HKSAR v. Wan Ka Ling

DCCC498/2012

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 498 OF 2012

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Reasons for Sentence

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1.The Defendant pleads guilty to one count of obtaining property by deception and one count of theft, contrary to section 17(1) and (9) of the Theft Ordinance, Cap.210.

2.In the evening of 26 December last year, the Defendant went to a retail clothing store called “Bauhaus” in Tsuen Wan Plaza and selected two jackets, five pairs of jeans and a bag (collectively called “the properties”), which cost a total of $9,687.

3.The Defendant handed over an American Express card in the name of Wong Pui-yung (“Card 1”) to the shop staff, Miss Cheng Sau-kuen (PW1), for payment. The credit card transaction was successful.

4.While PW1 was preparing the purchase receipt, the Defendant took Card 1 and the properties from the cashier counter and left without waiting for the receipt.

5.The Defendant was subsequently intercepted by two security guards, PW2 and PW3, at the entrance of the shopping arcade, and the properties were returned to the shop.  When the security guards were making enquiries of the Defendant at the nearby staircase, PW3 saw the Defendant throwing two credit cards on the ground.

6.The case was reported and the police retrieved Card 1 and a GM Visa card in the name of Wong Pui-yung (“Card 2”).

7.The Defendant alleged that he had picked up the two credit cards sometime in December 2011 and had used Card 1 to make the purchases of the properties.

The Defendant’s background and mitigation

8.The Defendant is 35 years old.  He is single.  He lives with his parents.  He has an elder brother who works as a tutor.

9.The Defendant has worked as a waiter and a bartender, earning between 12 to 17 thousand dollars per month.  He has been complimented by his employers for his performance.

10.He has always been a filial son and has been responsible for full payment of the mortgage of his parents’ residence.

11.The Defendant has four previous convictions, two of which related to dishonesty.  His last conviction was for use of a forged credit card.  He was sentenced to 2 years’ imprisonment and was released from prison on 27 August last year.

12.Counsel explained that in October or November 2009, the Defendant lost his job.  He was only able to find casual work and his income was unstable.  He applied for bankruptcy and was made a bankrupt in July 2010.

13.The Defendant picked up the two cards in the present case the day before he committed Charge 1.  He intended to obtain the properties for resale.  He committed the present offences because he felt very guilty that he was unable to support his parents.

14.In his letter, the Defendant’s father stated that the Defendant has been attending church with him and his wife over the next six months and he has seen vast improvement in the Defendant.

15.Counsel submitted that the Defendant has pleaded guilty, which is an indication of remorse.  Only one credit card was used and the properties were recovered and no loss was incurred.

16.Counsel also submitted that there was nothing to suggest that the Defendant was any part of a syndicate and there are no international dimensions.

Sentence

17.In passing sentence, I have fully considered what has been put forward on the Defendant’s behalf.

18.I agree that in the present case, although the Defendant has only been charged with the theft of one of the credit cards, however, he has, in fact, admitted to the theft of both credit cards. Thereafter, he used one of the cards to obtain the properties by deception.

19.According to counsel, he kept the two cards because the Defendant did not know whether the shop would accept an American Express card.

20.In other words, the Defendant was prepared to use Card 2 to commit an offence as well. This is clearly a case of credit card fraud.

21.I agree that there is nothing to suggest that the Defendant was part of a larger syndicate in the present case.

22.However, according to the facts the Defendant admitted in DCCC782/2010, he was part of a forged credit card syndicate and his role was to obtain properties from retail shops with those forged credit cards, exactly in the same manner as he did in the present case.  There is material to suggest that the Defendant was part of a credit card fraud syndicate in the past.

23.The Defendant was sentenced to 2 years’ imprisonment in that case.  He knew the serious nature of the offences and the consequences.

24.Yet, shortly after he was released from prison for that offence, the Defendant committed a similar offence.  Obviously, the last sentence had no deterrent effect.

25.In the light of the Defendant’s alleged financial circumstances and his readiness to obtain quick money through illegal means, there is every reason to believe that he would continue to use those two credit cards in the same way if he had succeeded on this occasion.

26.Credit card offences are very serious offences and must be deterred (see HKSAR v Sun Chun Lei [2003] HKCU 365).  Even a small-scale credit card fraud with small losses by an offender who is not alleged to be part of a larger syndicate can attract 3 years’ imprisonment on a guilty plea (for example, HKSAR v Cheung Ka Wo [2002] 2 HKC 517).

27.Having regard to all the circumstances, I adopt a starting point of 4 years’ imprisonment for Charge 1.  I give the Defendant full credit for his guilty plea.  The sentence is reduced to 32 months.

28.For Charge 2, I adopt a starting point of 3 months’ imprisonment.  I give the Defendant full credit for his guilty plea. The sentence is reduced to 2 months.

29.Both charges are part and parcel of the same scheme.  I order that the sentences be served concurrently, that is, a total of 32 months’ imprisonment.

Please refer to CACC318/2012 for the relevant appeal(s) to the Court of Appeal.