HKSAR v. Ho Chi Tat

DCCC 532, 561 & 983/2023

(Heard together)

[2024] HKDC 359

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 532 OF 2023

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IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 561 OF 2023

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IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 983 OF 2023

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REASONS FOR SENTENCE

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1.There are 3 cases for plea and sentence. This court would deal with them in sequence according to the time of commission of the offence.

DCCC 983/2023

2.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 3 charges of obtaining property by deception, contrary to section 17(1)  of the Theft Ordinance, Cap 210 (2^nd to 4^th charge).

Facts

1^st charge

3.On 22 March 2022 at around 0700 hours, PW1 left home after checking that his wallet containing cash of HK$400 and two credit cards, namely a Bank of East Asia Visa Platinum Card in his name SHA Lei (the “BEA Credit Card”)  and a Hang Seng Bank Platinum MasterCard in his name (the “Hang Seng Credit Card”), was placed properly in the flat. 

4.At around 0900 hours, with the permission of PW1, his landlord as well as the defendant, went to the flat to repair the air-conditioner in the absence of PW1.  At some time, the defendant was left alone in the premises.

5.At around 1209 hours on the same day, PW1 received a message from the Bank of East Asia notifying him of an unauthorised transaction in the sum of HK$6,000 made via his BEA Credit Card.  It was discovered afterwards that there were two other unauthorised transactions, one in the sum of HK$620 made via the BEA Credit Card and one in the sum of HK$8,000 made via the Hang Seng Credit Card.

6.The cash of HK$400, the BEA Credit Card and the Hang Seng Credit Card inside PW1’s wallet were found missing.  A report was made to the police.

2^nd to 4^th charge

7.At around 1208 hours on the same day, at a Wellcome Supermarket in Tsim Sha Tsui, the defendant purchased cash coupons for HK$6,000 by falsely representing that he was the genuine cardholder of the BEA Credit Card (2^nd charge).

8.At around 1226 hours, at a 7-Eleven in To Kwa Wan, the defendant purchased a property valued at HK$620 by falsely representing that he was the genuine cardholder of the BEA Credit Card (3^rd charge).

9.At around 1223 hours, at a Wellcome Supermarket in To Kwa Wan, the defendant purchased cash coupons for HK$8,000 by falsely representing that he was the genuine cardholder of the Hang Seng Credit Card (4^th charge).

10.On 23 March 2022, the defendant was arrested for burglary and obtaining property by deception.  Under caution, he admitted stealing the two credit cards out of greed when he went to the flat to repair the air-conditioner, and that he had used the credit cards to purchase cash coupons for HK$6,000 in the Wellcome Supermarket in Tsim Sha Tsui, and cash coupons for HK$8,000 in the Wellcome Supermarket in To Kwa Wan.

DCCC 532/2023

11.D2 (hereinafter referred as “the defendant”)  was convicted on his own plea and agreement to the Summary of Facts to a charge of having custody or control of counterfeit currency notes, contrary to section 100(1)  of the Crimes Ordinance, Cap 200.

Facts

12.Counterfeit banknotes were used between 10 and 12 September 2022 for taxi fares and purchases, including a HK$100 counterfeit banknote bearing serial number HV606492, and two HK$500 counterfeit banknotes bearing the same serial number FZ954110.

13.On 21 September 2022, police conducted an operation at Room B, 4^th Floor, 170 Shanghai Street (“the Premises”)  with search warrant and the defendant was found there.  Body search on the defendant found keys which can be used to access the Premises, and two mobile phones.

14.Search of the Premises revealed a folder containing 106 pieces of counterfeit banknotes placed in the gap between the fridge and a plastic cabinet, with total face value of HK$70,600.  Some of these counterfeit banknotes bore the same serial number as those used on 10 and 12 September 2022 as stated in paragraph 12, ie HV606492 and FZ954110.

15.The defendant was arrested. The banknotes examiner found that the 106 pieces of banknotes are all counterfeit banknotes.  They displayed inferior printing quality and were printed by inkjet printing method which were different from those of the genuine banknotes.  The defendant’s fingerprints were found amongst the 106 pieces of counterfeit banknotes.

DCCC 561/2023

16.The defendant is convicted on his own plea and agreement to Amended Summary of Facts to 3 charges of passing counterfeit notes or coins contrary to section 99(1)(a)  of the Crimes Ordinance, Cap 200 (1^st to 3^rd charge), and a charge of possession of an identity card relating to another person, contrary to section 7A(1A)  of the Registration of Persons Ordinance, Cap 177 (6^th charge).

17.As for the 4^th and 5^th charge, the same were left on the court file and not to be proceeded with without leave of the court.

Facts

1^st to 3^rd charge

18.On 24 October 2022 and 25 October 2022, the defendant used counterfeit Hong Kong dollar banknotes to purchase mobile phones from sellers who posted advertisements on “Carousell”.  The transactions all took place in the late evening when the defendant would either alight from a taxi and left via the same taxi after the transaction (1^st charge), or the defendant would simply remain in the taxi, handed out the counterfeit banknotes through the taxi window to the seller, collected the phone and left via the same taxi (2^nd and 3^rd charge).

19.The counterfeit banknotes used in each of the above three transactions shared two sets of identical serial numbers.  The counterfeit notes amount involved in the 1^st charge transaction was HK$11,000 and that in the 2^nd charge was HK$2,500.  The 3^rd charge transaction was HK$2,799.  The defendant received genuine cash of HK$200 as change when he gave counterfeit notes of HK$3,000 to the seller for the goods.

20.The defendant committed the 1^st charge on 24 October 2022, and the 2^nd and 3^rd charge on 25 October 2022.

21.The counterfeit banknotes for the three charges were all of inferior printing quality, printed by inkjet printing method which was different from that of genuine banknotes, devoid of security features and there was an absence of unique serial numbers.

22.The defendant’s fingerprints were found on the counterfeit banknotes (2^nd charge)  and the envelope containing the counterfeit banknotes handed to the seller (1^st charge).

6^th charge

23.On 1 November 2022 the defendant was located and arrested, following which he was brought to Room 7, 4^th Floor, Draco Industrial Building, 46 Lai Yip Street, Kwun Tong, for a search where a Hong Kong Identity Card belonging to another person was found and the defendant was the tenant of the unit.  The owner of the Identity Card did not know the defendant.

Criminal record

24.The defendant has 7 previous criminal records involving convictions of 14 charges, none of which are similar to the present charges.

Mitigation

25.The defendant is aged 35.  He is married.  He has received education up to Form 3.  He has been unemployed since 2016 and he only worked on a part-time basis. 

26.Defence counsel submitted that the main mitigating factor is the defendant’s own guilty plea for which he is entitled to one-third sentencing discount.  The defendant asked this court to give him a lighter sentence so that he could turn over a new leaf upon his release from prison.  It is said that the defendant undertakes not to reoffend.

DCCC 983/2023

27.For the 1^st charge, defence counsel urged this court to adopt a sentencing starting point of 9 months’ imprisonment, relying on the case of HKSAR v Li Chi Yat, CACC 189/2018.

28.As for the 2^nd to 4^th charge, he referred to paragraph 21 and 22 of the Li Chi Yat case, and suggested that a starting point for each charge should be 2 years’ imprisonment.

29.He urged this court to sentence the defendant to 6 months’ imprisonment for the 1^st charge, and 16 months’ imprisonment for each of the 2^nd, 3^rd and 4^th charge after plea.  He further submitted that the sentence for the 2^nd to 4^th charge should run totally concurrent with each other, and that 3 months in the 1^st charge should run consecutive to the sentence for the 2^nd to 4^th charge, making a total of 19 months’ imprisonment

DCCC 532/2023

30.Defence counsel said that the counterfeit banknotes all displayed inferior printing quality which were different from the genuine banknotes.  He submitted that there is no sentencing guideline imposed for this offence.  The sentencing consideration will include the value, the quantity, the degree of sophistication of the counterfeit notes to the genuine notes, and whether the defendant had used them and if so, whether he was successful.

31.He referred this court to the cases of HKSAR v Lau Ho Yi, Holly, DCCC 754/2020, and HKSAR v Chen Zhu Shan, CACC 392/2005.  He urged to this court to adopt a sentencing starting point of 3 years’ imprisonment and to sentence the defendant to 2 years’ imprisonment after plea.

DCCC 561/2023

32.For the 1^st to 3^rd charge, defence counsel said all these counterfeit banknotes were of inferior quality and they were devoid of security features.  The counterfeit banknotes involved in these 3 charges were 33 pieces of HK$500 banknotes amounting in total HK$16,500. 

33.Again, he said there is no sentencing guideline for this sort of offence. He submitted that the sentencing principle of “passing counterfeit notes” is similar to “having custody or control of counterfeit notes”.

34.He referred this court to the case of HKSAR v Muhammad Munsha, CACC 412/1999, where 42 counterfeit HK$1,000 banknotes were involved, and the court took a starting point of 30 months’ imprisonment.  He urged this court to adopt a sentencing starting point of 2 years and 6 months’ imprisonment for each of the 3 charges.

35.For the 6^th charge, defence counsel submitted the starting point for this offence is 18 months’ imprisonment, relying on the case of HKSAR v Li Chang Li [2005] 1 HKLRD 864. 

36.He urged the defendant be sentenced to 20 months’ imprisonment for each of the 1^st, 2^nd and 3^rd charge after plea, and as for the 6^th charge, the defendant be sentenced to 12 months’ imprisonment after plea.  He further urged this court that the sentence for the 1^st to 3^rd charge should run concurrently in view that they are multiple offences arising from an episode of criminal activity.  In order to reflect the overall criminality, he also asked that 6 months’ imprisonment from the 6^th charge to run consecutive to the sentence of the first three charges, making a total of 26 months’ imprisonment

37.He also asked this court to consider the totality principle and the culpability of the defendant in the 3 cases.  He urged this court to adopt a global starting point of 5 years for the 3 cases and to sentence the defendant to 40 months’ imprisonment after plea.

Discussion

38.Before sentencing, this court has considered fully the mitigation submission by defence counsel, as well as the legal authorities referred. 

39.Although the defendant has a number of criminal convictions in the past, none of them are similar.  Therefore, the court will not enhance the sentencing starting point for each of these charges.

DCCC 983/2023

1^st charge

40.On conviction upon indictment of this charge, a person is liable to imprisonment for 10 years. 

41.In this case, the 2 credit cards and HK$400 were kept by PW1 in the rucksack placed at the back of his room door.  To some extent, this is an opportunistic crime with no planning ahead.  However, it is a more serious case of theft compared to that in the Li Chi Yat case. 

42.This court will adopt a sentencing starting point of 12 months’ imprisonment because the things stolen included both cash of HK$400 and 2 credit cards.  The defendant is therefore sentenced to 8 months’ imprisonment by reason of his guilty plea.

2^nd to 4^th charge

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

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

45.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 paragraphs 49 to 51 of the judgment, said:

“49. … As Litton JA (as he then was)  said in 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 [2013] 5 HKLRD 242, at 251-252, 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 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.’

51. The judge in the present case in fact specifically referred to HKSAR v Lam See Chung Stephen in adopting 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.”

2^nd charge

46.The defendant purchased HK$6,000 cash coupons using the BEA Credit Card. Potential loss of the BEA Credit Card is HK$10,000.  This court considers 2 years and 3 months’ imprisonment appropriate as the sentencing starting point. The defendant is therefore sentenced to 18 months’ imprisonment after his guilty plea.

3^rd charge

47.The defendant used the same BEA Credit Card to purchase property valued at HK$620.  Potential loss of the card remains at HK$10,000.  This court will adopt the same sentencing starting point of 2 years and 3 months for this charge.  The defendant is therefore sentenced to 18 months’ imprisonment after his guilty plea.

4^th charge

48.The defendant used the Hang Seng Credit Card and purchased HK$8,000 cash coupons from Wellcome Supermarket.  The credit limit of the credit card is HK$8,000. Again, the court will adopt the same sentencing starting point of 2 years and 3 months.  The defendant is sentenced to 18 months’ imprisonment after his guilty plea.

Totality principle

49.These 4 charges were all committed within the same day.  The defendant used the 2 stolen genuine credit cards in the commission of the 3 deception offences following his theft of the cash and the 2 credit cards earlier in the day.

50.The culpability of the defendant here is more serious than that in the Li Chi Yat case.  Considering the totality principle and having regard to the overall culpability of the defendant, the court considers that a total sentence of 22 months’ imprisonment just and appropriate.

51.Accordingly, the sentence for the 2^nd and 3^rd charge is to run totally concurrent with each other.  1 month of the sentence for the 4^th charge (using a different credit card)  is to run consecutive to the sentence for the 2^nd and 3^rd charge.  3 months of the sentence for the 1^st charge is to run consecutive to the sentence for the 2^nd to 4^th charge, the rest to run concurrently.

52.The defendant is therefore sentenced to 22 months’ imprisonment in this case.

DCCC 532/2023

53.On conviction upon indictment of this offence, the maximum sentence prescribed under the section is imprisonment for 14 years. 

54.As conceded by defence counsel, there is no sentencing guideline imposed for this type of offence.  The sentencing consideration will include the value, the quantity, the degree of sophistication of the counterfeit notes to the genuine notes, and whether the defendant had used them and if so, whether he was successful.

55.Although, according to the Agreed Facts, counterfeit banknotes bearing the same serial number as those found in the defendant’s premises were used before the defendant’s arrest, there is no evidence that the defendant was the person who actually used those notes.

56.In this case, 64 pieces of HK$1,000 banknotes, 6 pieces of HK$500 banknotes and 36 pieces of HK$100 banknotes, totalling HK$70,600 of counterfeit banknotes were involved. The prosecution has conceded that the counterfeit banknotes in question displayed inferior printing quality.

57.Having regard to the circumstances and considering the factors aforesaid, this court considers the appropriate sentencing starting point is 3 years and 6 months’ imprisonment.

58.The defendant has committed this offence whilst he was on police bail for DCCC 983/2023.  This amounts to an aggravating feature in sentencing for which the sentencing starting point is enhanced by 3 months to 3 years and 9 months’ imprisonment.

59.The defendant is therefore sentenced to 2 years and 6 months’ imprisonment by reason of his guilty plea, for which he is entitled to the full one-third sentencing discount. 

DCCC 561/2023

1^st to 3^rd charge

60.As submitted by defence counsel, the sentencing consideration for the 3 charges are similar to “having custody or control of counterfeit currency notes”. The court will adopt the sentencing starting point for each charge as 2 years and 6 months’ imprisonment.

61.The defendant committed the present offence whilst he was on police bail in respect of two cases, DCCC 983/2023 and DCCC 532/2023.  This amounts to an aggravating feature in sentencing, in particular, DCCC 532/2023 also related to counterfeit banknotes.  For this reason, the court is enhancing the sentencing starting point by 3 months to 2 years and 9 months’ imprisonment.

62.The defendant has pleaded guilty and is entitled to the full one-third sentencing discount.  He is therefore sentenced to 22 months’ imprisonment for each of the 3 charges.

6^th charge

63.This court will adopt the sentencing starting point of 18 months’ imprisonment.  The defendant is therefore sentenced to 12 months’ imprisonment by reason of his guilty plea.

Totality principle

64.The defendant committed the 1^st to 3^rd charge on two consecutive days.  The modus operandi in each of these 3 charges are the same, whereas the 6^th charge is an offence of an entirely different nature.

65.Having regard to the overall culpability of the defendant in this case, a total sentence of 34 months’ imprisonment after plea is just and proportionate. 

66.Accordingly, the sentence for the 1^st to 3^rd charge are to run totally concurrent with each other, and consecutive to the sentence of the 6^th charge.  The defendant is therefore sentenced to 34 months’ imprisonment for this case.

Application of the totality principle to the 3 cases

67.The charges for which the defendant was convicted in DCCC 983/2023 are entirely different in nature, totally unrelated to those in DCCC 532/2023 and DCCC 561/2023, and there was quite a long time gap in between.

68.As for DCCC 532/2023 and DCCC 561/2023, they were committed about a month apart, both relating to counterfeit banknotes. 

69.Having regard to the overall culpability of the defendant in the 3 cases and noting the overall sentence for the defendant should not be exceedingly harsh, this court now orders that 22 months of the sentence in DCCC 561/2023 shall run consecutive to the sentence in DCCC 532/2023.  15 months of the sentence in DCCC 983/2023 shall run consecutive to the sentence in DCCC 532/2023 and 561/2023.  The rest of the sentence in the 3 cases shall run concurrently.

70.The defendant is therefore sentenced to a total of 5 years and 7 months’ imprisonment.