HKSAR v. LO CHI FUNG

DCCC 510/2014

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 510 OF 2014

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Reasons for Sentence

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1.  The defendant has pleaded guilty to three charges, one of theft and two of obtaining by deception. The case involves the theft of and then use of stolen credit cards to obtain some gold bullion and what are described as cash coupons. So the defendant has pleaded guilty to those offences. I have convicted him after he has agreed the facts presented by the prosecution.

2.  In summary, the facts show that the offences took place on 12 February this year.  The stolen cards belonged to, firstly, Mr Yasushi Nakahara, who had arrived at Hong Kong International Airport on the 12th and then taken the MTR Airport Express to Kowloon.  At the station he found that his passport holder, which had bank cards and suchlike cards, was present.  It was later, when he went to the Elements Shopping Mall, he found it was missing.

3.  There was also a Mr Ayumu Shinto who also was travelling on public transport, and he eventually found that his wallet had gone missing.

4.  The cards belonging to these two gentlemen were used as follows.  The second charge was the first use of a card, and that was at TSL Jewellery Centre in Aeon Store at Whampoa Garden in Kowloon City, and that was on 12 February at about 1 o’clock.  The defendant bought a 100-gramme bullion and a 50‑gramme gold bullion for a total of $57,855.  The defendant attempted to use credit cards to complete the payment.  He in fact used four cards.  Only the fourth card, which was the HSBC Premier Master Card issued to Mr Nakahara, was able to be used.  The defendant was asked to collect the bullion later in the evening because they were out of stock, and in fact the police were informed due to suspicions from one of the witnesses.

5.  In respect of the third charge, this relates to the use of Mr Ayumu’s card.  This was also on 12 February, at Pizza Hut Restaurant in Whampoa Garden, and a total of $500 of cash coupons were purchased using the JAL Mileage Bank JCB card that belonged to Mr Ayumu.

6.  The defendant was arrested that afternoon at about 2.38.  The 50-gramme bullion, a receipt of Aeon, the cash coupons from Pizza Hut and various other cards, including credit cards, were found on the defendant.

7.  The defendant was cautioned.  He said that he had picked up a bag of cards belonging to other people from a rubbish bin at Whampoa Garden and he intended to shop around with the cards seized because he needed money, and throw away the cards he could not use.  He admitted he had bought the cash coupons out of momentary greed, and led the police to the rubbish bin outside the Aeon Store at 10 Shung King Street, Hung Hom, and of course that is the location referred to in the first charge.

8.  The defendant later made a video-recorded interview.  He said that he had found the cards, put some in his wallet and others inside his trousers pocket.  He had used one of the cards to purchase cash coupons and then used one or two of the other credit cards to purchase the gold bullion at TSL Aeon, and he had eventually used the Master Card to complete the purchase.

9.  So that is the basis on which the defendant pleaded guilty and the basis on which the case proceeds. 

10.  The defendant’s antecedents have been admitted. He is a 39-year-old man, and I understand he has two children, from the mitigation I heard.  He has a criminal record which involves eight previous court appearances.  The defendant has committed offences since 1994, when he committed a number of burglaries.  His offence of obtaining by deception was committed in 2001, where he received a sentence of 2 years’ imprisonment.  The defendant has been convicted of offences involving possessing false instruments, of identity cards relating to other people, of obtaining by deception, and handling stolen goods.

11.  In 2005, on 18 November 2005, in respect of five offences, he received a sentence of what appears to be 40 months’ imprisonment for offences involving using a false instrument, handling stolen goods, possession of dangerous drugs, and possession of Hong Kong forged identity cards.  In 2008, again, a number of offences committed and sentenced on 24 November 2010 involving offences such as obtaining by deception, possessing false instruments, making and possessing equipment for the making of false instruments, and also possession of dangerous drugs.

12.  I note that in respect of the possessing of false instrument element he received sentences of 3 years and 8 months, and for making a false instrument, a sentence of 2 years and 8 months.  In any event, there was a lengthy sentence of imprisonment incurred on 24 November 2010 for offences similar to the offences for which he is convicted today.

13.  The defendant has presented mitigation through counsel.  He has a teenage daughter and a son who is 3 years old.  He has worked as an air-conditioner repairer earning between $11,000 and $12,000 per month.  He said he had to take care of school fees for the daughter and was finding that matters were tight, and that is one of the reasons why he committed these offences.  There is a letter from a Mr Mo, who is in charge of the Fast Air-conditioning and Water Electrical Engineering Company. He is pleased with the defendant’s performance as an employee and will employ him again at the end of any sentence of imprisonment.

14.  In summary, the defendant has been convicted of offences involving what could be described as credit card fraud, and the factors which are to be taken into consideration when considering the sentence in such cases have been set out by the Court of Appeal in the case of R v Chan Siu To [1996] 2 HKCLR 128, and such factors include the size of the operation, the planning that had gone into perpetrating the fraud, whether the accused played a major role.  These factors are not intended to be exhaustive, but to provide assistance to the court.  The courts have indicated that deterrent sentences are to be imposed.

15.  Chan Siu To is a case concerning forged credit cards, but the factors to take into account were said to apply to credit card fraud generally and are not restricted to forged credit cards.  It appears there is little difference between using a forged credit card and using a stolen credit card.  In both cases the use undermines the integrity of the credit card system.  It would appear that the guidance given in Chan Siu To equally applies to stolen credit cards.

16.  In Chan Siu To I note the court said:

“In considering whether large sums of money were involved, we would suggest that at present cost of living, amounts up to 50,000 may be considered relatively small; amounts from 50,000 to 150,000 medium; and amounts above that may be considered large.”

17.  It has also been said in other cases where the facts of the offence point to a small, unsophisticated operation involving one or a few forged cards, uncomplicated by other evidence materially linking the offender to a larger operation, a starting point of 3 years or less may be appropriate, and the authorities for that are HKSAR v Chu Ng Lan CACC 464/2006 and HKSAR v Wong Ching Hang CACC 409/2008.

18.  I also noted that the Court of Appeal have upheld starting points higher than 3 years’ imprisonment for similar offending.  But each case is to be decided on its own facts and circumstances.

19.  It would appear a fact in this case is the fact that the defendant is a persistent offender in relation to fraud and offences such as obtaining by deception and possession of false instruments.  For this, what is an aggravating factor, one could expect to receive a higher starting point for the offence than a fresh offender would receive.

20.  In this case, the value of the gold bullion is $57,855.  This would place the offence in relation to the second charge and the overall two charges as being on the borderline of the small to medium operation.  I note there is no evidence of syndication, international dimension, or elaborate planning and equipment.  What is said here is that the cards were stolen in Hung Hom, where the defendant said he found them, and then two of the cards were used to obtain the gold bullion and cash coupons.

21.  Given the value of the items, it would appear to be an overall starting point would be in the region of 3 years and 3 months’ imprisonment.  This, however, is subject to the aggravating factor of the defendant’s persistence in committing offences involving false instruments, deception and dishonesty.

22.  I consider that an overall starting point for the whole criminality disclosed by the three charges should be one of 4 years’ imprisonment.

23.  As a result, I will sentence the individual charges as follows.  The first charge of theft I take a starting point of 2 years’ imprisonment.  Having regard to the defendant’s plea of guilty, there will be a discount of one-third from each starting point.  That leaves a sentence of 16 months’ imprisonment after discount.

24.  On the second charge, which involves the most obtained by way of the use of the card, I take a starting point of 4 years’ imprisonment.  After discount of one-third, that leads to a sentence of 32 months’ imprisonment.

25.  On the third charge, obviously a lesser sum involved, I will take a starting point of 3 years and 3 months’ imprisonment, or 39 months’ imprisonment.  That will be reduced to 26 months’ imprisonment for the defendant’s plea of guilty.

26.  Now, all these offences involve one episode, or one course of offending on one day.  I consider that these sentences as such, although committed separately in time, form part of one series of offending, and so, having regard to the issue of overall totality, I order the sentences to be served concurrently.

27.  So the total sentence is one of 32 months’ imprisonment.