HKSAR v. Chan Ka Leung and Others
Read the full judgment text of DCCC 1191/2009 on BabelCite. This District Court judgment.
1. D1 and D2 plead guilty to the 3rd Charge, conspiracy to defraud various banks. D1, D2, D3, D4, D5 and D6 plead guilty to the 4th Charge, conspiracy to obtain property by deception. D1 pleads guilty to the 5th Charge, conspiracy to deal with property known or reasonably believed to represent proceeds of an indictable offence.
Cited by 2 cases · Cites 5 cases
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DCCC 1191/2009 IN THE DISTRICT COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION CRIMINAL CASE NO. 1191 OF 2009 --------------------------------
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------------------------ Reasons for Sentence ------------------------ Charges and pleas 1.D1 and D2 plead guilty to the 3rd Charge, conspiracy to defraud various banks. D1, D2, D3, D4, D5 and D6 plead guilty to the 4th Charge, conspiracy to obtain property by deception. D1 pleads guilty to the 5th Charge, conspiracy to deal with property known or reasonably believed to represent proceeds of an indictable offence. Background 2.Pursuant to complaints lodged by various local banks that a number of credit cards had been used to purchase a vast quantity of high-end merchandise within a short period after they were authenticated by purported cardholders, the police conducted enquiries. Those purported cardholders subsequently defaulted payments to the banks in respect of transactions made with the credit cards. When the relevant banks tried to locate the applicants cum holders of the credit cards, it was discovered that the information furnished in the applications forms, including the applicants’ names, identity card particulars, addresses and proofs of income, was all false. The purported applicants and users of those credit cards remained untraceable and the banks suffered financial losses for such transactions taking place since 14 September 2007. 3rd Charge (Conspiracy to defraud) 3.In January 2008, a team of police officers were tasked to investigate the case. Police enquiries revealed that somebody had regularly made use of the Post Office Mail Redirect Service to re-direct credit cards from the originally stated addresses to other addresses. A number of control credit cards were issued by the banks in collaboration with the police. One was a DBS Visa Card numbered 4760-7340-6419-1006 in the name of So Chui-ha (“Card 1”). 4.On 20 February 2008, a police officer posed as a staff member of the Tsuen Wan Post Office. A male named Li Man-biu (“Li”) produced a mail collection card, his own identity card and a photocopy of So Chui-ha’ identity card. Staff of the post office handed DBS Bank’s letter containing Card 1 to Li. Li met up with D1 in Mong Kok. D1 got the letter and Card 1. He tore and discarded the letter in a rubbish bin. After D1 had entered a sauna parlour in Shanghai Street, the police made a licence check and recorded the names of the customers, including D1’s. 5.Later, D1 met up with D3 in Starbucks in Mong Kok. D1 handed Card 1 to D3. They left together to purchase goods. The instances of purchases made with 6 fraudulent credit cards are the subject-matter of the 3rd Charge, which will be elaborated in due course. 6.On 26 February 2008, D1 attended Kowloon Central Post Office to submit a duly completed mail re-direction form. He requested to re-direct mails in relation to three persons including Tsang Chi-hang (the named card-holder of Cards 4 and 5) and Yuen Ka-mun from the original address in Mei Foo to an address in Tai Kok Tsui. After the formalities, D1 left the post office. He tore and discarded the photocopies of Hong Kong Identity Cards of Tsang Chi-hang and Yuen Ka-mun in a rubbish bin. 7.On 5 March 2008, the police saw D1 discard some papers into a rubbish bin in the lift lobby of a building in North Point. The papers were the torn pieces of mails addressed to Chiu Suk-kuen (the named card-holder of Cards 2 and 6) and sent to an address in the building. The address belonged to his accomplice, Li. 8.On 19 March 2008, D1 and D3 went to a restaurant in Shek Lei Estate. D3 was seen practising a number of signatures of “Chiu” on a tissue paper. After they had left, the police retrieved the tissue paper from the table they occupied. 9.On 25 March 2008, D1 went to an address in Choi Wan Estate to open the letter box to retrieve a letter. He tore and discarded a letter addressed to Ng Wai-ling (the named card-holder of Card 3) and sent to the address. The letter was stated to have contained Card 3. 10.D1 in his cautioned interview said that he had been given a number of Hong Kong Identity Cards, some in photocopy, by someone for making fraudulent applications for credit cards. He stored those data in a USB memory stick. He had given a female accomplice a mobile phone to masquerade as the purported applicant in answering bank enquiries. He would give her $1,000 for each approved credit card application. He had asked his accomplice, Li, to submit mail re-direction forms for Li’s address in North Point. He had asked D2 to collect mails from banks. 11.D2 in his cautioned interview said that he had been keeping those identity documents and the USB memory stick for D1. He had also helped D1 submit mail re-direction forms for an address in Choi Wan Estate. 12.There were 8 cards the application of which underlined this conspiracy. They fell into two groups. Group 1 comprised Card 1to Card 6. Their applications were made to the banks between 24 December 2007 and 20 March 2008. Approvals were given between 13 February and 29 March 2008. False documents were submitted as proof of income and addresses. The 6 cards were sent by mail to addresses as arranged by D1 and arrangements were made for their authentication and signatures. 13.Group 2 comprised two newly approved fraudulent credit cards contained in two letters found in the letter box at the address in North Point. 14.In D1’s home was found a notebook which recorded the personal and other particulars of people whose names had been used by him in making fraudulent credit card applications. 15.In D2’s home were found 160 copies of Hong Kong Identity Cards relating to 32 people, 6 invalid Hong Kong Identity Cards, 3 credit cards issued in the names of other people, 2 USB memory sticks containing images of copies of false bank statements and a number of false bank statements. 4th Charge (Conspiracy to obtain property by deception) 16.Each of the 6 defendants was involved in this conspiracy. Each might enter or leave the picture from time to time. There were 6 cards used in the conspiracy which spanned between 20 February and 7 April 2008. The total credit limit of the 6 cards was $293,000. There were 18 successful transactions and 2 unsuccessful ones. The total sum of the 18 successful ones came to $168,051. A. Card 1 (in name of So Chui-ha issued by DBS Bank)
B. Card 2 (in name of Chiu Suk-kuen issued by Bank of East Asia)
C. Card 3 (in name of Ng Wai-ling issued by American Express)
D. Card 4 (in name of Tsang Chi-hang issued by Wing Lung Bank)
E. Card 5 (in name of Tsang Chi-hang issued by American Express)
F. Card 6 (in name of Chiu Suk-kuen issued by Dah Sang Bank)
5th Charge (Conspiracy to deal with the proceeds) 17.D1 and other unknown persons were involved in this conspiracy. D1 said in his cautioned interview that he would sell the goods to the VIP Shops. Rewards under 4th Charge 18.D1 was apparently the one who paid out the rewards. D3 and D5 in their cautioned interview both said that they received from D1 $1,000 each day for using the fraudulent cards. D2, D4 and D6 did not state specifically as to how much or by whom they were rewarded for using the fraudulent cards. Rewards under 5th Charge 19.D1 in his cautioned interview said that he received from the VIP Shops 70% of the normal price of the goods. Sentencing principles Credit card fraud 20.There are no sentencing guidelines for credit card fraud. In HKSAR v Chan Sui-to [1996] 2 HKCLR 128, 131, the Court of Appeal held that a sentencing judge would need to consider 5 factors before deciding the level of sentence, although Yang CJ went on later to say that this was not intended to be an exhaustive list. Those factors were as follows:
21.In HKSAR v Ng Swee Thiam [2000] 1 HKLRD 772, the Court of Appeal regarded that the potential for losses was more important than the actual amount proved to have been lost by the fraudulent use of credit cards. The principle was adopted in HKSAR v Cheung Ka Wo Johnny [2002] 2 HKC 517. 22.In The Queen v Lai Chong-ning CACC 729/1996, the applicant and his friend applied for 42 credit cards from the banks in other people’s names. They had used copies of other people’s identity cards. They filled into the applications forms the addresses of post boxes which they knew were not secured by locks. The offences spanned four months and the total amount obtained was $128,100. The sentencing judge did not regard it as a syndicated operation but took a starting point of 5 years. The Court of Appeal dismissed the appeal against sentence. 23.In HKSAR v Chan Yuk Kwan CACC 26/2001, the applicant’s wife was an estate agent. The applicant asked his wife to supply him with photocopies of her clients’ identity cards. He used those photocopies to apply for credit cards. He used a vacant flat as a correspondence address for the applications. There were two men who helped him steal bank statements from a neighbouring apartment, and then the bank statements were altered to tally with the name on the application forms and photocopies of identity cards as income proof. The two men also passed him tax assessments whose names were altered for the applications to the banks. The banks lost $148,000 over the next 4 months. The Court of Appeal regarded it as serious as Lai Chong-ning (above) and imposed a sentence reflective of 50% discount based on the plea of guilty, long delay and reimbursement. The overall sentence was modified to 27 months. That would mean a notional starting point of about 4½ years (54 months). Money laundering 24.There are no sentencing guidelines for money laundering. The usual mode of operation concerned defendants dealing with deposits into and withdrawals out of bank accounts. Our present case is akin to the handling of stolen property by way of on-selling to a third party. Comparable cases are rare. 25.HKSAR v Tang Sin Tung CACC522/2004 was quite similar to our present case. There the applicant and two others handled a slit lamp, and 881 pairs of glasses frames, knowing or believing them to be stolen. These items were found in the applicant’s premises. They had been given to him by a friend who had told him that they were stolen properties and had asked him to find someone to purchase them. He intended to sell them for $30,000 and would earn, after giving $18,000 to his friend, a profit of $12,000. The value of the stolen properties was $125,000. The Court of Appeal affirmed a starting point of 3 years’ imprisonment. D1’s sentence 26.D1 is now 30 years of age. He has 4 similar convictions. He last worked as an air-conditioner technician in his elder brother’s company in Mainland China. After the Court had banned his travel outside Hong Kong, he lost the job. He has been a voluntary worker for various charitable organizations for the deaf, the elderly, the diabetic, and mentally retarded children, for a total of 232.5 hours as shown on the log sheets in 2009 and 2010. 27.He has a son, now aged 8. He first worked as a kitchen worker. Then he ran his own noodle business, which ended in a loss and mounting debts. He was adjudged bankrupt on 31 July 2007. 28.He was the mastermind of all 3 conspiracies. The conspiracies revealed a medium-sized and systematic operation. I take as a starting point 3 years for each of the 3 conspiracies. 29.Given his pleas of guilty, I give him a one-third discount. For his voluntary work, I give him a discount of 3 months for each of the 3 charges he faces. On totality, I order him to serve a total sentence of 3 years and 3 months based on the following adjustments:
D2’s sentence 30.D2 is 30 years of age. He is married with an 8-year-old son. He last worked as a cook. His wife is a cashier. He received education up to F.3 level. He has 2 previous dissimilar convictions. 31.He was a close assistant to D1 both at application and collection stage of the cards. I take a starting point of 2 ½ years for the 3rd Charge. I reduce it by one-third due to his plea of guilty. His sentence is 1 year and 8 months. 32.He used Card 3 with others on 2 occasions on 25 March 2008 for the total sum of $15,700 and Card 6 with others on 5 occasions on 7 April 2008 for the total sum of $33,723. I take a starting point of 2½ years. I reduce it by one-third due to his plea of guilty. His sentence is 1 year and 8 months for the 4th Charge. I order 6 months thereof to be consecutive to the sentence for the 3rd Charge. His total sentence is thus 2 years and 2 months. D3’s sentence 33.D3 is now 45 years of age. She has a daughter, now aged 15 and a son, now aged 23. She committed the present offence to earn money for hiring lawyer for her daughter in two drug cases. She has worked for a voluntary body in hairdressing the elderly in Tsing Yi and Tsuen Wan. 34.She and others had used 2 cards on 7 occasions for the total sum of $51,178. I take a starting point of 27 months’ imprisonment. I reduce it by one-third due to her plea of guilty. I reduce it by 1 month due to her voluntary work. Her sentence is 1 year and 5 months for the 4th Charge. D4’s sentence 35.D4 is now 23 years of age. She has a clear record. She is a housewife. Her husband has owed finance companies a lot of money. 36.She and others had used Card 6 on 5 occasions on 7 April 2008 for the total sum of $33,723. 37.I take a starting point of 27 months’ imprisonment. I reduce it by one-third due to her plea of guilty. There are no other mitigating factors. Her sentence is 1 year and 6 months for the 4th Charge. D5’s sentence 38.D5 is now 29 years of age. She has a clear record. Her father had passed away. Her mother is a cleaning worker. Her two younger brothers are a driver and a delivery worker respectively. She was educated up to F.5 level. She is a housewife. She divorced her husband in 2007 because he had become a drug addict after a serious accident. Not only had he taken drugs in front of their young sons, but he also used their school fees to buy drugs. She is presently on public assistance. Her sons are now aged 7 and 9 respectively. 39.Despite her arrest in April 2008, she has done voluntary work for her sons’ schools in 2008 and 2009 as well as actively participated in her sons’ school activities in 2009 and 2010. She has studied English under the Manpower Development Scheme in 2009. Her family members are supportive of her as indicated in their mitigation letters. 40.She had made a non-prejudicial statement against D1, D2 and D6 in the 3rd Charge. She had expressed a willingness to give evidence in court, if necessary, to back up her allegations. Shortly before the first PTR on 11 January 2010, her statement was served on them. At the second PTR on 25 February 2010, D1, D2 and D6 indicated pleas of guilty to the 3rd Charge. 41.D5 and others had used 1 card on 2 occasions on 25 March 2008 for the total sum of $15,700. I take a starting point of 27 months. I reduce it by one-third due to her plea of guilty. I reduce it by 3 months due to her assistance to the prosecution. I reduce it further by 1 month due to her voluntary work. Her sentence is 1 year and 2 months for the 4th Charge. D6’ sentence 42.D6 is now 35 years of age. He had worked as a salesman in Cable & Wireless for 10 years before an immunity illness rendered him unfit for work since late 2007. 43.He and others had used 4 cards on 12 occasions for the total sum of $134,160. I take a starting point of 2½ years. I reduce it by one-third due to his plea of guilty. There are no other mitigating factors. His sentence is 1 year and 8 months for the 4th Charge.
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