HKSAR v. Ng Cheuk Kit, Neville

DCCC 177/2021

[2021] HKDC 1223

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 177 OF 2021

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REASONS FOR SENTENCE

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1.The defendant faced a total of 16 charges. Upon plea bargain, the defendant now pleaded guilty to Charges 1 and 9 [the theft offences] and Charges 2 to 6, 10, 11, 14 and 16 [the offences of obtaining property by deception]. The remaining charges, namely, Charges 12, 13 and 15, are left on court file. The defendant was convicted accordingly.

Brief Facts

Charge 1

2.PW1 Liu is aged 86.  Since February 2020, PW1 moved to live with the defendant’s mother in Cheung On Estate Tsing Yi.  In the early hours of 9 May 2020, PW1 was sent to hospital till 25 May 2020.  On 15 May 2020, PW2, son of PW1, went to the flat to get PW1’s personal belongings and did not realize that PW1’s credit card issued by the Bank of China [BoC] with the account number 5520-1604-2499-0028 was gone missing.

3.PW1 received a message from BoC saying that the credit limit of his credit card was being exceeded.  On 4 June 2020, PW1 went to the bank with a staff of the elderly home to make enquiry and found out that there were various transactions made between 14 May to 25 May 2020 which was effected without his knowledge and authority.  A report was made to the police.

Charges 2 to 11, 14 and 16

4.On 14 May 2020, the defendant presented the abovesaid credit card at Diamond ICQ Ltd in Tsimshatsui to buy 2 diamond earrings worth $14,500. [Charge 2]

5.On 15 May 2020, the defendant went to K Channel Digital Co in Mongkok and used the credit card to buy one Macbook worth $6,200. [Charge 3]

6.On the same day, he went to Wireless Express Telecom in Mongkok and used the credit card to buy one iPhone worth $8,050. [Charge 4]

7.He then proceeded to Diamond ICQ in TST and used the credit card to buy one diamond ring worth $41,200. [Charge 5]

8.The defendant went to Yuen Long and used the credit card to buy some groceries totaled $716.6 in the supermarket Fusion. [Charge 6]

9.On the next day, 16 May, the defendant went to Galaxy Camera in Mongkok and used the credit card to buy one camera worth $6,180. [Charge 7]

10.He then proceeded to Sham Wo Digit in Mongkok and used the credit card to buy 2 camera lens worth $6,100. [Charge 8]

11.Later on the day, the defendant went to Fortress shop in Mongkok and stole 4 iPhones worth $41,596 through a successful Apply Pay transaction by using the credit limit of the credit card. [Charge 9]

12.On 21 May 2020, the defendant used the credit card to buy one sex toy worth $399 at Sex Zone in Mongkok. [Charge 10]

13.On 22 May 2020, the defendant used the credit card to buy some groceries worth $321.9 in the supermarket Fusion in Yuen Long. [Charge 11]

14.On 25 May 2020, at Colourmix shop in Lai Chi Kok, the defendant used the credit card to buy 2 skincare products worth $880. [Charge 14]

15.On the same day, the defendant used the credit card to buy some products worth $258 at a shop called Top Grade Computer Products in Mongkok. [Charge 16]

Arrest of the defendant

16.Based on the CCTV footage and other information, the police were able to identify the defendant.  The defendant was arrested on 29 July 2020.

Videoed interview under caution

17.On 30 July 2020, under caution, the defendant made certain admissions [note: several paragraphs are simplified]: -

1. He was a friend of PW1.

2. The defendant visited his mother at her home a few times in April and May 2020.

3. The defendant had asked PW1 to lend him money but PW1 refused.

4. The defendant used the credit card to buy some valuable items and then sold them off.

5. The defendant knew that it was illegal to use other’s credit card.

6. The defendant admitted that he used the credit card to purchase the Apple products, diamonds and mobile phones in May 2020.

7. He had been to Diamond ICQ on 14 and 15 May 2020.

8. PW1 had no knowledge of the various transactions made by the defendant with PW1’s credit card in May 2020.

9. He had sold all the goods, except the groceries and the sex toy, and got about $170,000.

10. He acted alone and falsified PW1’s signature when signing the credit card imprints.

18.The total amount that the defendant stole or obtained through the use of the stolen card is about $126,400 odd.

Mitigation

19.The defendant is aged 42, and was born in China.  He came to Hong Kong in 1987.  He studied up to Form 5.  He was divorced and his former wife has the custody of their 2 kids.  The defendant had a clear record.  In the written mitigation submission, the defence accepted that “the theft of credit card may contain breach of trust element” [para 7 of the submission] but it was an opportunistic act for the defendant.  PW1 was the boyfriend of the defendant’s mother.  All along, only one credit card was involved and the transactions were made within one month.  The stolen property worth about $126,400 odd and it can be regarded as ‘small to medium scale’ in credit card fraud cases.

20.The defence cited a few sentencing cases and also submitted the mitigation letter of the defendant and his mother.  It is urged that given the defendant’s clear record and timely guilty plea, this Court can pass a lenient sentence.

Sentence

21.There is no dispute that only one stolen credit card was used, and the defendant entered a buying spree shortly after the theft and within the month of May.  The defendant used the stolen card to buy iPhones and diamonds etc and then realized the stolen property.  He had spent all the money.

22.The defendant had a clear record and he made use of his mother’s relationship with PW1 which allowed the defendant the chance to obtain the credit card.

23.In his mitigation letter, the defendant said because of the financial difficulty, the need to maintain his 2 kids and his girlfriend’s health problem, he committed the offences out of impulse and was sorry for his mistake.  His mother also suffered because of the defendant’s foolish acts.  The defendant pleads for leniency and will turn a new leaf to become a responsible man for his family.  The defendant’s mother wrote that she is not in good health and with her son being imprisoned, no one is around to take care of her. This incident has brought great pain to her and she felt that the defendant is in great pain too.

24.The Court of Appeal in HKSAR v Lam See Chung, Stephen [2013] 5 HKLRD 242, took the view that the sentencing principles and considerations of those false credit card frauds are equally applicable to credit card fraud offences in which genuine credit cards are used.  The Court of Appeal saw no good reason why the 3 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 [para 40 of the judgment].

25.Had PW1 not made a report to the police, I think this case might not be come to light.  That said, it does not mean the defendant is not culpable, but it shows that the credit card fraud was not sophisticated and was not well planned.  The defendant was greedy and he did try to maximize the ‘benefits’ of his theft of the credit card.  He made fraudulent transactions on more than 12 occasions and at the end of the day made an illicit gain of some $126,400 odd. At this juncture, I would say there was no breach of trust element in the offences committed by the defendant as there was no trust relationship between the defendant and PW1.

26.There is no strong mitigating factor for the defendant but his early guilty pleas to 13 out of 16 charges which will effect a 1/3 discount in sentence.

27.Taking all factors into account, I would sentence the defendant as follows: -

Charge 1

I adopt the starting point of 9 months’ imprisonment, and with 1/3 discount, the sentence is reduced to 6 months.

Charges 2 to 11, 14 and 16

These offences were committed consequent upon the theft of the credit card and can be considered as a series of offences stemmed from the use of the stolen credit card. I would adopt a starting point of 3 years for all the charges in this group. With his guilty pleas, the sentence is reduced to 2 years for each charge and the sentence is to run concurrently.

28.I also have to consider the totality principle.  I will take a lenient stance and order that all the sentences are to run concurrently.  That means the defendant is sentenced to 2 years’ imprisonment.