HKSAR v. Ng Chi Yeung and Another

DCCC1189/2010

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 1189 OF 2010

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Reasons for Sentence

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Background

1.D1 in this case is also the defendant in DCC1190 of 2010, for which I have also prepared another reasons for sentence upon his guilty pleas in that case.  Here in this charge sheet, D1 pleaded guilty to all charges he faced, and upon plea bargain, the charges laid against D2 Lee Kwan-yee and D3 Deng Nanhui were left on court file which resulted in the immediate release of D2 and D3 on 16 December 2010.  With the guilty pleas of D1 and also D4 Ho Shuk-mei, Sara, who faced only Charge 16, D5 is the remaining defendant in this case.  I understand that the prosecution has prepared an amended charge sheet DCC1189-B/2010 for D5 who is to face three charges, namely, Charges 14 to 16. 

Brief Facts

2.On 11 March 2010, D1 accompanied a lady, Deng, to check into a hotel room (Room 5130) at L’hotel Nina Et Convention Centre in Tsuen Wan.  At about 7 pm on the following day (12 March) the police intercepted D1 at the lift lobby on the 41st floor of the hotel.  D1 was brought back to Room 5130.  The police searched the defendant and found, inter alia, the following items:

(1) 24 mobile SIM cards;

(2) USB or other devices containing personal data of other persons;

(3) handwritten notes with personal and financial data of Cheng Wai-tao (Cheng);

(4) Hong Kong identity card, China re-entry permit and various credit cards of Cheng;

(5) one forged China re-entry card in the name of Sze Kin-man (Sze). This is affixed with the photo of D1.

3.The hotel room (Room 5130) was searched, and the police discovered, inter alia, the following items:

(1) a metal container containing 43 tablets which were found to contain 0.33 gramme of nimetazepam (Charge 1);

(2) a plastic packet that contained 0.82 gramme of a crystalline solid containing 0.82 gramme of methamphetamine hydrochloride (Charge 2);

(3) inhaling devices with traces of methamphetamine (Charge 3);

(4) another inhaling device consisting of a plastic bottle inserted with a glass tube and fitted with a metal gauze. This device contained traces of cocaine (Charge 4);

(5) three plastic straws with traces of cocaine;

(6) a letter issued by the Hang Seng Bank and addressed to Cheng Wai-tao (Charge 5);

(7) a forged passport of the Republic of Indonesia and a forged Jakarta identity card in the name of Teong Hon but affixed with the photo of D1 (Charge 7);

(8) two sets of One2free mobile phone services and purchase agreements in the name of Cheng for phones 60590879 and 62931890. The corresponding address was 35/F, Central Plaza, 18 Harbour Road, Wanchai (Charge 8);

(9) three sets of Smartone mobile phone sales and services contracts in the name of Cheng for phone numbers 34872007, 61148636 and 61148940. The address was also 35/F, Central Plaza, 18 Harbour Road. There were three official receipts issued by Smartone to Cheng (Charge 9);

(10) five mobile phones and 32 SIM cards;

(11) the SIM card frame for phone 95307563 with two Chinese characters for “Wai Tao” written on it;

(12) two laptop computers, a colour image scanner, a colour LaserJet printer, card readers, a number of memory cards and electronic device;

(13) guest folios of Room 5702 and 5730 in the name of Tsang Hing-leung and Cheng respectively;

(14) cash in the sum of HK200,000 in a shoulder bag;

(15) Hong Kong identity card, Hong Kong driving licence, China re-entry card and four credit cards belonging to Madam Zhang Dongmei;

(16) some bank statements issued by DBS and the Hang Seng Bank relating to Cheng.

4.Cheng had lost his Hong Kong identity card, China re‑entry card, driving licence and a number of his credit cards in February 2010.  He made a report to the police.  On the other hand, Madam Zhang Dongmei lost her wallet together with her Hong Kong identity card, Hong Kong driving licence, China re‑entry card and various credit cards in February 2010.

Cautioned Statements

5.Under verbal caution, D1 admitted that all the laptops, letters, dangerous drugs and inhaling apparatus in the hotel room were his.  During the videotaped interview under caution, D1 admitted, inter alia, that:

(1) all the computers, letters, dangerous drugs and inhaling apparatus found in the hotel belonged to him;

(2) D1 claimed that he bought the forged Indonesian passport and forged Jakarta identity card in the name of Teong Hon for $20,000 cash about two years ago. The photo affixed on these identification documents was his picture, and the personal data were falsified;

(3) he bought 43 tablets of dangerous drugs called Erimin 5 for his own consumption to relieve his stress;

(4) he purchased 1 gramme of Ice for $500 and had consumed some of the dangerous drug;

(5) the two sets of inhaling apparatus were his and they were used to inhale Ice;

(6) he was given the Hong Kong identity card, driving licence, China re-entry card and credit cards all in the name of Cheng;

(7) all the other items found on D1 and inside the hotel belonged to him, including those stolen cards belonging to Zhang.

Charges 11 to 15 relating to D1 and Charge 16 relating to D1 and D4

6.On 4 December 2009, someone claimed to be Lau Li ( Lau), through the Internet, applied to redirect all mails sent to Lau and her family members to a new address in Yuen Long.  The period of redirection was from 16 December 2009 to 16 February 2010.  At the end of December 2009, the Post Office received an application on Internet for redirection of mails for the period from 15 December 2009 to 14 March 2010.  In February 2010, a handwritten letter purportedly signed by Lau’s son was faxed to the Post Office to withhold all mails addressed to Lau’s family.  Copy of the forged Hong Kong identity cards was also attached.  The request was entertained. Subsequently, a lady claimed herself to be Lau produced a copy of Lau’s identity card to collect 10-odd correspondence, including some sent by banks to Lau and her family members.  Later, some authorisation letters were faxed to the delivery office in Yuen Long to authorise a courier company to collect about 30 to 40 letters, including some from the banks.  (Charges 11 to 13)

7.On 12 February 2010, the Citibank received an application on Internet for credit card purportedly from Lau.  Copy of the forged Hong Kong identity card, the address proof and the financial proof of Lau was faxed to the bank on the same day.  In early March, the Citibank issued one Platinum MasterCard numbered 5520-0400-0117-1277 to Lau and sent the same by ordinary post.  The said credit card was activated and was used in 9 transactions in which 7 transactions were successful with the total value of about HK$98,000-odd.  (Charge 14)

8.On 13 March 2010, D5 Chan attempted to use the said Citibank credit card in the name of Lau to purchase an i-Phone for $12,500-odd but was not successful.  (Charge 15)

9.On 15 March 2010, the vice manager of the Citibank, Mr Au, called the cardholder of the said Platinum MasterCard on the phone number provided in the application form.  Mr Au was told that the cardholder would go to Louis Vuitton (LV) at Lee Garden in Causeway Bay in the afternoon.  The police were informed.

10.At about 3:30 pm on the same day, D4, accompanied by D5, went to the LV shop at Lee Garden.  D4 selected seven items worth a total sum of $46,370 and paid by the said Citibank Platinum MasterCard.  The saleslady was alerted by the service centre.  At this time, D4 left the shop and she was followed by D5.  They left the credit card behind. (Charge 16)  D4 and D5 were arrested when they left the shop.  A notebook with the personal particulars of Lau was found on D4.  When D1 was arrested in the hotel room, he was found to possess electronic devices that contained the image files of Lau and her son’s Hong Kong identity card, authorisation letters for redirection of mails, letters from the telecommunications companies addressed to Lau and her related call records.  There were also company search documents relating to Lau, application for tax return access code and the form for change of information relating to the credit card of the Bank of China in Lau’s name.

11.Under caution, D4 admitted that she was unemployed for two years and, hence, would make money by uttering counterfeit credit cards with D5.  In the videotaped interview, D4 further admitted that she used the counterfeit credit card with D5 to make money.  At about 1 pm on 15 March, D5 met D4 and two other persons in Mongkok.  D4 was given a credit card and was told to use it for making purchases.  D4 would be given 3% commission for those successful transactions.  D4 agreed.  D4 was taught to imitate the signature of the cardholder.  The card was issued in the name of Lau Li.  D4 also wrote down the personal data of Lau and a list of commodities to be bought at LV.  It was D5 who brought D4 to the LV shop at Lee Garden.  D4 gave the list of commodities that she intended to buy to the saleslady.  D4 later gave the Citibank MasterCard in the name of Lau to the saleslady for payment.  When D4 was told to answer a call from the card centre, D5 asked D4 to wait outside the shop.

Mitigation

12.I will mention the mitigations put forward by the defence counsel for D1 in DCC1190 of 2010.  In gist, it was submitted that D1 was co-operative when arrested and he shouldered all the responsibility in perpetrating these crimes.  He pleaded guilty to all the charges, and that saved the court’s time and public resources.  The defendant is now serving a 30-month prison term for another case (DCC1125 of 2007) and the court was urged to consider the totality principle.

13.As regards D4, defence lawyer submitted that she had an unhappy childhood.  She received education up to Form 3 and was abandoned by her boyfriend.  She has a son.  D4 felt sorry for what she did and she admitted her guilt.  The victim did not suffer any loss, and D4 did not occupy a major role in this fraud.  When asked, defence lawyer sought instruction from D4 who said that she is willing to testify against D5 if she is of assistance to the police.  The case HKSAR v See Chun Fat Billy HCMA367 of 2005 was mentioned, but the case related to stolen credit card.  D4 also wrote a mitigation letter, hoping that a short sentence could be imposed.

Sentence

14.D1 is 36 years old and has a total of 13 convictions.  D4 is 35 years old and has four convictions since 2001.  In 2005, D4 was convicted of three counts of fraud and sentenced to 10 months’ imprisonment.

15.There are several groups of charges in this charge sheet.  D4 was only involved Charge 16 as the actual user of the fraudulently obtained credit card.

Sentence of D1

16.Group 1 relates to Charges 1 to 4 which are drugs‑related.  D1 possessed 0.33 gramme of nimetazepam and 0.82 gramme of Ice respectively.  For Charge 1, I would adopt a starting point of 6 months.  With the guilty plea, the sentence is reduced to 4 months.  For Charge 2, I would use 12 months as the starting point and reduce it to 8 months.  I have considered the latent risk factor and decide not to increase the sentence.  In light of the totality principle, I order that these two sentences to run concurrently. 

17.As regards the offences of possession of equipment and apparatus, namely, Charges 3 and 4, I use 6 months as the starting point and reduce the sentence to 4 months.  The sentences of all charges under group 1 are to run concurrently.  Hence, for offences under group 1, D1 is sentenced to 8 months’ imprisonment in total.  I shall deal with the totality of sentences at the end of this sentencing exercise when considering which sentences are to run consecutively or not.  Although D1 was convicted of the offences under sections 8 and 36 of Cap.134, there is no need for this court to ask for a DATC report in accordance with section 54A(1A).

18.Group 2 covers Charges 5, 6, 8 and 9 which were related to the plot to defraud banks for the issue of credit cards.  For these four charges, I would use a global approach.  I use 2 ½ years as the starting point for each charge and reduce it to 20 months to be served concurrently for these four charges.

19.Charge 7 relates to the possession of one forged passport and one forged Jakarta identity card with D1’s photos affixed thereon.  There may well be other plots to deceive people or institutes, but no evidence can be found in the Summary of Facts.  I would use 3 years as the starting point and reduce it to 2 years.

20.Charge 10 relates to the offence of money laundering for the sum of $200,000.  Given the modus operandi of the scams, I consider that this illicit sum came from the frauds with the use of fraudulently obtained credit cards.  I have considered the case HKSAR v Chen Zhen Chu [2007] 5 HKC 505 and HKSAR v Javid Kamran CACC400 of 2004.  I use 2 years as the starting point and reduce it to 16 months.

Group 3 covers Charges 11 to 16

21.One of the victims in these charges was Lau Li. The plot was well-planned.  Letters addressing to Lau or her family were stolen.  Then the personal data of Lau was used for applying a credit card from the Citibank.  The credit card was issued and used.  Debts of $98,000-odd were incurred, and two futile attempts to buy an i-Phone worth 12,500-odd and some commodities at LV were made which landed Charges 15 and 16.  I use 3 years as the starting point for each and every charge under this group and reduce it to 2 years.  The sentences are to run concurrently in these charges under group 3.

22.When it comes to the totality principle, I would order as follows:

(1) the sentence of the drug-related charges is 8 months (1st sentence);

(2) 3 months of the sentence for offences under group 2 is to run consecutively to the sentence of 24 months for Charge 7. That makes the sentences to 27 months (2nd sentence). Given the different nature of offences, I order that the 1st sentence is to run consecutively to the 2nd sentence, making the sentences so far totalled 35 months (3rd sentence);

(3) 3 months from the sentence of the money‑laundering offence, that is Charge 10, are to run consecutively to the 3rd sentence. That makes the sentence to 38 months (4th sentence);

(4) 6 months of the sentences from group 3 are to run consecutively to the 4th sentence. That makes the sentence to 44 months in total.

23.I will deal with the totality principle relating to D1’s charges both in this case and DCC1190/2010 in the reasons for sentence of the latter’s case.

Sentence of D4

24.D4 had previous convictions of fraud charges. She had been jailed before but apparently failed to appreciate the need to reform herself.  She committed the present offence since her last discharge in June 2006.  As said by the Court of Appeal in HKSAR v Choy Ki Shun [2003] 2 HKLRD 575, one of the reasons for imposing severe deterrent sentences for offences involving credit card frauds was to maintain the integrity of the credit card system and public confidence in the system.  Although D4 occupied a lesser role in the overall scam, her role was also important as she was the actual one to execute the frauds by using the credit card.  She faced one count of attempted fraud and the shop did not suffer any loss.  In light of her personal mitigating grounds and the circumstances of the case, I would take a lenient view and use 2 years as the starting point.  With her plea, the sentence is reduced to 16 months.

25.I would like to stress that a promise to testify against D5 at the moment is not a ground to reduce the sentence at the present stage, although D4 is encouraged to do so.  If concrete result is effected, her sentence might be reduced eventually.