HKSAR v. Yip Kai Nam, Alex

DCCC 1183/2012

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 1183 OF 2012

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REASONS FOR SENTENCE

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1.The defendant pleads guilty to three charges of theft, contrary to section 9 of the Theft Ordinance, Chapter 210 and twenty seven charges of attempted theft, contrary to section 9 of the Theft Ordinance and section 159G of the Crimes Ordinance, Chapter 200.

2.In summary the defendant was working as a bartender at “The Fringe Club” in Central when he recorded the particulars of thirty four different credit cards used by customers of the club.  Between the 28th June and the 31st July last year the defendant used the particulars of eighteen of the cards to buy goods on line from Apple Asia Limited and on the telephone from Watson’s Wine. 

3.Three transactions were successful from which the defendant obtained two mobile phones from Apple valued at $13,376 and one bottle of whisky from Watson’s Wine valued at $4,800.  Twenty seven transactions were unsuccessful when the defendant attempted to buy more mobile phones, accessories and Macbook computers from Apple and more whisky from Watson’s.  The total value of the goods subject of these transactions was $274,424.

4.The defendant was arrested on the 2nd August and under caution admitted his involvement in obtaining the credit card data and using the data to obtain goods from Apple and Watson’s.  The defendant said he acted under the influence of a colleague called Raymond.

5.I have carefully considered everything said on behalf of the defendant by Mr Kwan together with the mitigation letters from the defendant, his family and his former employers.  I take into account the young age of the defendant and that he has a clear record. 

6.Although charged as theft and attempted theft this is a credit card fraud, the defendant having stolen the credit card data from customers of the club and then used the data to obtain goods.  In passing sentence I take into account the factors which a sentencing judge will need to consider in credit card frauds as set out by the Court of Appeal in R v Chan Sui To [1996] 2 HKCLR 128, including the size of the operation; the planning that had gone into perpetrating the fraud; whether there is an international dimension; and whether the accused played a major role.  The factors were not intended however to be exhaustive but provide valuable assistance to the court.  The courts have repeatedly stressed that deterrent sentences are to be imposed. 

7.Whilst Chan Sui To was a case concerning forged credit cards the factors apply to credit card frauds generally and are not restricted to forged credit cards.  Using the data from credit cards, just like using a forged credit card or a stolen credit card, undermines the integrity of the credit card system.  As was said in HKSAR v Wong Wan Shan CACC 9 &10/2002, a case concerning stolen credit cards:

“This court has said, on many occasions, that credit card frauds are an insidious poison in the community; one which affects a large number of citizens and erodes the credit card system, and also damages Hong Kong's standing in the international community. This court has also said that those who engage in it can expect to be dealt with severely by the courts.”

8.Where the facts of the offence point to a small unsophisticated operation, involving one or a few forged cards uncomplicated by other evidence materially linking the offender to a larger operation, a starting point of 3 years or less may be appropriate (see HKSAR v Tu I Lang  CACC 464/2006 and HKSAR v Wong Chin Hang CACC 409/2008). 

9.The present case is in my view not a small operation, involving one or a few forged cards.  Albeit unsophisticated the defendant nevertheless obtained the details of thirty four credit cards from customers of the club, eighteen of which were used.  No doubt had the police not arrested the defendant he would have continued to try use the data his last attempt being only two days before he was arrested. Clearly the potential for loss was substantial, however I do take into account the vast majority of transactions were unsuccessful. 

10.The defendant being young and before the court for the first time I  have borne in mind all that said by the Court of Appeal in HKSAR v Leung Pui Shan[2008] HKC 241 of the need for individual justice.  In my view both the circumstances of the offending and of the defendant are very different to those in Leung Pui Shan.  I am satisfied the only appropriate sentence is one of immediate imprisonment.

11.In all the circumstances I am satisfied the proper starting point after trial is 3 years imprisonment on each charge.  I am further satisfied that an overall starting point of 4 years imprisonment is appropriate, which properly reflects the defendant’s criminality on all charges.  Giving the defendant full credit for his pleas of guilty would reduce the overall sentence to 2 years and 8 months imprisonment.

Restitution

12.In HKSAR v Wong Mei Heung CACC 273/2010 the Court of Appeal reaffirmed the principle that voluntary restitution is to be encouraged and is to be regarded as a mitigating factor.  The amount of discount will depend on the circumstances of each case.  The defendant having now fully compensated both Apple and Watson’s I reduce the overall total sentence by 4 months imprisonment thereby making a total sentence to be served by the defendant of 2 years and 4 months imprisonment.

Sentence

13.Giving the defendant full credit for his pleas of guilty he is convicted and sentenced as follows:

Charges 1, 2, & 4-27 - 2 years imprisonment concurrent; and

Charges 3, & 28-30 2 years imprisonment concurrent of which 4 months is to be served consecutively to charges 1, 2, & 4-27 and 20 months concurrent.

The total sentence to be served by the defendant is 2 years and 4 months imprisonment.