HKSAR v. Zhang Xuanhan and Another

DCCC557/2010

IN THE DISTRICT COURT OF THE

HONG KONGSPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 557 OF 2010

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Reasons for Sentence

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1.The 1st defendant has pleaded guilty to one charge of theft, one charge of possession of a false travel document, and the 3rd charge is conspiracy to defraud.

2.The 2nd defendant has pleaded guilty to the 3rd charge of which he is charged jointly with the 1st defendant of conspiracy to defraud.

3.The facts as admitted show that on 21 March this year both defendants were seen acting suspiciously in Prince’s Building, Central, in Hong Kong.

4.The 2nd defendant entered a Chanel shop and bought two bottles of perfume valued at HK$1,090 and used a Visa Card in the name of Mr Onuma Toshiyuki to make payment. The transaction was successful.

5.The 2nd defendant left the shop with the two bottles of perfume and proceeded to a Cartier shop nearby. He attempted to buy two watches valued at a total of HK$99,500, but the transaction was rejected by the bank and so he left the Cartier shop without making the purchase.

6.Both defendants were intercepted by the police, and upon a search, the 1st defendant was found to be in possession of a wallet containing cards in the name of Mr Onuma Toshiyuki.

7.The 2nd defendant was found in possession of the perfume from the Chanel shop and a cardholder containing the card he had used for the purchase of the perfume, and also another Visa Card also in the name of the same person.

8.The defendants were arrested and subsequently interviewed and, under caution, the 1st defendant admitted that he had met the 2nd defendant 3 months ago in China, and they had agreed to come to Hong Kong to make money.

9.They subsequently agreed, and came to Hong Kong on 19 March 2010 to make money in Hong Kong. The plan was that the 1st defendant would steal wallets with credit cards and then the 1st defendant would inform the 2nd defendant, who would use those credit cards to buy goods.

10.So on 21 March, the 1st defendant then stole a wallet at the Tsim Sha Tsui MTR Station from a Japanese person. He subsequently met up with the 2nd defendant in Central, and the 2nd defendant then took some credit cards out of the wallet.

11.The 1st defendant also admitted that the passport he was found carrying with the name of Su Jixiong was not his name and that he had met this person and got his personal particulars, and he had used this person’s personal particulars to get a passport made out for him.

12.The 2nd defendant also admitted, under caution, similarly, that he had met the 1st defendant in China and both agreed to come to Hong Kong to make money. The plan was that the 1st defendant would steal a wallet containing credit cards and the 2nd defendant would then use the stolen credit cards to make purchases.

13.The 2nd defendant said when he met up with the 1st defendant in Central he had taken two credit cards out of the wallet from the 1st defendant and then returned the wallet to the 1st defendant. The 2nd defendant said that the two credit cards were not signed on the back, so he signed on the back of those two credit cards. The 2nd defendant admitted making purchases in the Chanel shop and his attempt to buy watches in the Cartier shop.

14.Police enquiry subsequently revealed that both defendants came to Hong Kong on 19 March 2010, and were permitted to remain for 7 days.

15.The 1st defendant is aged 49, and the 2nd defendant is aged 46.

16.The 1st defendant has an attempted pickpocketing conviction in 2006, for which he was sentenced to 10 months’ imprisonment in Hong Kong.

17.The 2nd defendant has a clear record in Hong Kong.

18.Both the mitigation advanced on their behalf by Mr Lok are that they are both family men, and that basically the reason for their coming to Hong Kong to commit crime is because they needed money.

19.Nothing in their background is of any use when considering mitigation. The only mitigation I can see in both their cases is that they pleaded guilty at the earliest opportunity, thus saving the court’s time, and it is also an indication of their remorse.

20.Mr Lok has also cited some cases in relation to both simple possession of credit cards or the use of forged credit cards.

21.The seminal case of the fraudulent use of credit cards is the case of R v Chan Shui To and Another [1996] 2 HKC, at page 1128.

22.Basically in sentencing, it is recommended that the judge should consider various factors, that is the size of the operation, the planning that has gone into perpetrating the fraud, whether there is an international dimension, and whether the accused played a major role, and finally, whether there is a plea of guilty.

23.The Court of Appeal also said this:

“That in considering whether large sums of money   were involved, we would suggest that at the present  cost of living amounts up to $50,000 may be   considered relatively small; amounts from $50,000 to   $150,000, medium; and amounts above that may be  considered large.  It goes without saying that the five factors mentioned above are not intended to be an  exhaustive list.”

24.In this case, the 2nd defendant had tried to unsuccessfully use the credit card to buy $99,000 worth of watches. That would bring it within the what would be considered medium-sized operation.

25.As for planning, some planning had gone into this operation, although it cannot be considered elaborate.

26.There is a cross-border dimension even though not a different country as one would term an international dimension. However it is a cross-border dimension to it.

27.As for the roles played by the defendants, both defendants played major roles, and both defendants had indeed pleaded guilty.

28.So in considering sentence, I have to consider the background in this case, the factors involved in sentencing for these offences, and the defendants’ background.

29.Having considered the case of Chan Sui To and Another, and also the case submitted by Mr Lok, the case of HKSAR v Tu I Lang, CACC464/2006, I therefore sentence the defendants in the following way:-

a. In relation to the 1st defendant, for the 1st charge of theft, I consider an appropriate starting point to be one of 15 months’ imprisonment. Because of his plea, it is reduced to 10 months’ imprisonment.

b. On the 2nd charge of possession of false document, that is the false passport, I consider that an appropriate starting point would be one of 12 months reduced to 8 months because of his plea.

c. On the 3rd charge of conspiracy, I consider that a proper starting point would be one of 3 years’ imprisonment, reduced to 2 years because of his plea.

30.Because of the totality principle, I therefore sentence the 1st defendant on the 1st charge to 10 months’ imprisonment; on the 2nd charge to 8 months’ imprisonment, 4 months will be served consecutively to the 1st charge; and on the 3rd charge to 24 months, which will be consecutive to the sentences in the 1st and 2nd charge, giving a total of 38 months, which is 3 years and 2 months.

31.In relation to the 2nd defendant, who only faces the 3rd charge, the appropriate sentence is similar to the 1st defendant. It is a starting point of 3 years reduced to 2 years because of his plea, so the defendant is sentenced to 2 years’ imprisonment.