HKSAR v. Wong Siu Kei

DCCC 943/2021

[2022] HKDC 708

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 943 OF 2021

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REASONS FOR SENTENCE

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1.The defendant is convicted on his own plea and agreement to Summary of Facts to a charge of attempting to obtain property by deception, contrary to section 17(1)  of the Theft Ordinance, Cap 210 and section 159G of the Crimes Ordinance, Cap 200 (1^st charge)  and a charge of using a false instrument, contrary to section 73 of the Crimes Ordinance, Cap 200 (2^nd charge).

Facts

2.Mr Lam had a Standard Chartered Bank Master Card S/N 5523-4384-1417-7104 (“the Card”).  The card was still in his possession in the morning of 1 April 2020.

3.Mr Pan was the owner of a used watch shop WeWatch Limited (“WeWatch”).

4.On 1 April 2020, Mr Pan received a telephone call from a stranger who enquired whether WeWatch had Rolex Daytona watch in rose gold for sale. The caller also asked whether payment could be made by using credit card without verification against identity card.  Eventually, the sale and purchase of the Rolex watch was scheduled at 3:15 pm of the same day.

5.At around 3:15 pm on the same day, the defendant attended the shop to buy the Rolex watch at HK$220,800.  After the defendant presented the card for payment, Mr Pan asked the the defendant for his identity card for verification of the card owner identity.  The defendant then presented to Mr Pan an “Acknowledgment of Application for a Hong Kong Permanent Identity Card” in the name of Mr Lam Kam Tim (“the Acknowledgment”).

6.Mr Pan examined the Acknowledgement and confirmed that the person in the photo on the document was the defendant.  Mr Pan then issued a receipt to the defendant and asked him to both sign and write his name on it.  Since the defendant could not correctly spell Lam Kam Tim, Mr Pan became suspicious and call the police.

7.Police arrived later.  Upon request, the defendant presented his own Hong Kong Identity Card to the police.  Police arrested the defendant as the personal particulars on the Acknowledgement were different from that of the defendant’s Identity Card.

8.Under caution, the defendant admitted, inter alia, that the boss gave him the Card and Acknowledgement to buy a watch and would give him $2,000 in return.  The defendant admitted the photo on the Acknowledgement was his own photo and was given at the direction of the boss to make the Acknowledgement.  He had not yet received the reward by the time of arrest.

9.Immigration Department had never issued the Acknowledgement.

Mitigation

10.The defendant was born in Hong Kong.  He was 26 at the time of the offence.  He is now 28.  He came from a single-parent family and he grew up with his mother and a younger sister.  After finishing his secondary school education, he worked as a casual worker earning about $13,000 a month.

11.Defence counsel submitted that the defendant was unemployed at the time of the offence and was in financial difficulties.  After he spotted a post on the Facebook for recruiting people to earn quick money, he contacted the person who posted the post and was subsequently given the credit card and the acknowledgement for the commission of the offences.  He was promised a reward of $2,000, which he had not yet received.

12.It was submitted that the defendant had all along been cooperative with the police upon his arrest, and that prior to the offences, he had regularly donated money to a charity called Medecins Sans Frontieres since the year 2018.  Defence counsel handed to court the receipts for the donations.

13.Defence counsel also handed to this court 4 mitigation letters from the defendant himself, his mother, his younger sister and his aunt.  The defendant said he committed the present offence out of greed and he is now deeply remorseful and wish to turn a new leaf upon his release from prison.

14.As for the other mitigation letters, they all say the defendant is a man with a good heart, and that it was due to bad influence from other peers that he committed the present offence.  They all ask this court for leniency. It was also submitted that the defendant’s mother has been diagnosed with heart problem and had been receiving treatment since June 2020.

15.Defence counsel referred this court to the case of HKSAR v Lam See Chung, Stephen [2013] 5 HKLRD 242, where it was held by the Court of Appeal that a 3 years’ starting point for simple cases of counterfeit credit card fraud also applied to fraudulent use of stolen genuine credit cards.  It is submitted that the principle should apply to the present case.  It is further submitted that the victim watch company has suffered no actual loss.

16.For the 1^st charge, defence counsel also referred this court to the case of HKSAR v Khurelbaatar Naranbayar, DCCC 805/2016.

17.In respect of the 2^nd charge, he referred this court to the case of 香港特別行政區 訴 李長利 [2005] 1 HKLRD 864, where the Court of Appeal held that for using a forged identity card for seeking employment or extending the stay in Hong Kong, the appropriate sentence should be 15 months after plea.  Defence counsel submitted that the document in question in the present case is a document similar to an identity card in nature.

18.Defence counsel further submitted that the commission of the two offences took place at the same time on the same occasion, therefore, he asked that the sentences for the two charges to run concurrently.

Discussion

19.Before sentencing, this court has carefully considered all mitigation submissions by defence counsel, as well as the documents in support including but not limited to the mitigation letters, receipts for donation, the medical reports concerning the defendant’s mother, and the authorities in the area.

20.Coming to the mitigation letter from the defendant, the defendant says that he committed the offence out of greed by reason of his financial difficulty at the time.  He said he met the boss and the other persons involved through the post on the Facebook.  He is now deeply remorseful and wish to start afresh upon his release.

21.The defendant’s family members all say the defendant is a filial son and a person with a good heart, and the commission of the offences were due to the defendant being influenced by undesirable peers.

1^st Charge

22.In the case of Lam See Chung, Stephen, it is said that 3 years’ imprisonment or less sentencing starting point for simple case of counterfeit credit card fraud also applies to fraudulent use of stolen genuine credit card.  It is noted, however, that McWalters J (as he then was)  in paragraph 38 to 40 of the judgment of Lam See Chung, Stephen case says:-

“38. But these aggravating features will not be present in the type of simple, small scale use of forged credit cards for which a sentencing tariff of 3 years’ imprisonment or less has said to be appropriate. In HKSAR v Tu I Lang (unreported, CACC 464/2006), McMahon J said at [10] of the judgment that:

‘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 3 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 the 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 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.”

23.In the present case, although one stolen credit card was used, upon the defendant’s admission, the case involves a more sophisticated syndicate, recruiting offenders from the internet, at least two other persons who supplied to the defendant the stolen credit card, and they also had the resources to manufacture false “Acknowledgement of Application for a HK Permanent Identity Card”.  The case was not one in which the defendant on his own found the stolen credit card and used it as envisaged in the Tu I Lang case.  The defendant knew he was dealing with a syndicate.  In this case, but for the alertness of the shopkeeper, the transaction would have been completed and the shop would have suffered the loss of $220,800.

24.Considering the size and sophistication of the syndicate including the number of persons involved, the level of participation by the defendant, the potential loss to the victim, this court finds that the appropriate sentencing starting point is one of 3 years and 3 months’ imprisonment.

25.The defendant committed the present offences when he had jumped police bail in connection with the MOTS case.  This is an aggravating feature in sentencing for which the sentence starting point is enhanced by 3 months to 3 years and 6 months’ imprisonment.

26.Commission of the offences because of financial difficulty is not a valid mitigating factor.  The defendant has pleaded guilty, that is the most valid mitigating factor.  He is therefore entitled to full one-third sentencing discount.

27.Accordingly, for the 1^st charge, he is sentenced to 2 years and 4 months’ imprisonment.

2^nd Charge

28.Defence counsel referred this court to the case of 李長利.  In that case, the Court of Appeal said the appropriate sentence for using a forged ID card for the purpose of finding employment or extending the stay in Hong Kong should be 15 months’ imprisonment after plea.

29.Defence counsel submitted that for the purpose of the sentencing, the acknowledgment here is analogous to a document of identity like the Hong Kong ID card.  The court therefore adopts the 15 months’ imprisonment after plea for this charge as the sentence.  The same is enhanced by 2 months after plea by reason that he committed the offence whilst he jumped police bail.

30.He is therefore sentenced to 17 months’ imprisonment for the 2^nd charge.

31.This court considers that commission of the 2^nd charge offence is part and parcel of the circumstances under which the defendant committed the 1^st charge offence.  This court when sentencing the defendant for the 1^st charge had already considered the use of the false document.  Accordingly, the court will order that the sentence of the 2^nd charge is to run totally concurrent with the sentence of the 1^st charge.

32.Defendant is therefore sentenced to 2 years and 4 months’ imprisonment for the whole case.