HKSAR v. Cheng Man Ho

DCCC 347/2017

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 347 OF 2017

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

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

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

Reasons for Sentence

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

Charges and facts

1.The Defendant pleads guilty to 2 charges of obtaining property by deception.   

2.PW1 (Mr. LAW) was the holder of a credit card issued by Bank of China.  He had not lost his credit card but someone claiming to be him phoned up Bank of China to report loss of the credit card on 10 December 2015.  

3.On 15 December 2015, the bank sent a new credit card (“the Credit Card”) to his address. 

4.On 17 December 2015, the ex-tenant of the address approached the security guard at the address and said his friend had wrongly posted letters to the address.  The security guard allowed the ex-tenant to remove letters from the letterbox of the address using a ruler. 

5.On 18 December 2015, the bank received a phone call to confirm the receipt of the Credit Card and activate it. 

6.At about 2:05 pm on the same day, the Defendant used the Credit Card to purchase 1 iPhone and 1 smartphone for $10,386 at the Fortress shop in Citywalk 2, Tsuen Wan.  This relates to the 1^st Charge. 

7.At about 2:24 pm on the same day, the Defendant used the Credit Card to purchase 1 iPhone for $6,388 at the Fortress shop in Panda Place, Tsuen Wan.  This relates to the 2^nd Charge. 

8.On 19 December 2015, the bank notified PW1 by phone text messages.  PW1 reported the case to the police. 

9.The sale receipts kept by the 2 shops were examined and found to bear the Defendant’s fingerprints.  The CCTVs of the 2 shops also captured the Defendant making the purchases.

10.On 8 September 2016, the police arrested the Defendant in the street. 

11.The bank fully refunded PW1. 

Mitigation

12.The Defendant is 30 years old, of F. 1 education level.  After a few months working as a bar attendant at the age of 15, he had been unemployed for over 15 years. Apart from records of dangerous drug possession, he had various records of dishonesty, such as theft and handling stolen goods sentenced in 2001, attempted theft in 2002, and using a false instrument in 2015.  However, as most of his records of dishonesty were incurred in the distant past, I do not regard him a persistent offender. 

13.His counsel Mr. Wong informs me that he had picked up the Credit Card from a taxi and used it out of greed. 

Sentencing considerations

14.In HKSAR v Chan Sui-to [1996] 2 HKCLR 128, Yang CJ stated that a sentencing judge had to consider at least the following 5 factors before deciding the level of sentence for credit card fraud:

(1) The size of the operation e.g. whether it involves large sums of money, whether it concerned a large number of persons or forged credit cards.

(2) The planning that has gone into perpetrating the fraud, whether it is elaborate or simple, whether technical skills were used, and to what extent.

(3) Whether there is an international dimension.

(4) Whether the accused played a major role, e.g. running a syndicate, engaging in actual manufacture, organising the use of forged cards, or whether he is a mere ‘cog in the wheel’ as a courier or a custodian or keeper.

(5) Whether there is a plea of guilty.

15.There are no sentencing guidelines. For a straightforward small-scale operation with no international element, starting points of near or up to 3 years had been customarily affirmed on appeal. 

Sentencing this Defendant

16.On the one hand, someone was deployed to impersonate the real card-holder to report loss of the card, later confirm receipt and activate the card.  The ex-tenant was also instrumental in pretending to retrieve a letter from the letterbox of PW1’s address.  Both the bank and the security guard were plain gullible.  These reflect planned operations which exploited the easy gullibility of the bank and the security guard.  The Defendant’s counsel Mr. Wong tells me that the Defendant had picked up the credit card from a taxi. I think the necessary inference is that a courier had instantly lost it on a taxi after activation.  This allegation is implausible and I do not accept it.

17.On the other hand, this remained a small operation with no international dimension. 

18.I take a starting point of 3 years for each charge.  One-third off for the timely plea of guilty, the sentence is 2 years.  There is full compensation just made to the bank for the loss.  I reduce his sentence by 3 months each.  The sentence is 1 year 9 months each.  The sentences are to be concurrent.