HKSAR v. Tsang Tak Wa

DCCC 92/2015

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 92 OF 2015

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REASONS FOR SENTENCE

1.The defendant faces 1 charge of "Theft" (Charge 1), 2 charges of "Obtaining property by deception" (Charges 2 and 3) and 1 charge of "Attempting to obtain property by deception" (Charge 4). He pleaded guilty to all 4 charges. He used a credit card belonging to another person to purchase consumer goods at retail shops.

Summary of Facts

Background

2.Some time between 6:00 pm on 6 September and 5:00 pm on 7 September 2014, Madam YU (PW1) lost her HSBC Premier Master Card ("the Card").  About 5:00 pm on 7 September, PW1 received a phone message informing her that there was a transaction involving the Card at        4:47 pm that day.  She checked her belongings and found the Card missing.  She informed the Police and called the card centre to suspend the Card.

Charge 4

3.About 5:20 pm on 7 September 2014, the defendant was seen by the Police acting suspiciously when making payment at the IFC Apple Store in Central.  He tried to purchase 2 iPhones and 2 iPad Minis (total value in the sum of $19,789.36) using the Card.  The transaction was unsuccessful.  He then bought 1 iPad Mini with cash instead.

Arrest of the defendant

4.When the defendant came out of the IFC Apple Store, the Police intercepted him.  Upon search, he was found in possession of :-

(i) the Card;

(ii) 2 bottles of shampoo marked "Bonjour" (collectively P1);

(iii) a sales slip issued by the Hysan Place Apple Store in Causeway Bay for the purchase of the products particularized in Charge 3 using the Card; and

(iv) the Apple products particularized in Charge 3 (collectively P2).

5.Upon enquiry, the defendant told the Police that he found the Card on the street near Lee Garden, Causeway Bay around 1:00 pm on 7 September (Charge 1).  Out of greed, he used the Card to purchase 2 bottles of shampoo (total value in the sum of $174.60) from Bonjour[1] (Charge 2); and 4 products (namely P2; total value in the sum of $18,952) from the Hysan Place Apple Store (Charge 3).  He also revealed that he later went to the IFC Apple Store trying to purchase more products with the Card, but the transaction was unsuccessful.  He therefore bought 1 iPad Mini with cash in order to avoid suspicion.

6.Under caution, he admitted having committed the offences in Charges 1 to 4.

7.The sales transactions in relation to Charges 2 to 4 were subsequently confirmed to have taken place.  The transaction time was respectively 4:37 pm, 4:47 pm and 5:17 pm on 7 September. CCTV footage of the 3 retail stores captured the defendant making the respective purchases at the relevant time.

Mitigation & Sentence

8.The defendant is 43 and resides with his father (aged 80).  He has 1 conviction record, which was "Handling stolen goods" dated 2009 (he was given a suspended sentence).  Defence counsel Mr. WOON informed me that the defendant is a decoration worker earning $20,000 per month.

9.In mitigation, Mr. WOON submitted that the credit card involved in this case is a genuine (but lost) credit card; no one used any counterfeit cards.  The defendant picked up the Card from the street in Causeway Bay.  The nature of Charge 1 is only "theft by finding". Regarding Charges 2 to 4, Mr. WOON submitted that all properties were recovered; no one suffered any loss.  Furthermore, the defendant has been cooperative with the Police throughout and has indicated his willingness to plead guilty to the charges as early as in the magistrates' court.

10.Credit card offences are serious and must be deterred.  In HKSAR v CHEN Wing Hong CACC 40/2005, the Court of Appeal observed that "… in this day and age the integrity of the credit card system is highly important and those who attempt to beat the system by fraudulent methods necessarily erode the confidence which people are entitled to place on this aspect of modern commercial life."[2]  A clear message must be conveyed to the general public that "credit card fraud" is a serious crime and that offenders would be punished by a substantial prison term.

11.In HKSAR v Tandon William CHAING CACC 404/2012, Macrae J (as he then was) endorsed a starting point of 3 years' imprisonment for the unauthorized use of 1 credit card belonging to another person on a single occasion in order to obtain jewellery and watches which valued $56,116 in total.[3]

12.In the present case, the defendant used and tried to use the Card to obtain consumer goods (mainly brand-name electronic products) with a total value of close to $39,000.  In the absence of any evidence to the contrary, I accept that the defendant might have found the Card on the street and became greedy; and that he might have acted alone with no credit card fraud syndication behind.  I have also borne in mind that no one has suffered any financial loss.

13.On this basis, I consider 2.5 years' imprisonment to be the appropriate starting point for Charges 2 to 4 each.  A one-third discount is given for the guilty pleas, reducing the sentence to 20 months for each charge.  Apart from this, I see no other mitigating factors which warrant any further reduction.

14.For Charge 1, I adopt a starting point of 9 months' imprisonment.  With the guilty plea, the sentence is reduced to 6 months.

15.In a way, Charges 1 to 4 seem to be arising from the same incident.  On the other hand, the defendant's repeated use of the Card (albeit within a time span of less than an hour) constitutes an aggravating factor.  Moreover, had PW1 not been alerted of the unauthorized use of the Card and reported the matter to the card centre, the potential loss could have been as high as the Card's purchase limit ($96,000).  Having considered the totality principle, I order the sentences to run in the following manner :-

(i) 2 months in Charge 1 consecutive to Charge 2;

(ii) 1 month in Charge 3 consecutive to Charges 1 and 2; and

(iii) 1 month in Charge 4 consecutive to Charges 1, 2 and 3.

Thus, arriving at a total prison term of 2 years.