HKSAR v. Ho Ka Yee and Another

DCCC 340/2013

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 340 OF 2013

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Reasons for Sentence

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1.D1, you have pleaded guilty to two charges.

2.The 1st charge is that of theft, contrary to section 9 of the Theft Ordinance.  You have admitted that on 22 January 2013, together with a person unknown, you stole three credit cards, the property belonging to a William Lo. 

3.The second charge is one of attempting to obtain property by deception, contrary to section 17(1) of the Theft Ordinance, Cap.210, and section 159G of the Crimes Ordinance.  You admitted on the same date, 22 January 2013, at a shop at City Landmark I in Tsuen Wan, you attempted to obtain three taels of cordyceps (which are the goods) by using a stolen credit card.

4.In respect of D2, you have pleaded guilty to one charge of handling stolen goods, contrary to section 24 of the Theft Ordinance.  You admit that on 22 January 2013, you dishonestly received two Rolex watches, knowing the same to be stolen goods.

5.This is one of those cases where a diner was dining in a restaurant, in so doing he hung his jacket on the back of his chair.  Not long after he noticed that his wallet was missing and within minutes of the wallet going missing his stolen credit cards were used to purchase valuable goods.

6.Turning to the facts of this case.  On 22 January 2013 at about 1 pm, William Lo went to have lunch with a colleague at a restaurant in L’Hotel Nina in Tsuen Wan. He had checked, before entering the restaurant, that his wallet was in the inside left pocket of his jacket. On entering the restaurant, he hung his jacket on the back of the chair he was sitting on.

7.At about 1.30 pm, he checked his jacket again and found that his wallet containing his three credit cards had been stolen. 

8.At 1.26 pm, D1, you were in a shop called the Hing Kee Java Edible Bird’s Nest Limited in Landmark I, using Mr Lo’s Standard Chartered credit card, attempting to purchase the three taels of cordyceps, which is Chinese medicine, valued at $45,096.

9.When you presented Mr Lo’s VISA card to the saleslady for payment, she asked you for your ID card so she could process your membership for you.  However, you suddenly took out your mobile phone, which did not ring, and spoke into the phone.  You then told the shopkeeper that you would be back later to make the purchase and left the shop.

10.In the meantime, police officers had, in fact, been observing you from about 12.25 pm that day.  When you left the shop, they arrested you and, upon search, Mr Lo’s stolen VISA card was in your handbag.

11.As for D2, on that day at about 1.25 pm the other two credit cards of Mr Lo’s (that is, the MasterCard and a VISA card issued by HSBC) were used to purchase two Rolex watches at a cost of each watch at $51,500 and $86,000.  In total therefore, of $137,500 from a jewellery shop located on Chung On Street, Tsuen Wan, also in the vicinity of the L’Hotel Nina.

12.The purchase of these goods with the credit cards belonging to Mr Lo was made by another male.

13.Shortly after the purchase, at about 1.45 pm, less than 20 minutes later, you were arrested by a police officer outside No.49 Chung On Street.

14.Upon searching you, the two Rolex watches which were purchased using the stolen credit cards were found in the right inside pocket of the jacket you were wearing.

15.I have listened to and considered the detailed mitigation put forward by both the 1st and 2nd defendants’ counsel:  Mr Boey Chung for the 1st defendant and Mr Oliver Davies for the 2nd defendant.

16.D1, you have three previous convictions, one similar for attempting to obtain property by deception.  You are 49 years of age, are a divorcee and have two grown-up children.  You live alone.  You work as a waitress and contributed $2,000 a month to your 76-year-old mother.

17.Mr Chung has mitigated that you were not the ringleader in this enterprise.  You were just a foot-soldier who was used to purchase the goods using the stolen credit cards.  You were recruited for the present offence and you were promised to be paid a fee of about $1,000.  You had committed this offence as you were out of work and, as Chinese New Year was coming up, you were in financial difficulty.

18.He brings to my attention that you have pleaded guilty to save the court time and recognises that for the theft charge it was a theft by pickpocketing. 

19.Mr Chung had yesterday mitigated that forged credit cards calls for a heavier sentence than stolen credit cards. 

20.However, having adjourned for sentence until today, Mr Chung came back today with authorities to say that that was not the case. He recognises that in HKSAR v Wong Wan Shan, CACC 9 & 10/2002, and CACC 11/2011, HKSAR v Ho Chi Shing, that the court sentences on credit card frauds taking into account the factors as laid down in Chan Sui To.

21.I expressed surprise to Mr Chung at how these cases were not given to me yesterday and only today, effectively after mitigation was concluded.

22.In respect of D2, he is 52 years of age, married with two daughters.  He has 25 previous convictions, all in respect of dishonesty offences:  18 of which are for obtaining property by deception; three for theft, one of which was for pickpocketing; two for robbery and one for burglary.  He is self-employed, engaged in the resale of dried seafood. 

23.In respect of the handling of the stolen goods, Mr Davies accepts that D2 knew that the watches were purchased using stolen credit cards and that he just wanted the watches for his own use because of the cheap price.

24.Further, Mr Davies is suggesting to the court that the defendant is not a persistent offender despite his record, as the offences were not committed close in time to one another.  He distinguishes the two as he submits that the defendant is a repeat offender but not a persistent offender.

25.I have rejected both instances of mitigation.

26.I rejected his mitigation that these were watches for his own use at a cheap price.  I informed Mr Davies of that during his mitigation.

27.In respect of the defendant not being a persistent offender, I shall refer to that later in my reasons for sentence.

28.In sentencing for credit card frauds, the sentencing judge will need to consider the factors set out in Chan Sui To [1996] 2 HKCLR 128. 

29.The factors to take into account are:

(1) “the size of the operation, i.e., whether it involves large sums of money, whether it concerned a large number of persons or forged credit cards;

(2) the planning that has gone into perpetrating the fraud, whether it is elaborate or simple, whether technical skills were used, and to what extent;

(4) whether the accused played a major role e.g. running a syndicate ... or whether he was a mere “cog in the

wheel”.

30.These factors which the court bear in mind are not intended to be an exhaustive list. 

31.Whilst Chan Sui To was a case of forged credit cards, this was to apply to credit card frauds generally, as can be seen in the factor “(1) or forged credit cards”, so this is not restricted to forged credit cards.  There, therefore, appears to be no material difference between using a forged credit card and a stolen credit card. 

32.In both cases, the use undermines the integrity of the credit card system.  That can be seen in HKSAR v Wong Wan Sjan, CACC 9&10/2002, a case concerning stolen credit cards; also seen in HKSAR v Ho Chi Shing, CACC 11/2011.  In both those cases which involve stolen credit cards, Chan Sui To was referred to. 

33.Wong Wan Shan is a case of stolen credit cards with similarities with the present case.  Jackets were hung on the back of the chairs in the restaurants, the credit cards were stolen along with the wallets from the jackets.  Within a very short time, the credit cards were used to purchase goods within minutes, as was with this case. 

34.In the present case, within minutes of D1 stealing the credit cards, they were used by her and another person.  The goods purchased with the stolen credit cards were then almost immediately passed onto D2.

35.The evidence shows that the defendants and the unknown person who purchased the Rolex watches are closely connected.  This is clear to me that this is a syndicate involved in stealing credit cards and purchasing goods.

36.Although D1 and D2 played somewhat different roles, each played an active and important role in the fraud:  D1 had stolen the credit cards and used them; D2 received the goods purchased by the stolen credit cards. 

37.I am well aware that the charges the defendants have pleaded guilty to are different:  D2 has pleaded guilty to handling stolen goods whilst D1 to theft of the credit cards and attempting to obtain property by deception.

38.I am, however, satisfied that, on the facts of this case, no material distinction should be drawn in the sentence by reason of their differing roles. 

39.I quote from paragraph 21 of Wong Wan Shan:

“It is clear from the facts that he must have been acting in concert with others as part of an accomplished thieving syndicate operating throughout Hong Kong; one that was targeting seemingly prosperous men and using their stolen credit cards to purchase high-value items which could be easily fenced. The speedy way in which the obtainings followed the thefts permits of no other inference. On the facts of DCCC 663/2001, it would be naïve in the extreme to think that the Applicant was not closely involved in the thefts of the three victims’ credit cards. We are not dealing with a case where the accused knowingly used the stolen credit card to purchase goods, but had nothing to do with the original theft.”

40.The facts, as I mentioned in the present case, show that these two defendants were acting in concert with others as part of an accomplished thieving syndicate:  D1 stealing and using the card to purchase goods; D2 to receive the stolen goods.

41.In respect of handling stolen goods, it is clear, without peddlers, there may not be thieves.  For this reason, the maximum sentence of handling stolen goods is greater than that for theft:  14 years’ imprisonment as opposed to 10 years’ imprisonment.

42.The facts in the present case show one course of criminal conduct.

43.In dealing with D1, the facts show that this was a theft by pickpocketing.  Sentencing principles for thefts by pick pocketing is clearly set out by the Court of Appeal in Ngo Van Huy, where the guideline sentence for a defendant after trial for a first-time offender is one of between 12 and 15 months’ imprisonment.

44.The Court considered a number of aggravating features in paragraph 9(4), the one applicable in this case for the 1st defendant is that the defendant committed the offence in conjunction with another, in the circumstances the sentence should be enhanced.

45.In respect of the attempting to obtain property by deception, I take into regard the factors laid out in Chan Sui To. At para 14 of Chan Sui To, the court said,

“In considering whether large sums of money were involved, we would suggest that, at the present cost of living, amounts up to $50,000 may be considered relatively small, amounts from $50,000 to $150,000 medium, and amounts above that may be considered large.”

46.Turning now to D2, as I said, I reject Mr Davies’ submissions that the defendant was not a persistent offender.  The defendant had 25 previous convictions.  All of these were for dishonesty.  I have stated above what they were all for.  I do not accept the fact that because the offences have been committed far apart from each other that he is not a persistent offender.  The case of HKSAR v Kwan Po Keung, CACC 79/2011, sets out clearly a persistent offender is someone who has many previous convictions or one with an appalling criminal record.

47.The defendant does have an appalling criminal record.  On that basis the sentence should be enhanced. The cases that I have mentioned earlier of Ho Chi Shing and Wong Wan Shan have also given me guidance and assisted me in considering what is the appropriate sentence to pass upon these defendants.

48.I note, in respect of D2 being a persistent offender, he committed this present offence within a year of release from prison in respect of his other offences.

49.Taking into account all these factors, defendants, I sentence you as follows.

50.For D1, on the charge of theft, had I convicted you after trial, I would have taken a starting point of 12 months’ imprisonment.

51.The aggravating feature in this case was that you committed the theft in conjunction with another and I enhance that by 3 months, making the total of 15 months’ imprisonment.

52.Giving you full credit for your plea of guilty, I reduce that term to one of 10 months’ imprisonment.

53.For Charge 2, on the attempting to obtain property by deception charge, had I convicted you after trial, I would have sentenced you to 36 months’ imprisonment.

54.Giving you full credit for your plea of guilty, that term shall be reduced to 24 months’ imprisonment.

55.I consider that these sentences should be served partly consecutive, partly concurrent. I have taken into account the principle of totality and I order 4 months of Charge 1 to run consecutive to that of Charge 2, making your total term of 28 months’ imprisonment.

56.As for D2, in respect of Charge 3 of handling stolen goods, had I convicted you after trial, I would have taken a starting point of 24 months’ imprisonment.  As I mentioned, an aggravating factor is your appalling criminal record and an enhancement of 6 months’ imprisonment should be given above that.

57.That makes a total of 30 months’ imprisonment, had I convicted you after trial.

58.Giving you full credit for your plea of guilty, that term shall be reduced to 20 months’ imprisonment, which is 1 year 8 months to which you shall be so sentenced.