HKSAR v. Wang Shuai also known as Yeung Fung

DCCC 722/2015

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 722 OF 2015

----------------------

----------------------

---------------------

Reasons for Sentence

---------------------

1.The defendant has pleaded guilty to a total of seven charges.

2.The 1st charge is one of fraud.  Charges 2, 4 and 5 relate to obtaining property by deception with a credit card belonging to another.  Charge 8 is one of attempted fraud.  It was an attempt because the fraudulent act was not successful; the police appeared and thwarted the offence.  Charge 9 is an offence of handling stolen goods, and Charge 10 is one of failing to surrender to custody without reasonable cause; basically, absconding and being in breach of bail conditions.

3.The facts of this case are as follows.  On 23 June 2014, Mr Lun lost his wallet, last seen on a minibus at about 2.30 am.  Mr Lun lost some cash, his Hong Kong identity card, driving licence, his Home Visit Permit, an Octopus card, three credit cards and an ATM card.  On 22 July 2014, the defendant, when he was arrested, had on his person Mr Lun’s wallet and almost all of those personal items; hence Charge 9, handling stolen goods.

4.As far as Charge 1 is concerned, on 30 June 2014, the defendant went to a branch of HSBC and represented himself to be Mr Lun.  He used Mr Lun’s ID card as well as his bank card.  He convinced a member of staff that he was Mr Lun and managed to change personal information pertaining to his account.  He also applied for the replacement of ATM cards for two accounts.  He also managed to convince the staff to change Mr Lun’s specimen signature, which meant he could then approach the bank counter and withdraw $19,000 from one of Mr Lun’s accounts.

5.As far as Charge 2 is concerned, on the same day, 30 June 2014, the defendant went shopping in Tsuen Wan and, using Mr Lun’s Citibank Visa card, purchased a handbag for $10,180.

6.For Charge 4, on 1 July 2014, the defendant again went shopping in Tsuen Wan and, using Mr Lun’s Citibank Visa card and his Hong Kong identity card, successfully purchased three handbags for a total of $13,880.

7.On the same day he committed Charge 5 when he went to an optical shop in Tsuen Wan and, using Mr Lun’s Citibank Visa card, purchased a pair of sunglasses worth $1,681.

8.Charge 8 was committed on 22 July 2014.  The defendant told the police under caution that on that day he had tried to purchase $30,000 worth of gold ornaments in a jewellery shop with Mr Lun’s Citibank Visa card, but he was unsuccessful because he could not answer the security question relating to that credit card, so the defendant then committed Charge 8.

9.He went on that same day to a branch of Citibank in Tsuen Wan and represented himself to a member of staff to be Mr Lun. He produced Mr Lun’s ID card and Citibank Visa card.  He requested that staff member change the contact telephone number for that credit card for online transactions.  I am sure the purpose for that was so that he could answer any security questions posed by vendors when he fraudulently used that card.

10.That member of staff of Citibank was vigilant and noticed the photograph on Mr Lun’s Hong Kong identity card did not look like the defendant.  She informed her manager, who then reported the matter to the police.  The police arrived at Citibank and searched the defendant.  In his bag they found Mr Lun’s wallet, ID card, Home Visit Permit and all his bank cards.

11.The defendant, under caution, made a full confession.  Despite him having all the cards and the wallet in his possession, he told the police that he owed a debt collector money, and that debt collector would give him Mr Lun’s cards to make purchases, and in return for making the purchases he would get about 10 per cent of the value of the goods and some dangerous drugs.

12.Originally this case was set down for trial because the defendant indicated he would plead not guilty.  A date was also given prior to trial for a pre-trial review.  On the pre‑trial review date, 22 January 2016, the defendant indicated to the court he would plead guilty.  Until then he was on bail.  The court adjourned his plea to 25 February and extended his bail.  However, on that date, the defendant failed to attend court as required.  A warrant of arrest was issued, and the defendant was arrested during a stop and search on 4 April 2016.  He, under caution, explained to the police that he did not attend court on 25 February because he had been detained by a loan shark at the time.

13.The defendant is not a man with a clear record. He has three previous convictions.  When he was 19 he was convicted of possession of an offensive weapon and robbery.  He was sentenced to a detention centre order for the robbery offence.  His last conviction was in 2013 where, for possession of dangerous drugs, he was fined $4,000.  In his convictions he has nothing similar to the offences here.

14.Ms Wong, for the defendant, has provided written submissions which I now mark as MFI-1.  In mitigation I have been told the defendant is now 39 years old, single, and living at home with his mother and sister and her family.  Since he left school at a young age he has worked in the food industry and has been a cook for at least 10 years.  Unfortunately, in 2011 he became addicted to the drug “Ice”.  This habit got him into debt.  He had to be declared bankrupt.  In 2014 he then went on to borrow money from a loan shark, $5,000.  As is normally the case, that debt ballooned to $40,000 to $50,000 because the defendant did not keep up with interest repayments.  This debt is still outstanding.

15.I have had a letter from the defendant expressing his remorse.  He is ashamed that he has disappointed his family, who still support him by visiting him in remand.  He promises the court and his family that he will turn over a new leaf and find legitimate employment when he is released from prison.  I have also been told that he has managed to quit dangerous drugs and no longer relies on them.

16.For credit card fraud cases, the Court of Appeal has set out several relevant factors when considering sentencing.  Where the credit card fraud is a simple case with no international element nor any sophisticated planning and where the amount of loss suffered is not large, nor there being many cards involved, usually a 3-year starting point or less would be appropriate.

17.Both the prosecution and the defence have referred me to the authority of R v Chan Siu To CACC 115/96 as well as HKSAR v Lam See Chung, Stephen CACC 339/2012.  In that authority, the Court of Appeal is of the view that the starting point for simple cases of fake credit card fraud also applies to fraudulent use of genuine credit cards.  The defence has also referred me to the authority of HKSAR v Tu I Lang CACC 464/2006 to support the submission that here, a starting point of 3 years or less would be appropriate.

18.The prosecution, in MFI-2, their list of authorities, also refers me to the authority of HKSAR v Cheung Ka Wo, Johnny [2002] 2 HKC 517, where the Court of Appeal says the potential for losses in credit card frauds is a very important consideration.

19.Severe sentences are necessary to deter others who may be tempted to beat the integrity of the credit card system by fraudulent means.

20.In this case, the defendant not only fraudulently used Mr Lun’s credit card, he also went to two banks representing himself to be Mr Lun.  In both banks he tried to change personal particulars of Mr Lun’s accounts, and in Charge 1, he applied for new cards in Mr Lun’s name and changed his specimen signature.  This allowed him to withdraw cash from Mr Lun’s account.  This is also a serious attack on the integrity of the banking system.

21.I have considered the facts for each charge.  I have also considered the amount of loss suffered in total is $44,741.  I have also considered that the defendant’s actions indicate this is not a sophisticated operation.  He was bound to get caught eventually.

22.Defendant, please stand up.  I also consider the defendant’s plea, the fact he has no previous similar conviction, as well as the mitigation put forward on his behalf.  Ms Wong has said all she can on the defendant’s behalf.  Lastly, I have considered the authorities I have been referred to by both the prosecution and the defence.

23.After considering all those relevant factors, I find a starting point of, for Charge 1, 3 years’ imprisonment appropriate.  I find the same starting point, one of 3 years, appropriate for Charge 8.  I find a starting point of 2 years and 9 months appropriate for Charges 2, 4 and 5.  I find a starting point of 2 years and 6 months for Charge 9 appropriate, and I find a starting point of 6 months for Charge 10 appropriate.

24.The defendant has pleaded guilty, and is entitled to a discount of one-third.  After that discount is applied, the defendant is sentenced as follows:

for Charge 1, the defendant is sentenced to 2 years’ imprisonment;

for Charge 2, Charge 4 and Charge 5, the defendant is sentenced to 1 year and 10 months’ imprisonment;

for Charge 8, the defendant is sentenced to 2 years’ imprisonment;

for Charge 9, the defendant is sentenced to 1 year and 8 months’ imprisonment;

for Charge 10, the defendant is sentenced to 4 months’ imprisonment.

25.I have taken into account the totality principle as well as the dates of the commission of the offences.  I have also taken into account the different nature of Charges 1 and 8 versus the nature of Charges 2, 4 and 5.

26.I order that 4 months of Charge 2 be served consecutively to Charge 1.  I order that 3 months of Charge 8 be served consecutively to Charge 1.  I order that 2 months of Charge 10 be served consecutively to Charge 1.  I order the balance of those charges, as well as Charges 4, 5 and 9, be served concurrently to Charge 1.

27.Therefore, the total sentence is one of 2 years and 9 months’ imprisonment.

COURT: Do you understand that sentence, defendant?

DEFENDANT: Understood.