Case Document

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DCCC382/2010

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 382 OF 2010

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	HKSAR
	v.
	CHAN CHUN-MAN

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Before:

Deputy District Judge Woodcock

Date:

18 May 2010 at 4.28 pm

Present:

Mr Winston Chan, SPP, of the Department of Justice, for HKSAR
Mr Ng Hung-sui, Kenneth, of Yaddy Cheung & Co., assigned by the Director of Legal Aid, for the Defendant

Offence:

(1),(4),(6),(12)-(13),(17)-(18) Fraud (欺詐罪)
(2),(3),(5),(7)-(11),(14)-(16)&(19) Obtaining property by deception
(以欺騙手段取得財產)
(20) Theft (盜竊罪)

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Reasons for Sentence

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1.Defendant has pleaded guilty to 20 charges that can be grouped into four sections, each section involving one credit card fraudulently obtained and used to obtain property by deception.

2.Charge 1 to 3 involves a credit card obtained fraudulently from Fubon Bank in the name of Sit Wing-yan, Mandy, and the subsequent two occasions it was used. Charges 4 to 11 involve a credit card fraudulently obtained from Standard Chartered Bank in the name of Mung Wing-shun and the seven subsequent occasions it was used. Charges 12 to 16 involve a credit card obtained fraudulently from Fubon Bank in the name of Siu Tze-wah and four occasions it was then subsequently used. Charges 17 to 19 involve one credit card obtained from Fubon Bank in the name of Lam Po-ying and two occasions when it was subsequently used. Charge 20, a theft charge where the defendant used the card obtained in Charge 12 in the name of Siu Tze-wah to withdraw $2,800 from an ATM machine.

3.These offences took place over several months from September 2007 to November 2007. In summary, four credit cards were applied for by making false representations to the banks as to personal particulars, producing photocopies of ID cards of the four persons I have named above, photocopies of fake or bogus bank statements, as well as doctored bogus water authority bills.

4.These four applications were successful, and four credit cards subsequently issued. All four were used, and used to their limits, except for the fourth card of Charge 17. For that card $20,000-odd of a $30,000 maximum limit was used. The loss incurred in this case in total was $198,656, not an insignificant loss.

5.The summary of facts detail each application fraudulently made and the usage of the credit card falsely obtained by the defendant. It is not necessary for me to repeat the particulars or these details. The defendant has admitted the facts. After his arrest he admitted the offences to the police. He admits making the false applications for and using credit cards obtained from Fubon Bank and Standard Chartered Bank.

6.He told the police he would buy products or merchandise in return for a reward of 60 per cent of the purchase price. This suggests other people were involved. Sure enough, in mitigation, defence counsel put forward such a suggestion. It was submitted the defendant was introduced to this scam and participated, but only received a small financial reward, not 60 per cent of the value of the items fraudulently purchased. The defendant says he was not the mastermind, did not doctor documents for the application but did mail the applications to the banks. He admits using the cards to make purchases.

7.The defendant’s best mitigation today is his plea of guilty. He has many previous convictions, none of which are similar. His mitigation is that he was tempted by the scheme to make money because he was in financial difficulty having incurred debts in his business. He was desperate. I have subsequently been told that debt collectors have caused nuisances to his family home and his parents. This is unfortunate for his parents, but not a matter that will result in any further leniency.

8.The prosecution has helpfully submitted several useful authorities, including the R v Chan Sui To [1996] 2 HKCLR 128, which sets out guidelines for forged credit card syndicates. I am mindful the four cards here were not forged or manufactured, but they do concern false names, and the result of the scheme is ultimately credit card fraud. The bank’s loss of $200,000 is a significant amount and one factor I consider relevant.

9.I was also taken to the authorities of HKSAR v Chan Yuk Kwan, CACC26/2001 and HKSAR v Chow Fu Keung, CACC525/2000. This last authority is strikingly similar to the case here, for in Chow Fu Keung four cards were fraudulently obtained from the banks and used to a loss totalling $138,850.00. The defendant had pleaded guilty to one charge of conspiracy to defraud. The Court of Appeal held there that a starting point of 6 years was excessive and substituted that with a 5-year starting point. I quote Hon Stock VP at Paragraph 7:

“In our judgment, a starting point of 6 years’ imprisonment for the credit card offences was, in the circumstances of this case, too high. In this court’s recent decision in Chan Yuk Kwan, CACC26/2001, we reviewed a number of authorities, and in particular the analysis of earlier cases in Chan Sui To [1996]. Whilst the case now before us was serious, as are all credit card frauds which constitute a systematic course of conduct over a number of months and involve a relatively large sum of money, the case was not one involving the manufacture of cards, nor did it have an international aspect, nor did it involve the running of a syndicate, and it cannot be said to have been an unusually sophisticated operation. The magnitude of the case is little different from that in Lai Chong Ning, CAAP729/1996, to which our judgment in Chan Yuk Kwan also refers. In our opinion, this case warranted a starting point of 5 years' imprisonment.”

10.These considerations apply squarely here. This scheme operated over a period of three months and involved a large sum of money. The case did not involve fake or manufactured credit cards, nor does it have an international element. It was not a particularly sophisticated operation. The appellant in Chow Fu Keung, like the defendant before me today, had a string of previous convictions, but none similar to these offences. Delay has been mentioned, but I do not find it a significant mitigating factor here. The defendant was arrested in March 2008 and finally brought to court in early 2010. That is not a significant delay when one considers the work required by the authorities to investigate the many transactions thoroughly.

11.There are many charges here, but all are part and parcel of the same conduct and scheme perpetrated four times, by which I mean four applications for credit cards. Charges 1, 4, 12 and 17, the four fraud charges, refer to the false application to the bank for four credit cards. From the authorities submitted and the factors I have taken into account, I find a starting point of 5 years for these four charges to be appropriate. All other charges which relate to the subsequent use of the cards, I find a starting point of 4 years for each and every one of those charges appropriate. The defendant has pleaded guilty and is entitled to a discount of one-third.

12.Defendant, please stand up. For Charges 1, 4, 12 and 17, you are sentenced to 3 years and 4 months for each charge. For Charges 2, 3, 5 to 11, 13 to 16, 18 to 20, you are sentenced to 2 years and 8 months. All charges will be ordered to be served concurrently. That is a total of 3 years and 4 months sentence. You have been sentenced to 4 months in Kowloon City case 1178/2010 on 5 May 2010. It is a theft charge. It is not related to this charge. However, I see no reason for it not to be served consecutively to the sentence I have imposed today. These four months will be served consecutively to this case and the 3 years and 4 months imposed here.