HKSAR v. KWOK HO KEI

DCCC 124/2015

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 124 OF 2015

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Reasons for Sentence

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1. The defendant has pleaded guilty to five offences of fraud and one offence of theft.

2. The charges relate to the defendant’s obtaining and use of, in total, 11 credit cards in the names of other persons.

3. The defendant had been working as a clerk at Leads Cleaning Services Company since December 2012.  She was responsible for clerical work and recruiting part-time cleaning workers, which allowed her access to the personal data of the part‑time workers.

4. The credit card applications made by the defendant relate to two of those workers, PW1 and PW2.  They had been hired as part‑time workers since February 2013, and in order to obtain the jobs they were required to submit copies of their Hong Kong identity cards, utility bills, as address proof, and bank statements, for the purpose of salary payments.

5. The defendant applied for credit cards in the names of both the 1st and 2nd prosecution witnesses.  PW1 discovered that when she updated her passbook in December 2013 and found that a transfer of $1,000 was used to settle a credit card payment.  She later found that a total of nine credit cards had been obtained in her name with Standard Chartered Bank, Bank of East Asia, and American Express.  The charges to which the defendant has pleaded guilty relate to five of those cards, so the other cards are ignored for the purposes of sentencing.

6. As far as the 2nd prosecution witness is concerned, there were two credit cards with the Bank of East Asia.  Various documents were used in support of the credit card applications.  There were salary payment records by Leads Cleaning and copies of the relevant Hong Kong identity cards.

7. As far as the credit cards that were in fact used were concerned, there were various transactions and cash advances made between August 2013 and June 2014.  The transactions for cash advances involved the use of credit cards in PW1’s name, and those relate to Charges 4, 5, 6 and 8, amounting to $51,253.11 in total; whilst the use of credit cards in PW2’s name - that is, on Charge 7 - amounted to $12,133.31.  There was a total of $61,494.40 of that total remains unsettled.

8. In respect of the seven credit cards, the charges concerned were credit limits of up to $11,000.

9. The defendant was eventually arrested on 29 August 2014.  She made a video‑recorded interview.  She admitted she had used the personal data of PW1 and PW2 from Leads Cleaning to apply for credit cards.  She submitted copies of the Hong Kong ID cards of PW1 and PW2 and their utility bills in support of the applications.  She had actually used the credit cards for purchasing daily necessities and food and to buy electronic products which she subsequently resold.  She had used the credit cards in conjunction with her Octopus card so there would be credit to her Octopus card; and in relation to the 10th charge, she had transferred 1,000 from PW1’s savings account to settle the credit card payment.

10. Those facts are admitted, and I convicted the defendant in respect of the charges to which she pleaded guilty.

11. As far as her antecedents are concerned, she is now aged 36 years old.  She is married.  I understand she has a son by an earlier relationship who is aged 17.  She has had various employments and was working as a clerk at a cleaning company on arrest.  The information supplied by the defence says that she in fact had two jobs of that nature at the time of her arrest.  She was also working for Tak On Cleaning Services Company Limited, who have submitted a letter in respect of her.

12. She has some 13 previous court appearances.  She has a history of drug abuse, and has been convicted of possession of dangerous drugs and sentenced to both drug addiction treatment centre and imprisonment, and most recently, in 2010, to 24 months for trafficking in dangerous drugs.  In 2007 she had a number of convictions relating to theft and obtaining by deception.  They are of course relevant, but now are of some age.

13. As far as the case itself is concerned, it involved the obtaining and use of seven credit cards in the names of other people, and also one offence of theft relating to transfer of money, and it does involve a breach of trust in relation to her position in the company, and the total amount of moneys obtained is $51,000-odd in respect of PW1’s name and $12,000‑odd in respect of PW2’s name.

14. Although these are not forged credit cards or stolen credit cards, they are credit cards obtained by fraudulent means, and I consider that the guidelines for sentencing in respect of credit card fraud are appropriate to these offences, and there is a guideline sentence in respect of simple, small‑scale use of forged credit cards, for which a sentencing tariff of 3 years’ imprisonment or less is said to be appropriate.  In the case of HKSAR v Tu I Lang CACC 464/2006, it was said:

“Where the facts of the offence point to a small, unsophisticated operation involving only one or a few forged cards, uncomplicated by other evidence linking the defendant to a larger operation, then a starting point of 3 years’ imprisonment or less would be appropriate.”

15. In HKSAR v Lam See Chung Stephen [2013] Hong Kong Court of Appeal page 45, the Court of Appeal said:

“These sentencing principles and considerations are equally applicable to credit card fraud offences in which genuine credit cards are used. We can see no good reason why the 3-year starting point for simple cases of counterfeit credit card fraud should not also apply to simple cases of credit card fraud where stolen genuine credit cards are used to commit the offence.”

16. It would appear then that that would be the correct guideline sentence to adopt in respect of the credit card offence, fraud offences using credit cards, in this case.

17. Although the defendant has previous convictions for dishonesty, I do not see them as an aggravating factor in respect of these particular offences, given the length of time since they were committed.

18. In respect of offences 4, 5, 6, 7 and 8, I will take a starting point of 3 years’ imprisonment and reduce that to 2 years’ imprisonment for the defendant’s plea of guilty.

19. As far as the 10th charge is concerned - that is, the offence of theft - I will take a starting point of 18 months’ imprisonment and reduce that to 12 months’ imprisonment for the defendant’s plea of guilty.

20. Having regard to the overall totality of sentence, and given the number of cards and the amounts of money obtained, I think it can still be described as a simple, small‑scale use.  I believe that the overall totality of sentence can be adequately recognised if all the sentences are made to run concurrently, giving a total of 2 years’ imprisonment for this set of offences, and that will be the sentence.