HKSAR v. Wong Wai Yee

DCCC 1042/2020

[2021] HKDC 1182

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 1042 OF 2020

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REASONS FOR SENTENCE

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1.Ms Wong appeared before me facing a Charge Sheet consisting of one charge of Theft, contrary to section 9 of the Theft Ordinance (Charge 1); and 9 charges of Obtaining property by deception, contrary to section 17(1)  of the Theft Ordinance, Cap 210.

2.She pleaded guilty to Charges 1, 2, 4, 6, 7, 9 and 10 and not guilty to Charges 3,5 and 8.

3.The prosecution asked that Charges 3, 5 and 8 be left on court file not to be proceeded with without the leave of this court or the Court of Appeal.  I so ordered.

4.The particulars of Charge 1 are that she, on a day unknown between 1 and 7 December 2018, both dates inclusive, in Hong Kong, stole one credit card, property belonging to Tam Lai Fong.

5.The particulars of Charge 2 are that she, on 7 December 2018, at “FOOK TAI JEWELLERY” (“FTJ”), Ground Floor, No 282 Castle Peak Road, Cheung Sha Wan, Kowloon, in Hong Kong, dishonestly obtained from staff of FTJ GROUP LIMITED (“the said company”)  one gold wrist chain and one gold bracelet (“the said goods”), with the intention of permanently depriving the said company thereof by deception, namely, by falsely representing that she was the genuine cardholder of one Standard Chartered Bank MasterCard numbered 5520-8380-2497-6881 in the name of Tam Lai Fong (“the said credit card”)  and that she was authorized and entitled to use the said credit card to make payment for the said goods.

6.The particulars of Charge 4 are that she, on 11 December 2018, at “MEI LAI WAH JEWELLERY” (“MLWJ”), Shop A1, Ground Floor, Nos 165-167 Pei Ho Street, Sham Shui Po, Kowloon, in Hong Kong, dishonestly obtained from staff of MLWJ COMPANY LIMITED (“the said company”)  one gold necklace (“the said goods”), with the intention of permanently depriving the said company thereof by deception, namely, by falsely representing that she was the genuine cardholder of the same credit card and that she was authorized and entitled to use the said credit card to make payment for the said goods.

7.The particulars of Charge 6 are that she, on 17 December 2018, at “MAN PONG JEWELLERY” (“MPJ”), Shop G12, Ground Floor, Yue Xiu Plaza, No 23 Ning Yuen Street, San Po Kong, Kowloon, in Hong Kong, dishonestly obtained from staff of MPJ LIMITED (“the said company”)  two gold wrist chains (“the said goods”), with the intention of permanently depriving the said company thereof by deception, namely, by falsely representing that she was the genuine cardholder of the same credit card and that she was authorized and entitled to use the said credit card to make payment for the said goods.

8.The particulars of Charge 7 are that she, on 22 December 2018, at “KAM KAU JEWELLERY” (“KKJ”), Shop Nos 8-95, Ground Floor, Nos 737-741C Nathan Road, Mong Kok, Kowloon, in Hong Kong, dishonestly obtained from staff of KKJ & GOLDSMITH COMPANY LIMITED (“the said company”)  one gold wrist chain, two gold bracelets and one gold grain (“the said goods”), with the intention of permanently depriving the said company thereof by deception, namely, by falsely representing that she was the genuine cardholder of the same credit card and that she was authorized and entitled to use the said credit card to make payment for the said goods.

9.The particulars of Charge 9 are that she, on 24 December 2018, at MPJ, at the address previous stated, dishonestly obtained from staff of MPJ LIMITED (“the said company”)  one gold necklace, one gold grain and one gold pendant (“the said goods”), with the intention of permanently depriving the said company thereof by deception, namely, by falsely representing that she was the genuine cardholder of the same credit card and that she was authorized and entitled to use the said credit card to make payment for the said goods.

10.The particulars of Charge 10 are that she, on 28 December 2018, at “LUK FOOK JEWELLERY” (“LFJ”), Shop Nos 235-237, 2^nd Floor, Landmark North, No 39 Lung Sum Avenue, Sheung Shui, New Territories, in Hong Kong, dishonestly obtained from staff of LFJ & GOLDSMITH (HK)  CO., LIMITED (“the said company”)  one wrist chain, one necklace and two rings (“the said goods”), with the intention of permanently depriving the said company thereof by deception, namely, by falsely representing that she was the genuine cardholder of the same credit card and that she was authorized and entitled to use the said credit card to make payment for the said goods.

Summary of the facts admitted by Ms Wong

11.Ms Tam Lai Fong (PW1)  last saw her credit card in the wallet in mid-November 2019.  The credit limit was $211,000.

Charge 1

12.PW1 and Ms Wong has known each other for about 10 years.  Sometime between 1 and 7 December 2018, PW1 and Ms Wong had a meal together.

13.On 29 December 2018, PW1 reviewed her credit card statement and discovered unauthorized transactions.  She then found her card missing.  She stopped her card and reported the matter to the police.

Charge 2

14.On 7 December 2018, Ms Wong used PW1’s credit card to purchase one gold wrist chain and one gold bracelet (total value: $20,600)  at Fook Tai Jewellery.

Charge 4

15.On 11 December 2018, Ms Wong used PW1’s credit card to purchase one gold necklace (value: $10,700)  at Mei Lai Wah Jewellery.

Charge 6

16.On 17 December 2018, Ms Wong used PW1’s credit card to purchase two gold wrist chains (total value: $14,350)  at Man Pong Jewellery.

Charge 7

17.On 22 December 2018, Ms Wong used PW1’s credit card to purchase one gold wrist chain, two gold bracelets and one gold grain (total value: $15,970)  at Kam Kau Jewellery.

Charge 9

18.On 24 December 2018, Ms Wong used PW1’s credit card to purchase one gold necklace, one gold grain and one gold pendant (total value: $23,348)  at Man Pong Jewellery.

Charge 10

19.On 28 December 2018, Ms Wong used PW1’s credit card to purchase one wrist chain, one necklace and two rings (total value: $33,070)  at Luk Fook Jewellery.

Arrest and caution

20.On 17 July 2019, Ms Wong was arrested.  Next day, during a cautioned VRI, Ms Wong admitted:-

(a)  She knew PW1; a day or two after she last met PW1, she found PW1’s credit card in her own bag;

(b)  She was having financial difficulties at the time so she used the card to make unauthorized purchases out of greed and later resold the goods for cash;

(c)  She had spent all the cash thus collected on daily expenses; and

(d)  She had cut the card into pieces and had thrown them away.

21.The total value of all the property obtained by Ms Wong by deception came to $118,038.

Criminal record

22.Ms Wong has a clear record.

Antecedents

23.Ms Wong is aged 55 (52 at the time of the offences), educated to F3 level, was a school private light bus driver.  Ms Wong has separated from her husband and resides in public housing in Wong Tai Sin.

Mitigation

24.Ms Cannise Chan of counsel assigned by the Director of Legal Aid mitigated on behalf of Ms Wong.

25.The following is a summary of the mitigation submissions.

26.Ms Wong is a married woman whose husband has deserted the family in 2007.  Ms Wong is living with her daughter (27)  and her own mother (78)  in public housing.

27.In 2009, Ms Wong started work as a school bus driver.  In 2012, she started to invest in the school bus business and acquired her first minibus. By 2014, she had 3 minibuses; she hired drivers and built her own school bus team.

28.Even up to this July, Ms Wong was working as a self-employed school bus driver and earned about $8,000 a month.  From 2019 onwards to the present, she also worked as a part-time Green Minibus driver with average monthly earning around $6,000.

29.Ms Wong and the genuine credit card holder were not very close and would meet occasionally for meals and chit chat with mutual friends.  The last meeting the duo had was a dinner together with other persons.  Next day, she spotted a credit card bearing the name of the genuine credit card holder in her bag.  However, there was no signature appended thereon.  Ms Wong was overcome by greed.  That time, she was in financial difficulties because of various expenses associated with her school minibus business which was going downhill since 2016.  In 2018, she was in debts for $400,000.  She is now rid of all 3 minibuses.

30.Finding the credit card bore no signature, Ms Wong put down her own signature on it and went around buying gold items with a view to reselling them for cash at 60-70% discount.  The money so obtained has been spent to repay her loan.

31.By the end of December 2018, when Ms Wong tried to use the credit card, the transaction was rejected.  She then cut the card and threw it away.

32.The strongest mitigation is Ms Wong’s plea of guilty.  It was indicated at the earliest opportunity and the court is invited to give her the full 1/3 discount.  She is a person with a previous clear record.

33.Before being imposed the bail condition of “not to contact PWs”, Ms Wong had apologized to the victim through Whatsapp.

34.Ms Chan submitted that this is not a breach of trust case; that the mode of commission of the offences was not sophisticated; that the largest amount of transaction made was $33,070 and the total value involved in the 6 deception charges was $118,038.

35.As to the appropriate usual sentence for credit card fraud, Ms Chan referred to HKSAR v Lam See Chung, Stephen, [2013] 5 HKLRD 242, CACC 339/2012, in particular paras 38-40, reproduced below:-

“38. … In HKSAR v Tu I Lang (unrep., CACC 464/2006, [2007] HKLRD (Yrbk)  403, [2007] HKEC 920)  (18 May 2007), McMahon J said at [10] of the judgment:

Where the facts of the offence point to a small unsophisticated operation, involving only one or a few forged cards uncomplicated by other evidence materially linking the offender to a larger operation, then a starting point of three years’ imprisonment or less would be appropriate.

39. Those judgments which lay down a sentence of 3 years’ imprisonment or less for cases of simple credit card fraud are based on a number of sentencing principles and considerations. They are that counterfeit credit card offences require deterrent sentences; there is a need to protect the integrity of the credit card system; and the potential for loss is great and often will be far greater than the actual loss. In fact, it is precisely because of this last consideration that the actual loss will not necessarily be an important factor when it comes to sentencing a credit card offender; rather “it is this potential for losses which is the most important consideration.

40. These sentencing principles and considerations are equally applicable to credit card fraud offences in which genuine credit cards are used and we can see no good reason why the three-year starting point for simple cases of counterfeit credit card fraud should not also apply to simple cases of credit card fraud where stolen genuine credit cards are used to commit the offence.”

36.Regarding the Theft offence, Ms Chan acknowledges that it is a separate criminal act from the rest.  Ms Chan submitted, however, that the 6 occasions of Obtaining property by deception were part and parcel of the same scheme.  Ms Chan therefore invited the court to consider totality and impose concurrent or largely concurrent sentences in respect of the deception charges, and a partly consecutive sentence on the theft charge.

Sentence

37.This is not a breach of trust case.

38.Credit card fraud is a serious offence because it interrupts the normal course of retail trade and tarnishes the reputation of Hong Kong as an international commercial and financial centre.  In particular, it corrupts the integrity of the credit card system which modern day citizens have taken for granted for so long.

39.I note that in the present case, all the criminal activities took place in the space of one month ie December of 2018 and it involves only one genuine credit card.

40.I agree that this is a simple, unsophisticated credit-card related deception case.  The actual amount deceived was not much and was in the order of $120,000.  I am cognizant of the principle that actual loss pales into insignificance when compared with the potential for loss.  However, in this case, once PW1 discovered the presence of unauthorized transactions, she suspended the utility of the card resulting in zero potential loss from then on.

41.All things considered, I am of the view that a global starting point of 3 years’ imprisonment for all 7 charges (including the theft charge)  would be sufficient to reflect the criminality of Ms Wong.

42.Ms Wong has been a conscientious school bus driver/operator since 2009. It is unfortunate that she saw her business take a downturn which resulted in heavy debts being placed on her shoulders.

43.For her timely plea, I will give her the customary 1/3 discount in sentence.  For her previous clear record, I will give her an additional one month’s reduction after the 1/3.  There are no other valid mitigating factors.

44.I will impose the following sentences on Ms Wong.

(Ms Wong, please stand)

45.For Charge 1, I adopt a starting point of 18 months.  After the 1/3 discount and the extra reduction, the sentence is 11 months’ imprisonment.

46.For Charge 2, I adopt a starting point of 21 months.  After the 1/3 discount and the extra reduction, the sentence is 13 months’ imprisonment.

47.For Charge 4, I adopt a starting point of 18 months.  After the 1/3 discount and the extra reduction, the sentence is 11 months’ imprisonment.

48.For Charge 6, I adopt a starting point of 18 months.  After the 1/3 discount and the extra reduction, the sentence is 11 months’ imprisonment.

49.For Charge 7, I adopt a starting point of 18 months.  After the 1/3 discount and the extra reduction, the sentence is 11 months’ imprisonment.

50.For Charge 9, I adopt a starting point of 21 months.  After the 1/3 discount and the extra reduction, the sentence is 13 months’ imprisonment.

51.For Charge 10, I adopt a starting point of 24 months.  After the 1/3 discount and the extra reduction, the sentence is 15 months’ imprisonment.

52.I order that the sentences of Charges 1, 2, 4, 6, 7 and 9 are to run concurrently with one another; and 8 months of the result is to run consecutively to the sentence on Charge 10, making an aggregate sentence of 23 months’ imprisonment.