HKSAR v. HAI CHUNG PO (ALSO KNOWN AS HAT CHUNG PO)

DCCC 792/2020

[2021] HKDC 649

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 792 OF 2020

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REASONS FOR SENTENCE

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1.  The defendant pleads guilty to eleven charges of obtaining property by deception, contrary to section 17 of the Theft Ordinance[1] (charges 1, 2 & 4-12) and one charge of attempting to obtain property by deception, contrary to section 17 of the Theft Ordinance and section 159G of the Crimes Ordinance[2] (charge 3).

2.  Full particulars of the offences are set out in the amended summary of facts admitted by the defendant today. 

3.  In summary between 22 March 2019 and 24 March 2019 the defendant used a stolen credit card on twelve different occasions to obtain goods from ten different shops[3]. Eleven transactions were successful. 

4.  Apart from when the defendant purchased medicine and drinks (charges 4 and 11) the defendant bought a total of twenty-nine iPhones.  The total amount of all the goods obtained was $320,058. 

5.  On 23 March 2019 when the defendant attempted to use the credit card to purchase an iPhone costing $9,499 at Fortress in Amoy Plaza in Ngau Tau Kok, the staff of Fortress noticed the signature on the receipt differed from the credit card and asked to see the defendant’s identity card.  The defendant refused and left the shop (charge 3).

6.  The owner of the credit card had last used her credit card on 11 March 2019.  On 24 March 2019 the owner discovered her card was missing and called the bank to cancel the card.  When the owner discovered the unauthorised use of the card she made a report to the police.  The credit limit of the card was $297,000.

7.  On 25 March 2019 Mr Lau, the owner of Well Go Telecom, where the defendant used the credit card to purchase fourteen iPhones with a total cost of $147,023 (charge 1), was notified by the bank that the transactions were unauthorised. 

8.  On 13 April 2019 when the defendant went to the shop again Mr Lau recognised the defendant and contacted the police who came and arrested the defendant.  

9.  Save for Well Go Telecom all the shops had CCTV which captured the defendant making the fraudulent transactions. 

Mitigation

10.  In passing sentence, I have carefully considered the oral and written submissions of Ms Herbert including that the defendant who is 44, committed the offences because he owed money to loan companies in China and was being chased for repayment[4].

11.  I have read the defendant’s mitigation letter in which he expresses his regret for committing the offences and says he is dedicated to never committing a criminal offence again. 

Sentence

12.  In passing sentence, I take into account the factors which a sentencing judge will need to consider in credit card frauds as set out by the Court of Appeal in R v Chan Sui To including the size of the operation; the planning that had gone into perpetrating the fraud; whether there is an international dimension; and whether the accused played a major role[5]. The factors were not intended however to be exhaustive but provide valuable assistance to the court. 

13.  No distinction is to be drawn between using a stolen credit card and a forged credit card[6]. Using a stolen credit card, just like using a forged credit card, undermines the integrity of the credit card system.  As was said in HKSAR v Wong Wan Shan[7], a case concerning stolen credit cards:

“This court has said, on many occasions, that credit card frauds are an insidious poison in the community; one which affects a large number of citizens and erodes the credit card system, and also damages Hong Kong's standing in the international community. This court has also said that those who engage in it can expect to be dealt with severely by the courts.”

14.  The courts have repeatedly stressed that deterrent sentences are to be imposed. 

15.  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 would be appropriate[8].

16.  In R v Chan Sui To the Court of Appeal suggested that 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 and that an accused who plays an active but not necessarily a key role in a medium sized operation involving between $50,000 and $150,000 with no elaborate planning and equipment and without an international element should receive a sentence of five to six years after trial[9].

17.  Ms Herbert submits that the references to what constitutes large sums of money in R v Chan Sui To, being based on the economy at the time of the judgment in 1996, are in light of more recent cases likely to be out of date[10].

18.  Whilst this can be regarded as a small unsophisticated operation involving one stolen credit card without elaborate planning or an international dimension, the court cannot overlook that the defendant played an active role in obtaining goods to the total value of $320,058 and was unsuccessful in obtaining goods to the value of $9,499.

19.  I am satisfied a starting point of 3 years and 9 months’ imprisonment is appropriate for obtaining goods to the value of $147,023 (charge 1)[11]; 3 years’ imprisonment for obtaining goods costing between $11,599 and $24,998 (charges 2, 5-10 and 12); 3 years’ imprisonment for attempting to obtain goods to the value of $9,499 (charge 3) and 9 months’ imprisonment for obtaining goods to the value of $298 (charge 4) and $52 (charge 11).

Persistent offender

20.  The defendant has appeared in court on fourteen previous occasions amassing thirty-three convictions, mostly for offences of dishonesty, including eight convictions for obtaining property by deception. 

21.  I am satisfied the defendant is properly to be regarded as a persistent offender and enhance each sentence by 3 months’ imprisonment to 4 years’ imprisonment (charge 1); 3 years and 3 months’ imprisonment (charges 2, 3, 5-10 and 12) and 12 months’ imprisonment (charges 4 & 11).

22.  Giving the defendant full credit for his pleas of guilty reduces the sentence to 2 years and 8 months’ imprisonment on charge 1; 2 years and 2 months’ imprisonment on charges 2, 3, 5-10 and 12 and 8 months’ imprisonment on charges 4 and 11.

Totality

23.  Although only one stolen credit card was used total sentence must reflect that over a period of three days the card was used on twelve separate occasions in ten different shops; eleven transactions were successful, the defendant obtaining goods to the value of $320,058 and the unsuccessful transaction was for $9,499.

24.  Ms Herbert invites the court to consider concurrent or largely concurrent sentences[12].  In support Ms Herbert refers the court to the reasons for sentence in HKSAR v Fontanilla Myra Basaen where a domestic helper used her employer’s credit card to obtain goods in the region of $50,000[13].  The sentencing judge imposed concurrent sentences of 2 years’ imprisonment on each of thirteen charges. 

25.  Not only are the facts of the case very different, the amount obtained was substantially lower.  I note in HKSAR v Andriani Wibi Astutik the Court of Appeal upheld a total sentence after plea of 3 years and 6 months’ imprisonment where a domestic helper stole her employers’ credit cards which she used on 114 occasions over a period of 3 months to obtain goods to the value of $171,317.30[14].  

26.  In HKSAR v Tandon William Chaing the trial judge adopted an initial starting point of 3 years for three offences of obtaining property by deception which was enhanced by 3 months because of previous convictions[15].  Giving a one third discount the sentence on each charge was reduced to 26 months.  The judge then ordered 13 months consecutive making a total sentence of 39 months’ imprisonment. 

27.  The three offences concerned the use of three different stolen credit cards to purchase goods worth $96,500.  The Court of Appeal dismissing the appeal expressed the view that there could have been no complaint on the facts and the appellant’s antecedents if there had been a higher sentence[16]. 

28.  In determining totality, I have also taken into account the observations of the Court of Appeal in HKSAR v Lam See Chung, Stephen as to when assistance can be gleaned from the sentencing bands for breach of trust theft cases[17]. 

29.  I am satisfied a total sentence of 3 years and 10 months’ imprisonment (overall starting point of 5 years and 9 months’ imprisonment) properly reflects the defendant’s overall criminal culpability on the twelve charges and takes into account the defendant’s personal circumstances and the seriousness of the offences[18].

DCCC 730/2019

30.  The defendant last appeared in court on 11 May 2020 when he was sentenced in DCCC 730/2019 to a total of 2 years and 9 months’ imprisonment for one offence of obtaining property by deception and one offence of burglary committed after the present offences.  The defendant has just finished serving that sentence[19]. 

31.  The reasons for sentence state that the offences were committed on 16 April 2019 and 18 April 2019 which is just after the defendant was arrested for the present offences on 13 April 2019[20].

32.  Although the defendant has finished serving the sentence imposed in DCCC 730/2019, due to the close proximity in time in which the offences were committed I am satisfied in determining the total sentence to be served by the defendant I should consider what the overall total sentence would have been if the defendant had been sentenced on all charges at the same time. 

33.  The deception charge in DCCC 730/2019 was also using a stolen credit card to purchase iPhones to the value of $21,598.  The burglary was of a school but nothing was stolen.  The total sentence of 2 years and 9 months’ imprisonment was imposed after trial.

34.  In my view the sentences imposed after trial are arguably lenient, in particular considering they were committed whilst on bail for the present offences, and that the total sentence imposed is also lenient.  If I had sentenced the defendant after trial the total sentence would have been not less than 3 years and 6 months’ imprisonment.

35.  This would make a total sentence after trial of all offences of 9 years and 3 months’ imprisonment, which I am satisfied would be excessive and that a total sentence after trial of 7 years and 6 months’ imprisonment would have been appropriate.

36.  The defendant having already served a sentence after trial of 2 years and 9 months leaves 4 years and 9 months’ imprisonment to be served by the defendant.  The defendant having pleaded guilty reduces the balance of the sentence to be served to 3 years and 2 months’ imprisonment.   

37.  Accordingly, I revise the total sentence to be served by the defendant from 3 years and 10 months’ imprisonment to 3 years and 2 months’ imprisonment.

Sentence

38.  The defendant is convicted and sentenced as follows:

Charge 1 - 2 years and 8 months’ imprisonment;

Charges 2, 3, 5-10 and 12 – 2 years and 2 months’ imprisonment on each charge concurrent with 6 months consecutive to charge 1 and 1 year and 8 months concurrent; and

Charges 4 and 11 – 8 months’ imprisonment on each charge concurrent and concurrent to charges 1-3, 5-10 and 12;

The total sentence to be served by the defendant is 3 years and 2 months’ imprisonment.