HKSAR v. Yung Chi Lin

DCCC 364/2016

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 364 OF 2016

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REASONS FOR SENTENCE

The defendant pleaded guilty to 6 charges of "Fraud" (Charges 1 to 6), 4 charges of "Theft" (Charges 7 to 10) and 5 charges of "Attempted Theft" (Charges 11 to 15). He applied for a credit card in his uncle's name; and used the same to purchase consumer goods at retail shops and to withdraw cash from Automated Teller Machines (ATMs) of different banks.

Summary of Facts

2.On 5 November 2015, Madam YUNG (PW1) received a letter from Hang Seng Bank ("HSB") to her uncle YUNG Tak-hang regarding his credit card application.  She immediately suspected the authenticity of the application because her uncle is a mentally challenged person and was at the time residing in the Britain.

3.Upon enquiry with HSB, it was discovered that the bank received and approved a credit card application. As a result, the credit card particularized in Charge 1 ("the Credit Card") was issued to PW1's uncle.  Furthermore, between 27 October and 5 November 2015, there were 14 transactions in relation to the Credit Card.

4.In Charges 2 to 6, someone used the Credit Card to make purchases at the respective retail stores specified in the charges.  All transactions were successful.  The value of goods purchased was in a total sum of $13,516.40.

5.In Charges 7 to 10, someone used the Credit Card to withdraw cash from various ATMs.  All transactions were successful.  The total amount withdrawn was $9,000.

6.In Charges 11 to 15, someone tried to use the Credit Card to withdraw cash from various ATMs.  The transactions were unsuccessful.  The total amount attempted was $6,100.

7.PW1 suspected that the defendant (who is her brother) had applied for the Credit Card because he was in financial difficulty and had access to the mailbox which would contain mail sent to their uncle.

8.CCTV footage of the relevant ATMs revealed a male carrying the same backpack with appearance similar to the defendant making withdrawals with the Credit Card.

9.The defendant was arrested at his work place on 22 February 2016.  The same back pack seen on the CCTV footage was found at the scene of arrest.  The Credit Card, however, could not be found.

Admissions

10.Under caution, the defendant admitted that he had used the personal particulars of his uncle to apply for a credit card with HSB.  All the transactions involved were made by him.  He used the money obtained to pay off his debts.

11.In his video recorded interview, the defendant admitted that each of the 14 transactions related to the Credit Card was made by him.  He also confirmed that he was the person captured in the CCTV footage.

Mitigation & Sentence

12.The defendant is 47 and has a clear record.  Defence solicitor Mr. LAI informed me that the defendant was born in England and worked as a cook there.  He settled down in Hong Kong in June 2015 and met his girlfriend in the mainland.  His girlfriend became pregnant in August; and he married her in December.

13.In mitigation, Mr. LAI submitted that after his girlfriend became pregnant, the defendant had financial problems and started to borrow money from friends.  Out of greed, the defendant used his uncle's personal particulars to apply for a credit card. The defendant's daughter was born in May 2016.  Both his wife and daughter are residing in Shenzhen.  Mr. LAI further submitted that the defendant is determined to turn a new leaf.  A letter written by him was placed before me; its contents are duly noted.

14.After seeking more information from counsel, I now understand that the defendant's uncle is 58 years old and still alive; he has all along been a mentally challenged person.  He inherited a family property[1] in Tai Po; both the defendant and the defendant's sister had keys to the property.  The defendant's uncle holds a bank account with HSB, the bank therefore sent him invitations to apply for credit cards.

15.Time after time, the court has expressed in very clear terms that being in financial difficulty (however serious) is no mitigating factor for committing a crime.  The defendant foolishly resorted to illegal means to solve his financial problems.  There must have been proper ways for him seek help, for example, his family members or social workers.

16.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."[2]  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.

17.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[3].

18.In the present case, the defendant made a fraudulent application for a credit card in his uncle's name and then used the Credit Card to shop and to withdraw cash. The true victim of his crimes is HSB rather than the defendant's uncle; the bank would no doubt need to absorb the loss.  HSB is plainly the most innocent party.  It suffered a monetary loss and the defendant does not have the means to repay.

19.For Charge 1 (applying for the Credit Card), I adopt a starting point of 12 months' imprisonment.  A one-third discount is given for the guilty plea, reducing the sentence to 8 months.  Apart from this, I see no other mitigating factors which warrant any further reduction.  I sentence the defendant to 8 months' imprisonment for this charge.

20.In Charges 2 to 6, the defendant used the Credit Card to obtain consumer goods with a total value of close to $14,000.  On this basis, I consider 2.5 years' imprisonment to be the appropriate starting point for each charge.  With the guilty pleas, the sentence is reduced to 20 months each charge.

21.The defendant also used the Credit Card to withdraw or attempted to withdraw cash from various ATMs.  He successfully withdrew a total sum of $9,000 in Charges 7 to 10.  He attempted to withdraw a total sum of $6,100 in Charges 11 to 15.  For Charges 7 to 15, I would not sentence him on the basis of credit card fraud.  I adopt a starting point of 12 months' imprisonment for each charge.  With the guilty pleas, the sentence is reduced to 8 months each charge.

22.It is most fortunate that the defendant's scam was detected by his sister soon after the Credit Card was issued.  I have borne in mind the total monetary loss caused by the defendant was less than $23,000 (a relatively small sum).  The defendant's repeated use of the Credit Card within a fortnight, however, does constitute an aggravating factor.  Bearing in mind the totality principle, I consider a global starting point of 3.5 years to be appropriate for all 15 charges.  With the guilty pleas, the overall sentence is reduced to 28 months.  I order the sentences to run in the following manner :-

(i) Charges 1 to 6 concurrent;

(ii) Charges 7 to 10 concurrent; but 4 months consecutive to Charges 1 to 6; and

(ii) Charges 11 to 15 concurrent; but 4 months consecutive to Charges 1 to 10.

Thus, arriving at a total prison term of 28 months.