HKSAR v. Syed Rizal Bin Syed Ahmad Al Attas and Another

DCCC 621/2014

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 621 OF 2014

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REASONS FOR SENTENCE

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1.D2, who was born and lives in Malaysia, has pleaded guilty to one charge of using a false instrument, contrary to section 73 of the Crimes Ordinance, Chapter 200 (charge 5) and possession of false instruments, contrary to section 75(1) of the Crimes Ordinance (charge 6).

2.Full details of the offences are set out in the facts admitted by you on the 28 August 2014.  In summary at 5:20 p.m. you went to L’Occitane in Pacific Place where you used a forged credit card to obtain a bottle of perfume to the value of $520 (charge 5). 

3.You were arrested shortly after whilst still in the vicinity of Pacific Place.  You were found in possession of seventeen forged credit cards including the card used to buy the perfume in L’Occitane.  The bottle of perfume together with the credit card receipt was also found in your possession.

4.In passing sentence I take into account the factors which a sentencing judge will need to consider in credit card frauds as set out by the Court of Appeal in R v Chan Siu To [1996] 2 HKCLR 128, including the size of the operation; the planning that had gone into perpetrating the fraud; whether there is an international dimension; and whether the accused played a major role.  The factors were not intended however to be exhaustive but provide valuable assistance to the court.  The courts have repeatedly stressed that deterrent sentences are to be imposed. 

5.Where the facts of the offence point to a small unsophisticated operation, involving one or a few forged cards uncomplicated by other evidence materially linking the offender to a larger operation, a starting point of 3 years or less may be appropriate (see for example HKSAR v Tu I Lang CACC 464/2006).  

6.Higher sentences have been held appropriate for example where the defendant was obviously part of a wider organisation that had caused cards to be printed specifically for him (see for example HKSAR v Au Yeung Shu Sang CACC 474/2006); where forged credit cards are used together with forged identity cards or travel documents (see for example HKSAR v Poon Cho Shu [2000] 3 HKLRD 110); and where visitors come to Hong Kong armed with forged credit cards (see for example HKSAR v Terahara Yoshio CACC 495/2000). 

7.In Chan Siu To the Court of Appeal said that an accused who plays an active but not necessarily a key role in a medium sized 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.

8.I take into account you have a clear record in Hong Kong.  This however carries little weight where the offender is a visitor who has been in Hong Kong only a few days before committing serious crime.  You arrived in Hong Kong on the 22 April this year four days before you were arrested.  The commission of offences by a visitor is an aggravating feature of sentence (see HKSAR v Aguilar Garcia Milner Javier      CACC 485/2012).

9.I have carefully considered everything said on your behalf by Mr Littlewood, including the ill health of your family members. 

10.I am told that due to financial difficulties you devised a plan to come to Hong Kong to use forged credit cards.  Whilst you may not be part of a syndicate who arranged for you to come to Hong Kong the fact that 16 of the 17 forged credit cards were in your name shows your link to a wider organisation that caused cards to be printed specifically for you.  The fact you brought the cards to Hong Kong to commit crime adds an international dimension to the case.

11.Although you used only one of the 17 cards to obtain goods to the value of $520 the potential for loss arising from the 17 cards was substantial being estimated at over $220,000.  By reason of the number of cards and the potential loss I am satisfied the case falls within what has been described as a medium size operation.

12.Taking into account that the single use of one of the cards was within four days of your arrival in Hong Kong I am satisfied the proper starting point after trial on charge 5 is 3 years and 3 months imprisonment.

13.Taking into account that you came to Hong Kong in possession of 17 forged credit cards, sixteen in your name; and that the potential for loss from the forged credit cards was over $220,000, I am satisfied the proper starting point after trial on charge 6 is 5 years imprisonment. 

Sentence

14.Giving you full credit for your pleas of guilty you are convicted and sentenced as follows:

Charge 5 - 2 years and 2 months imprisonment; and

Charge 6 - 3 years and 4 months imprisonment.

The forged credit card used in charge 5 being one of the 17 cards in charge 6 I am satisfied concurrent sentences are appropriate. You will serve a total sentence of 3 years and 4 months imprisonment which I am satisfied properly reflects your criminality on the two charges.

Please refer to CACC314/2014 for the relevant appeal(s) to the Court of Appeal.