HKSAR v. Cheng Chi Fai

DCCC 1017/2015

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 1017 OF 2015

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Reasons for Sentence

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Charges and facts

1.The Defendant stole a credit card from his older brother at home (1^st Charge: theft) and then used it to obtain a Rolex watch in a jewelry shop (3^rd Charge: obtaining property by deception).

2.Subsequently his older brother discovered the use of the credit card by someone.  When the police interviewed the Defendant under caution, the Defendant admitted the theft and the use of the credit card to obtain a Rolex watch valued at $25,500.  He had entered into an agreement with the shop for payment by 24 equal monthly installments each of $1,062.50, ie interest-free. A few hours later, he asked for a refund from the shop on the ground that it was too expensive.  The shop refunded $16,500 to him.  He lost all money in gambling.  He discarded the credit card in a rubbish bin on the street.   

Mitigation

3.He is 28 years of age, of F. 2 education level.  He lives with his parents and shares the same bedroom with his older brother.  He has no criminal records apart from 2 instances of possession of dangerous drugs, sentenced in 2010 and 2014 respectively.    The wallet containing the credit card in question was left unattended on the table when his older brother was asleep. He last worked as a chef but was unemployed when he was arrested 3 months after the offences. 

Credit card fraud sentences

4.In HKSAR v Cheng 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.

5.There are no sentencing guidelines. For a straightforward small-scale operation with no international element, starting points of near or up to 3 years had been customarily affirmed on appeal.

Sentencing this Defendant

6.The 1^st Offence was analogous to pickpocketing.  I take a starting point of 15 months.  I reduce it by one-third for his plea of guilty.  The sentence is 10 months. 

7.He had used the credit card once to pay $25,500 for a watch on a monthly installment scheme.  A few hours later, he got a refund of $16,500 by returning the watch to the shop.  He lost it in gambling.  Credit card frauds are invariably met with a heavy sentence and this case is no exception.  For this case at the lowest end but which caused a substantial monetary loss to others, I take a starting point of 3 years.  I reduce it by one-third for his plea of guilty.  The sentence is 2 years. 

8.The 1^st Offence did not result in any pecuniary loss to his older brother.  It was an act to prepare for the 3^rd Offence, which results in loss either to the shop or the credit card issuer.  I make an order for the sentences to be concurrent.  The overall sentence is therefore 2 years.