HKSAR v. Ching Man Long Rex

DCCC 220/2023

[2023] HKDC 1430

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASES NO 220 OF 2023

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REASONS FOR SENTENCE

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Background

1.The Defendant was convicted of 3 charges of theft, contrary to section 9 of the Theft Ordinance, Cap 210 (1^st, 3^rd and 6^th charges)  and 4 charges of obtaining property by deception, contrary to section 17(1)  of the Theft Ordinance, Cap 210 (2^nd, 4^th, 5^th and 7^th charges)  on his own plea and agreement to the Amended Summary of Facts. 

Admitted Facts

2.At all material times, Ms Fong (PW1), Ms Fung (PW2)  and Ms Chau (PW3)  were insurance agents who separately advertised insurance policies via online platforms including “WeChat” and “XiaoHongShu”.

Incident 1

3.Prior to 2 May 2022, Defendant (“D”)  approached PW1 on “XiaoHongShu”, stating that he intends to learn about the insurance plans promoted by PWl. Accordingly, a meeting was arranged between D and PW1.

4.At around 12:00 pm on 2 May 2022, PW1 went to the Starbucks shop located at 2/F Pioneer Centre, 750 Nathan Road, Mong Kok (“Starbucks Shop”)  to meet with D to discuss potential insurance investments.  During which, D handed PW1 a HK$100 note and requested PW1 to help him order coffee.  As per D’s request, PW1 left her seat and went to the counter to order coffee.  PW1 did not bring her phone or handbag with her when she went to order coffee for D.

5.Approximately 10 minutes later, PW1 returned to the seat to continue discussions with D.  At around 3:00 pm on the same day, D and PW1 both left Starbucks Shop.

6.At around 3:54 pm on the same day, PW1 received a SMS notification from Bank of China stating that her credit card with number 5520-1617-****-**** (“Credit Card-1”)  was used to make a purchase in the amount of HK$15,198.  She then checked her wallet and discovered Credit Card-1 to be missing.

Bank Statement of Credit Card-1

7.Bank statement of Credit Card-1 confirmed that a purchase in the amount of HK$15,198 was made on 2 May 2022 at an Apple Store.

CCTV Footage outside Starbucks Shop

8.CCTV footage at 2/F of Pioneer Centre (where Starbucks Shop was located)  was retrieved and captured D taking PW1’s handbag from her seat before proceeding to take a wallet outside PW1’s handbag whilst PW1 was away.

Incident 2

9.At around April 2022, PW2 was approached by D on WeChat, they maintained communications intermittently on WeChat until May.  At around 5 May 2022, D expressed his interest to learn more about insurance policies to potentially subscribe to an insurance plan for his son.  Accordingly, a meeting was arranged between D and PW2.

10.At around 2:30 pm on 6 May 2022, PW2 met with D at “Das Bier” (“Das Bier”), Shop G03B, Mikiki, the Latitude, 638 Prince Edward Road West, Wong Tai Sin to discuss potential insurance investments.  During which, PW2 left once to the washroom with her personal belongings left unattended at her seat.  Upon PW2’s return to the seat, they resume discussions.  Thereafter, D left Das Bier together with PW2.

11.At around 5:48 pm on the same day, PW2 received a SMS notification from DBS that her credit card with number 5408-0476-****-**** (“Credit Card-2”)  was used to make a purchase in the amount of HK$15,198.  Upon enquiry with DBS bank staff via telephone, PW2 was informed that Credit Card-2 was used to make purchases at the Apple Store located at APM.  PW2 then checked her wallet and noticed her Hang Seng credit card with number 4557-0710-****-**** (“Credit Card-3”)  also missing.  Upon an enquiry with bank staff at Hang Seng Bank, PW2 was informed that Credit Card-3 was also used to make purchases at the Apple Store located at APM in the amount of HK$15,198.

Bank Statements of Credit Card-2 and Credit Card-3

12.Bank statement of Credit Card-2 revealed that a transaction in the amount of HK$15,198 was made on 6 May 2022 at an Apple Store.  No record of unauthorized transactions on bank statement of Credit Card-3 could be found as PW2 promptly requested the bank to render the said transaction void.

CCTV Footage at Das Bier

13.CCTV footage at Das Bier was retrieved and captured D taking PW2’s handbag from her seat whilst PW2 was away, before taking out a wallet from PW2’s handbag immediately thereafter.

Incident 3

14.On or about 10 May 2022, PW3 was approached by D claiming to be interested in learning about insurance plans.  Accordingly, a meeting was arranged between D and PW3.

15.At around 9:30 am on 11 May 2022, PW3 met with D at Starbucks Shop to discuss about insurance plans.  CCTV outside Starbucks shop captured them.  Thereafter, PW3 and D left Starbucks shop after they finished the discussions.

16.At around 10:00 pm on the same day, PW3 discovered her HSBC Credit card numbered 4966-0405-****-**** (“Credit Card-4”)  to be missing.  Immediately thereafter, PW3 called HSBC to enquire about the situation and discovered a transaction in the amount of HK$27,897 was made without her knowledge.

Bank Statement of Credit Card-4

17.Bank statement of Credit Card-4 confirmed that a purchase in the amount of HK$27,897 was made on 11 May 2022 at an Apple Store.

CCTV Footage outside Starbucks Shop

18.CCTV footage at 2/F of Pioneer Centre (where Starbucks Shop was located)  was retrieved and captured D taking PW3’s handbag from her seat, searched PW3’s handbag, took out a wallet from PW3’s handbag whilst PW3 was away from her seat.

Conclusion

19.D admits now he had committed the following offences:

(a)  On 2 May 2022, stole one credit card belonging to PW1 (Charge 1);

(b)  On 2 May 2022, by deception, namely by falsely representing that he was the genuine holder of Credit Card-1 in the name of PW1 and was authorized and entitled to use Credit Card-1 to make payment for two iPhone 13s, dishonestly obtained from the staff of the said goods, with the intention of permanently depriving the said shop thereof (Charge 2);

(c)  On 6 May 2022, stole two credit cards belonging to PW2, namely Credit Card-2 and Credit Card-3 (Charge 3);

(d)  On 6 May 2022, by deception, namely by falsely representing that he was the genuine holder of Credit Card-2 in the name of PW2 and was authorized and entitled to use Credit Card-2 to make payment for two iPhone 13s, dishonestly obtained from the staff of the said goods, with the intention of permanently depriving the said shop thereof (Charge 4);

(e)  On 6 May 2022, by deception, namely by falsely representing that he was the genuine holder of Credit Card-3 in the name of PW2 and was authorized and entitled to use Credit Card-3 to make payment for two iPhone 13s, dishonestly obtained from the staff of the said goods, with the intention of permanently depriving the said shop thereof (Charge 5);

(f)  On 11 May 2022, stole one credit card belonging to PW3 (Charge 6); and

(g)  On 11 May 2022, by deception, namely by falsely representing that he was the genuine holder of Credit Card-4 in the name of PW3 and was authorized and entitled to use Credit Card-4 to make payment for two iPhone 13s, dishonestly obtained from the staff of the said goods, with the intention of permanently depriving the said shop thereof (Charge 7).

Criminal Record

20.Since 2009, the Defendant had 3 previous criminal convictions involving 33 charges, among them 2 criminal convictions with 32 charges relates to dishonesty.  The Defendant is a recidivist. 

Personal background & Mitigation

21.The Defendant is 32 years old.  He was educated up to Form 5 level.  At the time of arrest, he was a sushi chef earning around $17,000 per month.  He lived with his girlfriend and her father before he was detained for this case. 

22.Defence counsel submitted a few salient points: (i)  the Defendant committed series of offences in order to raise money to support his girlfriend and her father; (ii)  to pay for the medical expenses of his girlfriend’s father who suffered from kidney problems; (iii)  both his girlfriend’s father and his own father died in the end of 2022 while he was in custody; (iv)  his girlfriend praised the Defendant high in mitigation letter; and (v)  the Defendant was cooperative during police investigation.   

23.Defence counsel also submitted to this court a mitigation letter written by the Defendant.  It was said that because of the pandemic, his girlfriend was jobless and he was tempted by quick money to support them and committed the present offences. 

24.As for the 2^nd, 4^th, 5^th and 7^th charges, it was said also that the 4 transactions involving a total sum of $73,491, that the Defendant made these purchases on 2^nd, 6^th and 11^th May 2022, and that they were small scale credit card fraud but there was no elaborate planning on the part of the Defendant. 

25.As for the 1^st, 3^rd and 6^th charges, defence counsel submitted that concurrent sentencing ought to be applied.   

26.He urged this court to adopt a sentencing starting point of 30 months’ imprisonment or less for the offences

Discussion

27.Before passing sentence, this court has carefully considered the mitigation advanced by defence counsel, the legal authorities referred to and the Defendant’s mitigation letters.  This court is of the view that the only valid mitigating factor is the Defendant’s own guilty plea.  Committing offences by reason of financial difficulty is rarely a good mitigating factor. The defence counsel also failed to elaborate how much medical expenses have been incurred for his girlfriend’s father, whether his girlfriend’s father received medical treatment in public or private hospital, if in public, why the Hospital Authority could not subsidize part of the expenses, if not all for those in need. 

1^st, 3^rd and 6^th charges

28.A person who is guilty of this offence shall be liable on conviction upon indictment to imprisonment for 10 years.

29.The way the Defendant committed the offence was outrageous.  He made use of the desire of insurance agents to look for potential clients and targeted on female victims. The plan was premeditated.  He committed series of offences with 2 weeks.    

30.The Defendant made 4 transactions purchasing mobile phones which can easily be sold for cash. 

31.The appropriate sentencing starting point, having regard to the decided cases is 18 months’ imprisonment. 

32.The Defendant has pleaded guilty and is entitled to a full one-third sentencing discount.  He is therefore sentenced to 12 months’ imprisonment for each charge. 

2^nd, 4^th, 5^th and 7^th charges

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

34.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. 

35.The actual loss suffered by the victims whether it be the insurance agents or the banks is $73,491 and the potential loss of the victims is $458,000 (credit card limit of 4 cards). 

36.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….”

37.Following the approach in Yang Xingyun case, the appropriate sentencing starting point for each of the 2^nd, 4^th, 5^th and 7^th charges is 3 years’ imprisonment. 

38.Further, the Defendant is a recidivist.  The starting point is therefore enhanced to 3 years and 3 months’ imprisonment.  Soon after his release from his last conviction, the Defendant committed similar offence, sentence should be enhanced:HKSAR v Chau Hon Kwong [2011] 1 HKLRD 630; HKSAR v Chan Yee Lap CACC 30/2013。

39.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 each of the 2^nd, 4^th, 5^th and 7^th charges. 

Totality

40.The court now comes to the totality principle so as to avoid total sentence being excessive.  Facts of the 1^st, 3^rd and 6^th charges are overlapping with the rest of charges.  The Defendant having stolen the credit cards, used the same card to obtain property by deception within two weeks.  By reason of “same incident approach”, Charges 1 and 2 should be made concurrent (26 months).  Charges 3, 4 and 5 should also be made concurrent (26 months).  Charges 6 and 7 are also made concurrent (26 months).  

41.Having considered the overall culpability of the Defendant, the court considers that a total sentence of 32 months’ imprisonment is a just and balanced sentence after plea. 

42.Accordingly, of the 3 batches of charges mentioned above, Charges 1 to 5 is to run concurrent with each other but 6 months of the former is to run consecutive to the sentence of Charges 6 and 7, the rest to run concurrently. 

43.The Defendant is therefore sentenced to a total of 32 months’ imprisonment in this case.