HKSAR v. TING CHUN PONG, MICHAEL AND ANOTHER

Consolidated DCCC 366 & 699/2012

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 366 & 699 OF 2012

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Reasons for Sentence

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I. Charges

1.  D1 and D2 plead guilty to the following charges:

Charge	Offence	Against	Thing involved
1	Using identity card (“I/C”) relating to another person	D1	I/C of PW13
3	Using I/C relating to another person	D2	I/C of CHEN Wai-yi Ivy
4	Obtaining property by deception	D2	$5,900
5	Obtaining property by deception	D2	$14,760
6	Using I/C relating to another person	D2	I/C of PW14
7	Obtaining property by deception	D2	$3,480
8	Obtaining property by deception	D2	$4,360
9	Obtaining property by deception	D2	$9,500
11	Using I/C relating to another person	D1	I/C of PW1
12	Possession of I/C relating to another person	D1	I/C of PW12
13	Possessing false instruments	D1	Bank card in name of PW1 and credit card in name of PW12, soft copies of salary advices of PW11 and 2 others

2.  D2’s 5 instances of obtaining property by deception (4^th, 5^th, 7^th, 8^th and 9^th Charges) had caused the victims to lose $38,000 in total.  

II. Facts

A. Victims lost I/Cs

3.  Six victims (PW1, 11, 12, 13, 14 and CHEN Wai-yi Ivy) had lost their I/Cs, which were used by D1 and D2 to commit the present offences.     

B. Bank accounts and credit cards in PW1’s name

4.  Unbeknown to PW1, 6 accounts, including one with cheque function, and 2 credit cards (one main card in his name and one supplementary card in PW12’s name) were set up at Standard Chartered Bank (“SCB”).    Also, a Citibank account numbered 40233537 (“Account B”)(“Dummy Account”) was opened in the name of PW1. PW1 confirmed he had never opened any of these accounts.

C. Using I/Cs to cheat an incorporation consultancy company

5.  On 13 October 2011, D1 used PW13’s lost I/C to impersonate PW13 before Oriental, an incorporation consultancy company for the incorporation of Everlasting, his purported company, and the registration of his directorship thereof (1^st Charge, vs D1 : Using I/C of another person).  He paid the service charge of $8,080 by a Cheque.  It was later dishonoured.  D1 agreed to give Oriental another cheque. 

6.  On 15 November 2011, D2 used CHEN Wai-yi Ivy’s lost I/C to impersonate CHEN Wai-yi Ivy as the messenger and gave another Cheque to Oriental (3^rd Charge, vs D2: Using I/C of another person).  The Cheque was later dishonoured. 

7.  On 2 December 2011, D2 paid by $1,000 cash and a China Construction Bank cheque of $7,080.  She then collected all the letters addressed to Everlasting sent to and kept by Oriental.  The cheque was later dishonoured.

8.  Everlasting was never incorporated. 

D. 1^st Deception, which involved notebook computers

9.  TAM set up Buy Bo Shop as an online trading company holding an account at the auction website of Yahoo.  On 18 November 2011, he made a deal with D2 by email for the sale of a notebook computer at $5,900.  Five days later, D2 produced a deposit slip as proof of her payment by a Cheque into his bank account.  She provided a letter addressed to her from BOCI-Prudential Trustee Limited as proof of her identity.  After photocopying the letter, he passed the notebook computer to her.  One day later, the Cheque was dishonoured.  She could not be located (4^th Charge, vs D2: Obtaining property by deception). 

10.  CCTV footages showed D2 depositing the Cheque into TAM’s bank account by ATM and her presence at TAM’s shop. Bank records showed that the Cheque used in the 1^st Deception was from Account B.    

E. 2^nd Series of deception, which involved iPhones

11.  YU sold iPhones on the auction website of Yahoo at $7,380 each.  Between 21 and 26 November 2011, he made a deal with D2 for the sale of 2 iPhones at $14,760.  On 26 November 2011, D2 produced a deposit slip as proof of her payment by a Cheque into his bank account.  YU checked with the bank but found the sum not yet transferred into his bank account.  To prove her own identity, D2 used PW14’s I/C to impersonate PW14 and let him take a photocopy of the I/C (6^th Charge, vs D2: Using I/C relating to another person).  He passed her the first iPhone.  The second iPhone would be handed to her upon his confirmation of the sum in his bank account. 

12.  One day later, D2 wanted to buy a third iPhone from him.  She paid him $3,000 cash as the deposit and took an iPhone.  He would pass her the remaining iPhone upon receiving the outstanding payment.  One day later, he found the payee of her Cheque written in a wrong way so that it was not valid.  Four days later, she told him she would not buy the remaining iPhone.  He therefore refunded the $3,000 cash to her.  One day later, the Cheque was dishonoured (5^th Charge, vs D2: Obtaining property by deception).   

13.  CCTV footages showed D2 depositing the Cheque into YU’s designated bank account by ATM. Bank records showed that the Cheque used in the 2^nd Deception was from Account B.

F. 3^rd series of deception, which involved ornaments

14.  WONG sold goods at an auction website of Yahoo.  On 26 November 2011, D2 agreed to buy a wrist chain from WONG at $3,480.  One day later, she produced a deposit slip as proof of her payment by a Cheque into WONG’s bank account.  WONG passed the wrist chain to her.  The Cheque was later dishonoured (7^th Charge, vs D2: Obtaining property by deception). 

15.  Three to four days later, she offered to buy 2 necklaces and 2 pendants from WONG at $4,360 in total.   One day later, she produced a deposit slip as proof of her payment by a Cheque into WONG’s bank account.  WONG passed the 4 items to her. The Cheque was later dishonoured (8^th Charge, vs D2: Obtaining property by deception).  On the same day, D2 showed interest to buy 3 necklaces, 3 pendants and a ring from WONG at $9,500 in total.  Later on, she produced a deposit slip as proof of her payment by a Cheque into WONG’s bank account.  WONG passed the 7 items to her.  The Cheque was later dishonoured (9^th Charge, vs D2: Obtaining property by deception)

16.  CCTV footages showed the 3 Cheques being deposited by her into WONG’s bank account.  Bank records showed that all the Cheques used in the 3^rd series of Deception were from Account B.

G. D1 using I/C to cheat post office, then his arrest

17.  Police enquiries led to the suspension of the SCB Account, including the credit cards thereunder.  A male made enquiries with SCB.  SCB followed police instructions to get his address so that SCB could send him a registered mail of a Notice of Collection of Registered Item (“Collection Notice”) for new credit cards.  He gave an address, which had an unsecured mailbox.  On 10 January 2012, D1 was arrested when he presented PW1’s I/C and the Collection Notice to the post office counter to redeem the new credit cards (11^th Charge, vs D1: Using I/C relating to another person). 

H. D1 possessing a lost I/C and false instruments

18.  Items the police found on him included PW12’s lost I/C (12^th Charge, vs D1: Possession of I/C relating to another person).

19.  He also possessed the following (13^th Charge, vs D1: Possessing false instruments):

(1) 1 credit card in the name of and purportedly signed by PW1, who had never applied for, let alone signed it;

(2) 1 credit card in the name of and purportedly signed by PW12, who had never applied for, let alone signed it;

(3) 1USB thumb drive containing Everlasting’s December 2011 salary advices of PW11, who had lost an I/C, and of 2 other people, all 3 of whom having never worked for Everlasting.

III. Cautioned statements and arrest

A. In D1’s case

20.  His admissions to the police included:

(1) In January 2012, he met someone called “Cheung Chai” in Mainland, who passed to him PW1’s I/C and another person’s I/C;

(2) He asked him to pick up the Collection Notice from a mailbox which could be shaken open;

(3) He would redeem a registered mail at the post office counter with PW1’s I/C and the Collection Notice;

(4) The reward would be a meal;

(5) Cheung Chai gave him all the aforesaid items found on him.

B. In D2’s case

21.  D2 was arrested when YU, whose iPhones D2 had taken away without payment, bumped into D2 in Mongkok in December 2011.  D2 could not pay him up.  He had the police arrest her. 

22.  Items the police found on her included:

(1) Copies of 6 I/Cs, relating to PW1, PW13, PW14 and 3 other people;

(2) A number of credit card application forms with PW1 and PW13 as the applicants;

(3) 8 signed blank Cheques and a re-order form for Cheques.

23.  She claimed to the police that her boss had instructed her to go to Oriental to process the incorporation of Everlasting.  He also asked her to use those I/Cs as her own and fill out the Cheques in purported payment to the victims. She passed the goods obtained from the various victims to him.  She was arrested before receiving any reward.  

IV. Personal background and mitigation

24.  D1 is now aged 42.  He was educated up to F. 5 level.  He lived with his wife and child in China.  He had one conviction for obtaining property by deception and one for theft in 1993.  

25.  D2 is now aged 34.  She has a clear record.  She was educated up to F. 5.  She lived with her mother and elder brother.  Her mother, elder brother, elder sister, aunt, cousin, friends wrote mitigating letters for her.  She was described as a simple-minded and credulous person people often take advantage of. 

V. Relevant considerations in sentencing

26.  No general principles for fraud can be derived from the authorities.  The core factors have to be the degree of planning, sophistication and impact on the victim or community. 

27.  In HKSAR v. Wan Kwong Chiu CACC 349/2003, the applicant posed as the representative of an existing company when he went to a business management centre to register an office purportedly for that company. Either he or the office had actually no relationship with that company.   Using the address and the protection of a courier service, he obtained a book of 50 cheques from the bank for that company.  Equating his act with those involving the use of forged credit cards, the judge sentenced him to 4 ½ years. 

28.  On appeal, the applicant’s counsel submitted that the seriousness and sentence here should have been less than that of credit card fraud.  The Court of Appeal agreed with this submission, though pointed out that to determine the criminality it had been correct for the judge to rely on the relevant factors listed by Yang CJ in R v. Chan Sui-to [1996] HKCLR 128, which included:

(1) The size of the operation e.g. whether it involves large sums of money, whether it concerned a large number of persons or forged credit cards;

(2) The planning that has gone into perpetrating the fraud, whether it is elaborate or simple, whether technical skills were used, and to what extent;

(3) Whether there is an international dimension;

(4) Whether the accused played a major role, e.g. running a syndicate, engaging in actual manufacture, organising the use of forged cards, or whether he is a mere ‘cog in the wheel’ as a courier or a custodian or keeper;

(5) Whether there is a plea of guilty.

29.  The sentence of 4 ½ years was reduced to 3 years.

30.  Using another person’s identity card twice to apply for phone service, from a CSL shop, had resulted in concurrent sentences of 12 months in HKSAR v. Kwok Siu Fai HCMA 153/2011.  The starting point of 18 months for each charge and the eventual sentence of 12 months, on the guilty pleas, were affirmed on appeal. 

31.  Bounced cheques were used in The Queen v. Wong Shu Kan CAAR13/1993.  The respondent had used cheques, which bounced later, to pay for rent and purchase price to 3 victims in the total sum of $685,000 within 2 years.  The Court of Appeal regarded the concurrent sentences of 6 months too lenient and substituted them by an eventual sentence of 18 months on the prosecution’s review of sentence. 

32.  In The Queen v. Lee Sing Wai CACC 72/1997, the applicant faced the following sets of charges:

(1) PNG, obtaining property by deception, 18 months;

(2) PNG, attempting to obtain property by deception, each 12 months;

(3) PNG, using a false instrument, 12 months and 18 months;

(4) PNG, resisting arrest, 2 months;

(5) PG, possession of a Hong Kong identity card relating to another person, 10 months (8^th Charge).

33.  Adopting a regime of overlapping sentences, the eventual sentence was 3 ½ years.  The applicant only appealed the sentence of the 8^th Charge.       

34.  The events occurred within 2 years.  The fraud charges related to the applicant placing a purchase order beforehand to each seller.  He then showed up to collect the computers upon presentation of a business card in the purported name of the purchaser and a cheque as payment to the seller.  The cheque later bounced as the bank account had been closed for long.  He reaped computers worth over $170,000 in total.  He resisted arrest when the police set upon him as he attempted to collect a batch of computers.   

35.  The Court of Appeal considered that the identity card in the 8^th Charge was not necessarily connected with any further deception, though clearly not for an innocent purpose.  The PG sentence of 10 months was reduced to 6 months.   The eventual sentence was reduced to 3 years and 2 months accordingly. 

36.  In HKSAR v. Chan Chun Yeung & Anor CACC 45/2006, the 1^st applicant conspired with others to defraud the sellers of goods in 4 instances by a forged Fortis Bank cheque bearing the same cheque number.  Each time they would give the seller a forged cheque for payment.  In the first instance, the 1^st applicant gave a forged cheque of $12,000 to the seller of a computer.  The seller would not release the computer until the cheque was cleared.  The cheque bounced.  The 1^st applicant failed to get the computer.  In each of the second and third instances, the 1^st applicant signed a false name on the invoice prepared by the seller after presenting him a forged cheque.  The 2 cheques, of $1,780 and $3,680 respectively, bounced after he had obtained the goods.  In the fourth instance, the seller copied the 1^st applicant’s own identity card when receiving the forged cheque of $3,320.  Soon a co-conspirator called up the seller to pay cash instead, obviously to bail out the 1^st applicant as his real identity had been exposed. 

37.  The trial judge had adopted a starting point of 48 months and passed a sentence of 44 months, apparently after taking into account his young age and his clear record.  The Court of Appeal reduced the eventual sentence to 18 months.    

VI.Sentencing present defendants

D1’s sentence

38.  D1 faces 4 single charges as follows:

(1) Using I/C relating to another person (1^st Charge), by presenting PW13’s lost I/C to attempt to incorporate Everlasting;

(2) Using I/C relating to another person (11^th Charge), by presenting PW1’s lost I/C to the post office to collect a registered mail sent by SCB containing a bank card in the name of PW1 and a supplementary credit card in the name of PW12;

(3) Possession of I/C relating to another person (12^th Charge), for having with him PW12’s lost I/C;

(4) Possessing false instruments (13^th Charge), for having with him a bank card in the name of PW1 and a supplementary credit card in the name of PW12, a USB thumb drive containing soft copies of Everlasting’s salary slips for 3 people, who had never worked for Everlasting.

Starting points

39.  D1 was the impersonator and custodian for a small-scale but well-organised syndicate, which commanded a source of personal and identity documents for commercial fraud.  I take the following starting points:

(1) Using I/C relating to another person (1^st Charge), 18 months;

(2) Using I/C relating to another person (11^th Charge), 18 months;

(3) Possession of I/C relating to another person (12^th Charge), 15 months;

(4) Possessing false instruments (13^th Charge), 21 months.

40.  For his pleas of guilty, I reduce his sentences by one-third.  There are no other mitigating factors.  His sentences are as follows:

(1) Using I/C relating to another person (1^st Charge), 12 months;

(2) Using I/C relating to another person (11^th Charge), 12 months;

(3) Possessing I/C relating to another person (12^th Charge), 10 months;

(4) Possessing false instruments (13^th Charge), 14 months.

41. By totality, I make the following adjustment:

(1) Possessing false instruments (13^th Charge), 14 months;

(2) Using I/C relating to another person (1^st Charge), 12 months, all consecutive to other charges;

(3) Using I/C relating to another person (11^th Charge), 12 months, all concurrent with other charges;

(4) Possession of I/C relating to another person (12^th Charge), 10 months, all concurrent with other charges.

42.  D1’s eventual sentence is 26 months. 

D2’s sentence

43.  D2 faces 7 single charges as follows:

(1) Using I/C relating to another person (3^rd Charge), as a courier of a Cheque and false data for registration of a company;

(2) Obtaining property by deception (4^th Charge), by false representation of having transferred payment of $5,900 into the bank account of the seller;

(3) Obtaining property by deception (5^th Charge), by false representation of having transferred payment of $14,760 into the bank account of the seller;

(4) Using I/C relating to another person (6^th Charge), to defraud the seller;

(5) Obtaining property by deception (7^th Charge), by false representation of having transferred payment of $3,480 into the bank account of the seller;

(6) Obtaining property by deception (8^th Charge), by false representation of having transferred payment of $4,360 into the bank account of the seller;

(7) Obtaining property by deception (9^th Charge), by false representation of having transferred payment of $9,500 into the bank account of the seller.

44.  D2’s role as an impersonator for the syndicate was as culpable as D1.  I take the following starting points:

(1) Using I/C relating to another person (3^rd Charge), 12 months;

(2) Obtaining property by deception (4^th Charge), 9 months;

(3) Obtaining property by deception (5^th Charge), 9 months;

(4) Using I/C relating to another person (6^th Charge), 18 months;

(5) Obtaining property by deception (7^th Charge), 9 months;

(6) Obtaining property by deception (8^th Charge), 9 months;

(7) Obtaining property by deception (9^th Charge), 9 months.

45.  With no mitigating factors except for her pleas of guilty, which reduce her sentences by one-third, her sentences are as follows:

(1) Using I/C relating to another person (3^rd Charge), 8 months;

(2) Obtaining property by deception (4^th Charge), 6 months;

(3) Obtaining property by deception (5^th Charge), 6 months;

(4) Using I/C relating to another person (6^th Charge), 12 months;

(5) Obtaining property by deception (7^th Charge), 6 months;

(6) Obtaining property by deception (8^th Charge), 6 months;

(7) Obtaining property by deception (9^th Charge), 6 months.

46. By totality, I make the following adjustment:

(1) Using I/C relating to another person (6^th Charge), 12 months;

(2) Using I/C relating to another person (3^rd Charge), 8 months, all consecutive to other charges;

(3) Obtaining property by deception (4^th Charge), 6 months, all consecutive to other charges;

(4) Obtaining property by deception (5^th Charge), 6 months, all concurrent with other charges;

(5) Obtaining property by deception (7^th Charge), 6 months, all concurrent with other charges;

(6) Obtaining property by deception (8^th Charge), 6 months, all concurrent with other charges;

(7) Obtaining property by deception (9^th Charge), 6 months, all concurrent with other charges.

47.  D2’s eventual sentence is 26 months.