HKSAR v. Ting Chun Pong, Michael and Another
Read the full judgment text of DCCC 366/2012 on BabelCite. This District Court judgment was delivered on 21 November 2012.
1. D1 and D2 plead guilty to the following charges:
Cites 5 cases
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Consolidated DCCC 366 & 699/2012 IN THE DISTRICT COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION CRIMINAL CASE NO. 366 & 699 OF 2012 ----------------------------------------------
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------------------------------ Reasons for Sentence ------------------------------ I. Charges 1.D1 and D2 plead guilty to the following charges:
2.D2’s 5 instances of obtaining property by deception (4th, 5th, 7th, 8th and 9th Charges) had caused the victims to lose $38,000 in total. II. Facts A. Victims lost I/Cs 3.Six victims (PW1, 11, 12, 13, 14 and CHEN Wai-yi Ivy) had lost their I/Cs, which were used by D1 and D2 to commit the present offences. B. Bank accounts and credit cards in PW1’s name 4.Unbeknown to PW1, 6 accounts, including one with cheque function, and 2 credit cards (one main card in his name and one supplementary card in PW12’s name) were set up at Standard Chartered Bank (“SCB”). Also, a Citibank account numbered 40233537 (“Account B”)(“Dummy Account”) was opened in the name of PW1. PW1 confirmed he had never opened any of these accounts. C. Using I/Cs to cheat an incorporation consultancy company 5.On 13 October 2011, D1 used PW13’s lost I/C to impersonate PW13 before Oriental, an incorporation consultancy company for the incorporation of Everlasting, his purported company, and the registration of his directorship thereof (1st Charge, vs D1 : Using I/C of another person). He paid the service charge of $8,080 by a Cheque. It was later dishonoured. D1 agreed to give Oriental another cheque. 6.On 15 November 2011, D2 used CHEN Wai-yi Ivy’s lost I/C to impersonate CHEN Wai-yi Ivy as the messenger and gave another Cheque to Oriental (3rd Charge, vs D2: Using I/C of another person). The Cheque was later dishonoured. 7.On 2 December 2011, D2 paid by $1,000 cash and a China Construction Bank cheque of $7,080. She then collected all the letters addressed to Everlasting sent to and kept by Oriental. The cheque was later dishonoured. 8.Everlasting was never incorporated. D. 1st Deception, which involved notebook computers 9.TAM set up Buy Bo Shop as an online trading company holding an account at the auction website of Yahoo. On 18 November 2011, he made a deal with D2 by email for the sale of a notebook computer at $5,900. Five days later, D2 produced a deposit slip as proof of her payment by a Cheque into his bank account. She provided a letter addressed to her from BOCI-Prudential Trustee Limited as proof of her identity. After photocopying the letter, he passed the notebook computer to her. One day later, the Cheque was dishonoured. She could not be located (4th Charge, vs D2: Obtaining property by deception). 10.CCTV footages showed D2 depositing the Cheque into TAM’s bank account by ATM and her presence at TAM’s shop. Bank records showed that the Cheque used in the 1st Deception was from Account B. E. 2nd Series of deception, which involved iPhones 11.YU sold iPhones on the auction website of Yahoo at $7,380 each. Between 21 and 26 November 2011, he made a deal with D2 for the sale of 2 iPhones at $14,760. On 26 November 2011, D2 produced a deposit slip as proof of her payment by a Cheque into his bank account. YU checked with the bank but found the sum not yet transferred into his bank account. To prove her own identity, D2 used PW14’s I/C to impersonate PW14 and let him take a photocopy of the I/C (6th Charge, vs D2: Using I/C relating to another person). He passed her the first iPhone. The second iPhone would be handed to her upon his confirmation of the sum in his bank account. 12.One day later, D2 wanted to buy a third iPhone from him. She paid him $3,000 cash as the deposit and took an iPhone. He would pass her the remaining iPhone upon receiving the outstanding payment. One day later, he found the payee of her Cheque written in a wrong way so that it was not valid. Four days later, she told him she would not buy the remaining iPhone. He therefore refunded the $3,000 cash to her. One day later, the Cheque was dishonoured (5th Charge, vs D2: Obtaining property by deception). 13.CCTV footages showed D2 depositing the Cheque into YU’s designated bank account by ATM. Bank records showed that the Cheque used in the 2nd Deception was from Account B. F. 3rd series of deception, which involved ornaments 14.WONG sold goods at an auction website of Yahoo. On 26 November 2011, D2 agreed to buy a wrist chain from WONG at $3,480. One day later, she produced a deposit slip as proof of her payment by a Cheque into WONG’s bank account. WONG passed the wrist chain to her. The Cheque was later dishonoured (7th Charge, vs D2: Obtaining property by deception). 15.Three to four days later, she offered to buy 2 necklaces and 2 pendants from WONG at $4,360 in total. One day later, she produced a deposit slip as proof of her payment by a Cheque into WONG’s bank account. WONG passed the 4 items to her. The Cheque was later dishonoured (8th Charge, vs D2: Obtaining property by deception). On the same day, D2 showed interest to buy 3 necklaces, 3 pendants and a ring from WONG at $9,500 in total. Later on, she produced a deposit slip as proof of her payment by a Cheque into WONG’s bank account. WONG passed the 7 items to her. The Cheque was later dishonoured (9th Charge, vs D2: Obtaining property by deception) 16.CCTV footages showed the 3 Cheques being deposited by her into WONG’s bank account. Bank records showed that all the Cheques used in the 3rd series of Deception were from Account B. G. D1 using I/C to cheat post office, then his arrest 17.Police enquiries led to the suspension of the SCB Account, including the credit cards thereunder. A male made enquiries with SCB. SCB followed police instructions to get his address so that SCB could send him a registered mail of a Notice of Collection of Registered Item (“Collection Notice”) for new credit cards. He gave an address, which had an unsecured mailbox. On 10 January 2012, D1 was arrested when he presented PW1’s I/C and the Collection Notice to the post office counter to redeem the new credit cards (11th Charge, vs D1: Using I/C relating to another person). H. D1 possessing a lost I/C and false instruments 18.Items the police found on him included PW12’s lost I/C (12th Charge, vs D1: Possession of I/C relating to another person). 19.He also possessed the following (13th Charge, vs D1: Possessing false instruments):
III. Cautioned statements and arrest A. In D1’s case 20.His admissions to the police included:
B. In D2’s case 21.D2 was arrested when YU, whose iPhones D2 had taken away without payment, bumped into D2 in Mongkok in December 2011. D2 could not pay him up. He had the police arrest her. 22.Items the police found on her included:
23.She claimed to the police that her boss had instructed her to go to Oriental to process the incorporation of Everlasting. He also asked her to use those I/Cs as her own and fill out the Cheques in purported payment to the victims. She passed the goods obtained from the various victims to him. She was arrested before receiving any reward. IV. Personal background and mitigation 24.D1 is now aged 42. He was educated up to F. 5 level. He lived with his wife and child in China. He had one conviction for obtaining property by deception and one for theft in 1993. 25.D2 is now aged 34. She has a clear record. She was educated up to F. 5. She lived with her mother and elder brother. Her mother, elder brother, elder sister, aunt, cousin, friends wrote mitigating letters for her. She was described as a simple-minded and credulous person people often take advantage of. V. Relevant considerations in sentencing 26.No general principles for fraud can be derived from the authorities. The core factors have to be the degree of planning, sophistication and impact on the victim or community. 27.In HKSAR v. Wan Kwong Chiu CACC 349/2003, the applicant posed as the representative of an existing company when he went to a business management centre to register an office purportedly for that company. Either he or the office had actually no relationship with that company. Using the address and the protection of a courier service, he obtained a book of 50 cheques from the bank for that company. Equating his act with those involving the use of forged credit cards, the judge sentenced him to 4 ½ years. 28.On appeal, the applicant’s counsel submitted that the seriousness and sentence here should have been less than that of credit card fraud. The Court of Appeal agreed with this submission, though pointed out that to determine the criminality it had been correct for the judge to rely on the relevant factors listed by Yang CJ in R v. Chan Sui-to [1996] HKCLR 128, which included:
29.The sentence of 4 ½ years was reduced to 3 years. 30.Using another person’s identity card twice to apply for phone service, from a CSL shop, had resulted in concurrent sentences of 12 months in HKSAR v. Kwok Siu Fai HCMA 153/2011. The starting point of 18 months for each charge and the eventual sentence of 12 months, on the guilty pleas, were affirmed on appeal. 31.Bounced cheques were used in The Queen v. Wong Shu Kan CAAR13/1993. The respondent had used cheques, which bounced later, to pay for rent and purchase price to 3 victims in the total sum of $685,000 within 2 years. The Court of Appeal regarded the concurrent sentences of 6 months too lenient and substituted them by an eventual sentence of 18 months on the prosecution’s review of sentence. 32.In The Queen v. Lee Sing Wai CACC 72/1997, the applicant faced the following sets of charges:
33.Adopting a regime of overlapping sentences, the eventual sentence was 3 ½ years. The applicant only appealed the sentence of the 8th Charge. 34.The events occurred within 2 years. The fraud charges related to the applicant placing a purchase order beforehand to each seller. He then showed up to collect the computers upon presentation of a business card in the purported name of the purchaser and a cheque as payment to the seller. The cheque later bounced as the bank account had been closed for long. He reaped computers worth over $170,000 in total. He resisted arrest when the police set upon him as he attempted to collect a batch of computers. 35.The Court of Appeal considered that the identity card in the 8th Charge was not necessarily connected with any further deception, though clearly not for an innocent purpose. The PG sentence of 10 months was reduced to 6 months. The eventual sentence was reduced to 3 years and 2 months accordingly. 36.In HKSAR v. Chan Chun Yeung & Anor CACC 45/2006, the 1st applicant conspired with others to defraud the sellers of goods in 4 instances by a forged Fortis Bank cheque bearing the same cheque number. Each time they would give the seller a forged cheque for payment. In the first instance, the 1st applicant gave a forged cheque of $12,000 to the seller of a computer. The seller would not release the computer until the cheque was cleared. The cheque bounced. The 1st applicant failed to get the computer. In each of the second and third instances, the 1st applicant signed a false name on the invoice prepared by the seller after presenting him a forged cheque. The 2 cheques, of $1,780 and $3,680 respectively, bounced after he had obtained the goods. In the fourth instance, the seller copied the 1st applicant’s own identity card when receiving the forged cheque of $3,320. Soon a co-conspirator called up the seller to pay cash instead, obviously to bail out the 1st applicant as his real identity had been exposed. 37.The trial judge had adopted a starting point of 48 months and passed a sentence of 44 months, apparently after taking into account his young age and his clear record. The Court of Appeal reduced the eventual sentence to 18 months. VI.Sentencing present defendants D1’s sentence 38.D1 faces 4 single charges as follows:
Starting points 39.D1 was the impersonator and custodian for a small-scale but well-organised syndicate, which commanded a source of personal and identity documents for commercial fraud. I take the following starting points:
40.For his pleas of guilty, I reduce his sentences by one-third. There are no other mitigating factors. His sentences are as follows:
42.D1’s eventual sentence is 26 months. D2’s sentence 43.D2 faces 7 single charges as follows:
44.D2’s role as an impersonator for the syndicate was as culpable as D1. I take the following starting points:
45.With no mitigating factors except for her pleas of guilty, which reduce her sentences by one-third, her sentences are as follows:
47.D2’s eventual sentence is 26 months.
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Cases cited in this judgment
Further hearings and rulings under DCCC 366/2012