HKSAR v. Jiang Zongcheng

DCCC260/2011

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 260 OF 2011

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Reasons for Sentence

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1.The defendant has pleaded guilty to three offences of obtaining property by deception, one offence of attempting to obtain property by deception. He has accepted set of facts presented and I have convicted him of those offences.

2.The offences involve what can be described as credit card fraud in the sense that the defendant used a credit card belonging to another person in order to buy goods.  The cards themselves appear to be genuine. 

3.The offences came to light on 7 January 2011 and the facts of what happened on 7 January 2011 constitute the 5th charge the defendant faces.  The offences fall into two chronological categories.  Charge 5, that was committed on 7 January in Mongkok and Charges 2 to 4 which were committed on 9 September last year, 2010 at the Hong Kong International Airport while on 7 January this year, the defendant went to TSL Jewellery in Hollywood Plaza in Mongkok and attempted to buy a gold pendant necklace valued at $34,500.  He presented a Construction Bank Visa card in the name of a Morgan Chen Ma.  The staff became suspicious and the police were called.  The credit card itself was obviously not in the defendant’s identity and his explanation to the police was that somebody called Ma Sing had handed the card over to him but he had only used that card once. 

4.The other charges, Charges 2 to 4, relate to what happened at the Hong Kong International Airport on 9 September.  The first thing we know is that a Japanese tourist, a Mr Inaba Teiichi, reported he had lost his wallet and that it contained a Mizuho MasterCard in the name of Mr Inaba Teiichi, and then we know that the defendant then used that card to buy goods at the Hong Kong International Airport that day. 

5.Firstly at about 1.55 he entered a shop called Temptation, bought some skincare products for $4,575, using Mr Teiichi’s card and signing in his name.  That is Charge 2. 

6.In Charge 3 at 2.05 that day he went to Burberry and bought some jackets for $10,800, again using Mr Teiichi’s card. 

7.In relation to Charge 4 at 2.20 that afternoon he went into Gucci and bought some female shoes worth $9,150 in total using Mr Teiichi’s card.  Identification of the defendant has also been made on CCTV. 

8.The defendant has admitted all of this and been convicted.  His criminal record shows that in 1997 he was convicted of a theft and described as a pickpocket and sentenced to 9 months’ imprisonment and of course that was some time ago now. 

9.The defendant is from the People’s Republic of China and was described as being unemployed at the time.  He is in good physical condition. 

10.I have heard mitigation on behalf of the defendant.  He is a 50 year old man, a citizen, as I have said, of the People’s Republic of China.  He is single and educated to F3 level.  He lives with his mother who is 85 years old.  She suffers from some of the problems of old age such as hypertension and diabetes.  He was a store owner and then later took up the employment of being a bus driver. 

11.The defence counsel has helpfully produced a schedule in relation to the offences, outlining the losses incurred.  In relation to Charges 2, 3 and 4, a total of $24,525 was obtained.  It has not been recovered. 

12.In relation to Charge 5 there was an attempt to obtain jewellery valued $34,500.  That was unsuccessful.  The items obtained involved skincare products, jackets, female shoes.  It was only in relation to Charge 5, the more valuable items such as gold pendants and necklaces were attempted to be obtained. 

13.The defendant’s mitigation includes that he confessed to police when arrested on Charge 5.  He entered an early plea to that charge at the pre-trial review on 8 April 2011.  His later plea to the other offences perhaps related to the fact that the proof of the fingerprint in relation to Charge 3 came about a week before the trial.  Also a considerable number of witnesses have been saved having to come and give evidence, 17 prosecution witnesses, and defence counsel asked me to approach these cases on a totality principle. 

14.Now, I have been referred to a number of cases which approach the sentencing, the appropriate way of sentencing in credit card frauds, these being either using Credit cards relating to other people or forged Credit cards.  In this case the cards themselves were genuine but that does not seem to affect the approach to be taken and I have been specifically referred to the five factors we find in Chan Sui To.  Firstly, the size of the operation.  Here it involves the defendant, two cards that have been obtained by him and the goods that I have already outlined.  Clearly some planning goes into these kinds of frauds.  I am told that this is not a case that could be regarded as having an international dimension except and in so far as the defendant’s has come here in order to commit the offences.  The role he played is set out quite clearly in the facts and there is a plea of guilty.

15.In respect of the single use of a credit card by a person of clear record, the courts have taken a starting point of 3 years’ imprisonment on a plea of guilty.  In this case I have a total of four offences on two occasions.  I shall take what I consider the appropriate starting point of 3 years’ imprisonment as the proper starting point on each charge.  After the deduction for the defendant’s plea of guilty that leads to a sentence of 2 years’ imprisonment on each of the 2nd, 3rd, 4th and 5th charges.  The 2nd, 3rd and 4th offences were committed on the same occasion and the 5th some 4 months later.  Obviously one must consider to what extent they must be served consecutively or concurrently because they do represent two separate criminal enterprises. 

16.I have decided to adopt the following approach. The 2nd, 3rd and 4th offences were committed on the same day using the same card.  I shall order that Charges 2 to 4 run concurrently one to the other.  I consider the 5th charge was committed on an entirely separate occasion some part of the sentence on that charge should run consecutively, but I want to achieve a proper overall total. 

17.What I shall order is that 3 months of Charge 5 be served consecutively to Charges 2 to 4 and the balance of 1 year 9 months be served concurrently.  This leads to a total overall sentence of 2 years 3 months’ imprisonment.