HKSAR v. Ho Hing Pan, Ronald

DCCC 386/2021

[2021] HKDC 1367

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 386 OF 2021

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REASONS FOR SENTENCE

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1.The defendant pleaded guilty to 8 charges, namely 1 Charge of Theft (Charge 1), 1 Charge of Obtaining Property by Deception (Charge 2), 4 Charges of Fraud (Charges 3 to 6), 1 Charge of Attempted Fraud (Charge 7)  and 1 Charge of Using an Identity Card relating to Another Person (Charge 8).

ADMITTED SUMMMARY OF FACTS

2.The Summary of Facts admitted by the defendant are as follows:-

Charge 1

(1)  In the evening of 15 August 2020, PW1 met a man named “Ronald” online. They met up at 0100 hours on 16 August 2020 at a hostel in Chung King Mansions.

(2)  Later at 1000 hours on 16 August 2020, while PW1 was on his way home from the hostel, he discovered that his cardholder, together with his Hong Kong Identity Card (HKID)  and Hang Seng Bank Visa Credit Card (HSB Card)  were missing. On 17 August 2020, PW1 reported the loss to the police and the Immigration Department.

(3)  Investigation revealed that the defendant stole PW1’s HKID and HSB Card on 16 August 2020 at the hostel in Chung King Mansions.

Charge 2

(4)  On 3 September 2020, PW1 checked his Hang Seng Bank e-banking and found that there were 3 unauthorized transactions of HK$8,000 each in his HSB Card account on 16 August 2020.

(5)  The monthly statement of the HSB Card showed that the 3 unauthorized transactions were used to purchase 3 gift cards valued at HK$8,000 each at Harbour City. PW1 reported to the police.

(6)  Investigation revealed that the defendant used PW1’s HSB Card to purchase the 3 gift cards at Harbour City and later purchased 2 mobile telephones with the gift cards.

Charge 3

(7)  On 30 August 2020, the defendant went to a “CSL” branch in Causeway Bay and purchased a mobile telephone valued at HK$2,698 and subscribed to a mobile telephone service plan for telephone number 6652 9770 by using PW1’s HKID Card and HSB Card. The defendant also forged PW1’s signature on the service plan’s application form. The charge of the service plan was HK$566 for the first month and HK$376 for the remaining 23 months.

Charge 4

(8)  On 30 August 2020, the defendant went to a “3” branch in Wanchai and subscribed to a mobile telephone service plan for telephone number 6516 6334 by using PW1’s HKID Card and HSB Card. He also forged PW1’s signature on the service plan application form. The charge of the service plan was HK$406 each month for 24 months.

Charge 5

(9)  On 1 September 2020, the defendant went to a “1010” branch in Mongkok and subscribed to 3 mobile telephone service plans for telephone numbers 6507 3560, 6770 7302, 6657 2529 by using PW1’s HKID Card and HSB card. The defendant also forged PW1’s signature on the service plan application forms. The charges of the service plans were HK$407, HK$407 and HK$577 each month for 24 months.

Charge 6

(10)  On 10 September 2020, the defendant went to a “3” branch in Central and subscribed to a mobile telephone service plan for telephone number 6519 3513 by using PW1’s HKID Card and HSB Card. He also forged PW1’s signature on the service plan application. The charge of the service plan was HK$406 each month for 24 months.

Charge 7

(11)  On 19 September 2020 at around 1011 hours, the defendant asked PW2, a counter staff at Hang Seng Bank branch at 1/F, No.83 Des Voeux Road Central, Central (the HSB Central Branch)  to withdraw HK$6,000 from PW1’s bank account. The defendant produced PW1’s HKID card but could not provide the bank debit card or the bank passbook.

(12)  PW2 found the defendant’s appearance and signature did not match the system record. PW2 told the defendant to wait and reported the matter to the branch manager. The defendant then left the HSB Central Branch without taking PW1’s HKID Card or any money. The staff of HSB Central Branch kept PW1’s HKID Card.

(13)  On 21 September 2020 at around 1530 hours, the defendant returned to the HSB Central Branch and enquired about the progress of the cash withdrawal. A bank staff reported the case to the police. At about 1629 hours on the same day, PC60033 and his party arrived at the HSB Central Branch and arrested the defendant. PW1’s HSB Card was found upon body search of the defendant. The defendant was taken back to Central Police Station.

Charge 8

(14)  On 19 September 2020, the defendant went to the Inland Revenue Department and obtained PW1’s tax return as proof of residence by presenting PW1’s HKID to the staff at the Inland Revenue Department.

Subsequent Investigation

(15)  The following items were found in the defendant’s possession upon search conducted by DPC23598 at Central Police Station:-

(a)  4 mobile telephone service plan application forms relating to Charges 3 and 5;

(b)  1 mobile telephone service plan receipt relating to Charge 6;

(c)  4 SIM cards relating to Charges 4 to 6;

(d)  1 photocopy of PW1’s HKID Card; and

(e)  3 Harbour City gift cards.

(16)  The following items were not recovered from the defendant:-

(a)  3 mobile telephones relating to Charges 2 and 3; and

(b)  2 SIM cards relating to Charges 3 and 5.

(17)  2 cautioned video-recorded interviews were conducted with the Defendant on 22 September 2020. The Defendant admitted Charges 1 to 8.

THE DEFENDANT’S BACKGROUND

3.The defendant is aged 55.  He is divorced and lived alone in a village house.  He received secondary school education in Hong Kong.  He says he used to work as a director in a purchasing agent company but lost his job in about 2018 and has since been unemployed.  Counsel subsequently admitted that the defendant was in fact the owner of that company and that the company only ceased business in 2020.  Counsel submitted that the defendant’s company had no business since 2018.

4.The defendant relies on CSSA of HK$6,500 per month. Counsel submitted that the CSSA was insufficient to defray the defendant’s living expenses and he committed the present offences as a result of financial difficulty.

5.The defendant has 5 previous convictions, 4 of which are related to dishonesty.  He was convicted of theft for 3 other cases namely, KCCC 36/2020 after a warrant for arrest was executed; KCCC 591/2021 and ECCC 1282/2020 (after a warrant of arrest was executed).  Counsel admitted that the present offences were committed whilst on bail for at least case KCCC 36/2020.

DISSCUSSION

Charge 1

6.Counsel submitted that the defendant committed the offences out of greed as a result of his financial difficulty.  He came to know PW1 through an online platform and the two of them met and spent the night at a hostel.  The defendant took the opportunity to steal the HKID Card and the HSB Card and subsequently used them to consume goods and services.  He further submitted that the offences were not sophisticated or pre-meditated, but more like an ad-hoc opportunistic seizure of the stolen properties.

7.If counsel means that the present theft charge is not serious and should be treated as at the lower end of the spectrum, I disagree.  Although the defendant and PW1 were what was described as “somewhat a newly met friend”, the nature of their relationship is obvious.  They were spending an intimate night at the hostel.  Because of this, PW1 left his personal belongings unattended and the defendant took this opportunity to steal from him.  I also do not accept that the defendant committed the present offences as a result of financial difficulty.  If he were in financial difficulties, the most natural thing for him to steal was cash or PW1’s telephone.  He did not.  Instead he chose to steal PW1’s HKID Card and HSB Card.  These items have no monetary value unless the defendant intended to use them to commit further offences.  The defendant did not use the gift certificates to purchase any daily necessities.  Instead, he purchased 3 telephones.  Counsel admitted that the defendant had the intention to commit the other offences once he had PW1’s HKID Card and HSB Card.

8.Theft from a victim who is asleep is tantamount to pickpocketing: HKSAR v Pun Yuk Bahadur [2005] HKCU 1411.  In that case, the Honourable Mr Justice D Pang (as he then was)  referred to Ngo Van Huy [2005] 2 HKLRD 1:-

“In Ngo Van Huy [2005] 2 HKLRD 1, the Court of Appeal has, for the offence of pickpocketing, laid down a guideline sentence of 12 to 15 months’ imprisonment after trial. This is for first time offenders. Where the accused is a repeat offender or worse, a persistent one, a substantially higher sentence would be justified.”

9.Stealing unattended property or “walking away with someone’s property” is also tantamount to pickpocketing. In HKSAR v Ng Ah Shan [2018] HKCU 828, the appellant pleaded guilty to 9 charges of theft and one charge of possession of identity cards belonging to other persons during the trial.  The appellant’s criminal record dated back to 1998 when she was convicted of theft in the form of shoplifting.  She had two further convictions for the same conduct in the year 2000.  She was convicted of theft offences in 2001, 2002 (shoplifting), 2003, 2004, 2005 (pickpocketing), 2006, 2007, 2008, 2009 (shoplifting), 2011, 2012 and 2013 (pickpocketing).  The trial judge, after setting out the facts underlying each of the charges the judge noted the criminal record of the applicant and echoed what the Court of Appeal had said of her in 2014:-

“The applicant is obviously an incorrigible recidivist. She has once and again been sentenced to imprisonment for theft offences, and the numerous short term custodial sentences have apparently had no deterrent effect on her”.

10.The trial judge adopted the same approach to sentencing as had been confirmed as appropriate by the Court of Appeal.  That is, employing the pickpocket sentencing guideline, the judge adopted a starting point of 15 months’ imprisonment for each of the nine theft charges which he then enhanced by 9 months to take account of the aggravating factor of the applicant’s criminal record.  This resulted in a final starting point of 24 months for each of the nine theft charges.

11.The Court of Appeal held:-

“The starting point for each theft charge and the enhancement of those starting points are not excessive. In the applicant’s Court of Appeal judgment the applicant’s conduct was described as “walking away with another person’s property”. In response to a submission advanced on behalf of the applicant that this form of theft was not as serious as pickpocketing the Court of Appeal said:

“24. …If walking away with another person’s property is taken to mean that a defendant dishonestly takes away property carelessly left behind by another person or, conveniently seizing the opportunity presented by another person who inadvertently fails to keep his or her property in safe custody, takes that property away, then the offences committed by the applicant in the present case were not ‘walking away with another person’s property.’ If ‘walking away with another person’s property’ is taken to mean that the defendant preys on a negligent victim and, acting with premeditation and deliberately steals a wallet or property placed next to the victim at the moment when the victim is inattentive, then this type of offence of ‘walking away with another person’s property’ is essentially as serious in nature as the offence of ‘pickpocketing’. This type of offence is also committed in public places and also involves invading personal privacy and subjecting the victim to considerable inconvenience…

25. …As long as the defendant, acting with premeditation and deliberately, has taken advantage of the victim’s negligence and stolen property placed next to him or her, then there is no difference between such a theft and the offence of ‘pickpocketing’ in terms of gravity.

26. We have to emphasize that in the present case it is not that the applicant stole properties left behind by the victims or took properties away in passing when the careless victims were not keeping them in safe custody. The applicant consciously preyed on the negligence of the victims and, acting with premeditation and deliberately, took the opportunity presented by the victims’ inattention and stole their belongings which were placed beside them, including their purses, which contained not only cash but also the victims’ personal items such as their identity document(s)  and bank card(s). The gravity of the offence committed by the applicant falls squarely within what the Court of Appeal emphasized in Ngo Van Huy.”

12.Because PW1 and the defendant were spending the night together, there would be occasions when PW1 left his property unattended inside the room, for example to use the bathroom and when he was sleeping.  The defendant took the opportunity to steal from PW1.  In my judgment, Charge 1 is tantamount to pickpocketing.

13.I adopt a notional starting point of 15 months.  That starting point is only for first offenders.  The defendant has 5 previous convictions, 4 of which are related to dishonesty.  The present offences were also committed whilst on bail for another similar offence (for which the defendant jumped bail).  In the circumstances, the starting point is adjusted upwards to 18 months’ imprisonment.  The defendant has pleaded guilty at the first opportunity and is entitled to the full one third discount.  There are no mitigating circumstances for Charge 1 apart from his guilty plea.  The sentence is reduced to 12 months’ imprisonment.

Charges 2 to 6

14.In respect of Charges 2 to 6, counsel drew the court’s attention to the following factors:-

(1)  There was only one credit card involved;

(2)  The total monetary loss suffered was HK$24,000 under Charge 2;

(3)  The property loss were 3 mobile telephones under Charges 2 and 3 and 2 SIM cards under Charges 3 and 5;

(4)  The mobile service plans entered into by the defendant were subsequently voided for its illegality and there was no monetary loss;

(5)  The offences were not sophisticated nor pre-meditated, but more like ad-hoc opportunistic seizures of the stolen properties;

(6)  Although PW1 was somewhat a newly-met “friend”, the offence could not be considered as a breach of trust;

(7)  There was no involvement of forged credit card nor international element;

(8)  The offences lasted for just over a month and not over an extended period of time;

(9)  The defendant did not spend extravagantly nor attempt to spend up to the credit limit.

15.In R v Chan Sui To and anor [1996] 2 HKCLR 128, the Court of Appeal laid down the various factors to be considered in sentencing this type of offence, which included the size and planning of the operation, whether there is any international dimension and the role played by the defendant.

16.In HKSAR v Tu I Lang CACC 464/2006, the Court of Appeal stated that small scale credit card offence cannot be subjected to strict guidelines.  That is because the facts of such offences can vary significantly in a number of ways, the number of cards possessed or used, being perhaps the most obvious factor.  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 offence to a larger operation, then a starting point of 3 years’ imprisonment or less would be appropriate.

17.In HKSAR v Lam See Chung, Stephen CACC 339/2012, the Court of Appeal stated that the aforesaid sentencing principles were equally applicable to credit card fraud in which genuine cards are used.

18.I agree that there was only one credit card, it was a small scale operation involving only the defendant with no evidence materially linking the offences to a larger operation, there was no international dimension.  In other words, a starting point of 3 years or less would be appropriate.  The fact that the credit card was a genuine credit card is not a mitigating factor. 

19.Counsel submitted that the loss involved in the present case is limited to HK$24,000, the 3 mobile telephones under Charges 2 and 3 and the 2 SIM cards under Charges 3 and 5.  He further submitted that the defendant did not spend extravagantly on the credit card. I disagree.  If the defendant had not been arrested and the mobile telephone service plans voided for illegality, the loss under Charges 2 to 6 alone would be $82,784, calculated as follows:-

(1)  Charge 2: $24,000.00

(2)  Charge 3: $2,698.00

$566 + $376 x 23 months =$9,214

(3)  Charge 4: $406 x 24 months = $9,744

(4)  Charge 5: $407 x 24 months = $9,768

$407 x 24 months = $9,768

$577 x 24 months =$13,848

(5)  Charge 6: $406 x 24 months = $9,744

Total $82,784.00

20.Spending $82,784 in the space of just over a month could hardly be described is “not extravagant”.

21.In any event, the actual loss is not necessarily an important factor.  In HKSAR v Lam See Chung, Stephen (supra), the Court of Appeal explained:-

“39. …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’.”

22.The defendant did not attempt to use the credit card to its credit limit.  However, this can hardly be a mitigating factor.  The amounts charged to the credit card by each telephone service provider each month was very small.  Firstly, this lowers the guard of the victims.  Secondly, by only charging small amounts for each contract, the defendant would be able to enter into more service contracts and cause greater loss.  By only charging the credit card with small amounts each time, the defendant would be able to use the credit card to sign up for numerous telephone service contracts until the credit limit is reached or the credit card company is notified.  The potential loss is up to 24 times the amount of each instalment.

23.HKSAR v Li Chi Yat CACC 189/2018 [2019] HKCA 458 was a case of credit card fraud at the low end of the scale of criminality.  The appellant was acting alone in stealing opportunistically a single genuine credit card which he subsequently used or attempted to use on three occasions where the actual loss was a little under $8,000 and the potential loss, as represented by the credit card limit, was $20,000.  There was no planning or elaborate operation, or any aggravating factors that would elevate the criminality to a higher level of seriousness.  The Court of Appeal found that a starting point of 2 years’ imprisonment was appropriate.

24.There are marked differences between the facts of the present case and those in Li Chi Yat. In Li Chi Yat, the victim left his wallet in a vehicle.  The appellant only stole one single credit card.  In the present case, the defendant not only stole PW1’s credit card, he also stole PW1’s identity card.  He then proceeded to use not only the credit card but also the identity card to commit Charges 3 to 7.  This case is much more than credit card fraud, it is a case of identity theft.

25.I also disagree with counsel’s description of these charges as unpremeditated and akin to ad-hoc opportunistic seizures of stolen property”.  The defendant deliberately went to the telephone service providers, pretended to be PW1 by producing his ID card to commit the offences.  As explained above, the HKID card and credit card have no value.  The only reason for stealing both of them is for the purpose of identity theft.

26.Having regard to all the above mentioned matters, for charge 2 (which does not involve the use of the ID card), I adopt a notional starting point of 2 years’ imprisonment.  For Charges 3 to 6, I adopt a notional starting point of 3 years for each charge.

27.In Li Chi Yat, the appellant only used the credit on 3 occasions in one single day.  Thereafter, there were no further attempts to use the credit card.  In the present case, the defendant used PW1’s credit card multiple times and committed 5 offences over the course of just over a month.  Far from being a mitigating factor, committing a multiplicity of offences within a short space of time is an aggravating factor.  Further, the defendant used PW1’s identity card to obtain PW1’s proof of address.  It is clear that not only did he intend to commit further offences with the cards, the offences were becoming more sophisticated.  These offences were committed whilst on bail for another case of theft, whilst the defendant failed to answer bail and whilst he was under a warrant of arrest.  The starting points for charges 2 to 6 are enhanced by 6 months to reflect the above aggravating factors, ie the starting point for Charge 2 is increased to 2½ years, whilst the starting points of Charges 3 to 6 are increased to 3½ years.

28.The defendant has pleaded guilty at the first opportunity and is entitled to the full one third discount. The sentence for Charge 2 is reduced to 20 months, the sentences for Charges 3 to 6 are reduced to 28 months’ imprisonment each.

Charge 7

29.This was again identity theft.  The defendant pretended to be PW1, used PW1’s identity card in an attempt to withdraw money from PW1’s bank account.  Hong Kong is an international banking and financial centre and the banking system must be protected.  In my judgment, the criminality of this offence is the same as Charges 3 to 6.  After taking into account the aggravating factors mentioned above, I adopt a starting point of 3½ years for this offence.  The defendant has pleaded guilty at the first opportunity, the sentence is reduced to 28 months.

Charge 8

30.Counsel referred the court to the case of Li Chang Li HCMA  935A/2004, which held:-

“40. In our judgment, for the offence of possessing a forged identity card or identity card belonging to another, even if the offender’s presence in Hong Kong is lawful, the starting point upon a plea of guilty should ordinarily be 12 months’ imprisonment, so as to reflect the seriousness of the offence and serve deterrent purposes.

41. If the offender has actually produced or used a forged identity card or identity card belonging to another in order to conceal his identity; work illegally or unlawfully further his stay in Hong Kong, then the starting point upon a plea of guilty should be 15 months’ imprisonment.”

31.The sentencing guidelines in Li Chang Li (supra)  were laid down to address the problems of persons remaining in Hong Kong illegally and illegal workers.  In the present case, the defendant used PW1’s Identity Card to obtain PW1’s proof of address and for identity theft.  It is clear that this was to further his fraudulent scheme of identity theft and is much more serious than the scenarios envisaged in Li Chang Li (supra). I adopt a notional starting point of 27 months.  After taking into account the aggravating factors mentioned above, the starting point is increased to 33 months.  The defendant has pleaded guilty at the first opportunity and is entitled to the full one third discount.  The sentence is reduced to 22 months.

Totality

32.Counsel asked the court to order that the sentences of all 8 charges be served concurrently. In Li Chi Yat (supra), it was argued that the theft and deception charges were part and parcel of “one single transaction” and that the sentences should be served concurrently:-

“24. Ms. Tsang relied on the “one transaction” rule to argue that the sentence on the theft offence should run concurrently with the other sentences. This rule states that if the number of offences have been charged arising from the one transaction or course of criminal conduct, then concurrent sentences should be imposed. As explained in HKSAR v Ngai Yiu Ching [2011] 5 HKLRD 690:-

“19. The one transaction rule was not developed as an inflexible rule of law. It was never intended as anything more than a practical rule of thumb to guide judges in the exercise of the power to impose consecutive sentences so that the final sentence was not one that was unfair to an offender.”

25. The court stressed the importance of the totality principle and the need to ensure that the sentence reflected the true culpability disclosed by the offences of which the defendant has been convicted. So where a second offence added to the culpability of the first offence, the sentence for the second offence would normally run wholly or partially consecutive to that for the first, depending on the appropriate totality for the conduct as a whole.

26. When dealing with multiple offences arising from an episode of criminal activity, the ultimate overall sentence must reflect the true culpability of the offender, although the sentencing court must first pass an appropriate sentence for each individual offence and then ensure that the offender has not been punished twice for the same conduct.

27. We are satisfied that this is what the judge did in the present case. She correctly determined that the sentences on Charges 2, 3 and 4 should be concurrent to each other, involving the appellant fraudulently using or attempting to use the credit card on three occasions within a short period of time. She also correctly determined that the sentence on Charge 1 of 6 months’ imprisonment, having adopted a starting point of 9 months’ imprisonment which she reduced by one third for the appellant’s guilty plea, should run consecutively as to 3 months to the concurrent sentences on Charges 2, 3 and 4. The theft of the credit card was a separate and distinct criminal act on the part of the appellant from his subsequent fraudulent use of the card and therefore warranted a partially consecutive sentence to appropriately reflect the true culpability of the appellant.”

33.Similar to Li Chi Yat, although some charges took place on the same day, Charges 1, 7 and 8 are separate and distinct criminal acts from the credit card frauds and the sentences should technically be consecutive.  However, the court is required to consider totality.  In my view, an overall starting point of 4½ years’ imprisonment (54 months)  is appropriate to reflect the defendant’s criminality in the present case.  After a one third discount, the appropriate sentence would be 36 months.  I therefore order that the sentences for Charges 2 to 7 be served concurrently, 8 months of the sentences in Charges 1 and 8 to be served consecutively to the sentences for Charges 2 to 7, ie a total sentence of 36 months’ imprisonment.