State v Ngeon Chong Chee [2008] FJHC 38; HAC027.2008 (13 March 2008)

IN THE HIGH COURT OF FIJI
AT SUVA

CRIMINAL JURISDICTION

Criminal Case No : HAC 027 of 2008

BETWEEN:

THE STATE

AND:

NGEON CHONG CHEE
CHIAN CHEE HONG
AU YEUNG WING HON
SUEN PIK FONG

Counsel: Ms. A. Driu for the State
Mr. M. Raza for all Accused

Date of Hearing: Friday 7th March, 2008
Date of Sentence: Thursday 13th March, 2008

SENTENCE

[1] Ngeon Chong Chee (Chee) you are convicted of twenty counts of obtaining money or goods by false pretence and six counts of personation.

[2] Chian Chee Hong (Hong) you are convicted of seventeen counts of obtaining money or goods by false pretence and seven counts of personation.

[3] Au Yeung Wing Hon (Hon) you are convicted of twelve counts of obtaining money or goods by false pretence and six counts of personation.

[4] Suen Pik Fong (Fong) you are convicted of twenty counts of obtaining money or goods by false pretence and eight counts of personation.

[5] All of you pleaded guilty at the first reasonable opportunity when you appeared for an arraignment in the Magistrates’ Court at Suva. Your early pleas of guilty indicate that you are remorseful.

[6] You have been committed to the High Court for sentence on the ground that the learned Magistrate considered that the evidence of your character and antecedents showed that the facts called for a heavier sentence than he was empowered to impose.

[7] The facts are that on the 7th of January 2008 all of you arrived in Fiji as tourists. Chee and Hong entered Fiji using Malaysian passports while Hon and Fong used Chinese passports. Each one of you carried in your possession credit cards, namely, visa and master cards. Between 8th and 10th January, you used the credit cards at various shopping outlets, bank and hotels, and obtained large amounts of cash and valuable goods and services by falsely representing that you were the legitimate holder of the credit card you had in your possession. Each one of you personated to be the person whose name appeared on the credit card and you convinced your victims to be that person by using false passport as identity.

[8] The facts reveal all the features of ‘identity theft’ which is also an adjunct to credit card fraud. The phrase "identity theft" refers broadly to the combination of unauthorized collection and fraudulent use of someone else’s personal information. This encompasses a number of activities, including collection of personal information which may or may not be undertaken in an illegal manner, creation of false identity documents, and fraudulent use of the personal information.

[9] Unfortunately, in Fiji, there is no specific offence of "identity theft" or "credit card fraud." The prosecution has to rely on the fraud offences prescribed in the Penal Code.

[10] Fraud offences such as obtaining money or goods by false pretence cause economic harm. In assessing the harm, the starting point is the loss of monetary value to the victim. In general, the greater the loss, the more serious is the offence.

[11] However, one must appreciate that the monetary value of the loss may not reflect the full extent of the harm caused by fraud offences.

[12] The offences in this case were committed using credit cards. The Court is entitled to take into account the erosion of public confidence on the use of credit cards which are universally recognized method of payment for goods and services. Offences using credit cards undermine the integrity of those payment method (AG’s Ref. No. 73 of 2003 (Ranganathan) [2009] EWCA Crim 69; [2004] 2 Cr. App. R (S) 62).

[13] Your victims are the following institutions: ANZ Bank Namaka Branch, ANZ Bank Nadi Branch, ANZ Bank Lautoka City Branch, ANZ House Suva, ANZ Bank Samabula Branch, ANZ Bank USP Branch, ANZ E-Shop Branch, ANZ Bank Nausori Branch, ANZ Bank Lami Branch, ANZ Bank Centre Point Branch, Novetal Hotel Nadi, 88 Big Restaurant Nadi, Sheraton Fiji Resort Denarau, Jacks Fiji Limited, Tappoos Limited, Morris Hedstrom, Courts Fiji Limited, Vodafone Shop, Royal Thai Restaurant and Tanoa International Hotel. You betrayed the trust of these local commercial institutions by presenting false credit card and identity to obtain cash, goods or services from them.

[14] You obtained cash and goods to a total value of $216,898.00 from these institutions.

[15] You have not offered any restitution.

[16] You arrived in this country in a group with the motive to perpetrate fraud. You started defrauding the very next day you arrived in Fiji and then attempted to depart Fiji within three days after achieving your goal. Your conduct demonstrates a high degree of sophistication and premeditation.

[17] I also take the view that the offences were committed with a motive for gain. This is evident from your individual spending on luxury items and expensive hotels.

[18] Chee, over a period of two days, you obtained a total of $59,000.00 cash from various ANZ branches. You also obtained goods and services at the Sheraton Fiji Resort Denarau, amounting to $5,000.00. You personated to be one Hong Fat Lee during these transactions. You carried another Chinese passport bearing the name of Hong Fat Lee and you used this passport as an identity to convince your victims to accept your credit card. You are 28 years old and married with a daughter who is 4 years old. You have elderly parents.

[19] Hong, over a period of three days, you obtained a total of $29,800.00 cash from various ANZ branches and goods of substantial value from various shopping outlets. During these transactions you personated to be one Ching Po Chan. You carried a United Kingdom passport bearing the name of Ching Po Chan to convince your victims that you were the legitimate holder of the credit card you were using. You are 27 years old and single. You are a technician by profession.

[20] Hon, within a single day you obtained a total of $44,000.00 cash from various ANZ branches and substantial value of goods from various shopping outlets. When you made these transactions you personated to be one Lam Chi Wai. You used a Singaporean passport bearing the name of Lam Chi Wai. You are 33 years old and married. You are a helicopter technician.

[21] Fong, over a period of two days, you obtained a total of $51,700.00 cash from various ANZ branches and goods of substantial value from various shopping outlets. You used a Chinese passport bearing the name of Meei Ling Soo as the source of your identity. You are 40 years old and divorced with two children.

[22] I summarize the mitigation factors which are common to all of you as follows:

• an early guilty plea;
• the personal circumstances;
• a lack of criminal record.
  

[23] The aggravating factors are:

• a high amount of the fraud;
• the degree of premeditation;
• a high degree of sophistication;
• a lack of restitution;
• the use of other’s identities;
• the motive for the fraud being greed rather than need.
  

[24] I take into account that you have been in custody awaiting sentencing since 18th January, 2008.

[25] The maximum penalty prescribed for the offence of false pretence is 5 years imprisonment, and 2 years for personation. The tariff for fraud offences is 18 months to 3 years imprisonment.

[26] After taking into account the mitigating and the aggravating factors and the time spent in custody:

Ngeon Chong Chee is sentenced on each count of obtaining money or goods by false pretence to 3 years imprisonment and on each count of personation to 6 months imprisonment, to be served concurrently.

Chian Chee Hong is sentenced on each count of obtaining money or goods by false pretence to 3 years imprisonment and on each count of personation to 6 months imprisonment, to be served concurrently.

Au Yeung Wing Hon is sentenced on each count of obtaining money or goods by false pretence to 3 years imprisonment and on each count of personation to 6 months imprisonment, to be served concurrently.

Suen Pik Fong is sentenced on each count of obtaining money or goods by false pretence to 3 years imprisonment and on each count of personation to 6 months imprisonment, to be served concurrently.

[27] In law, a term of more than 2 years imprisonment cannot be suspended.

[28] The total sentence each one of you has to serve is 3 years imprisonment.

Daniel Goundar
JUDGE

At Suva
Thursday 13th March, 2008

Solicitors:
Office of the Director of Public Prosecutions, Suva for the State
M. Raza & Associates, Suva for all Accused