HKSAR v. Fan Kin Laam

DCCC 288/2018

[2018] HKDC 1089

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 288 OF 2018

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Reasons for Sentence

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1.The defendant has pleaded guilty to a total of six charges.  Three of those are theft, two are obtaining by deception, and the last one is attempted theft.  All charges relate to the use of a credit card which was the property of PW1, and she had discarded that card in Mong Kok when she received a new credit card.

2.It would appear that the defendant, from his admission, says that he picked up the card somewhere in Mong Kok.  Having picked it up in Mong Kok, there is no dispute that he then used it over the course of the next two days.

3.In respect of the first two charges, he used the card to make some payments by way of what appears to be tapping the card.  They were small payments of $24.10 and $200.80 at a Circle K Convenience Store.  Following that, he used the card to pay a telephone account which involved some $729 at Cameron CSL.  After that, he then used it to purchase or attempt to purchase electronic goods.  In the 4th charge it was an electric shaver and an iPhone worth, respectively, $268 and $6,588.  In the 5th charge there were two iPhones totalling $14,075; and then in the 6th charge there was an attempt to purchase another iPhone for $7,388 that was unsuccessful.

4.As I have said already, the defendant was arrested in January 2018.  He said he had found the card and picked it up and used it to buy snacks and something worth $200 by swiping it at Circle K, and then had gone on, on the second day of having the card, to conduct the transactions involving the electronic goods.  He admitted he had signed all the credit card receipts and he had already thrown away the credit card.

5.The defendant is only 22, and he is a person of clear record.  He is educated to Form 6 in Wong Tai Sin; worked as a salesman and a waiter, employed for about 4 years-odd between 2013 and 2017; and he has no substance dependencies or illnesses to speak of; lives with his mother and his younger sister.  The mother is simply a housewife and his sister is a student.

6.The defendant has also produced some letters from members of his family which appear to show that they support him but are shocked by this what they see as out of character behaviour for him.  The defendant has also produced a number of certificates to show that he has been what is described as public spirited in the past.  Particularly, he has received both silver and gold awards for volunteer service, contributing in 2000 and 2010 and 11 over 300 hours of volunteer service to the community.  He also seems to be keen on fitness and other matters.  He is a Fire Safety ambassador.

7.As I say, the offences seem to be totally out of character for this young man.  He has, as I say, a clear record.

8.Turning to the sentence for these kind of offences, the courts have taken the use of credit cards to be a serious form of criminality.  There is some understanding that it in some way strikes at the nature of commercial transactions.

9.There are a number of sentencing guidelines that relate to counterfeit credit cards, but even stolen or, in this case, credit cards that are picked up, the guidelines operate in the same way.  The guidelines operate upon the amount of money that is generally obtained by way of the use of the credit card. 

10.A number of factors are set out in the case of Chan Sui To Cr App 115/1996, factors such as the size of the operation, planning, international dimension, the defendant’s role in the transactions, whether there is a plea of guilty.

11.One can say this is the simplest form of credit card fraud.  The size of the operation is fairly small - $26,000‑odd obtained or tried to be obtained; little planning; no international dimension; the accused was not involved in a syndicate in any form; and there has been a plea of guilty.

12.But even for the simplest form of credit card fraud, a 3‑year starting point should be adopted, and that involves a person of clear record convicted after trial, and that can be seen from the case of HKSAR v Stephen Lam 339/2012.

13.The defendant in this case would appear to fall within the simplest form of fraud, and the question I have to decide is whether I should adopt as a guideline the 3-year sentencing starting point in respect of these particular offences.

14.Now, it is clear that guidelines are guidelines.  They are not rigid rules of law that have to be applied in every case.  But I do have to take in mind the seriousness of the use of the credit card that elevates it beyond, say, a normal theft or another form of simple fraud, and I have to reflect that in my starting point for sentence.

15.But I also have to reflect the defendant’s previous clear record, that these are out of character offences, and his, I would say, public spiritedness in his short life.

16.What I shall do in respect of these offences is as follows.  I shall reduce the starting point to acknowledge those circumstances.  I will reduce the starting point in each case from 36 months to 30 months’ imprisonment.  I will give the defendant full credit for his plea of guilty, reducing the sentence to one of 20 months’ imprisonment.

17.I shall impose a sentence of 20 months’ imprisonment on each charge, because they each involve the use of the card; but I shall order that all the sentences are to be served concurrently to a total of 20 months’ imprisonment, and that will be the order I make.