HKSAR v. JIANG YUQIONG

DCCC947/2011

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 947 OF 2011

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Reasons for Sentence

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The Charges and the Facts

1.  The Defendant pleaded guilty to two charges of “obtaining property by deception” (the 1^st and 2^nd charges), contrary to section 17(1) of the Theft Ordinance, Cap. 210; one charge of “attempting to obtain property by deception” (the 3^rd charge); and one charge of “possessing false instruments”, contrary to section 75(1) of the Crimes Ordinance, Cap. 200 (the 4^th charge).

2.  The first three charges involved one forged credit card whereas the 4^th charge involved two other forged credit cards.

3.  The Summary of Facts disclosed that the Defendant is a Mainlander who came to Hong Kong on 18 June 2011. In the afternoon of 5 July 2011, she used a forged credit card to make successive purchases at different shops in Causeway Bay.

4.  She first obtained two pairs of shoes worth a total of HK$755. This is the subject matter of the 1^st charge. About half an hour later, she entered a fashion shop and successfully obtained two garments and two pairs of trousers worth a total of HK$1,486. This is the subject matter of the 2^nd charge. About 10 minutes later, the Defendant then tried to obtain two pieces of clothing worth a total of HK$2,178. However, the staff of the shop found the card suspicious. After confirmation with the card centre that the card was forged, he then made a report to the police. This is the subject matter of the 3^rd charge.

5.  When the police arrested the Defendant, she said under caution that she had purchased three credit cards from a female. A search was conducted on the Defendant and, in addition to the card used in the purchases, two more forged credit cards were found. This is the subject matter of the 4^th charge.

6.  During a subsequent cautioned interview, the Defendant stated that she came to Hong Kong to visit relatives. About two weeks after her arrival, she met a female in a restaurant. The female told the Defendant to work for her and promised a daily reward of HK$1,000. On the day of her arrest, she had met with the female and had been given the three cards.

Mitigation

7.  The Defendant is a Mainlander who came to Hong Kong on a two-way permit. She is aged 46 and was educated up to Form 3 level. She has worked as a dancing teacher since 1996. The Defendant does not have any conviction record in Hong Kong.

8.  It was said that the Defendant has married three times. She gave birth to a daughter in her first marriage with a Mainlander. She then got married with a Hong Kong resident in both her second and third marriages. As her second husband was a drug addict, she divorced him and took their son to live with her in the Mainland. In addition, she has also got two adopted daughters. Although the Defendant had to raise the children on her own, at present, only her son is still studying.

9.  Ms. Chong, who acted for the Defendant, told the court that, in the past 15 years, the Defendant had frequently travelled to Hong Kong on the strength of a two-way permit. Yet, she has not committed any offence here. This time, it was only out of her simplicity and naivety that she had committed the present offences. It was said that the Defendant met the female in a restaurant and engaged in a casual chat with her. Then, the Defendant was asked to work for this female.

10.  The Defendant maintained that, at the time, she thought the cards were genuine cards and they belonged to the female’s husband. The explanations given by the Defendant as to how these happened completely defy common sense. It would have made no sense at all for the female to have promised the Defendant a daily reward of HK$1,000 and to have asked the Defendant, who was a complete stranger to her, to make use of her husband’s three genuine cards to make purchases. Nevertheless, the Defendant accepted that even if the cards were genuine cards, she was fully aware that she had to forge the signature of the card owner on the sales receipts when going through the transactions.

11.  In mitigation, it was said that the Defendant had offered to the police officer that as her phone was ringing and it was the female calling, she could get the police in touch with the female. This, however, was not accepted by the prosecution. The prosecution further told the court that when under caution, the Defendant had told the officer that she had no way to contact the female. In any event, this is not a case in which useful assistance has been provided by the Defendant and which warrants a reduction in sentence in this respect.

12.  Ms. Chong emphasized that the amount involved in this case was not huge and that almost all the properties had been recovered. Given that the Defendant has pleaded guilty, Ms. Chong asked for a lenient sentence on the Defendant’s behalf.

Sentencing Considerations

13.  A number of factors have been identified in R v Chan Sui-to & Another [1996] 2 HKCLR 128 as being relevant in sentencing this type of credit card fraud. These include the size of the operation, the planning involved, whether there was an international dimension, and the role played by the Defendant. The sum of money involved, while being one of the relevant factors, is not regarded as the most significant one.

14.  In the present case, one forged credit card was used to make the purchases while two other forged credit cards were found on the Defendant’s person. Within less than an hour, the Defendant used the card to make successive purchases with a total value of about HK$4,400. She started off with a purchase of a few hundred dollars. Then, she progressed to make purchases in the sums of HK$1,400 and HK$2,100 respectively. I am sure that if the Defendant had not been arrested, she would have continued to use the forged card to obtain more goods, causing more losses to shops.

15.  In HKSAR v Cheung Ka Wo Johnny [2002] 2 HKC 517, the Court of Appeal said that it was the potential for losses, rather than the actual loss, in relation to the fraudulent use of credit cards that was important in sentencing for this kind of offences. 

16.  I agree that the present case was a small scale operation. However, it is the assistance offered by people like the Defendant who agreed to act as “foot soldiers” which makes such credit card fraud feasible. I also note that the Defendant was a Mainlander paying a visit to Hong Kong when she committed these offences.

17.  When considering the sentence in this case, I bear in mind the facts admitted and all the above. I also note the court has repeatedly said that in order to protect the integrity of our highly important credit card system, severe sentences are called for as a deterrent.

The Sentence

18.  In this case and, for the reasons mentioned above, I consider that a starting point of 3 years is appropriate in respect of each charge.

19.  Having taken into account the Defendant’s background and all that was said on her behalf in mitigation, other than her plea, I find nothing which would warrant any further reduction in sentence.

20.  3 years reduced by one-third to take account of the Defendant’s plea is 2 years’ imprisonment. The Defendant is therefore to serve a term of 2 years for each of the charges. 

21.  Applying the totality principle, I take the view that an overall term of 2 years should sufficiently reflect the Defendant’s culpability in these 4 charges. I therefore order that the terms in respect of all four charges are to run wholly concurrently, making a total term of 2 years.