HKSAR v. Yung Wai Kin

DCCC 518/2015

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 518 OF 2015

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REASONS FOR SENTENCE

1.Yung Wai Kin you have pleaded guilty to one charge of theft; thirteen charges of obtaining property by deception and four charges of obtaining services by deception, contrary to sections 9, 17 & 18A of the Theft Ordinance, Chapter 210.

2.Full details of the offences are set out in the facts admitted by you today.  In summary in November last year you stole your elder sister’s credit card and then over a period of 10 days used the card on seventeen occasions to obtain goods and services to the total value of $23,994.32.

Mitigation

3.In passing sentence I take into account everything said on your behalf by Ms Cheng including the circumstances leading to you committing the offences.  At the time you were living with your family but were not in good relations with them.  You were desperate to leave home however your income from working at 7-Eleven was insufficient for you to rent your own premises.  When you saw the card you decided to take the card and use the card to obtain some goods.  I am told you are remorseful and whilst on remand wrote to your family offering to repay by instalments however your family never responded to your offer.

4.Ms Cheng submits this is a breach of trust case in that you stole your sister’s credit card and therefore the court should be guided by the tariff applicable in breach of trust cases as stated in HKSAR v Cheung Mee Kiu [2006] 4 HKLRD 776.  Whilst one should always be able to trust family members I disagree this is a breach of trust case (see HKSAR v Lam See Chung Stephen [2013] 5 HKLRD 242 at paragraph 41). 

5.This is a credit card fraud for which the courts have repeatedly stressed that deterrent sentences are to be imposed.  The factors which a sentencing judge will need to consider in credit card frauds are 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.   

6.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 a stolen credit card, just like using a forged 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.”

7.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 for example HKSAR v Tu I Lang CACC 464/2006).  In HKSAR v Lam See Chung Stephen the Court of Appeal held that the starting point of 3 years imprisonment or less for simple cases of counterfeit credit card fraud also applied to the fraudulent use of stolen genuine credit cards.

8.Each case must however be decided on its own facts and circumstances.  This requires consideration of individual justice (see HKSAR v Leung Pui Shan CACC 317/2007 and HKSAR v Yeung Kwun Kuen CACC 475/2012).  Unlike the applicants in Leung Pui Shan and Yeung Kwun Kuen you cannot be given credit for a clear record having been sentenced to 32 months imprisonment for robbery in 2009.

9.I am satisfied there are no exceptional circumstances to depart from the guidance given that a deterrent sentence is to be imposed for credit card fraud.  I am satisfied that the circumstances are very different to those in Leung Pui Shan and Yeung Kwun Kuen.

10.Taking into account that only one card was used and the value of the goods and services obtained I am satisfied that a starting point after trial of 12 months imprisonment is appropriate for the theft of the card; 3 years imprisonment for each use of the card where the goods and services obtained were valued at over $1,000; 18 months imprisonment where the value of the goods and services obtained was between $100 and $1,000; and 12 months imprisonment where the value of the goods and services obtained was less than $100. 

Sentence

11.Giving you full credit for your pleas of guilty you are convicted and sentenced as follows:

Charge 1 – 8 months imprisonment;

Charges 3, 4, 6 & 7 – 2 years imprisonment on each charge;

Charges 2, 5, 8, 9, 10, 11 & 13 – 12 months imprisonment on each charge; and

Charges 12, 14, 15, 16, 17 & 18 – 8 months imprisonment on each charge.

Totality

12.Although the card was repeatedly used over a period of 10 days taking into account the circumstances of the offences and that the total sum obtained was just less than $24,000 I am satisfied concurrent sentences are appropriate.  The total sentence to be served by you is therefore one of 2 years imprisonment.