HKSAR v. Ling Seng Hok

DCCC 339/2015

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 339 OF 2015

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Reasons for Sentence

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Charges and facts

1.The Defendant pleads guilty to 3 charges as follows:

(1) Attempting to obtain property by deception (1^st Charge);

(2) Attempting to obtain property by deception (2^nd Charge);

(3) Possessing false instruments (3^rd Charge).

2.This case concerns 10 credit cards, all confirmed to be forged cards according to the government chemist’s opinion. The Defendant is a Malaysian passport holder.  He entered Hong Kong via the Hong Kong International Airport at 6:26 p.m. on 9 March 2015.  Shortly thereafter he checked in again for a flight to Kuala Lumpur which was to depart at 8:30 pm on the same day. 

3.At 7:00 p.m., he was at a shop (“the Shop”) in the shopping mall of Terminal 1 attempting to purchase a watch valued at about $87,590 with a combination of 6 credit cards (“Cards 1 – 6”) which transpired to be forged cards.  Card 1 managed to get approval from the card centre for the sum of $50,000 whereas Cards 2 – 6 failed to get the approval for the remaining $37,590.  The purchase was unsuccessful.  These facts constituted the 1^st Charge. 

4.Still at the Shop and without loss of time, the Defendant also attempted to buy another watch valued at $55,100.  He presented Card 1 and another forged credit card (“Card 7”) for payment.  Card 1 was made good for $50,000 whereas Card 7 made up the remaining $5,100.   The shopkeeper was suspicious of the cards and got his supervisor to call the police. 

5.The police soon arrived and arrested the Defendant.  Under caution, he remained silent.  Apart from Cards 1 – 7, he was in possession of 3 other forged credit cards (“Cards 8 – 10”).  These facts constituted the 3^rd Charge.

6.In the police enquiries, he said that:

(1) he had come from Malaysia;

(2) someone in Malaysia had asked him to make purchases with forged credit cards in Hong Kong;

(3) he knew the credit cards forged as he had never applied for them;

(4) he agreed to use them as he wanted money to pay off debts;

(5) he was given the 10 Cards before boarding in Malaysia;

(6) after arrival in Hong Kong, he checked in again and entered the restricted area of the departure hall to make purchases with the Cards;

(7) he ended up using the Cards at the Shop;

(8) he had not used the Cards at any other shops.

Mitigation

7.The Defendant is a Malaysian national.  He has a clear record in Hong Kong.  He is 38 years of age.  He was educated up to F. 3.   He lived with his parents, his wife and a 3-year-old daughter in Malaysia.  His parents are not working.  His wife is a clerk.  He is the main breadwinner.  Unfortunately, he lost his job as a construction site worker in September 2014 when his employer became bankrupt.  He was unable to find a job afterwards.  He had to borrow the equivalent of HK$60,000 from loan sharks to pay for his father’s medical expenses for a tumour on the back.  He still owed them HK$18,000 when he agreed to make the trip to Hong Kong to commit the offences.  It was anticipated that a single purchase of the first watch could give him the reward enough to clear off his debts. 

Sentencing considerations

8.In HKSAR v Chan Sui-to [1996] 2 HKCLR 128, Yang CJ stated that a sentencing judge had to consider at least the following 5 factors before deciding the level of sentence for credit card fraud: 

(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.

9.The potential for loss is also a major consideration (HKSAR v Ng Swee-thiam [2000] 1 HKLRD 772). 

10.For a small-scale operation with no sophisticated planning or international element, starting points of between 2 ½ years and 3 years had been customarily affirmed on appeal (eg HKSAR v Watt Siu Hung CACC 93/2001; HKSAR v Yim Wai Ling, William CACC 35/2004; HKSAR v Yau Hoi Shan Shanly CACC 209/2006; HKSAR v Kwan Po Keung [2012] 2 HKLRD 12). 

11.The Defendant’s solicitor, Mr. Kam, hands up 2 cases for my consideration.  The first case is HKSAR v Ho Ka-yee and Another DCCC 340/2013.  D1 pleaded guilty to theft by pickpocketing (1^st Charge) and attempting to obtain property by deception (2^nd Charge).  The victim had his jacket hanging on the backrest of a chair in the restaurant during his lunch. The Defendant stole it and soon used the victim’s credit card to attempt to purchase the Chinese medicine, cordyceps, valued at $45,096.  He did not complete the transaction because he left the shop upon being asked by the shopkeeper for his identity card to process the membership.  The police had kept an eye on him earlier on and arrested him outside the shop.  Judge Remedios passed a sentence of 28 months for the two charges together.  That means a notional overall starting point of 42 months. 

12.The second case is HKSAR v Mah Kah Loon CACC 209/2013.  The Applicant pleaded guilty to 4 charges of using a false instrument and 1 charge of possessing a false instrument.  He was a Malaysian national who arrived in Hong Kong 5 days before the offences.  Together with a female, he had made 4 purchases of high-value products, hence the 4 charges, with 2 false credit cards.  Each purchase involved around $5,000 to $7,000.  He was in possession of another false credit card when arrested.  The Court of Appeal agreed with Judge Johnny Chan that it was a small-scale operation with an international element.  It affirmed the total sentence of 30 months (which means a notional overall starting point of 45 months) and regarded one of 36 months fully justifiable.  An order for loss of time was ordered against the Applicant due to the unmeritorious appeal. 

Sentencing this defendant

13.He had come from Malaysia to Hong Kong on a round-trip air-ticket (from Hong Kong to Malaysia departing at 8:25 p.m.) for the sole purpose of using 10 forged credit cards to make purchases of luxury goods.  The police will be unable to find him after 2 hours.   This goes to the careful planning of the syndicate which arranged for this assignment. 

14.There is no evidence of the potential for loss of the cards except for Card 1, approved for $50,000, and Card 7, approved for $5,100. 

15.I take a starting point of 3 years for the 1^st and the 2^nd Charges each.  One-third off for the pleas of guilty, the sentence is 2 years.  They are but of the same transaction.  The sentences shall be concurrent.   

16.I take a starting point of 18 months for the 3^rd Charge.  One-third off for the plea of guilty, the sentence is 12 months. 

17.The facts are overlapping to a certain extent in the 3 charges.  I order 6 months of the 3^rd Charge to run consecutively to the 1^st and the 2^nd Charges.  The overall sentence is 2 years and 6 months.