HKSAR v. Vananda Arjuna

DCCC 513/2017

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 513 OF 2017

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REASONS FOR SENTENCE

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1.In this case, the defendant Vananda Arjuna is charged with and pleaded guilty to two counts of theft, contrary to section 9 of the Theft Ordinance, Cap 210.  He is convicted upon his plea and admission of facts.

2.Simply put, this is a credit card fraud.  The background of both charges are similar.  Two credit card holders in Hong Kong on different dates received a bogus e-mail apparently from a famous computer company, asking them to refurnish personal information (including name, address, number and security code) of their respective credit cards.  Unaware that these messages were not authorised, they replied and furnished the information as requested.

3.The victim of the first charge (a Ms Yau), received subsequently a message from her bank, indicating that a transaction of $24,999 had been completed on her credit card.  She did not authorise such transaction.  As it turned out, her credit card was used to purchase a computer in Hong Kong, which was then delivered to a Hong Kong address, care of a relative of the defendant.

4.The second victim received a message on 17 March 2017 that a transaction of $8,080 was completed on her own credit card.  She did not authorise such transaction.  Further enquiries revealed that the transaction was made with Cathay Pacific Airways for the purchase of plane tickets.

5.The matter was reported to police and on 18 March 2017 the defendant was arrested at the airport, armed with the Cathay Pacific Airway boarding pass purchased through the second victim’s credit card.  At the time of his arrest, the police also found a Dell laptop computer. On that computer the police found an invoice in soft copy for the purchase of the computer in question.

6.Subsequent enquiries revealed that the defendant had used the address of a relative who was then working as a domestic helper in Hong Kong to collect parcels (including the Dell computer) for the defendant. The defendant came to Hong Kong on 16 March 2017 to collect the parcels.

7.It is not clear how the defendant came to be able to use the bogus e-mail in order to lure the victims to provide their personal information and also details of the credit cards.  It is clear that the defendant had used his knowledge in computer and effected purchases through others’ credit card.

8.The use of credit card is an integral part of modern life, and abuse of credit cards is equally rampant these days.  The success and the efficiency of the system really depends on the honesty of the person to the system, for, if everyone is a fraudster, either the system would not be able to operate or it would be so horribly expensive that it would not benefit the majority of the society.

9.Computer fraud has been considered a very serious offence as well. 

10.In respect of credit card fraud, there is a clear line of authorities, starting from HKSAR v Cheung Mee Kiu [2006] 4 HKLRD 776.  In the case of HKSAR v Lam See Chung Stephen [2013] 5 HKLRD 242, the Court of Appeal again reviewed the authorities and set out clearly the kind of sentencing guideline this court ought to consider, the relevant part in paragraph 38, read，

“... in the type of simple, small-scale use of forged credit cards for which a sentencing tariff of 3 years’ imprisonment or less has been said to be appropriate.”

In paragraph 39,

“Those judgments which lay down a sentence of 3 years’ imprisonment or less for cases of simple credit card fraud are based on a number of sentencing principles and considerations. They are that counterfeit credit card offences require deterrent sentences; there is a need to protect the integrity of the credit card system; and the potential for loss is great and often will be far greater than the actual loss. In fact, it is precisely because of this last consideration that the actual loss will not necessarily be an important factor when it comes to sentencing a credit card offender; rather, ‘it is this potential for losses which is the most important consideration.’”

11.At paragraph 40 the Court of Appeal pronounced clearly that these sentencing principles and considerations are equally applicable to credit card fraud cases in which genuine cards had been used.  There is no reason to differentiate the use of genuine credit cards and the use of forged credit cards.

12.In this case, I see no reason to depart from such established principles, for the considerations are equally applicable in the present case. 

13.Obviously, the defendant had used his computer knowledge to perpetuate the fraud.  He took the precaution of ordering the items in Hong Kong in the case of the 1st charge.  He must have done so via Internet while he was not in Hong Kong, and then arranged for the goods to be delivered to a relative in Hong Kong.  He then came to Hong Kong to collect the computer and also used another credit card to purchase airplane tickets to go back to Indonesia.

14.This, I believe, is an aggravating factor as such conduct involved expert knowledge on computer science, on credit card, and also involved detailed planning. 

15.In the circumstances, I would adopt a 3-year starting point for each charge.

16.I turn to consider the mitigation put forward by the defence.

17.As was revealed in the information provided by the prosecution, the defendant is a relatively young man.  He has no previous conviction in Hong Kong.  He is an Indonesian national.  It would appear that he came to Hong Kong, specifically to collect his ill-gotten gain.

18.The defence lawyer submitted that the defendant was remorseful and that the amount involved here was not substantial.  As has been pointed out by the Court of Appeal, it is the potential of the loss not the actual loss that this court ought to consider.  The amount involved is not unsubstantial.  The first victim had about HK$24,999 added to her bill, whereas the defendant used the second credit card to charge a sum of $8,080.

19.I have been also informed that the defendant had a family in Indonesia.  He is a computer science student.  He has got other siblings in Indonesia.  These are not really valid considerations.

20.I next turn to consider the totality principle. The court takes note of the fact that the case involves two victims and two transactions which took place on different days.  The defendant used his skill on two different days to commit the fraud.  So, technically, this court should consider ordering the sentence order to run consecutively.

21.However, I have to bear in mind the totality principle and I would, have considered the matter as a whole, I accept that although the crimes had been committed on two different days, they had been committed with the same method and the defendant pleaded guilty at the same time. 

22.So I would order 6 months of the second charge to run consecutive to the first.

23.So, in all, 42 months’ imprisonment.

24.The court also takes into consideration that the defendant pleaded guilty and, in accordance with the established principle in Hong Kong, he is entitled to a one-third discount.

25.Therefore, his sentence is reduced to 28 months.

26.I also consider that the defendant is a relatively young man; he is an Indonesian national.  That he has to serve a term of imprisonment in Hong Kong would probably mean greater hardship in the sense that he would have more problems in adjustment than other people. Although, this is not really a valid consideration, as an act of compassion, I would further reduce another 2 months from the total imprisonment.

27.So, in all, the defendant has to serve 26 months.