HKSAR v. Dagvadorj Dorj

DCCC 629/2015

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 629 OF 2015

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REASONS FOR SENTENCE

The defendant pleaded guilty to 1 charge of "Obtaining property by deception". He used a credit card belonging to another person to purchase consumer goods at a retail shop.

Summary of Facts

2.About 3:15 pm on 9 April 2015, WSGT 56619 (PW4) noticed 4 males (including the defendant) paying particular attention to the handbags of passersby on the 1^st Floor, IFC Mall in Central.  She kept observing them and requested for back-up.

3.A few minutes later, PW4 saw the 4 males entering the IFC Mall.  Thereafter, the defendant and one of the other 3 males ("WP") entered the Calvin Klein Shop ("the Shop").  PW4 continued to observe the defendant and WP.

4.Inside the Shop, the defendant and WP looked around and decided to purchase 4 packs of trunks.  The defendant took a card out from a cardholder and handed the card (in dark red colour) to the saleslady serving them.  After signing a receipt, the defendant put the card back in his cardholder.  He then took the receipt and a bag of goods and left the Shop together with WP.  On their way out, the defendant handed the bag of goods to WP.  Once out of the Shop, they went separate ways.

5.After parting with WP, the defendant entered the Apple Store with empty hands.  PC 12755 and WPC 13810 soon arrived.  PW4 pointed out the defendant to them.  The officers intercepted him for enquiries.

6.Upon search, a black cardholder was found in the defendant's left front trouser pocket.  The cardholder contained, inter alia, a corporate credit card which was in a name other than the defendant's ("the Card"); and the receipt issued by the Shop in respect of the purchase of 4 packs of trunks made by the defendant using the Card.  The total retail price was $1,140.

7.The Card was examined by the Commercial Crime Bureau, no irregularities were found.

8.The defendant arrived at Hong Kong on 5 April 2015 and was permitted to stay until 19 April 2015.

Mitigation & Sentence

9.The defendant is 45 and comes from Mongolia.  He has 1 conviction record, which was "Theft" dated 2007 (he was fined $500).  Defence lawyer Ms. LAU informed me that the defendant is married with 3 sons (aged 15, 7 and 5).  He is the sole bread winner of his family.  The defendant is a university graduate.  He ran his own garment trading business, which ended in March 2015. 

10.In mitigation, Ms. LAU explained that the defendant came to Hong Kong to look for business opportunities.  He met a fellow Mongolian on the airport train and they started a conversation.  Knowing that the defendant is able to speak some English, the Mongolian male asked the defendant to assist him in shopping.  The credit card used by the defendant was given to him by the Mongolian male.  Ms. LAU submitted that the defendant is truly remorseful.  He committed the present offence out of stupidity.  The defendant's family is now in financial difficulty owing to his detention in Hong Kong.  His parents also became ill recently.

11.I do not find the defendant's story credible.  According to the Summary of Facts, the Card was in his possession all along – he took it out from his cardholder when he was about to pay for the goods; and he put it back in his cardholder after paying.  If the defendant was in fact assisting someone to shop, he could have simply let his friend pay.  Furthermore, he should have returned the Card to his friend after using it.  His story defies common sense and is full of inherent flaws.

12.Even if I accept the defendant's explanation that he was used by someone, he was certainly not acting alone.  I have all the reasons to believe that there were other culprits involved in relation to the supply of credit cards (genuine, forged, lost or otherwise) and manipulation of others to use those credit cards for them.

13.Credit card offences are serious and must be deterred.  In HKSAR v CHEN Wing Hong CACC 40/2005, the Court of Appeal observed that "… in this day and age the integrity of the credit card system is highly important and those who attempt to beat the system by fraudulent methods necessarily erode the confidence which people are entitled to place on this aspect of modern commercial life."[1]  A clear message must be conveyed to the general public that "credit card fraud" is a serious crime and that offenders would be punished by a substantial prison term.

14.In HKSAR v Tandon William CHAING CACC 404/2012, Macrae J (as he then was) endorsed a starting point of 3 years' imprisonment for the unauthorized use of 1 credit card belonging to another person on a single occasion in order to obtain jewellery and watches which valued $56,116 in total[2].

15.In the present case, the defendant used the Card to obtain consumer goods with a total value of slightly over $1,000.  I have also borne in mind that no one has suffered any financial loss.  I consider 2.5 years' imprisonment to be the appropriate starting point.  A one-third discount is given for the guilty plea, reducing the sentence to 20 months.  Apart from this, I see no other mitigating factors which warrant any further reduction.  I sentence the defendant to 20 months' imprisonment.