HKSAR v. Wong Ching

DCCC 914/2016

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 914 OF 2016

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

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

REASONS FOR SENTENCE

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

1.The defendant faced a total of five charges and he pleaded guilty to Charge 1, which is an offence of theft of a credit card and an internet banking security device, and Charges 3 and 5, both of which are offences of obtaining property by deception.

2.The remaining charges, namely Charges 2 and 4, were ordered to be kept on file not to be proceeded with without the leave of the court.

3.The facts to which the defendant pleaded guilty show that he was the customer service manager of a company named First Page, “the company”, which is situate at the address mentioned in the 1st charge.

4.Mr Teasdale, PW1, Ms Lam, PW2, and Ms Chen, PW3, were the general manager, manager and chief financial officer of the company respectively.  For the purpose of paying expenses of the company, an HSBC Mastercard, “Credit Card 1”, and another HSBC Mastercard, “Credit Card 2”, were issued by the company in the name of PW1.

1st and 3rd Charge

5.On April 30 2015, PW2 last checked credit card 1 and the internet banking security device inside an unlocked drawer of her desk at the office. On May 4 2015 she found credit card 1 and the device missing.  The bank records show that credit card 1 was used in a transaction for a MacBook on 30 April 2015 at the Apple store in IFC Mall.  The MacBook cost $7,488.

5th Charge

6.On 20 July 2015, PW2 placed credit card 2 in a locked drawer of her desk, but the key to that drawer was put in an unlocked drawer of the same desk.  Two days later, PW2 found that credit card 2 was still inside the said drawer, but she discovered that a transaction was made with the use of it for a MacBook at the Apple store at Hysan Place on 20 July 2015.  The MacBook cost HK$11,488.

7.PW2 to PW3 confirmed that they did not personally make or authorise the said two transactions.  The CCTV cameras of Apple store at Hysan Place captured the defendant purchasing the MacBook with credit card 2.

8.The defendant was arrested on 3 August 2015.  Under caution, he admitted, inter alia, that he stole credit card 1 from PW2’s drawer and used it to purchase a MacBook at $7,488.  He told the MacBook for $5,000, spent the sum of money, and disposed of the card; and he stole credit card 2 from PW2’s drawer and used it to purchase another MacBook at 11,488.  He forged the signature on the payment slip.  He later sold the MacBook for $8,000, and spent this sum of money.  He returned this card to the office.

Previous Conviction

9.The defendant was brought to court on one occasion and for which he was convicted of two offences of theft, 10 offences of obtaining access to computer, and one offence of obtaining property by deception.  He was sentenced to 180 hours of community service order for all the said offences.

Antecedent

10.The antecedent statement shows that the defendant is aged 29 and received tertiary education in Seattle.  Since August 2015 he has been working as a sales manager in QS Search Limited.

Mitigation

11.Defence counsel Mr Yuen submitted to this court that the defendant lives with his father, who was seriously in debt for gambling.  As a result, the defendant had to borrow money from finance companies and incurred debt in the sum of $300,000.  This led him to committing the present offences.

12.Two mitigating letters were submitted to this court, one written by the defendant’s employer, and the other by his father.  I have considered them.

13.In respect of the 1st charge, Mr Yuen agreed with this court that it was a breach of trust case.  The defendant knew that the credit card belonged to the company even though he was not the one responsible for keeping the card.

14.In respect of Charges 3 and 5, Mr Yuen submitted that the usual starting point for the offence of obtaining property by deception is 3 years’ imprisonment.  He referred this court to HKSAR v Lam Siew Cheung, Stephen [2013] 5 HKLRD 242.  However, he said that it is not a straitjacket, and he urged the court to adopt a lower starting point.  He relied on HKSAR v Cheung Chun Wing [2000] 1 HKLRD 189, in which he said a starting point of 18 months was adopted for the same offence.

15.Mr Yuen further submitted that the defendant was willing to compensate the loss of the company.  He repaid $19,576 to the company in January 2017. This is confirmed by the prosecution.  Mr Yuen then referred this court to HKSAR v Leung Shuk Man [2002] 3 HKC 424, and submitted that a further discount of sentence should be given to the defendant because of his restitution.

Reasons for Sentence

16.In passing sentence I take into account everything said on the defendant’s behalf by Mr Yuen and everything written in the mitigating letters.

1st Charge

17.Although the defendant was not the one who was entrusted with the duty to keep the credit card, he was the customer service manager of the company, and being an employee of the company, he stole the credit card in Charge 1.  He knew it belonged to the company.  I consider it is a breach of trust case.  I adopt a starting point of 9 months and enhance it by 3 months for the breach of trust element.  As such, a starting point of 12 months is adopted for Charge 1.

3rd and 5th Charges

18.Mr Yuen referred this court to HKSAR v Cheung Chun Wing [2000] 1 HKLRD 189, in which the appellant pleaded guilty to offences of burglary, obtaining property by deception, and giving false information to a pawnbroker.  He appealed against the compensation order imposed on him but not the prison sentences imposed on him.  Less was said in that judgment in relation to the appropriate sentence for the offence of obtaining property by deception.

19.Charges 3 and 5 relate to credit card fraud.  Time and again the court has said that deterrent sentences are needed.  The court has outlined this approach to the offence of credit card fraud in R v Chan Sui To & Anor [1996] 2 HKCLR 128, and the approach is the same in respect of both forged credit cards and genuine credit cards used fraudulently.  It has been said in a small credit card fraud of the most simple kind, a starting point of 3 years’ imprisonment can be appropriate.  This is because of the potential damage to the financial system of credit card fraud.  See also the said HKSAR v Lam Siew Chung, paragraphs 37 to 40.

20.In HKSAR v Tu I Lang CACC 464/2006, the Court of Appeal said that:-

“Where the facts of the offence point to a small unsophisticated operation involving only one or a few forged cards, uncomplicated by other evidence materially linking the offender to a larger operation, then a starting point of 3 years’ imprisonment or less would be appropriate.”

21.This case involves two stolen credit cards, each of which was used once only to make one purchase of a single item.  The total amount of the two MacBooks purchased was about $19,000.  The defendant acted alone.

22.I come to conclude that it is a small credit card fraud, and I adopt a starting point of 3 years’ imprisonment for each of Charge 3 and Charge 5.

23.Although the defendant is not of clear record, I consider that he is not a persistent offender.

Mitigating Factor - one-third discount

24.I consider that the overall starting point for sentence will be one of 3 years in this case.  I have in mind HKSAR v Ngo Van Nam CA 418/2014.  As the defendant has indicated his pleas of guilty on the plea day hearing in November 2016, and the case was adjourned to today for plea and sentence, the defendant is entitled to a full one-third discount of sentence.

25.On Charge 1, a starting point of 12 months’ imprisonment is adopted, which is reduced to 8 months’ imprisonment.  A starting point of 3 years’ imprisonment is adopted for each of Charge 3 and Charge 5.  The sentence for each charge is reduced to 2 years’ imprisonment or 24 months.

Restitution

26.The defendant was charged in early October 2016.  He indicated that he would compensate the loss to the company on the first plea day hearing in the District Court in late October 2016.  He then deposited a cheque in the sum of around $19,000 to the solicitors’ firm, and the payment was effected in January 2017 after the prosecution had confirmed the identity of the victim, that is, the company in this case.

27.In other words, the loss to the company in both Charges 3 and 5 has been recovered or compensated.

28.Voluntary restitution is something which must be encouraged.  His restitution is a mitigating factor, and I shall further reduce his sentence. See HKSAR v Leung Shuk Man.

29.On Charge 3, the sentence is reduced to 18 months’ imprisonment. Likewise, on Charge 5, the sentence is reduced to 18 months’ imprisonment.

Totality

30.On Charge 1, 8 months’ imprisonment; on Charge 3, 18 months’ imprisonment; and Charge 5, 18 months’ imprisonment.

31.Having considered the totality principle, I order that all the sentences of Charges 1, 3 and 5 should be served concurrently to a total of 18 months’ imprisonment.