HKSAR v. Ngo Ying Kit (also known as Ng Ying Kit)

DCCC 53/2022

[2022] HKDC 1192

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 53 OF 2022

________________________

________________________

________________________

REASONS FOR SENTENCE

________________________

Charges

1.The defendant pleaded guilty to 15 charges (3, 4, 6-12, 15- 20)  with remaining charges (1, 2, 5, 13-14)  left on the court’s file.  This court ordered the remaining charges not to be proceeded with without the leave of the court.

Facts

Theft (Charges 3, 4, 6-9, 12, 16, 17)

Charge 3

2.At the material times, Ms TAN (“PW1”)  resided in To Kwa wan.  In May 2019, PWI applied for a Hang Seng Bank VISA card.  On 22 May 2019, PW1 received the card numbered 4557-2810-****-**** issued in the name of PW1, with a credit limit of HK$15,000 (“C1”).  PW1 activated Cl according to the bank's instructions.  PW1 had never lost Cl.  On 10 July 2019, PW1 received the letter containing the ATM PIN for Cl.  On 15 July 2019, PW1 found that Cl was used for cash advance to withdraw cash amounting to HK$10,000 at around 3:42 pm on 25 May 2019 at HSBC ATM No. 5612, outside Sheung Tai House, Upper Ngau Tau Kok Estate, Ngau Tau Kok, Kowloon, Hong Kong (“HSBC ATM”).  PW 1 had not conducted the withdrawal in question.

Charge 4

3.At the material times, Mr HE (“PW2”)  resided in To Kwa Wan.  In September 2019, PW2 applied for a Hang Seng Bank VISA card.  In October 2019, PW2 received the card numbered 4557-2810-****-**** issued in the name of PW2, with a credit limit of HK$30,000 (“C2”).  PW2 had never lost C2.  On 4 November 2019, PW2 found that C2 was used for cash advance for 4 times to withdraw cash amounting to a total of HK$28,000 between 2 November 2019 and 4 November 2019 (at around (i)  4:19 pm, (ii)  1:36 am, and (iii)  12:37 and 12:38 am on 2 - 4 November 2019 respectively)  at the HSBC ATM.  PW2 had not conducted the withdrawals in question.

Charge 6

4.At the material times, Ms WU (“PW3”)  resided in Shek Kip Mei.  In March 2020, PW3 applied for Dah Sing Bank VISA card.  On 7 April 2020, PW3 received the card numbered 4514-2272-****-**** issued in the name of PW3, with a credit limit of HK$50,000 (“C3”).  PW3 had not received the letter containing the ATM PIN for C3.  PW3 had never lost C3.  On 20 April 2020, PW3 found that C3 was used for cash advance for 4 times to withdraw cash amounting to a total of HK$40,000 between 16 April 2020 and 17 April 2020 (two of which at around 11:57 pm, then at 12:02 am and 12:03 am on 16 and 17 April 2020 respectively)  at the HSBC ATM. PW3 had not conducted the withdrawals in question.

Charge 7

5.At the material times, Mr CHUN (“PW4”)  resided in Shek Kip Mei.  In April 2020, PW4 opened an integrated bank account numbered 143-840***-*** with HSBC (“AC-2”)  which was linked to his existing savings account 595-0-00**** (“AC-1”). In late April 2020, PW4 received the ATM card for AC-2 (“C4”)  which could be used to make withdrawals from AC-1 and AC-2.  However, PW4 had never received the PIN to activate C4.  PW4 had never lost C4.  On 5 May 2020, PW4 last checked that AC-1 had a remaining balance of HK$40,132.13.  In the evening on 6 May 2020, PW4 found that someone had used C4 to conduct two unauthorised cash withdrawals from AC-1 amounting to a total of HK$40,000 at around 8:36 pm on 6 May 2020 at the HSBC ATM.  PW4 had not conducted the withdrawals in question.

Charge 8

6.At the material times, Ms MAN (“PW5”)  resided in To Kwa Wan.  In August 2019, PW5 applied for a Standard Chartered Bank MasterCard.  On 28 April 2020, PW5 reported the loss of her credit card.  On 13 May 2020, PW5 received the replacement Standard Chartered Bank MasterCard numbered 5523-4384-****-**** issued in the name of PW5, with a credit limit of HK$55,000 (“C5”).  On 15 May 2020, PW5 activated C5.  On 22 May 2020, PW5 found that C5 was used for cash advance for 3 times to withdraw cash amounting to a total of HK$30,000 between 19 May 2020 and 21 May 2020 (at around (i)  4:37 pm, (ii)  12:59 am and (iii)  2:59 pm on 19 - 21 May 2020 respectively), the first two withdrawals were made at the HSBC ATM and the last withdrawal was made at a Hang Seng Bank ATM at To Kwa Wan.  PW5 had not conducted the withdrawals in question.

Charge 9

7.At the material times, Mr TAM (“PW6”)  resided in To Kwa Wan.  PW6 was a holder of a HSBC MasterCard.  In early August 2020, HSBC issued a new HSBC MasterCard to PW6.  In mid-August 2020, PW6 received the new HSBC MasterCard numbered 5289-4600-****-**** issued in the name of PW6, with a credit limit of HK$54,000 (“C6”).  In late August 2020, PW6 activated C6.  PW6 had not received the letter containing the ATM PIN for C6 after that.  PW6 had never lost C6.  On 9 September 2020, PW6 found that C6 was used for cash advance twice to withdraw cash amounting to a total of HK$20,000 between 8 September 2020 and 9 September 2020 at the HSBC ATM.  PW6 had not conducted the withdrawals in question.

Charge 12

8.At the material times, Ms DAMASO (“PW7”)  resided in To Kwa Wan.  PW7 had an account numbered 503-250***-*** with HSBC (“AC-3”).  In September 2020, PW7's account was upgraded with the same account number and PW7 received a new ATM card for AC-3 (“C7”), PW7 also applied for a new HSBC MasterCard.  PW7 subsequently received the HSBC MasterCard numbered 5289-4600-****-**** issued in the name of PW7, with a credit limit of HK$20,000 (“C8”).  PW7 activated C8 and kept both C7 and C8 in her wallet.  PW7 had never lost C7 or C8.  on 19 October 2020, PW7 deposited HK$6,000 into AC-3 and AC-3 had a remaining balance of HK$16,575.97.  On 23 October 2020, PW7 found that (a)  C7 was used for cash withdrawal amounting to HK$16,500 at around 11:57 pm on 22 October 2020 at the HSBC ATM; and (b)  C8 was used for cash advance twice to withdraw cash amounting to a total of HK$20,000 at 11:58 pm on 22 October 2020 and at midnight on 23 October 2020 respectively at the HSBC ATM.  PW7 had not conducted the withdrawals in question.

Charge 16

9.At the material times, Mr WONG (“PW8”)  resided in To Kwa Wan.  In November 2020, PW8 applied for and received a HSBC MasterCard numbered 5289-4600-****-**** issued in the name of PW8, with a credit limit of HK$54,000 (“C9”).  PW8 had not received the letter containing the ATM PIN for C9.  PW8 had never used or lost C9.  On 27 January 2021, PW8 found that C9 was used for cash advance twice to withdraw cash amounting to a total of HK$20,000 at 11:58 pm on 3 December 2020 and at midnight on 4 December 2020 respectively at the HSBC ATM.  PW8 had not conducted the withdrawals in question.

Arrest (Charges 17 – 18)

10.At around 4:45 pm on 15 December 2020, the Police were on an anti-theft operation near Sheung Tai House, Upper Ngau Tau Kok Estate.  The Police saw the Defendant approaching the HSBC ATM situated thereat.  Upon arriving at the HSBC ATM, the Defendant raised his left hand and appeared to be covering the CCTV of the HSBC ATM before proceeding to use the HSBC ATM.  After using the HSBC ATM, the Defendant raised his left hand towards the CCTV of the HSBC ATM before leaving.  The Defendant was then intercepted.  The Defendant was holding cash of HK$8,800 with his right hand and a piece of paper with a piece of double-sided adhesive tape with his left hand.

11.Upon search, a Standard Chartered Bank VISA card numbered 4509-3606-****-**** issued in the name of Mr FU (PW9)  (“C10”)  was found concealed in the right sleeve of the Defendant’s jacket.

12.The Defendant was arrested for theft.  Under caution, the Defendant admitted that he stole C10 and withdrew cash of HK$8,800 from the HSBC ATM.

13.Mr FU (“PW9”)  subsequently confirmed that he was not acquainted with the Defendant. At around midnight on 28 June 2018, PW9 reported the loss of his wallet and its contents, including his Hong Kong Identity Card, three ATM cards and one credit card to the Police. In mid-December 2020, PW9 received a call from Standard Chartered Bank regarding his application for a Standard Chartered credit card, however PW9 had never applied for any credit card with Standard Chartered Bank. PW9 had never seen C10. PW9 did not take any further actions until he was contacted by the Police in relation to C10.

14.Transaction records of C10 showed that 12 transactions amounting to a total of HK$108,482.5 had been made with C10 between 5 December 2020 and 15 December 2020, out of the 12 transactions, 4 of which were cash advance transactions conducted at the HSBC ATM.  C10 was last used for cash advance to withdraw cash of HK$8,800 at around 4:51 pm on 15 December 2020.  The credit limit of C10 was HK$110,000.

House Search

15.House search was conducted at the Defendant's home at a flat in Choi Foon House, Choi Fook Estate, Ngau Tau Kok, Kowloon and the following items were, among others, found and seized:

(a)  One credit card chip (“Chip 1”)  stuck on a piece of paper with “FANG YAWEI 725” written thereon, together with another chip; (Charge 10)

(b)  One credit card chip (“Chip 2”)  stuck on a piece of paper, with several names written therein, including PW6’s name, together with 4 other chips; (Charge 11)

(c)  One letter enclosing one Citibank MasterCard numbered 5597-3783-****-**** issued in the name of FUNG X X (“C11); (Charge 15)

(d)  One CMB Wing Lung Bank VISA card numbered 4518-5003-****-**** issued in the name of LAM X (“C12”); (Charge 19)

(e)  One Hong Kong Identity Card in the name of LIN X X, one Hong Kong Identity Card in the name of LI X X, and one Hong Kong Identity Card in the name of LIN X X; (Charge 20)

(f)  One “Instant Glue Aron Alpha” plastic container containing 28 chips, one transparent plastic bag containing two chips, one transparent plastic card holder containing one chip and one piece of paper with one chip stuck thereon;

(g)  One piece of paper containing PW9's name in both English and Chinese, date of birth, Hong Kong Identity Card number and address of PW9 (confirmed to be correct by PW9), together with the number “5681****” (Charges 17 & 18);

(h)  One piece of paper containing PW3's name in both English and Chinese, Hong Kong Identity Card number, date of birth and address of PW3 (confirmed to be correct by PW3), together with the number “6754****” and “wai******@gmail” (Charge 6);

(i)  One piece of paper containing a list of names, numbers, address, dates and a three-digit number etc. on both sides, including PW4's address and the names “CHUN X X” and “WONG X X” (confirmed by PW4 to be the name of his sister and her son)  (Charge 7);

(j)  5 USBs, including one USB in white colour (32 GB)  contained 4 images consisting of 2 HSBC bank statements, both in the name of PW7 (confirmed by PW7 to be records of transactions conducted by her)  (Charge 12);

(k)  Two Micro SD cards, including one Micro SD card in grey and red colour (32 GB)  contained (i)  one folder containing 6 images consisting of 3 Hang Seng Bank statements, one ICBC credit card statement and one Hong Kong Identity Card, all in the name of PW9 (Charges 17 & 18)  and (ii)  one folder containing 6 images consisting of one OCBC Wing Hang Bank statement, two Manulife policy documents, one Dah Sing Bank credit card statement and one Notice of Assessment and Demand for Salaries Tax issued by the Inland Revenue Department, all in the name of PW3 (Charge 6);

(l)  One Micro SD card reader;

(m)  One desktop computer and two laptops;

(n)  One roll of double-sided adhesive tape;

(o)  Two rolls of transparent adhesive tape;

(p)  One tube of glue;

(q)  One cutter; and

(r)  One hairdryer.

Charge 10

16.At the material times, Ms FANG (“PW13”)  resided in To Kwa Wan.  In early November 2020, PW13 received a Hang Seng Bank VISA card numbered 4557-2810-****-**** issued in the name of PW13 (“C13”), she activated C13 and placed C13 together with the subsequent letter with the ATM PIN in her drawer.  PW13 subsequently discovered that the chip on C13 appeared to be tampered.  PW13 did not suffer any financial loss.  Mr LEE (“PW14”), staff of Hang Seng Bank, confirmed that Chip 1 belonged to C13.

Charge 11

17.At the material times, Ms HO (“PW15”)  resided in Shek Kip Mei.  In November 2020, PW15 received a new ICBC (Asia)  Union Pay supplementary credit card numbered 6228-8950-****-**** issued in the name of TSE X X (“C14”), on behalf of her son who was studying in Japan, for the card previously expired.  C14 was sent to her son in Japan by post and received by her son.  No loss was suffered by PW15 or her son.  Mr CHU (“PW16”), staff of ICBC (Asia), confirmed that Chip 2 belonged to C14.

Charge 15

18.At the material times, Ms FUNG (“PW19”)  resided in Shek Kip Mei.  In December 2020, PW19 applied for a bank account with Citibank online but she had never received C11.  PW19 did not suffer any financial loss.

Charge 20

19.In mid-2016, Ms LIN (“PW20”)  lost her wallet and its contents, including her Hong Kong Identity Card. She confirmed that the Hong Kong Identity Card in her name belonged to her.

20.In September 2016, Ms LI (“PW21”)  reported the loss of her wallet and its contents, including her Hong Kong Identity Card to the Police.  She confirmed that Hong Kong Identity Card in her name belonged to her.

21.A total of 4 video-recorded interviews were conducted with the Defendant between 15 and 16 December 2020, during which the Defendant admitted, inter alia, the following under caution:

a. He was unemployed and he lived in a flat in Choi Foon House, Choi Fook Estate, Ngau Tau Kok;

b. He had used stolen ATM cards or credit cards to withdraw money from the HSBC ATM for about 8-10 times. He stole the cards sometimes from Mei King Mansion in To Kwa Wan and sometimes from Tai Hang Sai Estate, from the letter box thereat. If there was a credit card in the letter, he would use a cutter to remove the credit card chip and replace it with a dummy chip before placing the credit card back inside the envelope and back into the same letterbox. He would then wait for the letter containing the ATM PIN to arrive at the same location. Once he got the letter containing the ATM PIN, he would use the PIN to withdraw money from the HSBC ATM, where he was arrested;

c. He would stick the chip removed from the stolen credit card on a piece of paper and write down that person’s name because he did not know whether the letter containing the ATM PIN would arrive or not;

d. He targeted at Mei King Mansion and Tai Hang Sai Estate because they were convenient, with little security measures in place. He chose the HSBC ATM because it was close to his home;

e. He stole the credit card letter belonging to PW3 (Charge 6), replaced the chip in the manner described above and wrote down her details on the piece of paper. He went back and stole the letter containing the ATM PIN a few days later, then used the PIN to withdraw money from the HSBC ATM. He had already used up all the money;

f. He jotted down details from letters he stole, mainly bank statements for record purpose, the addresses written were the places where he stole the letters. He also wrote down the respective credit card expiry date, card security code and credit limit on the paper containing PW4’s address (Charge 7);

g. He stole the credit card belonging to PW6 (Charge 9), he replaced the chip and re-sealed the envelope at his home before putting the envelope back. He then waited for the letter containing the PIN and used the PIN to withdraw money from HSBC ATM;

h. He stole the bank letter belonging to PW19 with C11 from the letter box of the address stated thereon, he had not used C11 yet and he intended to remove the chip on C11;

i. He stole C12 but he forgot where, he had not used C12 (Charge 19);

j. Around 2019, he picked up a wallet at the playground in Tai Hang Sai Estate, no cash was found inside the wallet but it contained the three Hong Kong Identity Cards, so he took the cards and threw away the wallet. He was not acquainted with the cardholders;

k. The 28 chips inside the plastic container were chips removed from the cards he had stolen or picked up. The 3 chips contained in the transparent plastic bag were also chips from the cards he had stolen;

l. The 5 USBs, two Micro SD cards together with the Mirco SD card reader were given to him by his acquaintance named Ah Man at a restaurant in To Kwa Wan about 2 months ago, Ah Man told him to keep them as they contained personal information of others which might become useful in the future. He had looked into their contents, all of them contained personal information of others and one of the USB in white colour (32GB)  contained some bank statements additionally. He had not used the personal information contained therein;

m. He used the cutler seized to remove the chips, glue to re-seal the envelopes, double-sided adhesive tape to cover the CCTV camera with a piece of paper and hairdryer to dry the glue; and

n. C10 was given to him by Ah Man who told him to use it to withdraw money from an ATM. He did not know who the cardholder was. The cash of HK$8,800 seized from him was the cash he withdrawn from the HSBC ATM using C10 and he used the paper seized from him to cover the CCTV of the HSBC ATM (Charges 17 & 18).

22.Cl - C6, C8, C9 and C13 were examined by Dr LEE Wai-kit, Forensic Scientist of the Government Laboratory who found presence of damage and/or indented marks on the surface of the cards as well as glue remnants in the vicinity of the edges of the chip if each of the cards, Dr LEE was of the opinion that the chips on the cards could have been tampered with.

23.At the material times:

(a)  The Defendant stole Chip 1, Chip 2, PW19’s letter and C10 – C12;

(b)  The Defendant stole cash in the total amount of HK$233,300 (Charges 3, 4, 6, 7, 8, 9, 12, 16, 17); and

(c)  The Defendant, without lawful authority or reasonable excuse, had in his possession three Hong Kong Identity Cards which related to other persons, namely PW20, PW21 and LIN X X respectively.

Criminal record & Mitigation

24.From 1996 to 2011, the defendant has 28 criminal convictions, with 24 convictions related to dishonest offence.  His last conviction was on 8 November 2011 involving dealing with dutiable goods and breach of suspended sentence.

25.The defendant is either a recidivist or previous sentences he received had failed to deter him.  This court should consider upward adjustment on sentence. 

26.He is now 51 years of age, married and received education up to Form 3. He has been unemployed since 2019 and lived on credit card overdraft facility. Apart from the usual discount of 1/3 from guilty plea and totality principle, defence counsel Mr Marray, reminded me of the case of Li Chi Yat CACC 189/2018 regarding 3 years’ imprisonment or less for unsophisticated operations of credit card fraud or where the amount is small.

Sentence

27.When I pass sentences on the defendant, I bear in mind all the mitigating factors advanced on his behalf.

28.The defendant committed altogether 14 counts of theft and one count of possession of others’ ID cards.

29.The defence accepted that the defendant has an appalling criminal record, he also committed multiple offences, they are aggravating factors as stated in HKSAR v Cheng Wai Kai (2008)  HKCU 932.

30.Between 2019 to December 2020, the defendant committed 15 offences.  The defendant stole cash amounting to HK$233,300. 

31.The defendant should have known that his wrongful acts must have caused a great deal of inconvenience, anger and anxiety to the victims.

32.He also has 24 dishonest related convictions.  Sentences need to be enhanced as the past sentence has no deterrent effect on him.

33.As said in the case of HKSAR v Li Chi Yat CACC 189/2018 that:

“small scale credit card offences cannot be subjected to strict guidelines because they can vary significantly in a number of ways and that a starting point of 3 years’ imprisonment or less would be appropriate.” (Paragraph 21)

“we should point out, however, that credit card fraud offences require deterrent sentences in order to protect the integrity of the credit card system and to punish the offender for the loss and inconvenience to the credit card company and the cardholder, as the case may be.” (Paragraph 22).

34.The actual loss of the credit cards was huge, i.e. HK$233,300, let alone the potential loss.

35.With all the information in mind, regarding theft offences involving cash withdrawal or actual loss, I adopt a general starting point of 30 months, enhance by another 3 months, it arrives at 33 months, reduce to 22 months after giving 1/3 discount for each charge.  Regarding theft offences involving theft of credit card/card chips, I adopt a general starting point of 18 months, enhance by another 3 months, it arrives at 21 months, reduce to 14 months after giving1/3 discount for each charge.  Regarding offence of possession of 3 ID cards of others, I adopt a starting point of 12 months, reduce to 8 months after giving1/3 discount.  

Principle of totality

36.I now come to deal with the principle of totality.  Given the number of the 15 charges he pleaded guilty to, the criminality and culpability of all the offences, I consider that a sentence of 4.5 years (54 months)  after trial is appropriate to reflect the overall criminality and culpability.   In other words, 3 years or 36 months after giving 1/3 discount for guilty plea is appropriate.

37.I order the following charges to run concurrently /consecutively:

a. Charges 3, 4, 6, 7, 8, 9, 12, 16 and 17 be made concurrent (1^st batch);

b. Charges 10, 11, 15, 18 and 19 be made concurrent (2^nd batch);

c. Charge 20 (3^rd batch);

d. 1^st and 2^nd batches be made consecutive, 3^rd batch be made concurrent to the 1^st and 2^nd batches.

38.The following table shows a summary of the sentences:

Charge	Offence	Amount	Sentence after discount	Consecutive and concurrent as above
3	Theft	$10,000	22 months
4	Theft	$28,000	22 months
6	Theft	$40,000	22 months
7	Theft	$40,000	22 months
8	Theft	$30,000	22 months
9	Theft	$20,000	22 months
10	Theft	Card chip	14 months
11	Theft	Card chip	14 months
12	Theft	$36,500	22 months
15	Theft	Credit card	14 months
16	Theft	$20,000	22 months
17	Theft	$8,800	22 months
18	Theft	Credit card	14 months
19	Theft	Credit card	14 months
20	Possession of ID card	3 cards	8 months
				Total: 36 months

39.In a nutshell, it arrives at a total of 36 months’ imprisonment.