HKSAR v. Li Ching Man

DCCC 54/2017

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 54 OF 2017

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Reasons for Sentence

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1.The defendant has pleaded guilty to two counts of theft and 11 counts of obtaining property by deception. This is a case where the defendant stole or took three credit cards from two victims, both being friends. She then embarked on a shopping spree, buying mainly iPhones with those credit cards which are easy to resell. The loss suffered by the financial institutions that issued those credit cards totalled $76,040.

2.Charge 1 is the theft of the first card belonging to PW1 in early 2015.  Charges 2 to 6 are all offences of the defendant obtaining property by deception using that first card on those five occasions in a three-week period to buy five iPhones.  She told the police she sold those iPhones and then threw away that credit card. 

3.Charge 7 is the theft of the second credit card belonging to the same victim, PW1, about one year later in early 2016.  Charges 8 to 11 are all offences of the defendant obtaining property by deception using that second credit card on four occasions, buying four iPhones and some cosmetics in less than a two-week period in April 2016. Again she sold the iPhones and threw away that credit card. 

4.Charges 12 to 13 relate to a third credit card belonging to PW2.  The defendant says she picked this card up when PW2 dropped it in May 2016, and within days, she had used it twice to buy two iPhones and cosmetics.

5.Charges 8 to 13 are dated between 31 March and 30 May 2016.  They were committed whilst the defendant was serving a community service order for exactly the same offence, obtaining property by deception, in particular, again using someone else’s credit card that she had taken.  This community service order was imposed on 15 March 2016 by the Eastern Magistracy for a single charge.  Two weeks after that conviction, she committed Charge 8.  This is a fact that I cannot ignore when considering sentence.

6.After the defendant was arrested, she did admit these offences and co-operated with the police.  The defendant’s best mitigation is her plea of guilty.  Mr Tao has said all he can say on her behalf. 

(Discussion re interpretation)

7.The defendant is 24 years old and lives with her parents.  I have had letters from the defendant, her mother and PW2, the second victim.  The defendant explains in her letter that she felt under pressure to contribute to her family’s expenses.  She did contribute but when she resigned from her job, she did not tell her mother.  Her desperation to contribute led to her stealing PW1’s first credit card in 2015. 

8.The same explanation applies to the theft of PW1’s second card in 2016.  The defendant’s father suffered a stroke some 10 years ago but led him to be incapacitated and unable to work.  That meant the defendant’s mother had to work and bear the financial burden of the family expenses.  This led to the defendant feeling pressure to find full-time employment to help her mother.

9.In the defendant’s mother’s mitigation letter, she gives a similar explanation as to their family background.  She does explain the defendant is a caring, filial and, when she is working, a hardworking daughter.  Although the mother is obviously disappointed, she is very supportive and asks for leniency.   

10.The third letter from PW2, the second victim, also asks for leniency.  She explains that she and the defendant have been friends for years.  I do note that she personally did not suffer any financial loss.  The bank did.  So PW2 may feel more charitable and inclined to forgive. PW2 describes the use of her credit card by the defendant as an unfortunate and isolated incident.  But as we know, it was not an isolated incident.  PW1 had two cards stolen, and the defendant’s conviction in March 2016, I have been told, involved two cards belonging to past colleagues. 

11.Where credit-card-fraud cases are concerned, the Court of Appeal has set out several relevant factors to consider.  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 excessive nor were many cards involved, usually a 3-year starting point or less would be appropriate depending on the defendant’s background.  I have been referred to the authority of R v Chan Sui To CACC 115 of 1996 as well as HKSAR v Lam See Chung Stephen CACC 339 of 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 the fraudulent use of genuine credit cards.   

12.The defence has also referred me to the authority of HKSAR v Tu I Lang CACC 464 of 2006 to support the submission that a starting point of 3 years or less would be appropriate here. 

13.It cannot be ignored that a relevant factor would be the potential for losses in credit-card frauds.  I have referred myself to HKSAR v Cheung Ka Wo Johnny [2002] 2 HKC 517.  Deterrent sentences are necessary to deter others who may be tempted to beat the integrity of the credit-card system by fraudulent means.

14.I have considered everything said in mitigation on the defendant’s behalf.  I have also taken into account the facts of each charge, the number of cards taken or stolen, and the amount of loss being $76,000-odd.  There is no restitution in this case as the defendant does not have the ability to repay.  These were not sophisticated crimes.  The defendant had been caught once.  She was bound to be caught again.  Lastly, I have taken into account the authorities I have been referred to today.

15.For the two theft charges, Charges 1 and 7, I will take a starting point of 18 months’ imprisonment.  For Charges 2 through to 6, obtaining property by deception using the card from the theft of Charge 1, I take a starting point of 2 years and 9 months.  For Charges 8 to 13, obtaining property by deception using the card from the theft of Charge 7 and PW2’s card, I take a starting point of 3 years and 3 months.  This is to reflect the fact that the defendant was serving a community service order for exactly the same offence, yet without remorse carried on her dishonest behaviour.    

16.The defendant has pleaded guilty and is entitled to a discount of one-third from all those starting points.  After that discount is applied, for Charge 1, the defendant is sentenced to 1-year imprisonment.  For Charges 2, 3, 4, 5 and 6, the defendant is sentenced to 1 year and 10 months’ imprisonment.  For Charge 7, the defendant is sentenced to 1‑year imprisonment.  For Charges 8, 9, 10, 11, 12 and 13, defendant is sentenced to 2 years and 2 months’ imprisonment. 

17.I take into account the totality principle.  I also take into account that there are three groups of offences here involving three cards.  Those are grouped as charges.  The first group includes Charges 1 to 6; the second group, Charges 7 to 11; and lastly the third group will be Charges 12 and 13. 

18.I am of the view that a total sentence of 2 years and 8 months would be sufficient to reflect the defendant’s criminality in these offences.  Therefore, I order that 6 months from the sentence of Charge 8 be served consecutively to Charge 2, and I order that 4 months of Charge 12 be served consecutively to Charge 2.  The balance will be all concurrent.  Therefore, a total sentence today is imposed of 2 years and 8 months.  Do you understand?

DEFENDANT: Yes, I understand.