HKSAR v. Fong Tak Chi

DCCC 443/2022

[2023] HKDC 781

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 443 OF 2022

________________________

________________________

________________________

REASONS FOR SENTENCE

________________________

1.The defendant was convicted of 1 charge of handling stolen goods, contrary to section 24 of the Theft Ordinance, Cap 210 (1^st charge), and 3 charges of obtaining property by deception, contrary to section 17(1)  of the Theft Ordinance, Cap 210 (2^nd, 3^rd and 4^th charge), on his own plea and agreement to Summary of Facts.

Facts

2.At 0820 hours on 1 November 2021, a partner of a company (PW2)  returned to Room 205, 2/F, Yuen Fat Industrial Building, 25 Wang Chiu Road, Kowloon (“the Room”)  and found that it had been ransacked.  She also found that one window inside the toilet of the Room was broken.  She then called the other two partners of the company (PW1 and PW3).  On their return to the Room, they found that a number of items were missing including, inter alia, PW1’s 4 credit card including a BOC credit card number 4834-3404-4303-0014 issued in his name (“the BOC card”).  

3.At 1300 hours on 30 October 2021, PW2 had actually locked the door of the Room and left. 

4.The case was reported to the police and upon arrival, some stolen credit cards were recovered except the said BOC card of PW1. 

5.On 31 October 2021, PW1 received notification from the bank that the BOC card was used in 4 transactions of $8,899, $8,899, $12,200.5 and $12,200.  Transaction records of the BOC card showed that on 31 October 2021, at 2054 and 2058 hours, 2 unauthorised purchases of $8,899 were made respectively at CityLink Electronics Limited (“CityLink”); at 2110 hours, unauthorised purchase of $12,200.5 was made at Broadway Photo Supply Limited (“Broadway A”); and at 2140 hours, unauthorised purchase of $12,200 was made at Broadway Photo S Lt 58770 (“Broadway B”). 

6.Goods purchased were two mobile phones at CityLink; one iPhone, one speaker, one coupon and one plastic bag at Broadway A; one iPhone and one speaker at Broadway B.  CCTV of these shops captured the defendant making those unauthorised purchases. 

7.The defendant was arrested on 8 November 2021 for burglary.  Under caution, he denied the offence of burglary but admitted purchasing mobile phones with a credit card for a reward of $3,000.  He was brought back to police station.  The mobile phones seized from him upon examination revealed that on 30 October 2021, a contact named 彬 sent the defendant a message asking “anyone willing to make a purchase with the credit card of other?” and informing the defendant that he had a couple of credit cards which the card holders were not aware yet.  The defendant also received via WhatsApp a photo of a note containing PW1’s name, date of birth, Hong Kong ID card number and addresses of PW1 and the Room. 

8.The defendant said under caution in his video-recorded interview, inter alia, that he had received $3,000 as reward for purchasing the mobile phones upon instructions from an unknown male. 

Criminal Record

9.The defendant had 10 previous criminal records involving convictions of 13 charges, none of which relates to dishonesty. 

Mitigation

10.The defendant is 39 years old.  He was educated up to Form 4 level.  At the time of arrest, he was a delivery worker earning approximately $5,000 per month.  He lived with his elderly parents in a public housing estate and it was said that he used to contribute half of his income as household expenses. 

11.Defence counsel submitted that although the defendant had 10 previous criminal records, none of them relate to dishonesty.  It was submitted, however, that the defendant committed the present offences whilst he was on bail for another drug offence. 

12.Defence counsel also submitted to this court a mitigation letter written by the defendant.  It was said that because of the pandemic, the income of the defendant as a delivery worker was unstable and he was tempted by quick money and committed the present offences. 

13.As for the 2^nd, 3^rd and 4^th charge, it was said also that the 3 transactions involving a total sum of $42,198.5, that the defendant made these purchases within an hour, and that there was no elaborate planning on the part of the defendant. 

14.As for the 1^st charge, defence counsel submitted that there are no sentencing guideline for this offence.  He referred this court to the case of R v Bernard Webbe [2002] 1 Cr App R (S)  22, as applied in HKSAR v Cheng Chi Wai [2012] 4 HKLRD 360.  She submitted that the defendant was not involved in the actual burglary and he only handled one credit card within an hour, therefore his culpability was on the lower end. 

15.She urged this court to adopt a sentencing starting point of 30 months’ imprisonment or less for the offences.  She also urged this court to consider the totality principle, the nature and value of the stolen property, and to order as much as possible the sentence of all offences to be served concurrently. 

Discussion

16.Before sentencing, this court has carefully considered the mitigation submissions by defence counsel, the legal authorities referred to and the defendant’s mitigation letter.  This court finds the most valid mitigating factor is the defendant’s own guilty plea.  Committing offences by reason of financial difficulty is rarely a valid mitigating factor. 

1^st charge

17.A person who is guilty of this offence shall be liable on conviction upon indictment to imprisonment for 14 years.

18.The Room and its contents were in good condition at 1300 hours on 30 October 2021.  The defendant was contacted by phone at 2003 hours on the same day and was told that the victim was unaware of the loss of the credit cards then.  The defendant made the purchase at 2046 hours on 31 October 2021, ie the following day. 

19.The BOC card was stolen property from a non-domestic premises burglary, which attract a sentencing starting point of 30 months’ imprisonment in the absence of aggravating or mitigating factors.  The potential loss arising from the unauthorised use of the BOC card is unknown to this court. 

20.The defendant was equipped with personal particulars of the owner of the BOC card at the time when he made the unauthorised purchases with the card.  The defendant received $3,000 for the job.  No doubt, the defendant played an important role in assisting the burglar to realise benefit arising from using the stolen BOC card. 

21.The defendant made 3 transactions using the same BOC card within a short period of time, purchasing mobile phones which can easily be sold for cash. 

22.The appropriate sentencing starting point, having regard to the factors raised in Bernard Webbe case is 18 months’ imprisonment. 

23.The defendant committed the offence whilst he was on bail.  The starting point is therefore enhanced to 21 months’ imprisonment. 

24.The defendant has pleaded guilty and is entitled to a full one-third sentencing discount.  He is therefore sentenced to 14 months’ imprisonment for this charge. 

2^nd charge

25.A person convicted of this offence upon indictment shall be liable to imprisonment for 10 years. 

26.It is said in the case of Secretary for Justice v Wong Che Ping, CAAR 3/2019, that frauds against shops with a stolen card are extremely serious offences, the culpability of which should not be downplayed but instead call for a deterrent sentence.  The appropriate sentence for such offences is immediate imprisonment for a considerable length of time. 

27.The actual loss suffered by CityLink is $17,798 and the potential loss of the victim is unknown.  The defendant was paid $1,500 for this offence. 

28.This is a case of fraudulent use of a genuine credit card.  In the Court of Appeal case of HKSAR v Yang Xingyun, CACC 155/2016, Macrae JA in paragraph 49 to 51 of the judgment said:-

“49. … As Litton JA (as he was)  said in the case of R v Kwan Ying Ho (unrep., CACC 527/1992, 12 August 1993)  at page 5:

‘...credit card frauds have in recent years been an insidious poison in the community. It affects a large number of citizens. It erodes the credit card system and damages Hong Kong’s standing in the international community.’

50. More recently, in HKSAR v Lam See Chung Stephen [2015] 5 HKLRD 242 (at 251 to 252)  the court held:

‘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 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” (HKSAR v Ng Swee Thiam [2000] 1 HKLRD 772, at 778).’

40. These sentencing principles and considerations are equally applicable to credit card fraud offences in which genuine credit cards are used and we can see 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.’

51. The judge in the present case in fact specifically referred to HKSAR v Lam See Chung Stephen in adopted a 3-year starting point in respect of Charges 5 to 7. In our judgment, the individual sentences of 2 years’ imprisonment in respect of Charges 5 to 7 after plea cannot be faulted….”

29.Following the approach in Yang Xingyun case, the appropriate sentencing starting point for the 2^nd charge is 3 years’ imprisonment. 

30.The defendant committed the offence whilst he was on bail.  The starting point is therefore enhanced to 3 years and 3 months’ imprisonment. 

31.By reason of the defendant’s guilty plea, he is entitled to full one-third sentencing discount.  He is therefore sentenced to 26 months’ imprisonment for the 2^nd charge. 

3^rd charge

32.For the 3^rd charge, the actual loss suffered by Broadway A is $12,200.5, the defendant was paid $750 for the commission of this offence. 

33.As in the 2^nd charge, the defendant is sentenced to 26 months’ imprisonment for the 3^rd charge. 

4^th charge

34.Similar to the 3^rd charge, the actual loss suffered by Broadway B is $12,200. 

35.For the reasons as in the sentencing of the 2^nd charge, the defendant is sentenced to 26 months’ imprisonment for the 4^th charge.

Totality

36.This court now considers the totality principle.  Commission of the 1^st to 4^th charges all occurred on 31 October 2021.  The defendant having received the stolen card, used the same card to obtain property by deception within a short period of time of the same day. 

37.The total actual loss to the victims in the present case is $42,198.5. 

38.The nature of the 2^nd to 4^th charges were all the same and they were committed all within the same day, involving different victims.  The defendant made use of the same credit card in making the unauthorised purchases. 

39.In commission of the 2^nd to 4^th charges, obviously, the defendant needed to be in possession of and deal with the stolen credit card in the 1^st charge.  The culpability of the defendant in commission of the first offence had already been absorbed in the culpability of the defendant in commission of the 2^nd to 4^th charges. 

40.Having considered the overall capability of the defendant, the court considers that a total sentence of 28 months’ imprisonment is a just and balanced sentence after plea. 

41.Accordingly, 1 month of the sentence in each of the 3^rd and 4^th charge is to run consecutive to the sentence of the 2^nd charge, the rest to run concurrently.  Sentence of the 1^st charge is to run totally concurrent to the sentence of the 2^nd, 3^rd and 4^th charge. 

42.The defendant is therefore sentenced to a total of 28 months’ imprisonment in this case.