HKSAR v. Chiu Man Fai and Others

DCCC 1017/2017

[2018] HKDC 924

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 1017 OF 2017

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REASONS FOR SENTENCE

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1.The second defendant pleaded guilty to 32 counts of “theft”, contrary to section 9 of the Theft Ordinance, Cap. 210 (charges 1-32) and all three defendants pleaded guilty to one count of “conspiracy to obtain property by deception”, contrary to section 17(1) of the Theft Ordinance, Cap. 210, sections 159A and 159C of the Crimes Ordinance, Cap. 200 (charge 33).

2.Between 1 October 2016 and 20 April 2017, the second defendant had on 29 occasions at different public swimming pools, stolen a total of 32 credit cards belonging to 32 persons.  On each occasion except for charges 31-32, after the credit card was stolen, it was used to make purchases on the same day at Apple Store, 7-Eleven Convenience Store and/or other shops as detailed in the Re-Amended Summary of Facts.  The total value of purchases made with these credit cards is around HK$660,000.

3.For charges 2, 7-13, 15, 17-19, 21-25 and 27-30, CCTV of the relevant swimming pools captured the second defendant’s entry and departure.  The second defendant under caution admitted that he was the person captured in the CCTV recording.

4.On 29 March 2017 (i.e. the offence date of charge 30), the first defendant was seen leaving Apple Store hastily.  He was thus intercepted for inquiry.  Upon search, the credit card, the subject matter of charge 30, and one Hang Seng Bank credit card in the name of Lau Chi Kong (“HSB Credit Card”), 3 iPhones 7 Plus, 1 Apple Watch and 1 gift card were found on the first defendant.  He said under caution that a male known as Ah Dick (later known to be the third defendant) gave him the 2 credit cards and the third defendant asked him to purchase items at Apple Store with the credit cards and he would be given a reward of HK$600 for each iPhone.

5.Police officers conducted an anti-crime operation at swimming pools of Sham Shui Po and Mong Kok on 20 April 2017 (i.e. the offence date of charges 31 and 32).  At about 7:05 pm, the second defendant was seen acting furtively outside Lai Chi Kok Park Swimming Pool.  Police officers kept following the second defendant, and eventually saw the second defendant entering and later leaving Morse Park Swimming Pool.   Police officers then followed the second defendant to a 7-Eleven Convenience Store at Wong Tai Sin (Lower) Estate. Shortly afterwards, the third defendant joined the second defendant.  At this juncture, police officers intercepted the two defendants.  Upon search, credit cards, the subject matter of charges 31 and 32, and a key numbered 296 were found in the left front pocket of the second defendant’s jeans.  The two defendants were arrested.

6.Under caution, the second defendant admitted having committed the offences.  He revealed that he had stolen the said 2 credit cards from the changing room of Morse Park Swimming Pool by opening the lockers with the key.  He would pass the credit cards to the third defendant to make purchases.

7.Under caution, the third defendant said that Mako (i.e. the second defendant) asked him to wait in the relevant location and the second defendant was going to pass him the stolen credit cards for making purchases.  The third defendant would then pass the credit cards to other individuals for making purchases, but he was not involved in the key found on the second defendant.

8.During house search, 2 master keys of lockers of swimming pools, 2 mobile phones and the second defendant’s clothing and bag were seized from his residence.

9.In subsequent video-recorded interviews, the three defendants admitted the offences as detailed in the Re-Amended Summary of Facts.  In gist, the second defendant had keys to open some of the lockers in the male changing room of some public swimming pools.  He would go to those changing rooms to steal credit cards kept in the lockers by users of the swimming pools.  After he had stolen the credit cards, he would pass them to the third defendant who would in turn pass them to another individual (including the first defendant) for making purchases of iPhones and other items on the same day.  Purchases would usually be made at Apple Store and some other shops.  After purchases were made, the individual would hand the properties purchased as well as the credit card to the third defendant.  The third defendant would then pass all these to the second defendant for disposal.  For each property obtained, both the third defendant and the individual would each get around 10% of the proceeds as commission while the second defendant would have the remainder of the proceeds.

10.Call record analysis showed that there were calls between the second and third defendants on the offence date of charges 19, 20, 24, 30-32 while there were calls between the first and third defendants on the offence date of charge 30.

11.The 3 keys seized from the second defendant and his residence could be used to open some of the lockers in the male changing rooms of Lai Chi Kok Swimming Pool, Sham Shui Po Park Swimming Pool and Morse Park Swimming Pool.

12.The movement records of the second and third defendants confirmed that they were in Hong Kong at all materials times.  The movement record of the first defendant showed that he was in Hong Kong at all material times of all the offences, except charge 27.

Mitigation

13.The first defendant is aged 44 and lived with his 2 children and his cohabitee prior to the arrest.  He has one previous conviction record which is not similar to the present offence.  He had been working hard since his release from prison in 2003.  His mother was diagnosed with terminal lung cancer 3 years ago and he had to borrow money for the medical treatment of his mother.  Unfortunately, his mother passed away in the same year.  He needed to take care of his family and his father.  He also needed to repay the loan.  Due to the financial difficulties, he was invited to join the scheme to earn some money.  In mitigation, it was submitted that the first defendant is a caring father and husband and a filial son.  He was not the mastermind of the operation, he was only a foot solider.  No international element was involved.  The first defendant was extremely remorseful and the court was urged to impose a lenient sentence on the first defendant.

14.The second defendant is aged 35, single and lived alone.  He has no criminal conviction record prior to the present case.  He came from a middle class family.  He had been working in electrical appliances companies for some time.  In 2016, he acted as a guarantor of a client and as a result of which he had to borrow money from loan shark to pay HK$800,000 for his client.  Since he was not able to pay the interest on the loan, he was given keys and told to steal credit cards and hence he committed these offences so that he could use the proceeds to repay the loan.  In mitigation, it was submitted that no international element was involved and there was also lack of sophistication.  The court was referred to several cases[1] and urged to impose lenient sentence on the second defendant.

15.The third defendant is aged 37 and married with his wife staying in the Mainland.  He lived with his mother prior to the arrest.  His father passed away a few years ago.  He has no criminal conviction record prior to the present case.  He used to be a salesman working with unstable income.  Prior to the offence, he quitted his job in order to get a job with higher salary.  He met the second defendant and was invited to join in the operation.  He is deeply remorseful for what he had done and he only received about 10% of the proceeds as commission.  In mitigation, it was submitted that the operation did not involve sophisticated planning and equipment.  It was also submitted that but for the third defendant’s confession, there might not be sufficient evidence to charge him. The court was urged to grant him an extra discount on his forthcoming confession.   

Sentence

16.Credit card offences are serious and must be deterred.  Offenders would expect to be punished by a substantial term of imprisonment.

17.In R v Chan Sui To and anor [1996] 2 HKCLR 128, the Court of Appeal laid down the various factors to be considered in sentencing this type of offence, which included the size and planning of the operation, whether there is any international dimension and the role played by the defendant.  Further, the Court of Appeal suggested that an accused who played an active but not necessarily a key role in a medium size operation involving between $50,000 and $150,000, with no elaborate planning and equipment, and without an international dimension, should receive a sentence of five to six years after trial. Sentences may be adjusted upwards or downwards according to circumstances.

18.In HKSAR v Lam See Chung, Stephen, CACC 339/2012, the Court of Appeal stated that those sentencing principle in consideration are equally applicable to credit card fraud in which genuine cards are used.

19.In the present case, a total of 32 credit cards were stolen, 30 of them had been used to deceive various shops.  The total value of properties obtained amounts to HK$660,000.  Further, the operation involved some sort of planning in that the second defendant got the keys which could be used to open some of the lockers in the changing rooms of some public swimming pools.  After he stole the credit card, he immediately had it arranged to be passed to someone who would make purchases with the credit card.  Then, the properties obtained would be re-sold and the proceeds would be shared amongst the persons involved.  The operation lasted for over 6 months.  In the circumstances, I consider this to be a medium size operation with some planning but no international element.  The appropriate starting point should be 6 years’ imprisonment.  

20.The three defendants played different roles in the operation.  I accept the first and third defendant were not the mastermind or main organizer of the operation.  In mitigation, counsel for the second defendant submitted that the second defendant was not the mastermind of the operation and that he was provided with the keys by the loan shark and was told to steal credit cards.  I find this part of mitigation inconsistent with the second defendant’s admissions under caution.  Nevertheless, I will proceed to sentence the second defendant on the basis that he was not the mastermind of the syndicate.  Having said that, there is no dispute that after the properties were obtained and re-sold, the second defendant was the person who kept the majority part of the proceeds.  Even if he used his share of proceeds to repay the loan shark, this does not diminish his role in the operation.  In this operation, I consider the second defendant is the main organizer of the operation, which means he is more culpable than the first and third defendants. 

21.In the circumstances, I consider that in respect of the first and third defendants, the appropriate starting point should be 6 years.  For the second defendant, given his higher culpability, the appropriate starting point should be 6 years and 6 months.  For the defendants’ plea, the sentence is reduced to 4 years in respect of the first and third defendants and 4 years and 4 months in respect of the second defendant.  I also accept that but for the third defendant’s confession, there might not be sufficient evidence to prosecute him.  I will grant him an extra discount of 2 months.  Apart from that, I do not see other mitigating factor justifying further reduction.

22.As far as the 32 counts of theft are concerned, given the planning involved, I consider the appropriate starting point to be 12 months’ imprisonment.  For the second defendant’s plea, the sentence for each of the 32 counts is reduced to 8 months’ imprisonment.  Apart from that, there is no other mitigating factor justifying further reduction.

23.As the theft charges are part and parcel of the overall operation, I consider the sentences for charge 1-32 should run concurrently with the sentence for charge 33.

24.To sum up, the first defendant is sentenced to 4 years’ imprisonment, the second defendant is sentenced to 4 years and 4 months’ imprisonment and the third defendant is sentenced to 3 years and 10 months’ imprisonment.