HKSAR v. Ng Chi Yeung
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DCCC1190/2010 IN THE DISTRICT COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION CRIMINAL CASE NO. 1190 OF 2010 ----------------------
--------------------- Reasons for Sentence --------------------- 1.In this case, the defendant faced a total of 27 charges, and upon his guilty pleas, he was convicted accordingly. Today, the prosecution sought to amend the particulars of Charge 23 in line with the amended Charge 17. There was no objection from the defence and leave was granted. The position was explained to the defendant, and when the amended Charge 23 was read to the defendant, he maintained his guilty plea to that charge. Here are the reasons for sentence. The Prosecution Case 2.With the assistance of other parties, the defendant stole letters or searched data which were available in public domain, like information from the Land Registry or Companies Registry, and then used this information to make fraudulent applications for credit cards or replacement of credit cards. The defendant also contacted the banks concerned to change the victims’ corresponding addresses and telephone numbers or to apply to redirect the mails of these victims. The defendant employed services of secretarial companies via Internet and a courier company over the phone to receive newly issued credit cards or card replacements and mails from the banks. Charges 1 to 8 3.Lai Kai-ming, Dominic (Lai) had one Visa Platinum card numbered 4384-3701-1142-3948 issued by the Bank of East Asia (BEA) since August 2008. In February 2009, BEA received a computer printout application form for change of correspondence address which was dated 5 February 2009 and purportedly signed by Lai. The account number appeared on the printout was wrong. However, upon verifications of Lai’s signature and the supply of Lai’s personal data by a male, the record was amended accordingly. 4.On 21 August 2009, a male, purported to be Lai, called the BEA hotline and instructed to set up a direct debit instruction to authorise withdrawals from Lai’s Citibank account numbered 250-410-13431277 (Citibank account) to settle the credit card payments for credit card account numbered 4384‑3701‑1142-3948. Such standing instructions for direct debit authorisation was approved by both the Citibank and BEA. On 12 November 2009, a male, purported to be Lai, called the BEA hotline and reported his loss of the said BEA credit card. A replacement card was requested which was to be collected at the Whampoa branch of BEA. 5.On 19 November 2009, a female called Au Ka-sin went to the said bank branch and produced an authorisation letter to collect the replacement card numbered 4384-3701-1164-3081. The letter was purportedly signed by Lai, and a copy of Lai’s Hong Kong identity card was also provided. The replacement card was used between 19 November 2009 and 16 December 2009. (Charge 2) 6.On 27 November 2009, a customer purported to be Lai of Sino-Pride Limited asked for integrated secretarial service for three months from Jumpstart Business Centre (“Jumpstart”). The service charge of $2,538 was settled by the said BEA card numbered 4384-3701-1164-3081. Jumpstart assigned a customer account number 7179 to this new customer. 7.On 30 November 2009, a male claimed to be Lai called the BEA hotline and requested to increase the credit limit of the replacement card from $200,000 to $230,000. The request was approved. (Charge 3) 8.On 30 December 2009, Jumpstart received some documents from the customer of account number 7179, including a copy of a forged Hong Kong identity card in Lai’s name and a copy of the forged business registration certificate of Sino-Pride Limited. (Charge 8) 9.On 1 December 2009, a male who claimed himself Lai called the BEA hotline and asked to transfer $203,357 from Lai’s Citibank account to Lai’s BEA replacement card account abovementioned. Shortly afterwards, the same male called the BEA hotline again and requested to increase the credit limit of the credit card from $230,000 to $500,000. BEA approved the request and effected the transfer. And to be exact, the sum should be 203,357.08. I repeat it again, 203,357.08. 10.On 9 December 2009, a male claimed to be Lai called the BEA hotline and asked to change the correspondence address of the account to the address of Jumpstart, namely, No. 112‑114 Des Voeux Road Central, 17th Floor, Wheelock House, Pedder Street, Central. 11.On 16 December 2009, a male claimed to be Lai called the BEA hotline again and instructed to transfer $500,000 from Lai’s Citibank account to the BEA replacement credit card account. The transfer was effected. 12.On 17 December 2009, a male claimed to be Lai called the BEA hotline and reported that the replacement card was lost. He asked for another replacement card to be issued and sent to the said address of Jumpstart. Later on the same day, a set of completed application form for a BEA Renminbi credit card was faxed to BEA. A mobile phone number 94662493 was stated in the form. A forged Citigold account statement in Lai’s name and a letter dated 17 December 2009 purportedly signed by Lai was also attached. (Charge 5) 13.On 18 December 2009, a second replacement card numbered 4384-3701-1165-0219 was dispatched to the said address of Jumpstart. Instructions had been given to Jumpstart staff that all mails addressed to Lai were to be placed at the management office of Wheelock House. By an email purportedly sent by Lai to Jumpstart, an authorisation was given to one Ng Ka‑po, an LGV driver, to collect the mails and the second replacement card on behalf of Lai. Ng confirmed that he got the instruction from a male on 18 December to collect the mails from the management office of the Wheelock House and delivered the same to the male customer. 14.On 12 December 2009, a male claimed to be Lai called the BEA hotline and asked to transfer $500,000 from Lai’s Citibank account to the BEA second replacement account to settle payments. The request was approved. 15.Between 24 December 2009 and 6 January 2010, the second replacement card was used. (Charge 4) 16.It transpired that the two replacement credit cards had been used in various transactions totalled $2,205,076.88. 17.On 21 December 2009, the BEA Renminbi credit card numbered 6224-7101-0044-4125 in Lai’s name was issued and sent to the address of Jumpstart. 18.Between 21 December 2009 and 2 January 2010, the said Renminbi credit card was used in various transactions to the total value of about RMB$799,030. (Charge 5) 19.On 25 December 2009, a male claimed to be Lai called the BEA hotline and requested the credit limit of the Renminbi credit card be raised from RMB$500,000 to RMB$800,000. The request was approved. (Charge 6) 20.On 1 January 2010, a male claimed to be Lai called the BEA hotline again and requested to transfer HK$1 million from Lai’s Citibank account to the BEA second replacement credit card for settling outstanding payments. The transfer was approved and effected. Later on the same day, a male called the BEA hotline and requested to increase the credit limit of the second replacement credit card from HK$500,000 to $1 million. The request was approved on 4 January 2010. 21.On 7 January 2010, the Fubon Bank made enquiry with the BEA about the authenticity of the replacement credit card in the name of Lai issued by BEA. The scam was unearthed. 22.On 9 January 2010, a male claimed to be Lai called the BEA hotline and asked to transfer HK$2 million from Lai’s Citibank account to BEA’s second replacement credit card account. The request was not executed. (Charge 7) 23.On 11 January 2010, a male claimed to be Lai called the BEA hotline and requested to increase the credit limit of the credit card. BEA did not process the request. 24.Police investigation revealed that the three credit cards abovesaid were used in transactions occurred in mainland China and Macau. A total of four sums of money totalled HK$2,203,357.08 was transferred from Lai’s Citibank account to these credit card accounts for payments. 25.It was confirmed by Lai that he did not know nor did he consent to these transactions. Charges 9 to 11 26.Lai was also the cardholder of American Express Cheung Kong card numbered 3763-350138-0100 (AE card). On 17 December 2010, a male claimed to be Lai called the AE hotline to report the loss of the said AE card. He also requested for a replacement card to be mailed to the 33rd Floor, Central Plaza, 18 Harbour Road, Wanchai and provided a mobile phone number 68007715. The defendant was found in possession of this SIM card upon his arrest on 12 March 2010. The request was approved. 27.On the following day, a male claimed to be Lai called the AE hotline again and requested to change the mailing address to 35th Floor, Central Plaza. He provided another mobile phone numbered 95307563. The request was also approved. 28.It was discovered that at the material time, the said address of 35th Floor, Central Plaza was the office address of a secretarial service firm called Regus Hong Kong Limited ( Regus). On 17 December 2010, a person called Lee Ming‑ming of Able King Limited applied for an integrated secretarial service via online application for the period from 17 February 2010 to 31 May 2010. Copy of the business registration certificate of Able King, Lee Ming-ming’s Hong Kong identity card and her HSBC credit card numbered 4966‑0401-0746-6195 were provided. That person also asked Lai and Cheng Wai-tao to be included in the list of contact persons of Able King as they were staff members of the company. (Charge 11) 29.It was revealed that Lee Ming-ming was a housewife at the material time and had nothing to do with Able King. Nor did she know Cheng Wai-tao. She did not acquire the service of Regus and did not have the said HSBC card. 30.On 18 February 2010, AE delivered the replacement card numbered 3763-350138-02000 in Lai’s name to the address of Regus. A courier was arranged to collect the AE replacement card which was eventually delivered to a male in Tsim Sha Tsui. On the same day, the said AE card was activated. This AE card was used between 20 February 2010 and 4 March 2010 in transactions worth HK$195,073. (Charge 9) 31.Between 23 February 2010 and 4 March 2010, a male claimed to be Lai called the AE hotline and requested to transfer money from Lai’s Citibank account to the said AE card for credit card payment. The request was not executed. (Charge 10) 32.At the request of the police, AE mailed two promotional booklets to Lai at the address of Regus. These booklets were later recovered in the hotel room at L’hotel where the defendant was arrested. Charge 12 33.Cheng Wai-tao (Cheng) had been the cardholder of the DBS MasterCard numbered 5418-1966-4459-3007 since June 2006. 34.In February 2010, a male claimed to be Cheng called the DBS hotline for certain enquiry. That phone enquiry was not entertained. On 18 February 2010, DBS received a form by fax asking for a replacement card and that the address was changed to the address of Regus and, inter alia, the mobile phone to 95307563. The SIM card of this phone was found in the hotel room upon the arrest of the defendant. It also requested the issue of PIN and Telephone Identification Number (TIN). The request was entertained. 35.On the following day, staff of DBS discovered that the said address was blacklisted. Cheng was contacted and he confirmed he never made the request. Charge 13 36.This related to Cheng’s account with the Hang Seng Bank (HSB) numbered 390-234128-888. 37.On 17 February 2009, a form for change of contact information purportedly signed by Cheng was sent to the HSB requesting to change the correspondence address to the office address of Regus and to change the contact phones, including the mobile phone number to 95307563. The frame of the SIM card of this mobile phone was found in the hotel room where the defendant was arrested. These three phone numbers were used in the DBS case. The request was entertained. Charges 14 to 16 38.Between 7 March and 10 March 2010, the defendant used the name of Tsang Hing-leung Stephen (Tsang) to rent a room (Room 5702) at L’hotel. All the fees were settled by cash. When the defendant was arrested in Room 5130 on 12 March, the guest folio of Room 5702 in the name of Tsang was found inside the room. (Charge 14) 39.On 8 March 2010, a male claimed to be Tsang called the guest service counter of L’hotel and asked for one more room. Between 8 March and 10 March 2010, the defendant used the name of Cheng to rent Room 5730. The hotel charges were settled by cash. Again, the guest folio of Room 5730 in the name of Cheng was found upon the arrest of the defendant. (Charge 15) 40.Between 10 March and 11 March 2010, the defendant claimed himself to be Sze Kin-man (Sze) rented another room, Room 4503, in L’hotel. The defendant produced a forged China re-entry permit in the name of Sze but with defendant’s photo thereon. The hotel charge was settled by cash. (Charge 16) 41.Cheng, Sze and Tsang all confirmed that they did not rent any hotel room at L’hotel at the material time. Charges 17 (amended) and 18 42.Sze was the cardholder of DBS Compass Platinum card numbered 4518-3560-0378-1005. On 15 February 2010, Sze’s credit card was misused for eight times for online search on the Land Registry website, resulting in a total sum of $270 incurred. (Amended Charge 17) 43.On 15 February 2010, DBS received a customer information change form by fax. It was purportedly signed by Sze relating to another DBS Classic Visa card. A request for a replacement card and the change of correspondence address was made. As the address was blacklisted, DBS did not entertain the request. (Charge 18) Charges 19 to 21 44.Lam Chak-wang (Lam) had a number of Citibank credit cards. On 9 November 2009, a male claimed to be Lam reported the loss of his Citibank Platinum Visa card numbered 4028-5600-0181-6886 and requested a replacement card. A replacement card numbered 4028-5600-0256-5607 was sent to Lam’s reported address. On 12 November 2009, the new card was activated. 45.Between 13 November and 16 November 2009, the replacement card was used in various transactions in the total sum of HK$43,429-odd. (Charge 19) Lam did not make any report of the loss of his credit cards. 46.Lam also had a BEA Platinum Visa card numbered 4384‑3701-1140-4443. A male claimed himself to be Lam managed to change the contact phone number to 92762832 through the BEA hotline. On 17 November 2009, a male claimed to be Lam applied over the phone to have “cash in hand” loan of HK$50,000 for the said BEA credit card. The application was approved and the sum of $50,000 was credited into Lam’s Citibank Platinum Visa card. (Charge 20) The offence was discovered in late November 2009. 47.On 1 February 2010, a male logged on Lam’s online banking account of the Standard Chartered Bank (SCB). Lam’s user identity and password was used. Authorised third-party payee accounts under the name of Ngan Chi-wing (Ngan) were registered. On the same day, someone registered the two SCB accounts of Ngan to be the authorised telegraphic transfer payee accounts of Lam. Attempt was made to transfer HK$39,000 from Lam’s SCB account to Ngan’s account but to no avail. 48.On the same day, someone successfully transferred HK$19,000 from one of the Lam’s SCB account to another one. Shortly afterwards, another transfer of HK$10,000 and $200 were made between Lam’s SCB accounts. Another transfer of $400 between two of Lam’s SCB accounts was effected. Two futile attempts to transfer $19,000 and $39,000 respectively between two of Lam’s SCB accounts were made. However, shortly afterwards on the same day, someone was able to transfer $20,000 from one of Lam’s SCB accounts to his another one with the SCB. Within about half an hour, someone effected a telegraphic transfer of $20,000 from Lam’s SCB account to one of the bank accounts of Ngan. (Charge 21) 49.On 1 February 2010, another sum of $20,000 was transferred from Lam’s account to Ngan’s account. Lam denied any knowledge of the transactions abovementioned and did not know Ngan at all. Charges 22 to 25 50.Wong Pak-huen (Wong) had DBS credit card, Dah Sing Bank credit card and Fubon Bank Visa credit card. In December 2009, Dah Sing Bank renewed Wong’s credit card numbered 4514-2256-1125-2028 by sending him a replacement card. On 17 December 2009, the said credit card was activated. (Charge 22) 51.Between 18 December and 19 December 2009, this new replacement card was used in four transactions which amounted to $42,923. Wong confirmed that he did not activate nor did he use the said credit card. (Amended Charge 23) 52.On 19 December 2009, a male claimed to be Wong called the DBS hotline and made a futile attempt to transfer a sum of $130,000 from one account to another. DBS was alerted and Wong confirmed that he did not ask for such transfer. (Charge 24) 53.On 21 December 2009, a male claimed to be Wong called the hotline of the Fubon Bank and made a report of the loss of the Visa card numbered 4058-2348-2002-3883 and requested to have a replacement card. The request was not entertained eventually. (Charge 25) Charges 26 and 27 54.On 13 October 2009, someone claimed himself to be Chen Li-shih Norman (Chen) applied to the Citibank via Internet for a Platinum Visa card. Copy of the forged Hong Kong identity card of Chen with some instructions, the forged passport of Chen, the PCCW statement dated 20 September 2009, the business registration certificate of Sunny Land Enterprises Limited, the HSBC Premier statement dated 11 September 2009 and UBS account statements were sent to the Citibank. On 15 October 2009, upon the request from the Citibank, a person faxed a copy of the forged passport of Chen to the bank. 55.On 17 October 2009, the Citibank issued a Citibank PremierMiles Visa card with the account number 4028‑5620‑0140‑7690 to Chen with the expiry date of October 2014. 56.On 13 October 2009, someone submitted to Regus an “Online Virtual Office Agreement” via Internet for secretarial service from 14 October 2009 to 31 October 2010. Copy of the forged Hong Kong identity card of Chen, the business registration certificate of Sunny Land Enterprises was sent to Regus by email. (Charge 27) Regus started to provide services accordingly. Regus received the PremierMiles Visa credit card issued to Chen by the Citibank, and the said credit card was collected by someone on 20 October 2009. The credit card was activated on the same day and was used in 9 transactions totalled $49,515-odd between 20 October and 23 October 2009. (Charge 26) The said credit card was also used to settle the service payment of $1,488 due to Regus on 23 October 2009. Regus later terminated the service agreement on 4 December 2009. 57.Investigation revealed that Chen never applied for the said credit card. Nor did he use the service of Regus. 58.Police investigation also revealed that Chen was one of the shareholders of a Japanese restaurant’s group. He lost his Hong Kong identity card, China re-entry card, driving licence, two AE cards and MasterCard in February 2010. On the other hand, Madam Zhang Dongmei had her wallet stolen in February 2010. She lost her Hong Kong identity card, China re‑entry card, Hong Kong driving licence and a number of credit cards. In late December 2009, Sze had his property, including Hong Kong identity card, China re-entry card, stolen in Shenzhen. Arrest of the Defendant and Seizures of Exhibits 59.In the evening of 12 March 2010, the defendant was arrested at the 41st floor, lift lobby of L’hotel. The defendant was then escorted back to Room 5130 of the hotel. 60.The police discovered the following items on the defendant and from the hotel room; some of the items were stored in the electronic storage devices:
The Defendant’s Cautioned Statements 61.Under caution, the defendant admitted that all the computers, letters and various exhibits seized inside the hotel room belonged to him. The defendant made further admissions when being video-interviewed. He confessed that the computers and the exhibits found in the hotel room and on himself belonged to him. Regarding the cards and personal documents of Cheng, the defendant claimed that they were found by his friend “Ah Wing.” Mitigation 62.At one time, the defendant was a delivery worker earning about 9,500 per month. Defendant committed these crimes because he was under tremendous financial pressure. He is still single but has a girlfriend and a 2-year-old son. It was submitted that the defendant was co-operative to the police, and upon plea bargain, he was able to exonerate D2 and D3 in DCC1189 from being tried. The defendant assumed responsibility of these criminal activities and pleaded guilty to the charges. There is no sentencing tariff for these offences, but the defence lawyer mentioned the case R v Chan Sui To [1996] 2 HKCLR 128. Defence lawyer also urged the court to consider the totality principle. The defendant is now serving a sentence of 30 months, as mentioned in the antecedent statement, for the offences in DCC1125 of 2007. When asked, defence lawyer informed the court that the offences in that case were committed in 2007. Sentence 63.The defendant is now 36 years old and started to have criminal records since 1999. He had a total of 13 convictions, many of which involved dishonesty offences. He was convicted of using false instruments back in 2008 and is now serving a prison term of 30 months. Theoretically and as far as that case is concerned, the defendant is due to be released this year, that is, on 25 November 2011. 64.From the facts disclosed and the charges laid, it is obvious that this was a well-planned and well-organised criminal activity, taking advantages and making full use of the Internet and electronic facilities in commercial and banking settings. The criminal wrongs perpetrated by the defendant and his accomplices undermined the integrity of the credit card business and the commercial environment in Hong Kong. The defendant and/or his other culprits made use of the stolen cards of other innocent people and defrauded the card-issuing institutes on a large scale. Their criminal activities, probably the tip of the iceberg, spanned from August 2009 to March 2010. In order not to complicate the sentencing process, I would adopt a global approach for various groups of charges. Group 1 - Charges 1 to 8 65.Although there are different offences laid, the plot was the same, that is, to defraud the bank with the use of the fraudulently obtained replacement credit card and to siphon off the credit balance of the bank accounts belonging to Lai. The two BEA credit cards numbered 4384-3701-1164-3081 and 4384‑3701‑1165-0219 were used, and debts in the total sum of about HK$2.2 million were incurred. On the other hand, a total of about $2.2 million was fraudulently transferred from Lai’s Citibank account to the BEA credit card accounts. 66.For each and every charge under this group, I would adopt a starting point of 3½ years. With the guilty pleas, the sentence is reduced to 28 months. All sentences of these eight charges are to be served concurrently. Group 2 - Charges 9 to 11 67.Although the same victim Lai was involved, these three charges related to another credit card, the AE Cheung Kong card. Debts in the total sum of $195,073 were incurred, and attempt was made to transfer money from Lai’s Citibank account to the said AE bank account. I would adopt a starting point of 2½ years for each and every charge under this group, and with the plea, the sentence is reduced to 20 months. And in light of the totality principle, I order that 6 months of these sentences would be served consecutively to the sentence of Group 1. Group 3 - Charges 12 and 13 68.This time, another victim Cheng and two banks, DBS and the Hang Seng Bank, were involved. Forms were submitted in order to change the particulars of the accountholder. I would use 12 months as the starting point for these two charges and reduce it to 8 months. 3 months are to be run consecutive to the previous sentences under both Groups. Group 4 - Charges 14 to 16 69.These three charges related to the renting of the hotel with the use of false identifications. The hotel suffered no loss as all the payments were made by cash. I would adopt 6 months as the starting point for each of these three charges. With plea, the sentence is reduced to 4 months. I also order that this sentence is to be served concurrently to the other sentences. Group 5 - Amended Charges 17 and 18 70.These charges related to another victim, Sze. The credit card was used in a number of times, resulting in a small debt of $270. Attempt was made to have a replacement card. It was highly possible that further debt would be incurred, had this replacement card was actually issued. I would adopt 2 years as the starting point for each and every charge under this Group and reduce it to 16 months. 3 months would be served consecutively to the previous sentences. Group 6 - Charges 19 to 21 71.Another victim, Lam, was involved. The same modus operandi was adopted. The replacement card was used and debts in the sum of some $43,000-odd were incurred. A further sum of $50,000 in loan was also approved and transferred to Lam’s Citibank Platinum credit card account, and another sum of $20,000 was also transferred to another account. 72.I adopt 2½ years as the starting point for each and every charge under this Group, and with plea, reduce it to 20 months. 3 months are to run consecutively to the other sentences. Group 7 - Charges 22 to 25 73.These charges involved another victim, Wong. With similar modus operandi, the defendant obtained a replacement card of Dah Sing Bank. Debts totalled $42,000-odd were incurred. Attempt was made to transfer $130,000 from one account to another one. In these charges, three credit cards issued by three different banks were involved. I adopt a starting point of 2½ years and reduce it to 20 months. 3 months are to run consecutive to the previous sentences. Group 8 - Charges 26 and 27 74.These charges related to another victim, Chen. Forged documents, including copy of Chen’s Hong Kong identity card and passport, were used in the application for a new Citibank Visa card. The Visa card was approved and was used incurring debts totalled 49,000-odd. Acting on copy of forged Hong Kong identity card in the name of Chen, Regus provided services to those who registered under Chen’s name. 75.Again, I adopt 2½ years as the starting point for each of these two charges and reduce it to 20 months. 3 months are to be served consecutively to the previous sentences. 76.To recap, as far as this charge sheet is concerned, I would imprison the defendant for a total of 49 months, that is, a jail term of 28 months + 6 months + 3 months + 3 months + 3 months + 3 months + 3 months = 49 months. And that means the defendant does not have to serve additional jail term in respect of his renting of the hotel rooms. 77.However, in order to do fairness to the defendant who was also D1 in DCC1189 of 2010, I am duty-bound to consider the totality principle applicable to both cases. In the reasons for sentence concerning D1 and D4 in DCC1189 I just delivered this morning, I have passed a total sentence of 44 months on the defendant. Had the two cases consolidated into one, I am required to consider the totality principle and to adjust the sentences accordingly. Effectively, this exercise would be to the advantage of the defendant. To this end, I would take a lenient stance and order that 20 months of the sentences in DCC1189 of 2010 are to be served consecutively to the present sentences. As such, the total imprisonment term for the defendant in these two cases is 49 + 20 months = 69 months or 5 years 9 months. 78.On the other hand, at present the defendant is serving a prison term of 30 months for DCC1125 of 2007. The offences in DCC1125 were committed in 2007. In my view, the court should not encourage criminals to commit as many crimes as possible so that the discount in sentence that they enjoyed could be maximised. The defendant has enjoyed substantial discount when I sentence him for both cases in DCC1189 and 1190 of 2010. That said, I would still have to consider the totality principle but take the view that as those offences were committed in 2007 while the present offences were perpetrated from August 2009 onwards, I would order that the present sentence should run consecutively to the existing sentence the defendant is serving.
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Cases cited in this judgment