HKSAR v. Villanueva Amparo Deslate

DCCC 427/2020

[2020] HKDC 1199

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 427 OF 2020

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REASONS FOR SENTENCE

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1.The defendant pleads guilty to twelve charges of fraud, contrary to section 16A of the Theft Ordinance[1].

2.Full particulars of the offences are set out in the amended summary of facts admitted by the defendant today.  In summary between 5 March and 10 May 2019 the defendant purchased movie tickets with the unauthorised use of credit card details obtained from online chat groups.

3.The defendant purchased the movie tickets by first registering for online membership with Cinema City.  The defendant registered six membership accounts on 5 March, 16 March, 2 April, 15 April, 22 April and 6 May 2019 (“the six accounts”)[2]. On registration the defendant upgraded the accounts to “VIP” membership status for a fee of $120 for each account.

4.After registration the defendant made repeated purchases of movie tickets through the cinema’s online ticketing system with the unauthorised use of the credit card details obtained from online chat groups.  The credit card details were from credit cards issued by various overseas banks (charges 1-6).  The fee for upgrading to “VIP” membership status was also paid with the unauthorised use of the credit cards (charges 7-12).

5.The defendant conducted 158 transactions in which she purchased a total of 516 movie tickets at a total cost of $59,528[3]. After purchasing the tickets, the member would need to redeem the movie tickets at a branch of the cinema.  With the exception of 66 tickets the defendant redeemed all the movie tickets[4].

Discovery of the fraud

6.Eventually, some of the credit card holders reported the unauthorised use of their cards. The cinema’s credit handling bank, the Bank of China, notified the cinema of the unauthorised payments.

7.On 5 May 2019 the manager of Cinema City in Causeway Bay was notified of unauthorised transactions in some of the membership accounts.  The manager searched the online ticketing system and discovered the suspicious purchase pattern in the six accounts.  The manager reviewed CCTV footage of ticket redemption and identified the defendant as the person redeeming the tickets. 

Arrest

8.From the system the manager discovered from one of the six accounts the member had purchased tickets online for 11 May 2019.  At about 10 a.m. on 11 May 2019 the manager recognised the defendant arrive at the cinema and enter a cinema room. The manager called the police who came and arrested the defendant. 

9.Under caution the defendant admitted, inter alia, that she was the holder of the six membership accounts; she made all the movie ticket purchases by unauthorised use of credit card details obtained from online chat groups and that she would tell the chat groups whether the credit card details worked or not.

10.The police seized the defendant’s mobile phone and extracted text messages from the “ICQ” application of chatrooms that the defendant joined.  Four of the chatrooms show participants randomly sending out credit card details including the number, CVV code, expiry date and name of the holder of the credit card.  Photographs of the messages have been submitted to court[5].

Mitigation

11.In passing sentence, I have carefully considered the oral and written submissions of Ms Ng, including that the defendant, who is 33, single and is a domestic helper, has a son aged 8 in the Philippines[6].  I take into account the defendant has a clear criminal record and that her conviction and sentence will inevitably result in her deportation[7].

12.I have read the mitigation letter written by the defendant’s employers, who are in court today to support the defendant.  The employers speak very highly of the defendant, describing her as diligent and kind hearted.  The employers say the defendant is very remorseful and that she acted just out of foolishness and ignorance wrongly believing there is a ‘free lunch”. 

13.Ms Ng submits the defendant was naive not to realize what she had done was seriously wrong and that she is genuinely remorseful[8]. 

14.The defendant may well have been naive, foolish and greedy.  I do not however accept the defendant acted out of ignorance wrongly believing there is a ‘free lunch”.  Over a period of two months the defendant used the details of over sixty different credit cards obtained from online chat groups to purchase movie tickets at a cost in excess of $50,000, the equivalent of about a year of the defendant’s salary.    

Sentence

15.The offences are properly classified as credit card fraud.  In passing sentence, I take into account the factors which a sentencing judge will need to consider in credit card frauds as set out by the Court of Appeal in R v Chan Sui To, including the size of the operation; the planning that had gone into perpetrating the fraud; whether there is an international dimension; and whether the accused played a major role.  The factors were not intended however to be exhaustive but provide valuable assistance to the court.  The courts have repeatedly stressed that deterrent sentences are to be imposed[9]. 

16.The defendant says she watched the movies on her day off, or invited friends to the movies, or gave tickets to other domestic helpers.  The defendant says she never sold any of the tickets[10].

17.The defendant redeemed 450 movie tickets.  In the period 5 March and 10 May 2019 there would have been eleven days off including statutory holidays.  This would mean on average 40 tickets per day were redeemed. 

18.Ms Ng, having taken instructions on redemption, gave an example where 35 tickets were redeemed.  The defendant would use two tickets and give the rest to other Filipinos.  If the ticket expired before use the defendant would throw the ticket away. 

19.Whilst I have real reservation that the defendant gave away or threw away most of the tickets, I nevertheless proceed on the basis that the defendant did not sell any of the tickets.  The fact that the defendant claims that she never sold any of the tickets to other people, however, does not in my view reduce the seriousness of the charges.

20.Ms Ng refers the court to HKSAR v Tu I Lang where the Court of Appeal held that where the facts of the offence point to a small unsophisticated operation, involving one or a few forged cards uncomplicated by other evidence materially linking the offender to a larger operation, a starting point of 3 years or less would be appropriate[11].  

21.Ms Ng also refers the court to the Reasons for Sentence in HKSAR v Chik Hoi Fung, Alex[12] where the court adopted individual starting points of 3 years and 6 months’ imprisonment for each of twelve charges of fraud involving a loss of $200,000.  D1 in that case, who pleaded guilty, was sentenced to a total of 2 years and 10 months’ imprisonment making an overall starting point of 4 years and 3 months’ imprisonment.  Ms Ng submits that the criminality of the defendant warrants a sentence less than D1 in HKSAR v Chik Hoi Fung, Alex [13].   

22.Although charges 3 and 4 concerned the obtaining of credit cards and their use to obtain goods and services to the value of $4,988.50 and $23,920, I note that the overall fraud was very different. 

23.Whist this may not have been a very sophisticated fraud the court cannot overlook that over sixty different credit card details obtained from online chat groups were used; the defendant would report back to the chat group that the credit card details had worked and that the total amount involved was over $50,000. 

International element

24.As summarised earlier the credit card details used were from credit cards issued by various overseas banks.  Ms Ng says the defendant only paid attention to the details required to make a transaction and not where the holder of the credit card was from. 

25.The text messages from the “ICQ” application of chatrooms that the defendant joined clearly show the credit card holders are from overseas.  The defendant could not have failed to see this.  Using credit card details from credit cards issued by various overseas banks adds an international dimension.

26.Taking into account all the circumstances, I am satisfied a starting point of 3 years and 6 months’ imprisonment is appropriate on each of charges 1-6 and 12 months’ imprisonment on each of charges 7-12. Giving the defendant full credit for her pleas of guilty reduces the sentence on charges 1-6 to 2 years and 4 months’ imprisonment and on charges 7-12 to 8 months’ imprisonment. 

Totality

27.I am satisfied sentence must reflect the defendant’s unauthorised use of credit cards in conducting 158 transactions over a period of two months.  I am satisfied a total sentence of 2 years and 9 months’ imprisonment is appropriate for charges 1-6.  I am satisfied that concurrent sentences are appropriate for charges 7-12 which in my view do not increase the criminality of the defendant. 

28.I am satisfied a total sentence of 2 years and 9 months’ imprisonment properly reflects the defendant’s criminality on the twelve charges and takes into account the defendant’s personal circumstances and the seriousness of the offences^[14].  

Sentence

29.The defendant is convicted and sentenced as follows:

Charge 1 - 2 years and 4 months’ imprisonment;

Charge 2 - 2 years and 4 months’ imprisonment with 1 month consecutive and 27 months concurrent to charge 1;

Charge 3 - 2 years and 4 months’ imprisonment with 1 month consecutive and 27 months concurrent to charges 1 & 2;

Charge 4 - 2 years and 4 months’ imprisonment with 1 month consecutive and 27 months concurrent to charges 1, 2 & 3;

Charge 5 - 2 years and 4 months’ imprisonment with 1 month consecutive and 27 months concurrent to charges 1, 2, 3 & 4;

Charge 6 - 2 years and 4 months’ imprisonment with 1 month consecutive and 27 months concurrent to charges 1, 2, 3, 4 & 5;

Charges 7-12 - 8 months’ imprisonment concurrent on each charge and concurrent to charges 1, 2, 3, 4, 5 & 6.

The defendant serves a total sentence of 2 years and 9 months’ imprisonment.