DCCC640/2012 HKSAR v. SZE KING YIN, MANFRED - LawHero
DCCC640/2012
區域法院（刑事）DeputyDistrict Judge W.K. Kwok23/8/2012
DCCC640/2012
A A
DCCC640/2012
B IN THE DISTRICT COURT OF THE B
HONG KONG SPECIAL ADMINISTRATIVE REGION
CRIMINAL CASE NO. 640 OF 2012
C C
--------------------
D HKSAR D
v.
E E
SZE King-yin, Manfred
F F
--------------------
G G
Before: Deputy District Judge W.K. Kwok
Date: 24 August 2012 at 11.45 am
H Present: Mr Alvin Chui, PP, of the Department of Justice, H
for HKSAR
I Mr John W.R. Massie, of Messrs Massie & Clement, I
assigned by the Director of Legal Aid, for the
defendant
J Offence: Conspiracy to forge documents (串謀僞造文件) J
K K
---------------------
L Reasons for Sentence L
---------------------
M M
1. The defendant was convicted upon his own plea of one
N N
charge of conspiracy to forge documents, contrary to sections
71, 159A and 159C of the Crimes Ordinance, Chapter 200, and
O section 6 of the Criminal Jurisdiction Ordinance, Chapter 461, O
Laws of Hong Kong.
P Facts P
2. The defendant worked as a part-time waiter at Enoteca
Q
Restaurant in Quarry Bay since March 2012. On 3 May 2012, Q
inside the restaurant, a waitress noticed the defendant putting
something in his pocket in a suspicious manner. Since she
R suspected the defendant to have pocketed tips from customers, R
she paid particular attention on him. About an hour later, she
noticed the defendant putting a bill folder near his pocket.
S She then saw the defendant scraping a credit card with a small S
card skimmer and using the bill folder to cover the credit card.
T She reported what she had seen to her boss immediately. Her T
boss immediately confronted the defendant and asked him to empty
his pocket. The defendant then took out a card skimmer from his
U U
1
V V
A trousers pocket. He admitted that he had skimmed customers’ A
credit cards. When the boss was discussing with his wife about
this matter, the defendant left the restaurant. A report was
B made to the police and the defendant was put on the wanted list. B
3. On 4 May 2012, the defendant was intercepted at
C C
Shenzhen Bay Port. He was arrested. Under caution, he admitted
that he had taken data of customers’ credit cards by skimming
D the cards with a skimmer. D
4. A house searched was then conducted in the defendant’s
E home. A USB cable (for connecting the skimmer to computer), a E
black bag containing a CD disc (containing software for
F
retrieving data from the skimmer), two receipts issued by F
Western Union dated 17 April 2012 and 27 April 2012 for
respective sums of HK$22,366 and HK$13,883, one parcel envelope
G (mailed from USA to the defendant and being used to carry the G
skimmer, the cable and the CD disc), and a bank statement on
which credit card data was written, were found.
H H
5. In subsequent video-recorded interviews, the defendant
I admitted that sometime in February 2012, he received a parcel I
from his friend Chiu Hon-yuen, Andy (“Chiu”) whom he came to
know when he was living in the USA. The parcel contained a card
J skimmer, a CD disc containing software for operating the skimmer J
and a cable for connecting the skimmer to a computer. The
skimmer he surrendered to his boss was sent to him by Chiu. On
K 8 March 2012, he started working in Enoteca Restaurant as a K
part-time waiter. A few days afterwards, he started using the
L skimmer to obtain data of customers’ credit cards. He retrieved L
the data of these credit cards by connecting the skimmer to a
computer with the cable provided by Chiu, and the information
M skimmed from a credit card would appear on the computer screen. M
He then took photograph of the computer screen containing the
stolen data and sent the photographs to Chiu by email for the
N N
purpose of manufacturing “fake” credit cards. He had skimmed
approximately 120 to 130 credit cards in total in the
O restaurant. He sent the stolen credit card data to Chiu by O
email and he sent the data of 20 to 30 credit cards each time.
He received a reward of US$50 for each workable credit card
P number. He had received rewards from Chiu three times, but he P
could not recall the exact amount. He confirmed that the two
receipts found at his home evidenced the rewards he received
Q Q
from Chiu. He admitted that on 3 May 2012, he skimmed the data
of a customer’s credit card.
R R
6. Forensic examination revealed that data of 166 credit
cards contained in a file attached to a mail sent out by the
S defendant were found in defendant’s email account. The data of S
these 166 credit cards were also found in the record retrieved
from the skimmer surrendered by the defendant to his boss.
T T
U U
2
V V
A Criminal record A
7. The defendant has a clear criminal record.
B Personal and family background B
8. The defendant is 35 years old, married but currently
separated from his wife who is now living in USA. He has no
C C
children.
D 9. The defendant was born in Hong Kong. When he was 4 D
years old, his father deserted the family. The defendant was
brought up by his mother and grandmother. He migrated to the
E USA with his mother and grandmother when he was 17 years old. E
He studied for the degree of business administration in a
F
university in the USA, but he had to drop out after the first F
year because of financial difficulties. He then worked in the
restaurant of his uncle as well as other restaurants as chef or
G waiter. He returned to Hong Kong in October 2010 for better G
opportunities after his uncle had failed in his restaurant
business due to economy downturn. He lived alone in Hong Kong
H prior to his arrest. H
I Mitigation I
10. Solicitor for the defendant Mr. Massie informed me
that after the defendant had returned to Hong Kong, he had
J worked as a customer service representative in Goldman Sachs J
between February 2011 and July 2011, but he had to drop out of
the job after suffering a torn ligament knee injury. He
K underwent a surgery in September 2011 and could not work for K
some period of time. He went into financial difficulties. On
L top of his knee injury, he also suffered from depression. He L
could only live on disabilities allowance of $2,900 per month.
He was later made bankrupt in November 2011. When the defendant
M was in such serious financial trouble, Chiu whom was known to M
the defendant for 10 years in the USA approached him and
suggested him to make some money by skimming data of valid
N N
credit cards. He promised him a reward of US$50 for data of
each card. The defendant agreed and committed the offence.
O O
11. Mr. Massie realized that a term of imprisonment was
inevitable. He however urged this court to be as lenient as
P possible because the defendant had a clear record, he had P
pleaded guilty, he was co-operative with the authority by giving
a full account of the offence upon his arrest, he felt shameful
Q Q
for himself and for bringing disgrace to his family and his ex-
employer to whom he tendered his apologies. Mr. Massie stressed
R in particular that although the defendant had sent out data of R
166 credit cards and the potential loss stemming from the
offence committed by the defendant could not be ignored, there
S had been no reported actual loss. He referred to the case of S
HKSAR v Wong Ka Chi & Another (HCMA1063/2002) which was the only
authority he managed to locate. In this case, a starting point
T T
of two years’ imprisonment adopted by the sentencing magistrate
was upheld on appeal.
U U
3
V V
A A
Reasons for sentence
12. The offence committed by the defendant was a serious
B credit card fraud. He entered into an illegal agreement with B
Chiu to obtain data of valid credit cards and send these data
overseas for the purpose of making forged credit cards. Had
C C
these data been used to make forged credit cards and these
forged cards were used, it would be very difficult to discover
D the forgery because these forged cards contained valid credit D
card data. For each forged credit card, the potential loss
could be up to the credit limit of each victim. Not only had
E the defendant entered into this illegal agreement, he had in E
fact carried out the illegal agreement. He admitted he had
F
skimmed the data of 120 to 130 credit cards of customers, sent F
them overseas by email to Chiu, and obtained rewards 3 times
with two of these rewards for the total sum of HK$36,249. In
G fact, forensic examination revealed that the defendant had sent G
out data of 166 credit cards to Chiu and such data must be
obtained by him through skimming customers’ credit cards. It is
H also clear that he had carried out the illegal agreement for H
nearly 2 months, and but for the vigilance of his colleague, he
I would have continued with the offence and skimmed more credit I
cards of customers illegally in the restaurant.
J 13. There is no sentencing tariff for the offence that the J
defendant had committed. Each case depends on its own facts.
However, it is quite clear that the sentence must achieve the
K dual purposes of punishment and deterrence. To achieve these K
purposes, there is no doubt that a term of imprisonment has to
L be imposed. Mr. Massie did not argue otherwise. He only L
pleaded for a sentence as lenient as possible.
M 14. As far as the quantum of sentence is concerned, this M
Court cannot find any previous case that had the same factual
matrix as the present one. In Wong Ka-chi referred to by Mr.
N N
Massie, the appellants also skimmed credit cards of customers.
A starting point of 2 years imprisonment, which was the maximum
O jurisdictional limit of a magistrate in sentencing for one O
single charge, was upheld. That case was clearly much less
serious than the present one because only 3 credit cards had
P been skimmed, though the forged credit cards produced on the P
basis of these credit card data had caused an actual loss of
HK$110,386.
Q Q
15. In The Queen v Chan Sui-to & Another (CACC115/1996),
R the Court of Appeal stated in paragraph 13 of the judgment that R
in considering the appropriate sentence for credit card fraud,
the sentencing court should consider various factors including:
S S
“1. The size of the operation e.g. whether it involves
large sums of money, whether it concerned a large
T T
number of persons or forged credit cards.
2. The planning that has gone into perpetrating the fraud,
U U
4
V V
A whether it is elaborate or simple, whether technical A
skills were used, and to what extent.
3. Whether there is an international dimension.
B 4. Whether the accused played a major role, e.g. running a B
syndicate, engaging in actual manufacture, organising
the use of forged cards, or whether he is a mere "cog in
C C
the wheel" as a courier or a custodian or keeper.
5. Whether there is a plea of guilty.”
D D
16. The Court of Appeal further stated in paragraph 30 of
the judgment that,
E E
“Allowing for the different facts and the varying degrees
F of culpability, it is impossible to formulate a set of F
principles of sentencing from those decisions. We think
however it would be helpful to the courts if they were
G guided by some criterion. We would therefore suggest that G
an accused who plays an active but not necessarily a key
role in a medium size operation involving between $50,000
H and $150,000, with no elaborate planning and equipment, H
and without an international dimension, should receive a
I sentence of five to six years after trial. Sentences may I
be adjusted upwards or downwards according to
circumstances.”
J J
17. In the present case, the size of operation was by no
means small because the illegal acts had continued for about 2
K K
months involving 166 credit cards, and the illegality was
terminated only due to the discovery of the offence rather than
L the defendant’s voluntary repentance. There was certainly a L
degree of planning between the defendant and Chiu. There was a
clear element of international dimension, and the defendant was
M playing a major role in that his participation was essential to M
the whole scheme of manufacturing forged credit cards with
genuine credit card data.
N N
18. As far as the harm resulting from the defendant’s
O offence is concerned, there was no evidence that actual loss had O
resulted. However, the seriousness of the offence lay in the
potential for losses in the future had the offence not been
P discovered. It is quite clear from the authorities that it is P
proper for the sentencing court to take into account the amount
of potential loss that could have been caused by the offence:
Q Q
HKSAR v Ng Swee-thiam [2000] 1 HKLRD 772; HKSAR v Shum Chung-wai
[2002] 2 HKLRD 81; HKSAR v Cheng Sui-yin (CACC468/2005).
R R
19. In the present case, the defendant was paid by Chiu
three times. He did not recall the exact amount he had
S received, but there was clear evidence that he received a total S
of HK$36,249 from 2 of these 3 rewards. That was about the
reward for data of 90 credit cards since the defendant received
T T
US$50 for the data of each workable credit card. Since the
defendant was only responsible for obtaining the credit cards
U U
5
V V
A data, it must be reasonable and irresistible to infer that A
someone else would make use of these data to manufacture forged
credit cards, and use these forged credit cards either by
B themselves or by recruiting other persons to obtain property or B
pecuniary advantage in the commercial world by deception. All
these people who engaged in this criminal enterprise would no
C C
doubt receive benefits no less than those received by the
defendant, and the illegal gains to all these people involved in
D the criminal enterprise would no doubt be coming from the losses D
to be inflicted in the credit card industries, whether the
ultimate loss would be borne by the banks, credit card companies
E or the credit card holders was immaterial. When the defendant E
received about HK$36,000 for 90 credit cards, it would lead
F
irresistibly to the inference that the potential losses would be F
over and above the medium size operation (i.e. between HK$50,000
and HK$150,000) referred to in Chan Sui-to, for which a sentence
G of 5 to 6 years after trial would be appropriate if the offence G
did not involve international dimension. In the present case,
of course, the international element did exist.
H H
20. In Ng Swee-thiam, the 2nd defendant there was convicted
I after trial of a number of offences including two counts of I
conspiracy to commit forgeries, a charge which was similar to
the present one. The Court of Appeal considered a starting
J point of 10 years’ imprisonment appropriate. It must however be J
said that that case was more serious than the present one
because the 2nd defendant there was, putting it simply, operating
K two forged credit card factories. K
L 21. I have considered the facts of the present case L
carefully. I note that none of the cases I have considered
bearing the same factual matrix as the present one. I note that
M the defendant would not have manufactured the forged credit card M
himself, but his participation was essential to the whole
illegal scheme. I note that the defendant was handed credit
N N
cards by customers of the restaurant for payment of bills but he
abused the purpose for which he was handed the cards. I note
O that there was no actual loss caused by the defendant’s offence, O
but the potential losses could have been substantial, and the
fact that there was no actual loss must largely due to the
P discovery of the offence. I note the international element. P
Having all these factors in mind, I am of the view that the
appropriate starting point is 5 years’ imprisonment.
Q Q
22. As far as mitigating factors are concerned, Mr. Massie
R rightly pointed out that the defendant’s dire financial R
difficulties only explained why he committed the offence and did
not amount to mitigation.
S S
23. I have considered what had been said on behalf of the
defendant carefully. I find that the only valuable mitigating
T T
factor is his guilty plea for which he will be given the usual
one-third discount. There is no other ground for reducing the
U U
6
V V
A sentence, and there is no basis to suspend the operation of the A
prison term,
B 24. The defendant is therefore sentenced to a term of 40 B
months’ imprisonment.
C C
D D
W.K. Kwok
E Deputy District Judge E
F F
G G
H H
I I
J J
K K
L L
M M
N N
O O
P P
Q Q
R R
S S
T T
U U
7
V V
A A
DCCC640/2012
B IN THE DISTRICT COURT OF THE B
HONG KONG SPECIAL ADMINISTRATIVE REGION
CRIMINAL CASE NO. 640 OF 2012
C C
--------------------
D HKSAR D
v.
E E
SZE King-yin, Manfred
F F
--------------------
G G
Before: Deputy District Judge W.K. Kwok
Date: 24 August 2012 at 11.45 am
H Present: Mr Alvin Chui, PP, of the Department of Justice, H
for HKSAR
I Mr John W.R. Massie, of Messrs Massie & Clement, I
assigned by the Director of Legal Aid, for the
defendant
J Offence: Conspiracy to forge documents (串謀僞造文件) J
K K
---------------------
L Reasons for Sentence L
---------------------
M M
1. The defendant was convicted upon his own plea of one
N N
charge of conspiracy to forge documents, contrary to sections
71, 159A and 159C of the Crimes Ordinance, Chapter 200, and
O section 6 of the Criminal Jurisdiction Ordinance, Chapter 461, O
Laws of Hong Kong.
P Facts P
2. The defendant worked as a part-time waiter at Enoteca
Q
Restaurant in Quarry Bay since March 2012. On 3 May 2012, Q
inside the restaurant, a waitress noticed the defendant putting
something in his pocket in a suspicious manner. Since she
R suspected the defendant to have pocketed tips from customers, R
she paid particular attention on him. About an hour later, she
noticed the defendant putting a bill folder near his pocket.
S She then saw the defendant scraping a credit card with a small S
card skimmer and using the bill folder to cover the credit card.
T She reported what she had seen to her boss immediately. Her T
boss immediately confronted the defendant and asked him to empty
his pocket. The defendant then took out a card skimmer from his
U U
1
V V
A trousers pocket. He admitted that he had skimmed customers’ A
credit cards. When the boss was discussing with his wife about
this matter, the defendant left the restaurant. A report was
B made to the police and the defendant was put on the wanted list. B
3. On 4 May 2012, the defendant was intercepted at
C C
Shenzhen Bay Port. He was arrested. Under caution, he admitted
that he had taken data of customers’ credit cards by skimming
D the cards with a skimmer. D
4. A house searched was then conducted in the defendant’s
E home. A USB cable (for connecting the skimmer to computer), a E
black bag containing a CD disc (containing software for
F
retrieving data from the skimmer), two receipts issued by F
Western Union dated 17 April 2012 and 27 April 2012 for
respective sums of HK$22,366 and HK$13,883, one parcel envelope
G (mailed from USA to the defendant and being used to carry the G
skimmer, the cable and the CD disc), and a bank statement on
which credit card data was written, were found.
H H
5. In subsequent video-recorded interviews, the defendant
I admitted that sometime in February 2012, he received a parcel I
from his friend Chiu Hon-yuen, Andy (“Chiu”) whom he came to
know when he was living in the USA. The parcel contained a card
J skimmer, a CD disc containing software for operating the skimmer J
and a cable for connecting the skimmer to a computer. The
skimmer he surrendered to his boss was sent to him by Chiu. On
K 8 March 2012, he started working in Enoteca Restaurant as a K
part-time waiter. A few days afterwards, he started using the
L skimmer to obtain data of customers’ credit cards. He retrieved L
the data of these credit cards by connecting the skimmer to a
computer with the cable provided by Chiu, and the information
M skimmed from a credit card would appear on the computer screen. M
He then took photograph of the computer screen containing the
stolen data and sent the photographs to Chiu by email for the
N N
purpose of manufacturing “fake” credit cards. He had skimmed
approximately 120 to 130 credit cards in total in the
O restaurant. He sent the stolen credit card data to Chiu by O
email and he sent the data of 20 to 30 credit cards each time.
He received a reward of US$50 for each workable credit card
P number. He had received rewards from Chiu three times, but he P
could not recall the exact amount. He confirmed that the two
receipts found at his home evidenced the rewards he received
Q Q
from Chiu. He admitted that on 3 May 2012, he skimmed the data
of a customer’s credit card.
R R
6. Forensic examination revealed that data of 166 credit
cards contained in a file attached to a mail sent out by the
S defendant were found in defendant’s email account. The data of S
these 166 credit cards were also found in the record retrieved
from the skimmer surrendered by the defendant to his boss.
T T
U U
2
V V
A Criminal record A
7. The defendant has a clear criminal record.
B Personal and family background B
8. The defendant is 35 years old, married but currently
separated from his wife who is now living in USA. He has no
C C
children.
D 9. The defendant was born in Hong Kong. When he was 4 D
years old, his father deserted the family. The defendant was
brought up by his mother and grandmother. He migrated to the
E USA with his mother and grandmother when he was 17 years old. E
He studied for the degree of business administration in a
F
university in the USA, but he had to drop out after the first F
year because of financial difficulties. He then worked in the
restaurant of his uncle as well as other restaurants as chef or
G waiter. He returned to Hong Kong in October 2010 for better G
opportunities after his uncle had failed in his restaurant
business due to economy downturn. He lived alone in Hong Kong
H prior to his arrest. H
I Mitigation I
10. Solicitor for the defendant Mr. Massie informed me
that after the defendant had returned to Hong Kong, he had
J worked as a customer service representative in Goldman Sachs J
between February 2011 and July 2011, but he had to drop out of
the job after suffering a torn ligament knee injury. He
K underwent a surgery in September 2011 and could not work for K
some period of time. He went into financial difficulties. On
L top of his knee injury, he also suffered from depression. He L
could only live on disabilities allowance of $2,900 per month.
He was later made bankrupt in November 2011. When the defendant
M was in such serious financial trouble, Chiu whom was known to M
the defendant for 10 years in the USA approached him and
suggested him to make some money by skimming data of valid
N N
credit cards. He promised him a reward of US$50 for data of
each card. The defendant agreed and committed the offence.
O O
11. Mr. Massie realized that a term of imprisonment was
inevitable. He however urged this court to be as lenient as
P possible because the defendant had a clear record, he had P
pleaded guilty, he was co-operative with the authority by giving
a full account of the offence upon his arrest, he felt shameful
Q Q
for himself and for bringing disgrace to his family and his ex-
employer to whom he tendered his apologies. Mr. Massie stressed
R in particular that although the defendant had sent out data of R
166 credit cards and the potential loss stemming from the
offence committed by the defendant could not be ignored, there
S had been no reported actual loss. He referred to the case of S
HKSAR v Wong Ka Chi & Another (HCMA1063/2002) which was the only
authority he managed to locate. In this case, a starting point
T T
of two years’ imprisonment adopted by the sentencing magistrate
was upheld on appeal.
U U
3
V V
A A
Reasons for sentence
12. The offence committed by the defendant was a serious
B credit card fraud. He entered into an illegal agreement with B
Chiu to obtain data of valid credit cards and send these data
overseas for the purpose of making forged credit cards. Had
C C
these data been used to make forged credit cards and these
forged cards were used, it would be very difficult to discover
D the forgery because these forged cards contained valid credit D
card data. For each forged credit card, the potential loss
could be up to the credit limit of each victim. Not only had
E the defendant entered into this illegal agreement, he had in E
fact carried out the illegal agreement. He admitted he had
F
skimmed the data of 120 to 130 credit cards of customers, sent F
them overseas by email to Chiu, and obtained rewards 3 times
with two of these rewards for the total sum of HK$36,249. In
G fact, forensic examination revealed that the defendant had sent G
out data of 166 credit cards to Chiu and such data must be
obtained by him through skimming customers’ credit cards. It is
H also clear that he had carried out the illegal agreement for H
nearly 2 months, and but for the vigilance of his colleague, he
I would have continued with the offence and skimmed more credit I
cards of customers illegally in the restaurant.
J 13. There is no sentencing tariff for the offence that the J
defendant had committed. Each case depends on its own facts.
However, it is quite clear that the sentence must achieve the
K dual purposes of punishment and deterrence. To achieve these K
purposes, there is no doubt that a term of imprisonment has to
L be imposed. Mr. Massie did not argue otherwise. He only L
pleaded for a sentence as lenient as possible.
M 14. As far as the quantum of sentence is concerned, this M
Court cannot find any previous case that had the same factual
matrix as the present one. In Wong Ka-chi referred to by Mr.
N N
Massie, the appellants also skimmed credit cards of customers.
A starting point of 2 years imprisonment, which was the maximum
O jurisdictional limit of a magistrate in sentencing for one O
single charge, was upheld. That case was clearly much less
serious than the present one because only 3 credit cards had
P been skimmed, though the forged credit cards produced on the P
basis of these credit card data had caused an actual loss of
HK$110,386.
Q Q
15. In The Queen v Chan Sui-to & Another (CACC115/1996),
R the Court of Appeal stated in paragraph 13 of the judgment that R
in considering the appropriate sentence for credit card fraud,
the sentencing court should consider various factors including:
S S
“1. The size of the operation e.g. whether it involves
large sums of money, whether it concerned a large
T T
number of persons or forged credit cards.
2. The planning that has gone into perpetrating the fraud,
U U
4
V V
A whether it is elaborate or simple, whether technical A
skills were used, and to what extent.
3. Whether there is an international dimension.
B 4. Whether the accused played a major role, e.g. running a B
syndicate, engaging in actual manufacture, organising
the use of forged cards, or whether he is a mere "cog in
C C
the wheel" as a courier or a custodian or keeper.
5. Whether there is a plea of guilty.”
D D
16. The Court of Appeal further stated in paragraph 30 of
the judgment that,
E E
“Allowing for the different facts and the varying degrees
F of culpability, it is impossible to formulate a set of F
principles of sentencing from those decisions. We think
however it would be helpful to the courts if they were
G guided by some criterion. We would therefore suggest that G
an accused who plays an active but not necessarily a key
role in a medium size operation involving between $50,000
H and $150,000, with no elaborate planning and equipment, H
and without an international dimension, should receive a
I sentence of five to six years after trial. Sentences may I
be adjusted upwards or downwards according to
circumstances.”
J J
17. In the present case, the size of operation was by no
means small because the illegal acts had continued for about 2
K K
months involving 166 credit cards, and the illegality was
terminated only due to the discovery of the offence rather than
L the defendant’s voluntary repentance. There was certainly a L
degree of planning between the defendant and Chiu. There was a
clear element of international dimension, and the defendant was
M playing a major role in that his participation was essential to M
the whole scheme of manufacturing forged credit cards with
genuine credit card data.
N N
18. As far as the harm resulting from the defendant’s
O offence is concerned, there was no evidence that actual loss had O
resulted. However, the seriousness of the offence lay in the
potential for losses in the future had the offence not been
P discovered. It is quite clear from the authorities that it is P
proper for the sentencing court to take into account the amount
of potential loss that could have been caused by the offence:
Q Q
HKSAR v Ng Swee-thiam [2000] 1 HKLRD 772; HKSAR v Shum Chung-wai
[2002] 2 HKLRD 81; HKSAR v Cheng Sui-yin (CACC468/2005).
R R
19. In the present case, the defendant was paid by Chiu
three times. He did not recall the exact amount he had
S received, but there was clear evidence that he received a total S
of HK$36,249 from 2 of these 3 rewards. That was about the
reward for data of 90 credit cards since the defendant received
T T
US$50 for the data of each workable credit card. Since the
defendant was only responsible for obtaining the credit cards
U U
5
V V
A data, it must be reasonable and irresistible to infer that A
someone else would make use of these data to manufacture forged
credit cards, and use these forged credit cards either by
B themselves or by recruiting other persons to obtain property or B
pecuniary advantage in the commercial world by deception. All
these people who engaged in this criminal enterprise would no
C C
doubt receive benefits no less than those received by the
defendant, and the illegal gains to all these people involved in
D the criminal enterprise would no doubt be coming from the losses D
to be inflicted in the credit card industries, whether the
ultimate loss would be borne by the banks, credit card companies
E or the credit card holders was immaterial. When the defendant E
received about HK$36,000 for 90 credit cards, it would lead
F
irresistibly to the inference that the potential losses would be F
over and above the medium size operation (i.e. between HK$50,000
and HK$150,000) referred to in Chan Sui-to, for which a sentence
G of 5 to 6 years after trial would be appropriate if the offence G
did not involve international dimension. In the present case,
of course, the international element did exist.
H H
20. In Ng Swee-thiam, the 2nd defendant there was convicted
I after trial of a number of offences including two counts of I
conspiracy to commit forgeries, a charge which was similar to
the present one. The Court of Appeal considered a starting
J point of 10 years’ imprisonment appropriate. It must however be J
said that that case was more serious than the present one
because the 2nd defendant there was, putting it simply, operating
K two forged credit card factories. K
L 21. I have considered the facts of the present case L
carefully. I note that none of the cases I have considered
bearing the same factual matrix as the present one. I note that
M the defendant would not have manufactured the forged credit card M
himself, but his participation was essential to the whole
illegal scheme. I note that the defendant was handed credit
N N
cards by customers of the restaurant for payment of bills but he
abused the purpose for which he was handed the cards. I note
O that there was no actual loss caused by the defendant’s offence, O
but the potential losses could have been substantial, and the
fact that there was no actual loss must largely due to the
P discovery of the offence. I note the international element. P
Having all these factors in mind, I am of the view that the
appropriate starting point is 5 years’ imprisonment.
Q Q
22. As far as mitigating factors are concerned, Mr. Massie
R rightly pointed out that the defendant’s dire financial R
difficulties only explained why he committed the offence and did
not amount to mitigation.
S S
23. I have considered what had been said on behalf of the
defendant carefully. I find that the only valuable mitigating
T T
factor is his guilty plea for which he will be given the usual
one-third discount. There is no other ground for reducing the
U U
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A sentence, and there is no basis to suspend the operation of the A
prison term,
B 24. The defendant is therefore sentenced to a term of 40 B
months’ imprisonment.
C C
D D
W.K. Kwok
E Deputy District Judge E
F F
G G
H H
I I
J J
K K
L L
M M
N N
O O
P P
Q Q
R R
S S
T T
U U
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