HKSAR v. Ma Tsz Wa

DCCC 6/2017

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 6 OF 2017

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Reasons for Sentence

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1.The defendant has entered pleas of guilty to one charge of conspiracy to defraud, six charges of fraud, and two charges of attempted fraud.

2.The charges involve the time that the defendant was an employee at an ice‑cream shop in Kwun Tong, and whilst employed there between October 2014 and February 2015, she stole the details of the ice-cream shop’s customers’ credit cards and her colleagues’ credit card details.  She supplied some of those credit details to someone else and also used those credit details herself to make a lot of purchases.

3.The purchases she made for herself constitute the 2nd to 7th charges.  The 8th and 9th charges are failed attempts, and the 1st charge relates to her supply of credit card details to another person.

4.A total of 64 of the ice-cream shop’s customers’ and six colleagues’ credit card details were stolen.  That is a total of 71 credit cards where the details were stolen.  There were 246 purchases in total, and they involved a total of eight Hong Kong banks; and the entire amount of money encompassed by these charges is $1,426,598.62.

5.The details of the charges come to light as the result of investigation and also the defendant’s own admission.  As far as the 1st charge is concerned, she admitted that in October 2014 she met or became acquainted with a person called “Ah Fai” through Facebook, and she was recruited to earn what she described as quick money.  “Ah Fai” asked the defendant to copy credit card details from her customers and forward them to him.  She did that.  There were a total of six colleagues’ credit cards and 50 to 60 customers as well.

6.She received $5,500 as a reward for that.

7.As far as those credit cards are concerned, there were a total of 154 transactions amounting to $631,795.62.

8.The defendant then decided to use the credit card details herself without passing them to “Ah Fai”.  She did that from December 2014 onwards, and she used that to make purchases of high-value items like mobile phones, tablets, handbags and wallets.  The details are set out in the facts to which the defendant has admitted, but in summary, they are as follows.

9.The 1st charge, where details were provided to “Ah Fai”, there were 38 different credit cards from eight Hong Kong banks.  As Far as the other charges, those of the 2nd to the 9th charge, in which the defendant herself used other persons’ credit card information, between the 2nd and 7th charges, for the successful charges, there was a total of $623,018 obtained, and as far as the 8th and 9th charges, where the attempt was made, there is a total of $171,758.

10.Those constitute, in essence, the facts which the defendant has admitted.

11.As far as the defendant’s antecedents are concerned, she is aged only 23 years old; completed up to Form 5 education; she has lived with her family.  The background report on the defendant is helpful.  It is difficult to understand why the defendant has involved herself in this, because otherwise she seems to be a sensible, educated young lady.  It appears the family did have some straitened circumstances, and so not much cash was available for luxury items, and she was tempted by easy money.

12.The overall conclusion is the defendant was brought up in a family with what is described as stringent financial conditions, but caring parents.  The defendant’s father became unemployed, and money was tight.  The defendant turned what is described as “to illicit means” for easy money.  She has remorse for this, her misdeed, and plans to train so that she can obtain employment on release, and naturally, leniency is asked for.

13.In mitigation it is said I should take into account when determining the severity of sentence the fact that the defendant is of clear record and she is also still quite young.

14.The determination of sentence in a case like this is obviously conditioned by the fact that the defendant has used credit card details.  The case that, as it were, determines the sentencing approach where fraudulent or stolen credit cards are concerned is one of a case called Chan Siu To [1996] 2 HKCLR 128, and from that case it can be seen that the courts have always taken the use of credit cards and their details seriously and that the use of what were then described as false credit cards to purchase goods was a prevalent offence calculated to undermine the elaborate system of credit which is an essential feature of modern life.

15.Sentences passed by the courts must incorporate a substantial element of deterrence to deter people from using cards which do not belong to them or false or forged credit cards to make what might be seen to be easy money.

16.It is said in Chan Siu To that:

“An accused who plays an active but not necessarily a key role in a medium‑sized operation involving between $50,000 to $150,000 with no elaborate planning and equipment and without an international dimension should receive a sentence of 5 to 6 years’ imprisonment after trial.”

17.It must be observed that some of the salient features of the case in Chan Siu To are not present in the defendant’s case.  The defendant here is involved in the provision of credit card details to others and also the use of those details herself.  It does not involve, as far as we can see, the manufacture or use of the cards; does not appear to have any international dimension; and what the defendant did cannot be said to be sophisticated.

18.It does involve a systematic course of conduct over a period of time and does involve a large sum of money.

19.I consider the case of Chan Siu To to be helpful in the approach that should be taken, but not necessarily determinative of the quantum of sentence that should be imposed for this particular defendant on these facts.

20.The defence has referred me to the case of HKSAR v Chow Fu Keung CACC 525/2000, where an overall starting point, I think, of 5 years’ imprisonment was determined for a case which again did not involve a syndication or manufacture of cards or being particularly sophisticated.

21.In that case, cards were actually obtained and used, and a total of about $138,000‑odd was still outstanding.  Again, the case is helpful, but again, not necessarily determinative of the approach I should take.  Each of these cases very much depends on its own particular details.

22.As to the question of what approach should be taken, what is important here is the extent of the operation.  A lot of people’s details were obtained.  There were what the prosecution describe in their facts as a vast number of transactions and a large amount of money was obtained or attempted to be obtained, and all this involved the abuse of the details of existing credit cards.

23.As against that must be set the defendant’s young age, her remorse, the fact that she has assisted in the investigation by her confession, and the fact that this is her first and, one hopes, only involvement in criminality.

24.Having taken all those factors into consideration, I shall approach he determination of sentence in the following way.  First, I shall indicate the starting point for sentence I will take on each charge.  Those figures will naturally all be reduced by one third.  Then I shall determine the overall sentence and adjust the individual sentences by way of making them consecutive or concurrent as necessary.

25.In respect of the 1st charge, I consider the starting point for sentence should be one of 3 years and 6 months’ imprisonment, which is 42 months’ imprisonment.

26.On Charges 2 through to 5 and Charge 9, I will take a starting point of 30 months’ imprisonment.

27.On Charges 6, 7 and 8, there will be a starting point of 3 years’ imprisonment or 36 months’ imprisonment.

28.That leads to a final sentence in each charge as follows:

on the 1st charge, 28 months’ imprisonment;

on Charges 2, 3, 4, 5 and 9, 20 months’ imprisonment;

on 6, 7 and 8, 24 months’ imprisonment.

29.Now I must determine what would be the appropriate overall sentence having regard to the overall criminality.  I consider the overall starting point in a case such as this should be in the region of 4½ years’ imprisonment.  That would lead, after deduction for a plea of guilty, to a sentence of 3 years’ imprisonment.

30.I shall achieve this as follows.  I shall order that sentences on Charges 2 to 9 run concurrently to each other; but 8 months of those sentences consecutively to that on Charge 1. 

31.That leads to an overall sentence of 36 months, or 3 years’ imprisonment.