HKSAR v. Neoh Hooi Mei

CACC 408/2013

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 408 OF 2013

(ON APPEAL FROM DCCC NO. 843 OF 2013)

________________________

BETWEEN

________________________

Before : Hon Lunn VP and McWalters JA in Court

Date of Hearing : 27 August 2014

Date of Judgment : 27 August 2014

________________

J U D G M E N T

________________

Hon Lunn JA (giving the Judgment of the Court) :

1.The applicant renewed her application for leave to appeal against a sentence of 2 years and 8 months’ imprisonment imposed upon her on 5 November 2013 by District Court Judge Sham, after her pleas of guilty on 31 October 2013 to one charge of conspiracy to use false instruments, contrary to sections 73, 159A and 159C of the Crimes Ordinance, Cap. 200, and one charge of possessing false instruments, contrary to section 75 of that Ordinance. Her application for leave to appeal was refused by Cheung JA on 24 April 2014.

The Charges

Charge 1

2.The Particulars of Offence of Charge 1 alleged that between 26 April and 3 June 2013 the applicant conspired together with her co-accused, Tan Chee Howe, and other persons unknown to use false instruments, namely cards which purported to be credit cards, which they knew or believed to be false, with the intention of inducing others to accept them as genuine and thereby act to their own or another person’s prejudice.

Charge 2

3.By Charge 2 it was alleged that on 3 June 2013 the applicant had in her custody or under her control instruments which were false, and which she knew or believed to be false, namely five cards purporting to be credit cards and one card purporting to be an identity card of the Republic of Singapore, with the intention that another would accept it as genuine and thereby act to his or another person’s prejudice.

Facts

4.The applicant and Tan Chee Howe are Malaysian.  On different dates in May 2013, they entered Hong Kong using their respective Malaysian passports.  Between 11 May and 2 June 2013, there were 18 occasions on which they arrived and left Hong Kong via the Lo Wu Control Point on the same day at more or less the same time. 

5.On 3 June 2013 they entered Hong Kong via the Lo Wu Control Point as a few minutes apart.  Within a few minutes they met each other and another male in a restaurant inside the Hung Hom MTR Station.  Then, the three of them left the restaurant and the applicant entered a Mannings shop inside the Station, whilst Tan Chee Howe and the other male wandered around outside the shop.  The applicant used a forged credit card to purchase cosmetic products to a value of $3,270.  Then, she left the shop and re-joined Tan Chee Howe and the other man, handing over her purchases to the former who placed them in his rucksack.

6.A little while later the trio was intercepted by the police.  The products obtained by the applicant by the use of the false credit card were found in Tan Chee Howe’s rucksack.  Five forged credit cards and one forged Republic of Singapore identity card, all in the same name, and a mobile phone were found on the applicant’s person.

7.In a video recorded interview under caution the applicant said that having entered Hong Kong via Lo Wu on 3 June 2013, on instructions she received by telephone from an unknown man she collected five forged credit cards and the forged Republic of Singapore identity card from a female toilet near a McDonald’s  restaurant.  Acting on further instructions she went to a Mannings shop, where she bought some skincare products using one of the forged credit cards.  She said that she would receive commission for the purchases she made.

8.Examination of the mobile phones seized from D1 and the applicant revealed that there were phone calls between them on 3 June 2013. 

Reasons for sentence

9.In his Reasons for Sentence, the judge noted that the applicant was in her early 30s and of good character.   Further, that she was the sister-in-law of Tan Chee Howe.  Of the mitigation advanced on behalf of Tan Chee Howe, that his role was to deliver forged credit cards to others who would purchase goods with those cards and provide him with the goods for a reward of 5 to 10% of their value, and the mitigation advanced on behalf of the applicant that she simply acted on the instructions of Tan Chee Howe the judge said :[1]

“ On the evidence before the court, clearly there were some criminals behind all this. They would pay the defendants to run errand for them to make purchase with forged credit cards and to return the loots to them. Even if accepting the roles as the defendants claimed to have played, such roles were significant in that the enterprise needed people like the defendants in order to be successful in the fraud.”

10.Of the international element in the commission of the offence, the judge said in rejecting the submissions of counsel :[2]

“ I do think that this is a case with an international dimension - all the cards are related to foreign accounts. Moreover, both defendants are foreign nationals (Malaysians) and one of them was also armed with a forged identity card of another foreign country (Singapore). ”

Starting point

11.Having adverted to the judgment of this Court in HKSAR v Yasushi^[3] and giving effect to his determination that there was an international element in the commission of the offence the judge stipulated a starting point of 3½ years’ imprisonment for each of the offences the subject of Charges 1 and 2.

Discount

12.Affording the applicant a discount of one-third from that taken as the starting points for sentence to reflect her pleas of guilty the judge sentenced the applicant on each charge.

Totality

13.Then, noting that the applicant had been found to be in possession of a forged Republic of Singapore identity card, the judge ordered that 4 months’ imprisonment of the sentence of imprisonment imposed in respect of Charge 3 was to be served consecutively to the sentence of imprisonment imposed in respect of Charge 1.  Accordingly, the total sentence imposed upon the applicant was 2 years and 8 months’ imprisonment.   Having observed that on arrest the applicant had been found to be in possession of $3,472, and at the invitation of counsel for the applicant, the judge made an order pursuant to section 73 of the Criminal Procedure Ordinance, Cap. 221 that the applicant pay $3,270 in compensation to the bank concerned with the purchase of goods in Mannings.  Section 73 (3) provides that :

“ If before any order for compensation is made, any money- :

(a) was taken from a person so convicted on his apprehension; arrest, being taken into custody or his surrender to custody; or

(b) …..

the court may, on making the order, order the compensation be paid out of any money so taken or paid.”

Grounds of appeal against sentence

14.Form XI of the Criminal Appeal Rules, Cap. 221, by which the applicant gave notice of her application for leave to appeal against sentence, does not include any grounds of appeal.  At the hearing of her application for leave to appeal against sentence before Cheung JA on 24 April 2014, the applicant submitted various documents, including a medical report, letters in mitigation and a newspaper article.　 In her own letter of mitigation, whilst the applicant acknowledged that the sentences imposed on her were not “very severe”, nevertheless she pleaded for leniency on the basis that she was physically weak and needed to take medicine and use an asthma inhaler on a daily basis. 　Furthermore, she said that the condition of her disabled cousin, whom she had helped support had deteriorated.   

15.Attached to Form XIII of the Criminal Appeal Rules, Cap. 221 filed with the court on 29 April 2014 by which the applicant gave notice of the renewal of the application for leave to appeal against sentence was an apparent explanation for the renewal, “Because I have not got all the appeal papers ready when I attended court on 24/4”.  However, the applicant provided the court with no additional papers prior to the hearing.  At the hearing, she referred to a District Court case, in which in Reasons for Sentence the judge had dealt with facts that had some similarity to this case.   All she was able to provide the court with was the reference number, namely DCCC 410/2013.  In addition, she told the court that it concerned a fellow inmate, namely Loke Yin Pheng.

16.As a result, the court obtained the copy of those Reasons for Sentence.   The judgment was in Chinese and copies were provided to the applicant and counsel for the respondent and the help of the letter sought in summarising the case.   Reference to that case will be made later in this judgment.

A consideration of the submissions

17.In the judgment of this Court in R v Chan Sui To & Another Yang CJ addressed the issue of the factors relevant to sentencing in credit card fraud cases :[4]

“ A number of authorities were cited to us to indicate the level of sentences for credit card frauds. It is not easy to reconcile the sentences, but in general we apprehend that a sentencing judge would need to consider various factors including:

1. The size of the operation e.g. whether it involves large sums of money, whether it concerned a large number of persons or forged credit cards.

2. The planning that has gone into perpetrating the fraud, whether it is elaborate or simple, whether technical skills were used, and to what extent.

3. Whether there is an international dimension.

4. Whether the accused played a major role, e.g. running a syndicate, engaging in actual manufacture, organising the use of forged cards, or whether he is a mere “cog in the wheel” as a courier or a custodian or keeper.

5.    Whether there is a plea of guilty.”

18.In HKSAR v Loke Yin Pheng, the judge sentencing two defendants was concerned with a charge of conspiracy to use false instruments in the period 21 to 28 December 2012.  The two defendants were Malaysian who had come to Hong Kong.  The conspiracy concerned the use of six forged credit cards, five in the name of the 1^st defendant.  The 1^st defendant, a female aged 24, attempted to use one or other of her cards on 28 occasions involving goods to the value of $313,378.  20 of the transactions were successful.  They involved $231,650 of goods.  Police retrieved goods to a value of $80,439.

19.The 1^st defendant was arrested on 28 December 2012, when she tried to make a purchase of perfume with one of those credit cards.  In the course of the transaction, after the member of staff had contacted a credit card centre, the 1^st defendant hung up and then made a phone call to the 2^nd defendant who pretended to be her father.  The police were called and the arrests were made.

20.The judge took into account that neither of the defendants had any criminal record.  Then he took a starting point of 4½ years’ imprisonment for each of them.  He did so, acknowledging that this was a medium sized forged credit card syndicate.  That it involved not only these two defendants but certainly two others who had also come from Malaysia to Hong Kong.  That there had been no less than 28 attempts to use the cards, 20 of which were successful.  He found the operation to be well planned and one in which people were obviously assigned different roles.

21.The 2^nd defendant was assigned a role of purchasing airline tickets and the 1^st defendant the use of the actual credit card.  He found there to be an international element in the commission of the offences, as evidenced by the fact that the defendants came from Malaysia to Hong Kong to commit the offences.  Finally, he noted another dimension of the international element, namely that the 2^nd defendant travelled frequently to and from the Mainland, that is to and from Hong Kong.  Also he had regard to the potential loss that existed, noting that but for the arrest, the cards would have been continued to be used.

22.When asked to say in what way this case supported her, all the applicant could say was that it involved a much larger sum of money.  That, of course, is to overlook the important element in sentencing in these cases, namely that it is the potential for loss that is the significant feature in sentencing.

23.We are satisfied that this case is of no assistance to the applicant.  We are satisfied that the judge was correct to determine that there was an international dimension in the commission of the offences by the applicant. The five forged credit cards possessed by the applicant related to foreign account.  In addition, the applicant was possessed of a forged Republic of Singapore identity card.

24.We are satisfied that the judge was correct to determine that there was an international dimension in the commission of the offences by the applicant.  The five forged credit cards possessed by the applicant related to foreign accounts.  In addition, the applicant was possessed of a forged Republic of Singapore identity card.  The applicant and Tan Chee Howe are Malaysian who came to Hong Kong and committed the offences.  As the applicant admitted, her role was to use the credit cards to obtain goods which were to be handed over to others.  For her services, she was to be paid a commission.  Obviously, that role was a necessary part of the overall scheme, albeit a role allotted a lesser light in the enterprise.

25.Although the judge said that he took a starting point of 3½ years’ imprisonment, he did so encompassing in that starting point the aggravating factor of an international dimension in the commission of the offences.  In doing so, clearly the judge was following the effect of the judgment in Kita Yasushi to which he had referred.  In that case, two Japanese defendants were charged with offences arising out of their use of one forged credit card respectively and possession of three forged credit cards and then their use and possession of one forged Japanese passport each.  One defendant succeeded in buying a Rolex watch for about $30,000, whereas the other failed in the purchase of a watch of a slightly greater value.  This Court acknowledged that the judge, District Court Judge Sham, was correct to regard the international element as an aggravating feature but, noting that the judge had taken 4 years’ imprisonment as the starting point, ordered that “the starting point taken by the judge……. be reduced to 3½ years’ imprisonment.”

26.We are satisfied that the judge was correct to regard the fact that the applicant was possessed of a forged Republic of Singapore identity card as an aggravating factor to be reflected in an order that 4 months’ imprisonment of the sentence imposed in respect of Charge 3 was to be served consecutively to the sentence of imprisonment imposed in respect of Charge 1.

27.Whilst the court has sympathy for the applicant’s ill-health that matter, or the consequence of her inability to continue to support a relative, are not matters that carry weight of any significance in the context of the commission of the serious offences committed by the applicant.

28.Finally, for completeness we state that we have considered whether or not the applicant was entitled to any discount in sentence to reflect the order of compensation made in favour of the bank.  However, in the circumstances of this case, given that the court had the power to make that order in respect of monies found on the applicant at the time of her arrest, so that her consent was irrelevant, we are satisfied that the applicant was not entitled to any such discount.

Conclusion

29.In a result, we are satisfied that there are no merits at all in the proposed grounds of appeal against sentence, which application is dismissed.

Loss of time

30.At the conclusion of the oral delivery of judgment, we invited the applicant to address us as to why the Court should not use the power it has under Section 83W, subsection (1) of the Criminal Procedure Ordinance, namely to make an order that some period of the time during which she has been in custody pending the determination of her appeal, should not be reckoned as part of the term of her sentence for which she is now subject. 

31.The applicant acknowledged that when Cheung JA dismissed her application for leave to appeal, he had given her orally, a warning of the court’s power.  Similarly, she acknowledged that Form XIII, by which she made the application for renewal of her application for leave to appeal against sentence, contained that warning in similar terms.

32.In her response to the Court, the applicant said that after she had been sentenced, her lawyer advised her that she could ask for a reduction of sentence because of the fact of the compensation order.  She said secondly, that a priest had written a letter for her.  Then she said that she was sorry and apologetic if the time of the court had been wasted. 

33.We are satisfied that it is appropriate that we make such an order.  We order that 6 weeks of the time during which the applicant has been in custody pending determination of her appeal shall not be reckoned as part of the sentence to which she is, for the time being, subject.

Ms Hermina Ng, SPP, of the Department of Justice, for the respondent

Applicant appeared in person

[1] Appeal Bundle; pages 12 R-13 C.

[2] Appeal Bundle; page 13 D-G.

[3] HKSAR v KitaYasushi & Anor (CACC 470/2006; unreported, 20 July 2007).

[4] R v Chan Sui To & Another [1996] 2 HKCLR 128, at page 131 F-H.