HKSAR v. Chung Pui Kit, Billy

DCCC 342/2022

[2022] HKDC 778

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 342 OF 2022

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REASONS FOR SENTENCE

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1.The defendant is convicted on his own plea and agreement to the Summary of Facts to a charge of theft, contrary to section 9 of the Theft Ordinance, Cap 210 (1^st charge)  and a charge of attempted theft, contrary to section 9 of the Theft Ordinance, Cap 210 and section 159G of the Crimes Ordinance, Cap 200 (2^nd charge).

Facts

2.Between 4 February 2021 and 10 June 2021, the defendant placed purchase orders at websites of 7 companies and ordered goods totalling HK$968,123.  He paid these goods by 44 credit cards via PayPal accounts.  Payments of these goods were later cancelled by PayPal as they were found to be made without authorisation by relevant cardholders.  The value of goods delivered to the defendant was HK$956,450 (1^st charge). 

3.On 10 June 2021, some undelivered goods from a previous purchase order from one of the seven victim companies in the sum of HK$11,673 were delivered to the defendant.  When the defendant tried to open the parcel, he was arrested (2^nd charge). 

4.Part of the goods delivered by the victims, in the sum of HK$360,987, were later retrieved from the defendant’s residence. 

5.Under caution, the defendant admitted doing these things and he knew it was wrong.  He also admitted he had thrown away the mobile phone which was used to contact the courier and led the police officers to recover the mobile phone from a rubbish bin.  In that mobile phone, the contact information for the relevant purchase orders made with 6 victim companies could be retrieved. 

6.Actual loss suffered by the 7 victim companies, taking into account of the recovery of part of the goods delivered by the victim companies and the loss suffered by a cardholder, was HK$590,138. 

Criminal record

7.The defendant has a clear record. 

Mitigation

8.The defendant is aged 28.  He studied accounting during his tertiary education and has worked as a part-time service associate for the Jockey Club for the past 9 years.  He resides with his parents.  His father is a driver and his mother is a housewife.  His elder brother is a clerk and is married. 

9.Defence counsel submitted that at the time of the offence, the defendant was a full-time student.  He further submitted that had it not been co-operation from the defendant, it would be more difficult for the police to connect the defendant to the 1^st charge offence. 

10.Further, it was said that the defendant is a man of clear record, and that he desired to be a civil servant and had actually passed the Basic Law Examination.  It was also said that most of the stolen properties and proceeds have been recovered. 

11.Defence counsel further submitted that the defendant committed the offences on impulse and the commission of the offence was an unsophisticated operation.  He also submitted to court mitigation letters from the defendant himself, his parents, his sibling and also his secondary school teacher and headmaster. 

12.He submitted that the sentencing guideline for this type of offence is 3 years’ imprisonment or less, relying on the case of HKSAR v Lam See Chung, Stephen [2013] 5 HKLRD 242. 

13.It was also said by defence counsel that the defendant had pleaded guilty, he is entitled to full one-third sentencing discount. 

14.He further submitted that the 2 charges in question was actually part and parcel of the same offence, therefore the sentence for these charges should run concurrently. 

15.He also referred the court to the case of HKSAR v Cheung Mee Kiu [2006] 4 HKLRD 776, for reference purpose. 

16.He asked this court to pass a lenient sentence on the defendant. 

Discussion

17.Before sentencing, this court has carefully considered the mitigation submission, mitigation letters as well as legal authorities. 

1^st charge

18.The defendant placed 53 purchase orders with 7 victim companies using 44 genuine credit card information over a period of 4-odd months. 

19.In the case of HKSAR v Tu I Lang [2007] HKLRD 403, McMahon J said for small unsophisticated operation, involving one or a few forged credit 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. 

20.In the cited Lam See Chung Stephen case, McWalters J (as he then was)  said there is no good reason why 3-year starting point for simple cases of counterfeit credit card fraud should not also apply to simple cases of credit card fraud.

21.Likewise, this court does not see why the sentencing guideline in the Lam See Chung Stephen case should not apply to the present case where similarly, the commission of the offence using the present modus operandi targets and puts the operation of the credit card system at risk, and reputation of Hong Kong as an international finance centre similarly was put at risk. 

22.By reason of this modus operandi, the operation is actually more sophisticated than had the defendant gone into a shop and physically made purchase using a genuine/counterfeit credit card.  But for the clear record of the defendant, this court would have adopted a higher sentencing starting point, especially in view that the defendant used 44 credit card information in the commission of the offences and the sums involved is nearly HK$1 million.

23.Though the defendant used to be a man of clear record, the nature of the credit card fraud offences is serious and the sentence should carry a deterrent effect.  Immediate custodial sentence is the only appropriate sentencing option. 

24.As said earlier, the present charge involved goods in the sum of HK$956,450 and the actual loss to the victims after considering the amount of goods retrieved was HK$590,138. 

25.Considering the circumstances of the case, and in particular the fact that the defendant used to be a man of clear record, this court will adopt a sentencing starting point of 3 years’ imprisonment for this charge. 

26.This court, in view of the duration of the offence, does not accept submission that the defendant committed the offence on impulse.  

27.Mitigation letters from the defendant, his parents and sibling, as well as the school headmaster and teacher all said the defendant was remorseful and he was a man with a kind heart, always willing to help others in need.  It was said that the defendant was weak in managing his own stress and he was good in computer knowledge.  They all asked this court to impose a lenient sentence on the defendant. 

28.Considering all the mitigation done on behalf of the defendant, the most valid mitigating factor is obviously his guilty plea for which he is entitled to full one-third sentencing discount.  It is well established that the defendant’s clear record and remorse has been subsumed in the one-third sentencing discount by reason of his guilty plea. 

29.Accordingly, the defendant is sentenced to 2 years’ imprisonment for the 1^st charge. 

2^nd charge

30.The value of goods in question is HK$11,673.  The victim company did not suffer any actual loss.  1 purchase order and 1 credit card was involved under the charge. 

31.Appropriate sentencing starting point here is 2½ years’ imprisonment.  The defendant is sentenced to 20 months’ imprisonment by reason of his guilty plea. 

32.This court accepts that the 2^nd charge offence took place within the same period as the 1^st charge offence and these offences are similar in nature in all respects.  In fact, the victim for the 2^nd charge was also a victim for the 1^st charge.  Part of the goods delivered to the defendant by the same victim form part and parcel of the facts for the 1^st charge, and the subject matter of the 2^nd charge was in fact the undelivered goods relating to purchase orders in the 1^st charge. 

33.Commission of the 2^nd charge offence does not add to the culpability of the defendant in the 1^st charge.  Accordingly, sentence of the 2^nd charge is to run totally concurrent to the sentence of the 1^st charge. 

34.The defendant is therefore sentenced to 24 months’ imprisonment in this case.