HKSAR v. Ng Kwok Choi

DCCC 498/2018

[2019] HKDC 224

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 498 OF 2018

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Reasons for Sentence

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Charges and facts

1.D pleads guilty to 1st - 5th, 8th, 10th - 12th Charges, each taking place on 13/10/2017, as follows:

(1) Theft of a chose in action, ie by using the account of one Standard Chartered Bank credit card (“SCB Card 1”), credit limit $251,000, held by Yeung Sze-cheung in the purchase of 2 iPhones for $13,376 from Apple Store (1st Charge);

(2) Theft of a chose in action, ie by using the account of SCB Card 1 in the purchase of goods for $52 from 7-Eleven Store in MTR Causeway Bay Station (2nd Charge);

(3) Theft of a chose in action, ie by using the account of one American Express credit card (“the AE Card”), credit limit $53,000, held by Yeung Sze-cheung in the purchase of goods for $98 from CR Care (3rd Charge);

(4) Obtaining property by deception, ie by using one American Express Card (“the AE Card”) in the purchase of 4 iPhones for $32,752 from Suning (4th Charge);

(5) Obtaining property by deception, ie by using one HSBC VISA credit card (“HSBC Card”), credit limit $60,000, in the purchase of 5 iPhones for $27,940 from the same Suning shop as 4^th Charge (5th Charge);

(6) Theft of a chose in action, ie by using the account of one Citibank debit card (“the CITI Debit Card”) held by Yeung Sze-cheung in the purchase of 2 iPhones for $16,376 from the same Apple Store as 1^st Charge (8th Charge);

(7) Attempting to obtain property by deception, in the purchase 10 packs of cigarettes for $520 by falsely representing himself to be Yeung Sze-cheung, the genuine holder of one Citibank debit card (“CITI Card”) (10th Charge);

(8) Theft of a chose in action, ie by using the account of one Hang Seng Bank Card (“the HSB Card”), credit limit $29,000, held by Yeung Sze-cheung in the purchase of goods for $570 from 7-Eleven Store at Lockhart Road (11th Charge);

(9) Attempting to obtain property by deception, in the purchase of some goods by falsely representing himself to be the genuine holder of the HSB Card (12th Charge).

2.D also pleads guilty to 14th – 16th Charges, which took place on 18/12/2017, as follows:

(10) Theft of a credit card from someone (14th Charge);

(11) Theft of a chose in action, ie by using one Standard Chartered Bank Card (“SCB Card 2”) account held by Liu Ka-chuen in the purchase of goods for $62.5 from 7-Eleven Store (15th Charge);

(12) Attempting to obtain property by deception, in the purchase of 2 iPhones for $11,176 by falsely representing himself to be the genuine holder of SCB Card 2 (16th Charge).

3.Two kinds of charges are laid merely to reflect different modes of payment by the credit card.  For the payment by contactless function, the charge is theft of a chose in action.  For the payment by signing on the payment voucher, the charge is obtaining property by deception. 

4.The victim Yeung Sze-cheung worked in North Point Government Offices.  At late afternoon on 13/10/2017, the victim had received an enquiry from the Standard Chartered Bank card centre of a payment.  That alerted him of his loss of the credit cards within a few hours. 

5.The victim Liu Ka-chuen also worked in North Point Government Offices.  He discovered the loss of SCB Card 2 within one or two hours after lunch. 

6.The Defendant was arrested later in the afternoon on 18/12/2017. 

7.In subsequent enquiries under caution, he admitted the offences and said that:

(1) He did not know the two genuine holders of the credit cards;

(2) He was given the 5 credit cards belonging to Yeung Sze-cheung by someone and he used them for the purchases. Afterwards he gave the goods to the person who gave him the credit cards.

(3) At around 1 pm to 2 pm on 18/12/2017, he stolen SCB Card 2 from the wallet placed at the rear pocket of a man’s trousers when they were on the street near North Point Government Offices;

(4) He followed the man into North Point Government Offices to see if the man knew SCB Card 2 being stolen;

(5) He went into the toilet to practise the signature on the card;

(6) He then used it for the purchases, successful at 7-eleven for the drinks and cigarettes but failed at Apple Store for 2 iPhones.

Mitigation

8.The Defendant is aged 50, of F. 4 education level.  He was a transportation worker before arrest.  He is single and lives alone.  His mother had cancer and received surgery and chemotherapy after mid-2016.  He would take her to the hospital for treatment and her daily care.  After his arrest on 18/12/2017, he was detained and could no longer look after her.  He has 2 elder sisters who are married and living apart.  They say they are busy and not free to look after her. 

9.He had 2 records for theft and 3 for burglary (theft-related, according to the Defendant’ confirmation in court).  The last offence he committed before the present ones were back in 2013 for common assault.

10.In mitigation I am informed that in respect of the theft of the credit card of Liu Ka-chuen, the Defendant had first drawn the wallet out from the victim’s rear pocket and then taken the credit card.  He quickly returned the wallet to the victim’s rear pocket. 

Sentencing considerations

11.In HKSAR v Cheng Sui-to [1996] 2 HKCLR 128, 131, the Court of Appeal held that a sentencing judge would need to consider at least 5 factors as follows before deciding the level of sentence: 

(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.

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Yang CJ went on:

… We suggest that an accused who plays 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 element, should receive a sentence of five to six years after trial. Sentences may be adjusted upwards or downwards according to circumstances.

Sentencing the Defendant

12.I understand that the customary starting point for single acts of simple, small-scale credit card fraud is around 3 years.

13.The transactions on 13/10/2017, reflected in 1st – 5th, 8th and 10th – 12^th Charges, can be regarded as different parts of the same act.  The victim was lucky to discover his loss of cards before too late.  He could have lost more as allowed by his credit limits.  At that juncture he already had $91,164 spent on his accounts without his knowledge.  I take a starting point of 3 years 6 months.  After the one-third discount for the plea of guilty, the sentence is 2 years 4 months each.  The sentences in this group shall be concurrent. 

14.It required much skill in taking the wallet from the rear pocket of the victim for the credit card and then returning the wallet to the rear pocket.  This skill could delay detection of loss by the victim.  However, the perpetrator had to risk alerting the victim two times when moving the wallet in and out of the rear pocket.  I take a starting point of 15 months for the theft of the credit card under 14th Charge.   After the one-third discount for the plea of guilty, the sentence is 10 months. 

15.The transactions on 18/12/2017, reflected in 15th and 16th Charges, can be regarded as different parts of the same act.  The victim was lucky to have lost only $62.5 so far.  I take a starting point of 3 years each.  After the one-third discount for the plea of guilty, the sentence is 2 years.  The sentences here shall be concurrent. 

16.On totality basis, I order the sentences for all credit card fraud charges to be concurrent but consecutive to 14th Charge.  The overall sentence is 3 years 2 months.