HKSAR v. Ho Chi Shing and Another

DCCC 767/2010

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 767 OF 2010

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REASONS FOR SENTENCE

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1.HO Chi-shing (D1) pleads guilty to eight charges of obtaining property by deception (charges 3, 4, 6, 7, 11, 12, 14 & 15) and two charges of attempting to obtain property by deception (charges 2 & 10), contrary to section 17 of the Theft Ordinance, Chapter 210.

2.CHEN Chao-quan (D2) pleads guilty to six charges of obtaining property by deception (charges 3, 4, 11, 12, 14 & 15) and one charge of attempting to obtain property by deception (charge 10).

3.Full particulars of the offences are set out in the facts admitted by the defendants. All charges relate to the use or attempted use of stolen credit cards to purchase high value goods.  The offences were committed shortly after the credit cards were stolen from the various victims, who while having lunch had hung over the back of their seats their jackets, inside which were their wallets containing the credit cards.       

Charge 2

4.At lunch time on the 27th December 2007 D1 used a credit card stolen from WONG Hun-ming to purchase $41,350.80 worth of cordyceps from the Yue Hwa Department Store.  When the shop staff asked the bank for verification on the validity of the credit card D1 took the card back and left.  The bank telephoned Mr Wong, who discovered his wallet containing the credit card was missing from his jacket, which he had hung over the back of his seat. 

Charge 3

5.Around 12:15 hours on the 16th February 2009 YUE Wang-wai, William went to a restaurant for lunch and hung his jacket over the back of his seat.  When leaving the restaurant at 13:15 hours Mr Yue discovered his wallet was missing. Fifteen minutes later D1 together with D2 used a credit card stolen from Mr Yue to purchase a watch valued at $152,100 from Prince Jewellery & Watch Company. 

Charge 4

6.At lunch time on the 24th November 2009 D1 together with D2 used a credit card stolen from YEUNG Loi-man to purchase various accessories from Christian Dior to the value of $51,950.  When the bank telephoned Mr Yeung at 14:15 hours asking if he had used his credit cards Mr Yeung discovered his wallet was missing from his jacket, which he had earlier hung over the back of his seat while having lunch. 

Charge 6

7.At 13:00 hours on the 25th November 2009 WONG Cheuk-fan was having lunch when he discovered his wallet was missing from his jacket, which was hung over the back of his seat.  Thirty minutes later D1 used two credit cards stolen from Mr Wong to purchase a mobile phone valued at $120,000 from Vertu in Sogo Department Store.

Charge 7

8.Around 12:30 hours on the 2nd December 2009 WANG Ruizong went to a restaurant for lunch and hung his jacket over the back of his chair.  When leaving the restaurant at about 14:15 hours Mr Wang discovered his wallet was missing.  Meanwhile at 13:14 hours D1 used a credit card stolen from Mr Wang to purchase a watch valued at $184,600 from a shop in the Mandarin Oriental Hotel. 

Charges 10-12 and 14-15

9.All five offences occurred on the 14th April 2010 between 13:40 and 14:40 hours.  Charge 10 relates to a credit card stolen from NGAI Chun-pong and the remaining charges to two credit cards stolen from WONG Kwok-hung.  Both Mr Ngai and Mr Wong were having lunch that day when their wallets containing the credit cards were stolen from their jackets.

10.At 13:40 hours D1 together with D2 used a credit card stolen from Mr Ngai to purchase a watch and perfume from Hermes to the value of $108,730.  When the shop staff requested proof of identity D1 and D2 took back the credit card and left the shop.  

11.Ten minutes later D1 and D2 used a credit card stolen from         Mr Wong to purchase three watches from the Seiko Boutique to the value of $35,088.  D1 and D2 used the same card again at 14:00 hours to purchase three pairs of glasses from Eyedonist to the value of $10,890 and at 14:40 hours to purchase three watches from Pryngeps to the value of $30,420.   Earlier at 14:30 hours D1 and D2 used another credit card stolen from Mr Wong to purchase accessories from Salvatore Ferragamo to the value of $32,445. 

12.In passing sentence I have carefully considered everything said by Mr Davies, including D1 has elderly parents to look after.  I have read the letter submitted by D1 together with those from his employer and the Hong Kong Christian Kun Sun Association Ltd.  I note the employer is willing to continue employing D1 and that D1 has shown remorse.

13.I have carefully considered everything said by Mr Cheung on behalf of D2, including that his role was to help D1 by coming to Hong Kong to pretend to buy goods for which he would be given an advantage. 

14.In passing sentence I take into account the factors which a sentencing judge will need to consider in credit card frauds as set out by the Court of Appeal in R v CHAN Sui-to [1996] 2 HKCLR 128, including the size of the operation; the planning that had gone into perpetrating the fraud and whether the accused played a major role.  The factors were not intended however to be exhaustive but provide valuable assistance to the court.  The courts have repeatedly stressed that deterrent sentences are to be imposed. 

15.Whilst CHAN Sui-to was a case concerning forged credit cards the factors to take into account were said to apply to credit card frauds generally and not restricted to forged credit cards.  In my view there is no difference between using a forged credit card and using a stolen credit card.  In both cases the use undermines the integrity of the credit card system.  As was said in HKSAR v WONG Wan-shan CACC 9 &10/2002 a case concerning stolen credit cards:

“This court has said, on many occasions, that credit card frauds are an insidious poison in the community; one which affects a large number of citizens and erodes the credit card system, and also damages Hong Kong's standing in the international community. This court has also said that those who engage in it can expect to be dealt with severely by the courts. See: R v Wong Fu Keung Crim App No. 5 of 1991 (unreported). Nothing has happened since 1991 that causes us to doubt that sentiment, save that the use of credit cards has become far more widespread and the opportunities for their fraudulent use has increased as a consequence.”

16.I am satisfied the guidance given in CHAN Sui-to equally applies to stolen credit cards (also see HKSAR v CHAN Kwai-fui CACC 194/1998 and HKSAR v CHAU Yiu-cheong CACC 363/2008).              In CHAN Sui-to at paragraph 14 the court said:

“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”

17.Where the facts of the offence point to a small unsophisticated operation, involving one or a few forged cards uncomplicated by other evidence materially linking the offender to a larger operation, a starting point of 3 years or less may be appropriate (see HKSAR v TU I Lang CACC 464/2006 and HKSAR v WONG Chin-hang CACC 409/2008).  Noting the Court of Appeal have also upheld starting points higher than   3 years imprisonment for similar offending, each case is to be decided on its own facts and circumstances. 

18.In respect of medium size operations the court in CHAN Sui-to at paragraph 30 said:

“Allowing for the different facts and the varying degrees of culpability, it is impossible to formulate a set of principles of sentencing from those decisions. We think however it would be helpful to the courts if they were guided by some criterion. We would therefore suggest that an accused who plays an active but not necessarily a key role in a medium size operation involving between $50,000 and $150,000, with no elaborate planning and equipment, and without an international dimension, should receive a sentence of five to six years after trial. Sentences may be adjusted upwards or downwards according to circumstances.”

19.Mr Davies refers the court to the case of HKSAR v LI Cheuk-kwan CACC 351/2005 in which the trial judge took a starting point of     5 years for each of 16 charges relating to the use of two credit cards, where goods and services were obtained to the value of $607,254.92.     Mr Davies submits the present case is not as serious and draws my attention to the fact the defendant in LI Cheuk-kwan had a significant number of convictions whereas D1 has only one spent conviction.

20.Whilst I take into account D1 has only one spent conviction I do not find this case of any assistance at all.  Save as to the amount involved there are no details as to the criminal activities involving the credit cards.  Further the court refusing leave to treat the Notice of Abandonment as a nullity did not go on to consider the sentence imposed but did comment that the overall sentence could be regarded as lenient (see paragraph 18).

21.Mr Cheung refers the court to the case of HKSAR v WONG Wan-shan CACC 9 & 10/2002, a stolen credit card case with similarities to the present case in that the credit cards were stolen in the same manner, namely from jackets hung on the back of chairs in restaurants. The amount involved just less than $160,000 is, however, substantially less than in the present case, where the amounts are $345,950.80 where D1 is charged alone and $421,623 where D1 and D2 are jointly charged.

22.The defendant in WONG Wan-shan was also a person with many previous convictions and was before the court for theft of the wallet and credit cards in respect of one set of offences.   D1 and D2 are not charged with theft nor is it suggested they are the ones who stole the credit cards.  However, one can not overlook the fact that within a very short time, often only minutes, the defendants were using the stolen credit cards.  This did not happen once but on each occasion offences were committed.  This in my view shows the defendants are closely connected to a syndicate involved in stealing credit cards.  Again I quote from the judgment in WONG Wan-shan at paragraph 21:

“….It is clear from the facts that he must have been acting in concert with others as part of an accomplished thieving syndicate operating throughout Hong Kong; one that was targeting seemingly prosperous men and using their stolen credit cards to purchase high value items which could be easily fenced. The speedy way in which the obtainings followed the thefts permits of no other inference. On the facts of DCCC 663 of 2001, it would be naive in the extreme to think that the Applicant was not closely involved in the thefts of the three victims' credit cards. We are not dealing with a case where the accused knowingly used a stolen credit card to purchase goods, but had nothing to do with the original theft.”

23.An analysis of the stolen credit card cases show starting points of between 3 and 6 years imprisonment.  In CHAN Kwai-fui the court upheld starting points of 4 years imprisonment for five charges involving the use of two stolen credit cards to obtain goods to the value of $35,465.  D1 in that case was a visitor to Hong Kong.  The trial judge in accepting D1 did not come to Hong Kong with the intention of committing offences took a starting point of 3 years imprisonment.  Whilst D2 in the present case is also a visitor, he came to Hong Kong with the specific purpose of helping D1 to pretend to buy the goods so he could gain an advantage.

24.In WONG Wan-shan starting points of between 3½ and 4 years imprisonment were upheld for four sets of offences involving between $12,591 and $55,000, with a total value of $157,326.  A total sentence of 6 years imprisonment on a plea of guilty was held not to be too long.

25.In CHAU Yiu-cheong the Court of Appeal upheld starting points of between 4 years and 6 years imprisonment for three offences involving $108,000; $588,000 and $820,000 and a total sentence of 5 years and 10 months imprisonment on a plea of guilty, which the court said erred on the side of generosity.  I note in all three cases the courts had taken into account the previous criminal records.

Starting points

26.Although D1 and D2 played somewhat different roles, each played an active and important role in the fraud.  D1 had the responsibility of actually using the stolen credit cards and D2 by pretending to buy the goods added a semblance of verisimilitude to the purchases.  I am satisfied no distinction is to be drawn in sentence by reason of the differing roles played by D1 and D2.

Charges 2 & 4

27.The amounts involved being $41,350.80 and $51,950 I am satisfied a starting point of 3 years imprisonment is appropriate for each offence.

Charges 3,6 & 7

28.The value of the goods obtained being $152,100, $120,000 and $184,600 I am satisfied that a starting point of 4 years imprisonment is appropriate for each offence.

Charges 10, 11, 12, 14 & 15

29.All offences were committed on one day in April this year in just over one hour. The total amount involved is $217,573.  Whilst this exceeds the amounts in Chan Sui-to I am prepared to accept (taking into account the cost of living today) this should still fall within a medium sized operation.  I am satisfied that a starting point of 4 years and              6 months imprisonment is appropriate on each charge. 

Totality of sentence

30.The offences in December 2007, February 2009, November 2009, December 2009 and April 2010 are by their dates alone separate and distinct and in most cases involve different stolen credit cards.  Subject to totality consecutive sentences are appropriate.

31.The sentences added together amount to a period well in excess of the maximum sentencing jurisdiction of this court.  As seen earlier the facts are very similar to the facts in WONG Wan-shan where for four sets of offences involving a total value of $157,326 a total sentence of      6 years imprisonment was upheld on a plea of guilty.  Although the court took into account that Wong had twenty-five previous similar convictions the amounts in the present case are substantially more, namely $345,950.80 where D1 is charged alone and $421,623 where D1 and D2 are jointly charged. 

32.The defendant’s are perhaps fortunate the case was brought in the District Court and not in the High Court.  I am satisfied in respect of D1 that an overall starting point of 9 years imprisonment is appropriate and in respect of D2 an overall starting point of 7 years and 6 months imprisonment is appropriate. 

Sentence

33.Giving the defendants full credit for their pleas of guilty they are sentenced as follows:

D1

Charges 10-12, 14-15 – 3 years imprisonment concurrent on each charge;

Charge 2 – 2 years imprisonment; 4 months consecutive and 1 year and 8 months concurrent to charges 10-12 & 14-15;

Charge 3 - 2 years and 8 months imprisonment; 1 year consecutive and 1 year and 8 months concurrent to charges 2, 10-12 & 14-15

Charge 4 – 2 years imprisonment;

1 year consecutive and 1 year concurrent to charges 2, 3, 10-12 & 14-15

Charge 6 – 2 years and 8 months imprisonment;

Charge 7 – 2 years and 8 months imprisonment;

Sentences on charge 6 & 7 concurrent to each other with 8 months consecutive and 2 years concurrent to charges 2, 3, 4, 10-12 & 14-15;

I am satisfied a total sentence of 6 years imprisonment, properly reflects D1’s criminality on all charges and gives the defendant a meaningful discount from the maximum sentencing jurisdiction of the court.

D2

Charges 10-12 & 14-15 – 3 years imprisonment concurrent;

Charge 3 - 2 years and 8 months imprisonment; 1 year consecutive and 1 year and 8 months concurrent to charges 10-12 & 14-15

Charge 4 – 2 years imprisonment;

1 year consecutive and 1 year concurrent to charges 3, 10-12 & 14-15

I am satisfied a total sentence of 5 years imprisonment, properly reflects D2’s criminality on all charges.

Please refer to CACC11/2011 for the relevant appeal(s) to the Court of Appeal.