HKSAR v. Zuunnast Munkhjargal

DCCC 943/2016

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 943 OF 2016

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Reasons for Sentence

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1.The defendant has pleaded guilty to four charges of obtaining property by deception.  This is a credit card fraud case.

2.On 24 July the defendant used a genuine credit card belonging to another in four shops in the Tsim Sha Tsui region between the hours of 1610 and 1705; just under an hour.  In those four shops, he bought a camera, a MacBook, perfume and an iPhone.  The total amount involved was $43,889.30.  In all four shops the defendant successfully used a credit card belonging to another.  He only used one credit card. 

3.The defendant was obviously with two other Mongolian males and he was caught because police officers saw the three men outside Park Lane Shopper’s Boulevard in Tsim Sha Tsui, their suspicion was obviously aroused and they put the group under observation.  They suddenly saw the defendant leave the other two men and enter a Fortress shop.  He was in that shop for about half an hour whilst the other two men waited outside.  When he came out, he was carrying a Fortress bag.  The police intercepted the defendant and the two males.

4.The defendant says the two males were not involved and did not know he was using another’s credit card to shop.  However, from what the police observed, friends do not shop in that manner especially tourists in Hong Kong.  Both men were also found to be holding stolen items from other shops involved in Charges 1, 2 and 3.  They were not charged, I imagine, because of insufficient evidence. 

5.The defendant is 38 years old, a Mongolian resident here on a tourist visa.  I have been told he is a university graduate and self-employed in Mongolia earning approximately HK$10,000 a month.  He is divorced with a young daughter.  He himself lives with his mother who I have been told is suffering from liver cancer.

6.The explanation put forward is that the defendant was here as a tourist with his friends and found this credit card in the MTR station and immediately started their shopping spree out of greed.  I have my doubts that that is the truth, but there are no admissions or evidence to prove otherwise.

7.I have a letter from the defendant expressing his remorse; there is an apology and a promise to not to reoffend in Hong Kong.

8.I have also been told that the defendant has a clear record in Hong Kong which is of little weight where mitigation is concerned because he is not a Hong Kong resident.

9.Mr Yeung has said all he can on behalf of the defendant highlighting the fact that only one credit card was involved in this case and that $40,000 is not a huge amount making this a small scale credit card fraud. 

10.It has been said time and time again by the courts in Hong Kong that credit card fraud must be deterred.  These cases erode confidence in the credit card system and affect the reputation of Hong Kong worldwide.  Moreover, one element to consider relevant is the potential for loss can be significant.

11.I refer myself to the authority of The Queen v Chan Sui To [1996] HKCLR 128 where the Court of Appeal reviewing similar cases approved a starting point of 3 years or less when there is a small scale credit card fraud operation.  I accept that in this case the facts do support mitigation that it is a small scale credit card fraud.

12.I have also referred myself to the authority of HKSAR v Lam See Chung, Stephen [2013] 5 HKLRD 242.  The Court of Appeal again looking at a number of previous authorities involving credit card frauds using genuine credit cards was of the opinion that similar sentencing principle applies whether the credit cards are genuine or forged.

13.Here I take into account that there are four charges.  I also take into account the amount involved in total as well as mitigation put forward and the defendant’s plea.  I also take into account that all four charges were committed within an hour. 

14.Defendant, please stand up.

15.After considering all relevant factors, the sentencing authorities and mitigation, I will take, for all four charges, a starting point of 3 years’ imprisonment.  The defendant has pleaded guilty, he is entitled to a discount of one-third for those pleas.  After that discount is applied, for every charge, the defendant is sentenced to 2 years’ imprisonment.

16.I will order that all four charges be served concurrently, that is a sentence therefore of a total of 2 years’ imprisonment.  Do you understand that sentence?

DEFENDANT: Understood.