HKSAR v. Loh Yin Fun

DCCC 913/2013

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 913 OF 2013

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Reasons for Sentence

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1.Defendant, you have pleaded guilty to five charges before this court. The offences involve the use and possession of forged credit cards and a false passport. The first three charges are of using a false instrument, contrary to section 73 of the Crimes Ordinance; the fourth charge is possessing these false instruments, contrary to section 75(1) of the same ordinance; and the fifth charge is also the same charge, but of the passport.

2.You are a Malaysian female aged 45. 

3.On 22 June 2013, when you were intercepted by police, you had in your possession 67 forged credit cards and one false passport.  The passport was purported to be a United Kingdom of Great Britain and Northern Ireland passport.  All the forged credit cards and the false passport were in your real name.

4.During your stay of approximately 24 hours in Hong Kong, you had used three different forged credit cards for either your hotel expenses, as a to guarantee your hotel expenses and for the purchase of an air ticket from Cathay Pacific for a flight from Hong Kong to Kuala Lumpur and return.

5.The facts are that on 21 June 2013 you arrived in Hong Kong on your genuine Malaysian passport.  That evening, at about 10.05 pm, you presented one of the forged credit cards to the Regal Airport Hotel upon your checking in to the hotel as part of a guarantee for payment in the sum of $6,200.  That use of the forged credit card forms the substance of Charge 1.

6.At 12.40 pm the following day, 22 June, you used another one of the forged credit cards to purchase the return air ticket from Hong Kong to KL to Hong Kong at the Chek Lap Kok Airport in the sum of $9,873. That forms the basis of Charge 3.

7.Upon check-out of the hotel later that day at about 2 pm, you presented the third forged credit card and paid for your hotel expenses in the sum of $5,060.  That forms the basis of Charge 2.

8.At about 3 pm at the airport, one of the Cathay Pacific staff asked you to produce your credit card in support of your purchase of the air ticket for verification.  When you did so, he noticed a wad of credit cards in your handbag.  As this aroused his suspicions, he made a report to the police. 

9.Shortly thereafter, the police arrived and found in your possession were the 67 forged credit cards, a credit card slip used in respect of payment for the hotel expenses and the false passport.

10.As a result of the police investigation, they had found out that you had used these three different credit cards to pay your hotel expenses and air tickets.

11.You were arrested and cautioned. Under caution, you admitted that you knew the 67 credit cards and passport were all forged and that they belonged to you.

12.Mr Law, your solicitor, has mitigated on your behalf.  I have taken into account all that he has had to say. 

13.Prior to sentencing you, I called for two psychiatric reports and a background report, as Mr Law had informed me that you were suffering from bipolar disorder.  Those reports set out in detail your background and medical history, which I shall not fully reiterate.

14.Defendant, you are married and live in Malaysia.  You have a clear record.  You have completed tertiary education in England in 1998.  You are a chef by occupation.  At the time of commission of this offence, you were a housewife.  You have been married three times:  in 1991, 1994 and to your present husband in 2006.  You have a daughter from your second husband, aged 21, who lives with her father in Australia.

15.It was revealed from the reports that you suffer from a longstanding history of bipolar affective disorder, substances abuse and borderline personality disorder.

16.Siu Lam Psychiatric Centre, where you have been detained since your arrest, had obtained your medical summary from the hospital, Selayang Malaysia.  It was revealed that you were hospitalised twice:  once in 2001 and the other time in 2006, after suicidal attempts after drinking bleach.  During the past two to three years, you have been relatively well maintained on medication, with a stable mood, good sleep and appetite. You have had good drug compliance and good follow-up as an outpatient.  It was opined that your mental condition remained stable in the recent years.  Your husband was reportedly also suffering from bipolar affective disorder, requiring hospitalisation and medication.

17.Defendant, sadly, you have had a very traumatic and abusive childhood, as highlighted in the report.  My sympathies are with you there.

18.I was anxious to know why a person like yourself, who is aged 45 and had never committed any previous offences, would be involved in such serious crimes not in your own country of residence but crimes abroad. 

19.The reports themselves do not give me much light on that aspect.  What I glean from the reports - and it is apparent to me - your mental illness is not a cause for the commission of these offences, as your condition has been stable and you have had good drug compliance and follow-up.

20.Why then have you become involved in these offences?

21.You had given me conflicting accounts as to the reason for committing these offences. 

22.Those conflicting accounts are that, under arrest and caution in your video recorded interview, you said that you committed these offences as you wanted to have sufficient funds to have IVF treatment. 

23.In mitigation by Mr Law, your solicitor, it was submitted that, as your husband has lost his job and he, being the main breadwinner, your family was in financial constraints.  You were supporting your daughter and, therefore, needed money for yourself, your husband and your daughter.

24.I was informed that you would be able to earn money as a reward by using these forged credit cards.  The reward was that when you would buy expensive goods abroad in America, such as Rolex watches, you would then take those watches back to Malaysia and you would get a percentage as a reward from the goods purchased abroad.

25.I highlight the conflicts in the reasons for your commission of the offence, in that no mention was made in mitigation by Mr Law about any IVF treatment; despite the intensive interviews conducted by the probation officer in the background report and the psychiatric report, no mention there was also made of any intended IVF treatment you had wanted. 

26.Contrarily, in your early cooperation with the police and the video recorded interview, no mention was made about your family’s financial constraints. 

27.It was submitted to me by Mr Law in mitigation that you now rely on both reasons - that is, the combination of you intending to have IVF and financial constraints - as the reason for committing these offences.

28.I am unable to accept that either of these reasons have an iota of truth, the reasons being is that I have arrived at the conclusion that you yourself were to reap the benefits from the use of these forged credit cards, out of greed, to make easy money.

29.I arrive at this conclusion on the basis of what you have said in the VRI and in the reports.  In your VRI, (video recorded interview) you said you had hoped to earn about MYR40,000 (that is, about HK$96,000) as a reward for using the cards to finance your IVF.  Each card in this case had a limit of US$5,000 (or about HK$39,000).  The total of the 67 forged credit cards was, therefore, about US$335,000, or about HK$2.6 million.

30.You mentioned in the background report that you would receive a commission or a reward of about 15 per cent from your purchases made with these credit cards.  HK$96,000 would be your reward from your purchases.  Therefore, the total amount of goods you would be required to purchase would be about HK$700,000 to earn this reward of $96,000. 

31.As each card’s value was about $39,000, that would mean you have had to use at least 20 cards to their maximum value to arrive at that amount of $700,000. 

32.What is clear is that one card would only be able to purchase a watch or a valuable item to the maximum value of HK$35,000.

33.If, as you say, Defendant, it would be easy for you to take the goods back to Malaysia from abroad, and that Rolex watches would be the easiest, you would have to have used many cards to make a purchase of a Rolex watch of a greater value than $35,000 or purchase many, many watches to take back to Malaysia, or many valuable items to make up a value up to $700,000.

34.I am unable to accept that you would be returning to Malaysia with some $700,000 of valuable purchased goods from abroad and only then receive your reward.

35.Defendant, you say that when you arrived in Hong Kong, you aborted your intention to use these credit cards in America, because you were unable to obtain an air ticket to America. 

36.Again, I find that reason implausible, as there are many, many flights from Hong Kong to America daily and if that was your purpose, I have no doubt you would have been able to get a flight to America.

37.Further, your stay in Hong Kong appears to be one of an immediate turnaround.  You arrived in Hong Kong on 21 June.  You departed the very next day.  You stayed near the airport at the Regal Airport Hotel. 

38.You also said you got cold feet, decided not to go to America to use these forged credit cards and fly back to Malaysia. 

39.I reject that account that you got cold feet. You used these credit cards nevertheless in Hong Kong to pay for your hotel expenses.  If you had cold feet,yeah did you still have these cards in your possession when you were intending to depart, you had not disposed of them at all.

40.The consistent submission made by you is the fact that you had purchased these cards and passport from a man in Malaysia in the sum of MYR2,000 for the passport (about $4,800) and MYR6,000 (about $14,500) for the 67 credit cards.  This totals an amount of about $19,000. This is not an insignificant sum of money, more so for someone who is allegedly in financial constraints.

41.I again find it difficult to accept that you were in financial constraints in view of the amounts spent in purchasing these credit cards and passport.

42.It appears to me that the purchase of the cards and passport were well planned, as these cards and passport were all embossed with or in your real name.  36 of those cards were American Express cards, the remaining were VISA or MasterCards from well-known banks.

43.Miss Jessie Sham, the public prosecutor, and your solicitor, Mr Sai-man Law, have referred me to a number of cases in respect of sentencing you for these offences.  The relevant cases are HKSAR v Bin Kei Chi & Another [2005] HKCU 1306 and HKSAR v Lee Tsung Lin, CACC 53/2002.

44.In Bin Kei Chi, the facts of the case are similar to the present.  The appellants in that case pleaded guilty to charges of possessing 25 false credit cards.  One of the defendants was also found in possession of a false passport.  The court there found that it was not a small operation.  There were 25 forged credit cards.  The appellants were working in a two-man team.  There was an international dimension and they were hoping to profit in a considerable way.  The principal intention of the false passport in the case was to use the forged passport to provide support for the defendant’s identity, should he be challenged when presenting the false card bearing the same name.  The court there upheld starting points of 6 years’ imprisonment for the 25 false credit cards and 12 months’ for the false passport, and did not disturb the original sentence of 4 months’ imprisonment on the false passport to run consecutive to the possession of false credit cards.

45.In Lee Tsung Lin, the applicant had in his possession 57 false credit cards.  54 of the cards were embossed in his name.  He had used some of the cards to purchase goods and pay for hotel expenses.  The appellant was part of a gang who came to Hong Kong from Taiwan. Also found in his possession was an encoder to encode credit cards which had yet to be encoded.  In mitigation, it was urged in the lower court that the appellant had no previous convictions.  The court held, given the circumstances of the offences, that counted for little, if nothing, at paragraph 6.  It was also said the appellant was at the bottom end of the scale who were couriers. The Court of Appeal held that given the nature of the fraud, its planning and execution, that seemed unlikely, as the appellant had a large number of reserve cards which he was in position to encode by means of equipment he had with him.  For the possession of the 54 credit cards in count 29, the Court of Appeal upheld a starting point of 7½ years. 

46.The factors to be considered in cases of this kind, in relation to forged credit cards, is set out in the case of R v Chan Sui To [1996] 2 HKCLR 128.  These factors are not exhaustive.  I take into consideration those factors when sentencing you.

47.I turn then to consider the size of the operation.

48.One of the factors to be considered is the number of credit cards.  Glaringly, in this case, there is a very large number of credit cards, a total of 67. 

49.Despite counsel’s endeavour and my endeavour to look for cases of a similar amount of credit cards, as you have had in your possession, we were unable to find any.  It appears to me this is perhaps a case where in Hong Kong you have had been in possession of the highest or largest amount of credit cards.  The potential losses that may have incurred from the use of the credit cards is extensive.  The limit on each card, as I mentioned, was $35,000.  If the limits had been used to their maximum, the potential for loss was large, at an amount of approximately $2.6 million.

50.There appears to be an elaborate planning here. You had purchased, you say, these cards for an amount of $14,000-odd from a man in Malaysia.  These cards all had your real name embossed on each and every one of them.  You flew from Malaysia to Hong Kong with these cards, clearly intending to use these cards in Hong Kong.  You used these cards in Hong Kong, at least three of them, and this indicates a clear international dimension. Notably, you say you intended to go to America to use these cards.  This also indicates and even wider international dimension.  The actual amount of the cards used in Hong Kong was not that large in financial terms, but is significant, given the fact that you had only been in Hong Kong for approximately a day and you had used the value of $15,000 within approximately a 12-hour period.

51.I was satisfied that you were overcome by greed and you were the ultimate user and benefactor from the forged credit cards. Clearly, the false passport was intended to be used to provide support for your identity, if challenged, when using the forged credit card. 

52.As I mentioned, although I have every sympathy with your difficult upbringing and your mental illness, that was not a reason why you committed this offence. 

53.After giving anxious consideration to the cases, the factors in Chan Sui To and mitigation before me, I sentence you to the following terms of imprisonment.

54.On Charge 1, 2 and 3, I take a starting point of 3 years’ imprisonment, had I convicted you after trial.

55.You have pleaded guilty to these offences, that warrants a one-third discount to that term and you shall be sentenced to 2 years’ imprisonment on those three charges.

56.On Charge 4, I take a starting point of 6 years’ imprisonment.

57.Again, you have pleaded guilty and that term shall be reduced to 4 years’ imprisonment.

58.On Charge 5, I take a starting point of 12 months’ imprisonment and reduce that term to 8 months’ imprisonment.

59.Defendant, in sentencing you, I take into account the principle of totality and, in the circumstances, I order that all charges are to run concurrent to each other, save that 4 months of Charge 5 is to run consecutive to Charge 4. 

60.That makes a total term of 4 years and 4 months’ imprisonment, or 52 months’, to which you shall serve.