, there is no mitigating factor.

4.In sentencing the defendant, I bear in mind the remarks of the Court of Appeal in HKSAR v Choy Ki Shun [2003] 2 HKLRD 575, at 580H-581B, that one of the reasons for imposing severe deterrent sentences for offences involving credit card frauds was to maintain the integrity of the credit card system and public confidence in the system.  Although in the present case it was intended that the forged credit cards be used in Macao rather than in Hong Kong, the aforesaid sentencing remarks are equally applicable.

5.With regard to the sentencing considerations listed in R v Chan Sui To & Anor [1996] 2 HKCLR 128, I make the following findings: -

(a) the present offence concerns a small to medium size operation which involves 5 credit cards and at least 3 persons, namely the defendant, “Ah Kai” and “Fei Lung”;

(b) there was some degree of planning and it involved the procurement by “Ah Kai” of 5 forged credit cards all embossed with the name of the defendant, the participation of the defendant and the arrangement of a contact, “Fei Lung” in Macau;

(c) there was a cross-border element in that the forged credit cards were intended to be taken to and used in Macao;

(d) the defendant played a necessary role in that he was not only to act as a courier but also as the one who would use of the forged credit cards; and

(e) there is a plea of guilty by the defendant.

6.Although no loss had been occasioned as the forged credit cards had yet to be used, I am entitled to take into account the potential loss which might have otherwise been caused: see HKSAR v Cheung Ka Wo Johnny [2002] 2 HKC 517 at 519E-520E; and HKSAR v Yau Hoi Shan Shanly [2007] 3 HKC 284, 288D-E.  In the present case, I note that 3 of the forged cards are gold cards.  If all of the 5 forged credit cards had been used to make purchases, the potential loss would have been significant.

7.I note that in HKSAR v Bin Kei Chi & Anor, CACC 181/2005 (unreported), the 1^st applicant in that case was convicted after plea for the possession of 25 counterfeited credit cards (which he and his co-accused intended to take to and use in South Korea) and also the possession of a false passport.  He was sentenced to 3 years and 8 months imprisonment for the counterfeited credit cards and 8 months imprisonment for the false passport, with 4 months of the latter sentence to run consecutively to the former, thus making 4 years in all.  The Court of Appeal upheld the sentence.  The facts of the present case are similar to those in HKSAR v Bin Kei Chi & Anor but not as serious, in that it involves only 5 forged credit cards rather than 25.

8.Ms Ip draws to my attention HKSAR v Hoong Pang Chong, CACC 344/2011 (judgment in Chinese).  In that case, the applicant, a Malaysian, came to Hong Kong and used a false credit card to purchase a notebook computer of the value of $9,888.  He was also found to be in possession of two other false credit cards.  On allowing the appeal against sentence, the Court of Appeal said that the proper overall starting point should be 3 years and 6 months before plea. 

9.In my view, the only mitigation factor which may reduce his sentence is the defendant’s timely plea.  It is well-established that financial difficulties cannot provide mitigation: Attorney General v Yan Chun Fong [1993] 1 HKCLR 42, at 45.  Having taken into account the relevant case authorities and the facts of the present case, but for the defendant’s age, I would have adopted 3 years as the starting point for the charge. 

10.However, as the defendant is over 16 and under 21 years of age, s 109A of the Criminal Procedure Ordinance, Cap 221 requires me to consider the viability of other sentencing options before sending the defendant to prison.  I have the benefit of a background report and a Detention Centre/Training Centre Suitability Report.  It is clear from those reports that the defendant’s problem stems from his lack of parental supervision, association with undesirable elements and laziness.  The defendant had been to the Detention Centre before for criminal intimidation in 2011.  It is observed that the defendant was able to make adjustment to the institutional life and tune in the disciplinary training with fair progress whilst he was there.  It is said that he reverted to his former undisciplined life pattern and mingled with his former triad affiliated peers soon after the expiration of the Supervision Order on 11 September 2012.  Whilst on remand for the present case, he managed to comply with intuitional rules and regulations.  It is recommended by the Officer Mr Chow of the Rehabilitation Unit of Pik Uk Correctional Institution that in order to help the defendant develop more insight into his problems, a period of disciplinary training coupled with statutory supervisions would be beneficial to him.  However, the Medical Officer confirms that the defendant is medically unfit for detention in a Detention Centre because of overweight. On the other hand, the defendant is considered to be mentally and physically fit for detention in a training centre and there is a place available for him. Mr Chow also considers the defendant suitable for detention in a Training Centre where he will undergo a comprehensive programme including educational and vocational training followed by a longer period of statutory supervision. 

11.The defendant today, through Ms Ip, urges that he be sent to prison rather than to training centre.  He has heard that prison also provides some sort of vocational training.  Also, he wants to be with his family as soon as possible and says that his mother needs his moral support to deal with her gambling problems.  Unfortunately, sentencing is a matter that the defendant cannot pick and choose.  The court has to pass a sentence that is appropriate to the offence and the defendant and account has also to be taken of the interests of the community, especially in case of a juvenile offender.  As such, the period of time to be spent in detention cannot be treated as the predominant sentencing consideration.  In relation to training centres, Nazareth VP has the following to say in R v Tsang Kit-yee, CACC 189/1996:-

“Now that period of detention cannot, under the law, be less than 6 months nor can it be more than 3 years. It is the possibility of detention for 3 years that, of course, upsets a lot of young persons who are sentenced to detention in a training centre; but it does not mean that they remain there for 3 years. The Commissioner for Correctional Services has a discretion to release them early and there is every prospect that if the applicant makes good progress there - and she had impressed us with her remorse and her statements of responsibility and reformation - that she will be released early.”

12.Having considered the nature and seriousness of the offence, the mitigation advanced on his behalf and the reports, I agree with the recommendation of training centre.  The spirit of s 109A of Cap 221 is that the court should not sentence a young offender to prison unless it has to.  In the present case, however, I consider that there are methods to deal with the defendant other than prison.  The defendant has just turned 20.  I consider that a longer period of disciplinary training in an institutional setting together with a longer period of supervision than the one the defendant had before would be beneficial to him.  The training centres provide a regime of correctional training for young offenders for periods which range from a minimum of 6 months to a maximum of 3 years.  Within the training centre, inmates attend half-day educational classes and receive half-day vocational training.  They also receive character development training.  I am satisfied that it is in the interest of the community and that having regard to the defendant’s character and previous conduct, and to the circumstances of the offence, it is expedient for his reformation and for the prevention of crime that he should undergo a period of training in a training centre. 

13.Based on the above, I sentence the defendant to training centre.