HKSAR v. Tseveen-ochir Batjargal

DCCC 239/2016

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 239 OF 2016

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REASONS FOR SENTENCE

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1.The Defendant has pleaded guilty to the charges that he faces, namely one count of theft, contrary to Section 9 of the Theft Ordinance, Cap. 210 and one count of attempting to obtain property by deception, contrary to Section 17(1) of the Theft Ordinance, Cap. 210 and Section 159G of the Crimes Ordinance, Cap. 200.

Summary of facts

2.Facts admitted by the Defendant disclosed that the Defendant entered Hong Kong as a visitor on 21 January, 2016 and was allowed to remain in Hong Kong until 4 February, 2016.  At around 5.10 p.m. on  24 January, 2016, the Defendant was observed to be acting furtively inside the “Apple Store” at the International Finance Centre Mall (IFC Mall), No. 8 Finance Street, Central. Police officers in plainclothes approached and observed him at a close distance.  They saw that the Defendant was served by a salesperson of the “Apple Store”. The Defendant asked for 5 iPhone 6S 64 GB and 7 iPhone 6S Plus 64 GB, costing a total of HK$95,312.50. He produced a Capital One Visa Card numbered 4147-0981-6451-8227 in the name of Reggi Y Wilson from a black wallet for payment. As the name on the credit card was that of a Westerner, the salesperson asked the Defendant whether he was the cardholder of the credit card. The Defendant answered that he was a Korean national.  The salesperson proceeded to process the transaction with the said credit card. However, the transaction was unsuccessful. The Defendant took the credit card and left the “Apple Store” (Charge 2). The police officers continued to follow the Defendant and intercepted him at about 5.15 p.m. at the exit of the IFC Mall near Man Yiu Street. The Defendant was searched and the credit card found in the black wallet the Defendant was holding. The Defendant was arrested.  In a subsequent video-recorded interview conducted in the presence of English and Mongolian interpreters, the Defendant stated, inter alia, that the black wallet belonged to him, and he had picked up the card on a street in Mong Kok (1^st charge).

Mitigation

3.The Antecedent Statement was read into the record by the Prosecution – no issue was taken on its contents.  In fact, the Antecedent Statement did not disclose much in respect of the Defendant as he did not disclose much information for the preparation of the Antecedent Statement.     

4.Ms. Mohamed very helpfully prepared her submissions in mitigation in writing. The Defendant is now aged 32 years.  He is from Mongolia and came to Hong Kong from Macau on 21 January, 2016.  His family is back in Mongolia.  In Mongolia, he was a self-employed musician playing at clubs and bars. His income depended on the number of bookings he got – in a busy month he could earn $10,000.  He studied music in university, and is also involved in bowling, as evidenced by the documents and photographs submitted on his behalf.  He has a clear record in Hong Kong, and I am told he also has a clear record in Mongolia, as evidenced by the police certificate from Mongolia submitted by Ms. Mohamed.  He is the youngest of 7 children in Mongolia, all of whom are married and with children. The Defendant himself is married with 3 children, all at school. His wife is a civil servant.  His mother, aged 70 years, is cared for by the Defendant.  I am told that the Defendant is a heavy gambler, and frequents casinos in Macau.  Because of his gambling habit, he has incurred debt, and has had to borrow from his wife and other family members to pay off the debts, creating tension in the family and in his relationship with his wife. Although Counsel in her submission in mitigation disclosed that the Defendant had 6 siblings, the Background Report mentioned only 5 siblings. Ms. Mohamed explained that the discrepancy is because the form that the Defendant was asked to fill in did not have sufficient space to fill in the name of his 6^th sibling – she did provide me with the name. 

5.Ms. Mohamed has submitted a handwritten letter from the Defendant wherein he has expressed his remorse and his regret for committing the present offences.  His pleas are also indicative of his remorse.  His mother is unaware of the Defendant being detained for these offences – he is worried about her welfare and is desperate to return to Mongolia and see his family.  Counsel submitted that this was an opportunistic offence and there was no breach of trust involved – it was a single transaction and no loss has been suffered by anyone. There is no evidence that he is part of an organized gang or that there is an international element involved.  She submitted 2 cases of sentences in the District Court where starting points of less than 3 years were adopted by the sentencing courts (HKSAR v Lee Cheung Kwan, Jimmy, DCCC 192/2015 & HKSAR v Ngai Vincent Ming Fung, DCCC 944/2014 refers). She also referred to the case of HKSAR v Lam See Chung Stephen [2013] 5 HKLRD 242 in her submissions.  I also have before me the Background Report that I have called for, which contents have been explained to the Defendant by Ms. Mohamed, and no issue has been taken on the contents.

Sentencing Considerations

6.Credit card offences are serious and must be deterred. Offenders should expect to be punished by a term of imprisonment.  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”. 

7.In HKSAR v. Tu I Lang, CACC 464/2006, the Court of Appeal referred to the decision of R. v. Chan Sui To [1996] 2 HKCLR 128 at 134 :

“8. It is true that in R. v. Chan Sui To [1996] 2 HKCLR 128 at 134, this court said in dealing with the range of sentences imposed for credit card offences in various cases cited to it :

“Allowing for the different facts and the varying degrees of culpability, it is impossible to formulate a set of principles of sentencing from those decisions. We think however that it would be helpful to the courts if they were guided by some criterion. We would therefore suggest that an accused who plays an active but not necessarily a key role in a medium size operation involving between $50,000 and $150,000, with no elaborate planning and equipment, and without an international dimension, should receive a sentence of five to six years after trial. Sentences may be adjusted upwards or downwards according to the circumstances.”

It is equally true that in a number of other cases involving the simple possession or use of a small number of credit cards, this court has approved starting point of sentences of three years’ imprisonment, where the operation involved can be fairly described as small scale.”

The Court further said:-

“10. Where the facts of the offence point to a small unsophisticated operation, involving only one or a few forged cards uncomplicated by other evidence linking the offender to a larger operation, then a starting point of three years’ imprisonment or less would be appropriate.”

8.Offences involving the fraudulent use of credit cards are all serious offences.  I need only to quote the judgment of Litton J.A. in R. v. Kwan Ying-ho, CACC 527/1992 that: “Credit card frauds have in recent years been an insidious poison in the community. It affects  a large number of citizens. It erodes the credit card system and damages Hong Kong’s standing in the international community.”

9.Although the value of the goods to be purchased using the forged/genuine cards may not be large, it is the potential for loss which is the most important consideration.  (HKSAR v Ng Swee-thiam [2000] 1 HKLRD 772).

10.In HKSAR v. Lam See Chung, Stephen [2013] 5 HKLRD 242,  a case of credit card fraud committed with no international element, involving the use of genuine rather than counterfeit credit cards, the Court of Appeal referred to and reviewed a number of previous authorities including R v. Chan Sui To, [1996] 2 HKCLR 128, HKSAR v. Ng Swee Thiam & Ors, [2000] 1 HKLRD 772, HKSAR v. Cheung Ka Wo, Johnny, [2002] 2 HKC 517 and HKSAR v. Tu I Lang, CACC 464/2006 and said those sentencing principles in consideration are equally applicable to credit card fraud in which genuine cards are used.

11.Although the Defendant is convicted of an attempt rather than a full offence in respect of Charge 2, the facts which he has admitted clearly show that he had done everything necessary for the commission of the full offence and only failed because the credit card transaction was unsuccessful. Had the transaction gone through, he would have obtained the 12 iPhones valued at HK$95,312.50.     

12.The only mitigation of weight before me really is the Defendant’s pleas of guilty, which reflect his remorse. I have borne in mind all that has been urged upon me in mitigation on behalf of the Defendant, as well as the authorities submitted and the contents of the Background Report now before me, the contents of which have been explained to the Defendant by Ms. Mohamed and which he agrees with. I accept that the present offences are out of character as submitted by Ms. Mohamed.  I accept too that the Defendant has had some success in his career as a singer and in sports, which has also been referred to in the Background Report together with photographs from Facebook.  Ms. Mohamed has submitted 2 cases from the District Court where lower starting points were adopted for similar charges. However, although persuasive, these are not binding and each case must be looked at on its own facts.

13.In the instant case, the Prosecution has proceeded against the Defendant on Charge 1 on the basis that the theft of the credit card was theft by finding, accepting what the Defendant told the police when interviewed under caution. I consider the appropriate starting point is 9 months’ imprisonment. Given the Defendant’s guilty plea, it is reduced to 6 months’ imprisonment.

14.In this case, one credit card was involved without any marked degree of planning or organization. There is no evidence of an international element, save that the Defendant was a visitor to Hong Kong and committed the offences shortly after his arrival in Hong Kong.  He has no previous criminal conviction record of offences involving dishonesty.  I have also borne in mind that no one has suffered any financial loss. In my view, the greatest mitigation of weight is the Defendant’s pleas of guilty to the charges that he faced, reflecting remorse on his part.

15.In my view an appropriate starting point for Charge 2 is 2 1/2 years’ imprisonment (i.e. 30 months). Giving the Defendant a discount of one third to reflect his plea, he should be sentenced to 1 year and 8 months’ imprisonment on Charge 2 (i.e. 20 months). Although each offence is separate and distinct, I have borne in mind the totality principle of sentence.  I have also borne in mind that all the offences were committed within a very short period of time.  I consider that a total sentence of 1 year and 8 months’ imprisonment is sufficient to reflect the total criminality of the Defendant. In the circumstances, I order that the sentences on Charges 1 and 2 are to run concurrently, making a total of 1 year and 8 months’ imprisonment.