HKSAR v. Lam Yun Loi, Tony

DCCC 1024/2014

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 1024 OF 2014

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Reasons for Sentence

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1.The defendant pleaded guilty to one charge of using a false instrument, contrary to section 73 of the Crimes Ordinance, Cap.200, one charge of possessing a false instrument, contrary to section 75(1) of the same Ordinance, and one charge of possession of a false identity card, contrary to section 7A(1) of the Registration of Persons Ordinance, Cap.177.

Summary of facts

2.The defendant purchased 3 mobile phones (total value at $17,194) with an American Express credit card in the name of ‘Lee Big Chi’ (card number ending as -31002) at a department store in Tai Po. Staff of the store suspected the authenticity of the credit card and requested to see some identification. The defendant produced an identity card also in the name of ‘Lee Big Chi’ as proof of his identity. Staff of the store also called the American Express card centre for verification but was told that the information on the credit card did not match the information they have on file. The matter was reported to the Police.

3.Meanwhile, the defendant asked the staff member why payment was taking so long and then left the department store without getting back the credit card or the mobile phones.

4.Police officers arrived shortly and arrested the defendant. Under caution, the defendant said that a stranger had given him some forged credit cards that morning, telling him to buy goods and to exchange them for cash.

5.Upon search, another American Express credit card under the same name of ‘Lee Big Chi’ (card number ending as 51008) was found on the defendant, together with the identity card that the defendant had shown to store staff earlier, card name ‘Lee Big Chi’, number K184841(6). Under caution, the defendant claimed that they were among the cards given to him that morning by the stranger.

6.The American Express credit cards mentioned above were confirmed to be forged by the American Express International Inc. The identity card found on the defendant was later confirmed as forged by government forensic scientist.

Previous convictions

7.The defendant is of previously clear record.

Mitigation

8.The defendant is 50 years old, divorced. He is educated up to Form 3 level. He lives with his younger brother. At the time of his arrest for the present offences, the defendant had been unemployed for about 1 month. Before that, the defendant had worked as delivery worker, warehouseman and security guard, all as casual worker, earning about $10,000 per month.

9.The defendant’s father passed away when he was 9. The defendant’s mother stayed at a mental institution and had also passed away a few years ago. The defendant is fifth of 7 siblings. They were all raised by their uncle. Financial situation was not good and the defendant had to quit school after form 3.

10.Despite his poor background, the defendant was able to maintain himself right up to the time of the offences. The reason behind the defendant’s uncharacteristic commission of the present offences was his gambling.

11.The defendant lost money in gambling on the World Cup in 2014. He was unable to pay his gambling debt. When his creditor learned about the defendant’s situation, he lured the defendant into committing the offences, providing the forged credit cards and the identity card. The defendant foolishly took the bait.

12.Mr. Lee pointed out that no loss was suffered by the company. The transaction had not gone through and no loss was suffered by the bank either. Mr. Lee referred to the cases of HKSAR v Tu I Lang, CACC 464/2006 and HKSAR v Poon Cho Shu, CACC 55/2000 and submitted that a low starting point should be adopted.

Sentencing authorities

13.Factors to be taken into consideration as well as sentencing guidelines in relation to sentencing in cases involving the use or possession of forged credit cards are found in R v Chan Sui To and Another, CACC 115/1996.

14.At paragraph 13 of the judgment:

“13. 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.”

15.At paragraph 30 of the judgment:

“30. Allowing for the different facts and the varying degrees of culpability, it is impossible to formulate a set of principles of sentencing from those decisions. We think however it would be helpful to the courts if they were guided by some criterion. 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.

31. 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.”

16.In the later case of HKSAR v Tu I Lang, CACC 464/2006, the appellant was a Taiwanese national who arrived in Hong Kong the day before he attempted to purchase a mobile phone from a shop in Mongkok using a forged credit card. The shop assistant was suspicious of the card and called over two Police officers who were in the store. Upon search, another two forged credit cards were found on his person. The Court of Appeal considered the case of Chan Sui To first, and then other cases where the operation would be described as small scale, and came up with the following guideline:

“10. Where the facts of the offence point to a small unsophisticated operation, involving only one or a few forged cards uncomplicated by other evidence materially linking the offender to a larger operation, then a starting point of three years’ imprisonment or less would be appropriate. ”

17.As mentioned above, I was referred to the case of HKSAR v Poon Cho Shu, CACC 55/2000, which predated the above case of Tu I Lang. In Poon Cho Shu, the appellant pleaded guilty to 3 charges of using a false instrument, 1 charge of attempting to use a false instrument, 1 charge of possession of a false instrument and 1 charge of possession of an identity card relating to anther person. He was sentenced by the trial judge to 3 years’ imprisonment concurrently on each of the 5 charges relating to false instruments, and 8 months’ imprisonment consecutively.

18.Facts of that case are that the appellant, either alone or together with others, used 3 counterfeit credit cards to buy or attempt to buy goods and services in the total value of $10,000 to $11,000 from different shops. After the Police intercepted him, a fourth counterfeit credit card and an identity card in the name of another person were found on him.

19.The Court of Appeal remarked that to some extent, it was quite a bad case of the type in that the appellant used or had in his possession 4 counterfeit cards in the name of Chung Yan Kwei and he was also in possession of his identity card. The Court also found that he had committed the offences together with others.

20.The Court found that the appellant’s culpability is comparable to that of the 2^nd defendant in the case of Chan Sui To where she used a forged credit card to purchase goods to the total value of about $16,000 and used a forged identity card to obtain service from a telecommunication company. On appeal, the 2^nd defendant in Chan Sui To’s case was sentenced to 2 years’ imprisonment.

21.The Court in Poon Cho Shu’s case allowed the appeal on the sentences relating to the false instruments and found that a proper starting point should have been 3 years. The 8 month sentence on the identity card charge was not interfered with and was ordered to run consecutively to the other sentences.

Sentence

Charges 1 and 2

22.Section 73 and 75(1) of the Crimes Ordinance carry the same maximum sentence of 14 years’ imprisonment.

23.Charge 1 and charge 2 each involved one forged credit card. The total value of the phones was $17,194. There is no evidence to suggest anything more than basic planning in the commission of charge 1. There is no evidence to suggest any international dimension to the case.

24.Although the defendant was acting alone when he used the credit card in charge 1 to purchase the three mobile phones, according to his version of fact, the credit cards and the identity card were all given to him by a stranger. I was told that this stranger was someone connected to the creditor to whom the defendant owed some gambling debts. It would appear to be the case that the defendant was an unwilling cog in the wheel of a larger operation behind.

25.Credit card frauds are serious offences. As the Court of Appeal remarked in the above case of Poon Cho Shu, credit card payments are one of the most common forms of payments in Hong Kong, and “both the retailers and consumers are entitled to feel safe in using or accepting credit cards and credit card frauds must be deterred”.

26.Taking all the circumstances into consideration, I find that in relation to charges 1 and 2, the defendant was engaged in a small scale operation involving a relatively small amount of money. I adopt a starting point of 3 years’ imprisonment on each charge.

27.I find that there are no aggravating factors in the commission of these two offences.

The defendant’s clear record

28.In the case of Secretary for Justice v Tso Tsz-kin, CAAR 1/2003, the respondent pleaded guilty to a charge of robbery. In sentencing, the trial judge took into consideration the respondent’s good character as one of the reasons to grant him a further 6 months discount in addition to the one-third discount for his guilty plea. The Court of Appeal held, inter alia, that good character should not have been a ground for further discount.

“18. Taking the second category of mitigation on which the judge reduced the sentence, the judge had given the Respondent an additional discount for his previous good character. Again, Mr Zervos was able to point out that this court has on numerous occasions indicated that this factor in mitigation can be recognised where positive good character is shown by, for example, the provision of unpaid service to the community, as opposed merely to the absence of a criminal record. As this court indicated in HKSAR v Lee Kwok-chuen, CACC 445/2000 (unreported), the element of good character is normally taken as being included in the one-third discount for a plea of guilty which is “usually to be regarded as the high watermark of the discount given to a defendant pleading guilty in good time.”

29.Applying this principle to our case, I find that there are no special factors or positive good character mentioned in mitigation that would allow me to grant a further discount.

30.The defendant is sentenced to 2 years’ imprisonment on each of charge 1 and 2 after the usual one-third discount for his guilty plea.

Charge 3

31.The maximum sentence under section 7A(1) of Cap.177 on conviction upon indictment is a fine at level 6 and imprisonment for 10 years.

32.This is not a case where the defendant had used the identity card to obtain employment or otherwise further his remaining in Hong Kong. The defendant’s intention behind the possession was however not innocent. I find that it is an irresistible inference that he had on him the identity card in case proof of identity was required when he used the forged credit cards.

33.Given that only one identity card was involved, I find that a proper starting point is that of 12 months’ imprisonment.

34.Just as with charge 1 and 2, I find that there are no aggravating factors, and the only mitigating factor is the defendant’s guilty plea.

35.The defendant is sentenced to 8 months’ imprisonment on charge 3 upon his guilty plea.

Totality

36.The possession of the forged identity card in the same name as the credit cards must have been to further the use of the forged credit card. I find that the possession of the identity card and the use of and possession of the forged credit cards are all linked.

37.Having said that, the commission of charges 1 and 2 does not necessarily lead to the commission of charge 3. The defendant could have just used the forged credit card, and gave up when asked for proof of identification. He did not. He chose to further perpetrate the use of his forged credit card by the use of another forged instrument.

38.Applying the principle of totality, I order that the sentences in charge 1 and 2 to be served concurrently, 6 months of the sentence in charge 3 be served consecutively to the sentence in charges 1 and 2, the balance concurrently. The defendant is sentenced to a total of 2 years and 6 months’ imprisonment.