HKSAR v. Tang Ho Yin

DCCC 267/2015

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 267 OF 2015

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REASONS FOR SENTENCE

1.Tang Ho Yin you have pleaded guilty to three charges of using a false instrument (charges 1-3); one charge of attempted to use a false instrument (charge 4) and two charges of possession of a false instrument (charges 5 & 6), contrary to sections 73 and 75(1) and (2) of the Crimes Ordinance, Chapter 200.

2.Full details of the offences are set out in the facts admitted by you on the 18 May 2015.  In summary on the 28 November last year you went to Suning store on Sai Yeung Choi Street in Mongkok where you used a forged American Express card to obtain an Apple MacBook Air notebook and two Apple iPhone 6 Plus (charges 1-3).

3.When you attempted to use the card for a fourth time to purchase a Zippo lighter and another iPhone 6 (charge 4) the staff of the shop were alerted by the credit card centre that the wrong authorization code was used for the earlier three transactions.  When you were asked to wait you snatched the forged American Express card and left the store.  The staff intercepted you outside the shop. During a struggle you threw away the forged American Express card and the notebook and iPhones.

4.The police were called and you were arrested.  You were found in possession of two other forged credit cards (charges 5-6).  The notebook and iPhones were recovered but the forged American Express card could not be found.  

5.The forged American Express card was in your name whereas the number of the card was that of a genuine cardholder who had never lost his card.  The monthly credit limit on the card was $150,000. 

6.One of the other two forged cards was also in your name (charge 5).  The number of the card was also that of a genuine card holder issued by Citibank in Taiwan and not the Industrial and Commercial Bank of China as shown on the card.  The genuine cardholder had reported loss of the card in October 2014 and the card was cancelled. 

7.The other forged card bears the name Yuki Aoki (charge 6).  The signature panel had been erased and the original signature could no longer be seen.  The card purported to be issued by Comdata Master Card, however a genuine card issued by Master Card would bear the name of the issuing bank and not Comdata.  The monthly credit limit on the card was $148,000.

8.The courts have repeatedly stressed that deterrent sentences are to be imposed.  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.   

9.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).  

10.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 and HKSAR v Thanasegaran Arumugam CACC 314/2014). 

11.You are however a young offender having just turned 18 at the time of the offences. Section 109A of the Criminal Procedure Ordinance, Chapter 221 provides no court shall sentence a person of or over 16 and under 21 years of age to imprisonment unless the court is of the opinion that no other method of dealing with such person is appropriate.  In determining whether any other method is appropriate the court shall obtain and consider information about the circumstances, and shall take into account any information before the court which is relevant to the character of such person and his physical and mental condition.

12.I therefore called for a training centre suitability report together with a background report from the probation service to provide me with further information about you.    

13.In passing sentence I take into account everything said on your behalf by Mr Yiu in both his written and oral submissions together with your mitigation letter and one from your current employer, who is willing to continue employing you. I take into account your young age and that you have a clear record. 

14.The reports reveal that showing a lack of interest in studying you quit school without completing Form Four.  Whilst in Form One, Form Two and Form Three you maintained fair academic performance this deteriorated rapidly upon promotion to Form Four.  At this time you came to know undesirable peers outside school and instead of studying hard hung out with the bad peers for fun-seeking activities in cyber cafes and amusement game centres.   

15.After leaving school in April 2012 you first worked as a kitchen apprentice but soon changed to a furniture delivery work in June 2012.  Thereafter you maintained a regular work pattern.  You however still associated with the undesirable peers, some of triad background, including a person called “Ah Yat” who lured you to try smoking cannabis once in early 2013.  

16.After your arrest you remained unemployed.  Having failed to attend court on the 12 January your bail was revoked.  You were released on bail again in March from which time you worked as a food delivery boy in a tea restaurant. 

17.While on remand you are said to be generally cooperative and polite in attitude.  You told both the assessment officer and the probation officer that you promise to lead a law abiding life after discharge and begged for a lenient sentence.  

18.In your mitigation letter you ask for a non-custodial sentence.  As stated earlier the courts have repeatedly stressed that deterrent sentences are to be imposed. Each case is to be decided on its own facts and circumstances.   This requires consideration of individual justice (see HKSAR v Leung Pui Shan CACC 317/2007 and HKSAR v Yeung Kwun Kuen CACC 475/2012).

Circumstances leading to the commission of the offences

19.Mr Yiu has detailed the circumstances leading to your possession and use of the forged credit cards, which you also set out in your mitigation letter.  I am told that since you were nine you were cared for by your grandmother.  This is borne out in the reports although it is to be noted that between 2008 and 2012 you boarded at the C.Y. Ma Memorial College and only returned to live with your grandmother after leaving school.

20.In October last year your grandmother was diagnosed with macular degeneration resulting in her having difficulty in seeing, with everything being blurred.  The doctors told your grandmother that there was a danger she would lose her eyesight unless she had an operation, the cost of which was $21,000.  Instead of continuing to work to raise money for the operation you resigned from your work to look after your grandmother.

21.You then tried to borrow the money from your father and friends but they were unable to help.  You therefore turned to “Ah Yat” who offered to help you by giving you forged credit cards to buy electrical goods which you could then re-sell.  Out of desperation and without giving much thought to the consequences of your action you decided to take the chance. 

22.You gave your personal details to Ah Yat so that forged credit cards could be manufactured in your name.  The arrangement with Ah Yat was that he gave you the cards for free and only after you had raised the $21,000 for the operation were you to continue using the cards to earn $5-6,000 for Ah Yat.   

23.I am prepared to accept you resigned from work to look after your grandmother, which explanation was given to both the assessment officer and the probation officer and that you foolishly resorted to the use of forged credit cards to raise money for your grandmother’s operation.  I do not however accept that Ah Yat would go to the trouble and expense of manufacturing cards in your name only to give them to you initially for free. 

24.Clearly it would have been better had you remained at work earning money to pay for the medical expenses.  As you told the assessment officer being unemployed you encountered financial difficulties leading to your using forged credit cards for making easy money. 

25.Also to be noted is that according to the probation report the medical expenses of your grandmother were paid for by your paternal Aunt Madam Tang and other family members and that at present your grandmother is able to take care of herself.

26.Notwithstanding your young age and clear record and the circumstances leading to you committing the offences I am satisfied there are no exceptional circumstances warranting imposition of a non-custodial sentence.  I am satisfied that the circumstances are very different to those in Leung Pui Shan and Yeung Kwun Kuen.

27.The medical officer has confirmed that you are mentally and physically fit for detention in a Training Centre.  After a general assessment of your behaviour and attitude while on remand you are considered suitable for detention in a Training Centre. 

28.Taking into account your clear record and that you are still only 18 and having carefully considered your character and conduct and the circumstances of the offence I am satisfied that in your case it would be in your interest and that of the community that you undergo a period of training in a Training Centre(see Wong Chun Cheong v HKSAR (2001) 4 HKCFAR 12).  You are convicted and sentenced to detention in a Training Centre on each charge.