HKSAR v. Fong Man Fai

DCCC 953/2017

[2018] HKDC 202

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 953 OF 2017

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REASONS FOR SENTENCE

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1.Defendant Fong Man Fai pleaded guilty before me to two charges of Conspiracy to obtain property by deception, contrary to section 17(1) of the Theft Ordinance, Cap 210, and sections 159A and 159C of the Crimes Ordinance, Cap 200, on the Amended Charge Sheet.

Admitted Facts

2.The facts admitted by Mr Fong can be summarized as follows.

Charge 1

3.On 18 August 2016, Mr Fong presented a notification card for registered parcel and a copy of PW1 Cheung Tak-wah’s HKID card to a staff member of the Hong Kong Post Office and collected a credit card subject of Charge 2 from him.

Charge 2

4.On the same day, Mr Fong made three purchases of computer equipment to the total value of $50,000 at one-minute intervals by using the credit card in a shop in Mongkok.

Arrest and caution

5.On arrest on 19 June 2017, Mr Fong said under caution that he had collected the credit card and used it for purchases; but he was not the person who applied for it.

6.Under caution at an interview, Mr Fong admitted:-

(a)   He had received a WhatsApp message from one “Ah Cho” who asked if he needed money;

(b)   On the instructions of “Ah Cho”, he went to a place in Tsuen Wan and collected from the mail box a notification of registered mail which he used at the Post Office to collect the credit card;

(c)   On instructions from “Ah Cho” who offered a reward of $4,000, he went to a shop in Mongkok and purchased various items using the credit card;

(d)   “Ah Cho” also instructed him to deliver the purchased items to a man outside a public toilet who would pay him $4,000; he did as instructed; and

(e)   He did not know “Ah Cho” or the man who collected the purchased items from him.

Police enquiries

7.Police have retrieved from Hang Seng Bank which issued the credit card some documents pertaining to the application of the credit card.  Two of the documents were a salary slip and an NCB bank statement purportedly belonging to PW1.  PW1 confirmed that both were false documents.

8.PW1 had never applied for the credit card.

Criminal record

9.The criminal record shows Mr Fong has 4 previous convictions the first one of which was for theft in 2011.  The rest are for possession of dangerous drugs offences.

Antecedents

10.Mr Fong is aged 21 (almost 20 at the time of the offences), single, educated to secondary level.  He was unemployed at the time of the arrest. Before arrest, he lived with his father (70) and elder sister (23) at a public housing estate in Kowloon.

Mitigation

11.Mr Jackson Poon of counsel mitigated on behalf of Mr Fong.

12.Mr Poon submitted that Mr Fong used to be a kitchen hand earning $11,000 a month; that he had been in custody since arrest; that he had co-operated with police and frankly admitted the offences under caution; that he had pleaded guilty.

13.Mr Poon handed up the authority of HKSAR v Lam See Chung Stephen [2013] 5 HKLRD 242, 243 which said that for a case of a simple small-scale use of forged credit cards, a sentence of 3 years’ imprisonment or less was appropriate.  Mr Poon urged for a sentence of less than 3 years for Mr Fong.

14.As regards the case submitted by the Prosecution, namely HKSAR v Wong Siu Kay & Ors, CACC 265/2006, Mr Poon submitted that it is more relevant to cases where more defendants and more credit cards are present.

15.Mr Poon asked me to impose concurrent sentences for Charges 1 & 2 because they relate to offences which formed one single transaction.

16.When invited by me to suggest a starting point for Charge 1, Mr Poon urged me to adopt the same starting point for Charges 1 and 2 – of less than 3 years – because the purpose of committing the offence subject of Charge 1 was to commit the offence subject of Charge 2.

Sentence

17.Before mitigation, I asked the Prosecution for any sentencing authorities that might assist me in relation to Charge 1 ie that of conspiracy to obtain mail from the post office by false information.  Prosecution referred me to HKSAR v Wong Siu Kay, supra, which really dealt with the type of crimes subject of Charge 2, only on a larger scale.  I do not therefore find the case helpful.

18.By invitation, Prosecution also informed me that the mail box from which Mr Fong said he retrieved the notification of mail was not a mail box of PW1.

19.I have looked at the photographs submitted by the Prosecution.

20.I have considered the mitigation submissions made by Mr Jackson Poon.

21.This is clearly a credit card fraud case.

22.As was said by the Court of Appeal in HKSAR v Cheung Ka Wo Johnny [2002] 2 HKC 517, it is well known that severe sentences are given to those who commit offences of the kind with which the court is present concerned as a deterrent to others who are like-minded; that one justification is the integrity of the credit card system and that public confidence on this aspect of modern commercial life is necessarily eroded by those who attempt to beat the system by fraudulent means.

23.In HKSAR v Lau Pui Hang, CACC 393/2003, the Court of Appeal recited the five non-exhaustive factors set out in R v Chan Sui-to & Anor [1996] 2 HKCLR 128, 131 that a sentencing judge would need to consider in cases of this type:-

(a)   The size of the operation eg whether it involves large sums of money, whether it concerned a large number of persons or forged credit cards;

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

(c)   Whether there is an international dimension;

(d)   Whether the accused played a major role, eg running a syndicate, engaging in actual manufacture, organizing the use of forged credit cards, or whether he is a mere ‘cog in the wheel’ as a courier or a custodian or keeper; and

(e)   Whether there is a plea of guilty.

24.In HKSAR v Ng Swee Thiam & Ors [2000] 1 HKLRD 772, the Court of Appeal said that the question of the amount of losses which might be proved might pale into insignificance when consideration was given to the potential for losses in the future.

25.Coming back to the facts of this case, it is clear there was a syndicate behind the whole operation of which Mr Fong was a part.

26.The amount of actual loss to the bank being $50,000 was not enormous. There is no evidence before me on the potential for loss in the future.  The syndicate in this case is not large; and only one credit card had been used.

27.The method used by the syndicate appears to be simple.  First, a false application was made to the bank for a credit card using false documents purportedly belonging to PW1.  I note that there is no evidence that Mr Fong played any role in this part of the larger operation; nor indeed has he been charged with the appurtenant obtaining pecuniary advantage by deception.

28.Secondly, Mr Fong went to collect a notification of registered mail/parcel from a mail box not related to PW1.  Armed with that notification and a copy of PW1’s HKID card, he collected from the post office the credit card thus issued, no doubt representing himself as a representative of PW1. There is no evidence before me of how he obtained access to the mail box or the copy of PW1’s HKID card.

29.The third phase of criminal scheme was for Mr Fong to use the credit card for purchases at a shop in a designated shopping plaza.

30.I fully acknowledge that Mr Fong has been charged with conspiracy in relation to the second and third phases only.

31.There is no evidence of an international dimension.

32.Considered globally, I consider Mr Fong played neither a major nor a minor role in the criminal enterprise.  If he had only retrieved the credit card from the post office by false representation and passed it on to others for use, then I would agree he would have played only a minor role.  But that is not the case here.

33.The early plea of guilty is the strongest mitigation for which Mr Fong will be given full credit.

34.There are no other mitigating factors of sufficient weight to warrant a further discount.

35.Bearing in mind it would be obvious to anyone committing the first offence here that the purpose for it was for either himself or someone else to commit the second offence, I consider that the correct starting point for Charge 1 is two years’ imprisonment.

36.Taking into account the first 4 factors listed above, I am of the view that a person playing the role of the user of the credit card – ie subject of Charge 2 - in this case would deserve a starting point of 3 years’ imprisonment.

37.The two offences that Mr Fong though committed on the same day were completely separate and they clearly are not concomitants of each other. Commission of one does not necessarily entail commission of the other by the same person.

38.Subject to totality, there has to be an element of consecutiveness in the sentences imposed.

39.Mr Fong please stand.

40.For Charge 1, I adopt a starting point of 2 years’ imprisonment which is reduced to 16 months’ imprisonment upon Mr Fong’s early plea of guilty.

41.For Charge 2, I adopt a starting point of 3 years’ imprisonment which is reduced to 2 years’ imprisonment upon his early plea.

42.Having considered totality, I consider a global sentence after plea of 2 years and 1 month’s imprisonment to be justified in the overall role played by Mr Fong.  I therefore order that one month of the sentence on Charge 1 to run consecutively to that on Charge 2.

43.Mr Fong will go to prison for 2 years 1 month.