HKSAR v. MARTINEZ LEONOR ROCERO

DCCC 356/2013

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 356 OF 2013

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Reasons for Sentence

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1.  Defendant faced 14 charges of obtaining property by deception and also 2 charges of attempting to obtain property by deception.

2.  The facts were that between 19 to 24 November 2012 defendant had been on 16 different occasions using a credit card in the name of Lily Zenaida Chan to purchase various items and properties including gold bars, wrist chains, handbags, iPhones, toys and garments in different companies, from which the total value was about 1.3 million.  It was only at the last occasion on 24 November 2012 when the defendant presented the same and said credit card at Chow Tai Fook Jewellery located in Causeway Bay to purchase gold bars valued at about 240,000, that the transaction was not successful as it was unauthorized, and the matter was then reported to the police. 

3.  Police came and arrested the defendant at the scene for using a false instrument.

4.  From the defendant, it was also found from her another receipt from Chow Tai Fook Jewellery for the amount of about $289,000 and also an international driving licence in the name of Chan Lily Zenaida but bearing defendant’s photo.

5.  Movement record also revealed that the defendant had been in and out from Hong Kong to Philippines between the above said periods twice.

6.  By checking the credit card transactions, the above other 15 occasions were discovered.  Some CCTV footage from the related shops also captured the defendant making purchases at the material time. The staff from 4 different shops also positively identified the defendant.

7.  In the video-recorded interview defendant admitted having used the said credit card to make the above purchases.  The card was given by a friend of her boyfriend.  Defendant would receive 10% of the value of the goods purchased.  Defendant did not know the real cardholder and she did not even know whether the card was real or not.  In fact, she did not have any driving licence.  She just gave her photo to make the said driving licence for the purpose of pretending herself to be the genuine cardholder. 

8.  Defendant had received 200,000 Philippine currency for previous transactions for repaying debts.  That was about HK$ 30,000 odd. 

9.  It was also admitted that the genuine cardholder had never lent the card to anyone and it expired in October 2012, and she did not receive any renewal card.  However, she did receive calls, whom claimed to be staff of the bank, and inquired her of her personal particulars.  It was also confirmed that the renewal card was in fact sent by post to her address in Philippines which was later being activated and the credit limit was HK$600,000, and there were subsequent calls to the bank for transferring totalling HK$450,000 to the account of the card.

10.  Defendant is aged 31 and has a clear criminal record.

11.  Mr Tse submits that she has a daughter of about 15 years old who depends solely on her.  She operates a grocery shop in Philippines earning about HK$1,000 per month.  As she needs more money to support the family, she starts to get it from the loan shark which eventually turning towards herself to take part in the present perpetuation.

12.  Mr Tse further submits that the defendant was not the mastermind and she did not even know whether the card was genuine.  Other than the 2 unsuccessful attempts, the total value was roughly $1 million.  By pleading guilty, it saves a lot of court’s time and costs and therefore defendant begging for leniency.

13.  Obtaining property by deception through using other person’s credit card is a serious offence.  In R v Chan Siu To [1996] 2 HKCLR 128, it laid down various factors for sentencing including the size and planning of the operation, whether there is any international dimension and the role played by the defendant.  The court also stated that for an accused who played an active but not necessarily a key role in a medium-size operation involved between $50,000 and $150,000 with no elaborated planning and without an international dimension should receive a sentence of 5 to 6 years after trial.  Sentence may be adjusted upward or downward, according to circumstances.

14.  In another Court of Appeal case, HKSAR v Tu I Lang CACC464/2006, the Court of Appeal stated that where the facts of the offence point to a small unsophisticated operation involving only one or a few forged cards uncomplicated by other evidence materially linking the offence to a larger operation, then a starting point of 3 years’ imprisonment or less would be appropriate.

15.  For the present case, it involves altogether 16 transactions in different companies, involving a total amount of about $1 million.   The defendant was also in possession of an international driving licence in the name of the genuine cardholder but bearing her photo, pretending herself to be the cardholder in case when identity is in question.  This was of course a serious circumstance.

16.  The defendant had been in and out from Hong Kong to Philippines for delivering the goods as well, and so it certainly involved an international dimension.  However, it appeared the defendant was not the mastermind but being used also as a courier.

17.  Taking into account all the circumstances, I assess that for each offence, 3 years’ imprisonment is an appropriate starting point, to be reduced to 2 years upon guilty plea.  On totality principle, for all 16 charges, I assess that an overall sentence of 5 years, that is 40 months’ imprisonment upon guilty plea may be appropriate.  I therefore order that:

Charges 1 to 16: each 2 years’ imprisonment, other than Charges 5 and 16, all be run concurrently.

Charges 5 and 16: concerning attempting charges, that shall also be run concurrently, but 16 months of which be made consecutive to all other offences, which make a total of 40 months’ imprisonment.

18.  So, defendant, for all 16 charges, is sentenced to 40 months’ imprisonment.