HKSAR v. MAK WING LUNG AND OTHERS

DCCC 470/2016

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 470 OF 2016

-----------------

-----------------

-------------------------------------

REASONS FOR SENTENCE

-------------------------------------

Charges

1.  There are three defendants, D1 to D3, and five counts.  Charge 1 is attempting to obtain property by deception.  Charge 2 is obtaining property by deception.  Charge 3 is using a false instrument.  Charge 4 is possessing false instruments and Charge 5 is theft.

2.  The first four charges are related to credit card fraud.  The other Charge 5 is about D3 stealing a genuine credit card from a civilian.  That stolen card was used for the commission of Charge 1 by the gang involving D1 to D3.

3.  Charges 1 to 3 are against D1 to D3 while Charge 4 and Charge 5 are against D3 only.

4.  In Charges 1 to 4, there is an accomplice called Chung Hon Wah (“Chung”).  Chung is the sole defendant in another case, DCCC123/2016.  Chung faces four counts in that case.  Those four counts correspond to Charges 1 to 4 in the present case.

5.  In that other case, ie DCCC123/2016, Chung pleaded guilty to Counts 1 to 3.  Count 4 is left on file.  Chung has indicated that he would evidence against D1 to D3 in the present case should the trial proceed.  Because of that reason, Chung is dealt with separately, he is to be sentenced later. 

6.  In the present case, D1 pleads guilty to Charge 1 and Charge 3; his Charge 2 is left on file.  D2 also pleads guilty to Charge 1 and Charge 3; his Charge 2 is left on file.  D3 pleads guilty to Charges 3 to 5; his Charge 1 and Charge 2 are left on file.

Facts

Four as a gang

7.  D1 to D3 and Chung were a gang of credit card fraud.  There was division of labour among them.  D2 drove the gang to the shopping destination.  D3 held, supplied and distributed the cards.  He recruited people like Chung to make purchase in shops with unauthorised credit cards.  D1 acted as lookout.  He would warn his accomplices if Police were coming. 

Charge 3

8.  On 29 September 2015, D1 to D3 and Chung teamed up.  D2 drove all to Tsuen Wan.  Inside the car, D3 took out six credit cards and gave two to Chung.  D3 instructed Chung and D1 to try to purchase goods at a sportswear shop.  D1 and Chung then used one of those two cards to buy a pair of sports shoes for $1,600. (I call this forged credit card Card 5 according to the order as particularised in Charge 4.) Afterwards Chung gave the two cards back to D3. 

Charge 5

9.  On the same day, ie 29 September 2015, in the afternoon, one Madam Tam went shopping in Tsuen Wan.  She paid for some purchased goods with her credit card. (I call this card Card 7 after the six forged credit cards named in Charge 4.) While the shopkeeper was processing Madam Tam’s purchase, D3 approached the shopkeeper and requested to see some goods.  D3 soon left but before that he somehow took away Madam Tam’s credit card. 

Charge 1

10.  After D3 had stolen Card 7, he gave it to Chung.  D3 asked Chung to make purchase in a nearby branch of Chow Sang Sang Jewellery Company Limited.  At the same time, D3 asked D2 to keep an eye on the cardholder, ie Madam Tam.

11.  At Chow Sang Sang shop, Chung attempted to use Card 7 to buy a gold necklace worth about $15,000.  D1 acted as lookout outside the shop.  At one point, D1 went inside the shop to alert Chung that Police were coming.  Chung then took back Card 7 and left with D1. 

Charge 4

12.  Police stopped the gang.  Chung had dropped Card 7 onto the ground.  Police retrieved this card. 

13.  In the gang’s car, Police found six forged credit cards. (I call them Cards 1 to 6 as particularised in Charge 4.) 

14.  Police also recovered from the car one of the four suitcases in relation to Charge 2 and that pair of sports shoes in relation to Charge 3. 

Cards 1 to 7

15.  Card 7 was a genuine credit card, it was stolen by D3 from Madam Tam in Charge 5. 

16.  Card 1 and Card 3 were complete counterfeits. Cards 2, 4, 5 and 6 were partial counterfeit.  Their card face was genuine but the data in the magnetic stripe was inconsistent with the card face. 

Records

17.  D1 is aged 31.  He had been convicted six times in court between 2000 and 2008.  Several convictions were related to dishonesty offences but none was for credit cards or forgery. 

18.  D2 is aged 51.  Between 1988 and 2014, he had four previous convictions relating to a number of offences, mostly dishonesty crimes.  The one in 1995 was for possessing a false instrument; the one in 2008 was attempt to obtain property by deception.  There were also a few thefts and one fraud conviction. 

19.  D3 is aged 30.  Between 2004 and 2016, he incurred five previous convictions.  In 2011, he was convicted of obtaining property by deception and handling.  His last conviction in March 2016 was related to driving offences.  He was given a total of 3 months’ imprisonment suspended for 2 years.  However, those suspended sentences were imposed only after the occurrence of the present case.  Thus D3 is not deemed as breaching those suspended sentences.

Mitigation

D1

20.  Counsel says D1 lives with his aged and fragile father and a pregnant girlfriend.  The girlfriend is to give birth next month.  D1 is the sole breadwinner for the family.  Counsel says D1 wanted to make quick money so he succumbed to other’s inducement, leading to his committing Charge 1 and Charge 3. 

21.  Counsel says the group’s criminal activity was not sophisticated.  It was not linked to any larger syndicate.  Nor was there any international dimension.  Counsel says D1 was not the mastermind of the gang.  He mainly worked as a lookout. 

22.  Counsel submits letters from D1 himself and his family members and his employer.  All plead leniency for D1.

23.  Counsel says the starting point for Charge 1 and Charge 3 should not be more than 3 years’ imprisonment.  She suggests that the two terms should run concurrently. 

D2

24.  Counsel says D2 has a wife and a young son.  At the time of the offence he was under financial pressure.  Counsel says D2 only acted as a driver.  He did not know how many cards were in other’s possession or to be used or the value of the goods to be bought. 

25.  Counsel agrees that the four acted as a gang was an aggravating factor.  However, the value of the goods purchased or attempted to be purchased was not great.  Nor was the potential loss.  Counsel suggests that the starting point for Charge 1 and Charge 3 in D2’s case should be around 3 years’ imprisonment.

D3

26.  Counsel says D3 lives with his parents and sister.  He owed some burden to the family at the time of the offence.  He was in financial difficulty. 

27.  Counsel admits that D3 played a more significant role in the gang but he was not the mastermind. 

28.  Counsel says the whole criminal operation should be regarded as a small-scale one.  Thus the starting point for Charge 3 and Charge 4 should be 3 years’ imprisonment, while that for Charge 5 should not be more than 12 months’ imprisonment.

29.  Counsel admits that Charge 5 is a separate offence from Charge 3 and Charge 4.  He, however, asks the court to consider the totality principle.  Counsel submits that the overall starting point for the three charges D3 has pleaded guilty, ie Charges 3 to 5, should not be more than 4 years’ imprisonment. 

Sentence

30.  D1 to D3 and Chung operated as a gang of four. It was a small group.  All say that they themselves were no mastermind. Anyway, the four were in joint enterprise with division of labour.  The criminal operation could not be carried out without any one of them.  As there is no evidence that anyone was the mastermind, I would treat each as culpable as the others.  Each was an indispensable cog of this wheel perpetrating credit card fraud. 

31.  For the gang, D3 possessed six forged credit cards.  One had been used to commit Charge 3 by the others (that was Card 5 as particularised in Charge 4).  D3 also stole a civilian’s genuine credit card (that was Card 7).  D3 gave it to his accomplices for use in the commission of Charge 1. 

32.  It is true that only Card 5 had been used to buy a pair of sports shoes worth about $1,600, while Card 7 had been used to attempt to obtain a necklace of about $15,000 (which attempt was foiled by police swift action).  If the gang had not been stopped, I am sure they would indulge themselves in similar fraudulent activities for as long as they could, thus causing loss to more victims and which amount and number were hard to estimate then. 

33.  For Charges 1, 3 and 4 and in each defendant’s case, I adopt 3 years’ imprisonment as the starting point. 

34.  D3 has pleaded guilty to Charge 5, stealing Card 7 from a civilian.  Such thievish act should be regarded as a separate crime from the offence of using it afterwards. 

35.  One’s credit cards are significant personal properties.  Their loss would subject the holder to inconvenience, anxiety and economic prejudice.  Stealing another’s credit card is a serious offence.  I adopt 12 months’ imprisonment as the starting point for Charge 5. 

36.  D1, D2 and D3 plead guilty to their respective charges.  They are entitled to the usual one-third discount.

37.  Hence after plea, D1 is sentenced to 24 months’ imprisonment on Charge 1.  He is also sentenced to 24 months’ imprisonment on Charge 3.  Both terms are to run concurrently.

38.  D2 is sentenced to 24 months’ imprisonment on Charge 1. He is also sentenced to 24 months’ imprisonment on Charge 1.  Both terms are to run concurrently. 

39.  D3 is sentenced to 24 months’ imprisonment on Charge 3. He is also sentenced to 24 months’ imprisonment on Charge 4.  These two terms are to run concurrently.  On Charge 5, D3 is sentenced to 8 months’ imprisonment but this term of 8 months is to run consecutively to those terms imposed on Charges 3 and 4. 

40.  In summary, D1 is given a total of 24 months’ imprisonment for his plea to Charge 1 and Charge 3.  D2 is given a total of 24 months’ imprisonment for his plea to Charge 1 and Charge 3.  D3 is given a total of 32 months’ imprisonment for his plea to Charge 3, Charge 4 and Charge 5.