HKSAR v. ZHAO JIAXIN

DCCC 475/2024

[2025] HKDC 194

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 475 OF 2024

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REASONS FOR SENTENCE

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1.  Mr Zhao pleaded guilty before me to 4 charges of Theft, contrary to section 9 of the Theft Ordinance, Cap 210.

2.  Particulars of Charge 1 are that he, on 20 August 2023, at “Mannings”, Shop Nos G20-22, Ground Floor, Grand Plaza, Nos 625 and 639 Nathan Road, Mong Kok, Kowloon, in Hong Kong, together with other person(s)  unknown, stole merchandise valued at $4,002.9 Hong Kong currency, property belonging to The Diary Farm Company, Limited.

3.  Particulars of Charge 2 are that he, on 20 August 2023, at “Watsons”, Concession No HOK 55, Unpaid Concourse, MTR Hong Kong Station, Central, in Hong Kong, together with other person(s)  unknown, stole merchandise valued at $2,160 Hong Kong currency, property belonging to A S Watson Retail (HK)  Limited.

4.  Particulars of Charge 3 are that he, on 20 August 2023, at “Market Place”, Shop No 8, B2 Floor, Langham Place, No 8 Argyle Street, Mong Kok, Kowloon, in Hong Kong, together with other person(s)  unknown, stole merchandise valued at $1,739 Hong Kong currency, property belonging to The Diary Farm Company, Limited.

5.  Particulars of Charge 4 are that he, on 21 August 2023, at “fusion”, Shop Nos N206-209, 2^nd Floor, T Town North, No 33 Tin Wah Road, Tin Shui Wai, New Territories, in Hong Kong, together with other person(s)  unknown, stole merchandise valued at $569.2 Hong Kong currency, property belonging to PARKnSHOP (HK)  Limited.

Facts admitted by Mr Zhao

6.  On 21 August 2023, at about 2120 hours, Mr Zhao and a male Liu were together near one of the exits of Shatin MTR Station.  A green suitcase was placed between them.  When Mr Zhao saw an approaching police constable, he drew his hand back from the suitcase and walked away.  Police intercepted Mr Zhao and Liu.  Under preliminary investigation, Mr Zhao said the suitcase belonged to Liu.

7.  Upon search of Mr Zhao, from a backpack he was carrying, the police found 17 mobile phones.

8.  From the green suitcase, the police found various medical products usually obtainable from pharmacy shops together with relevant receipts.

9.  When asked for the origin of those products and the mobile phones, Mr Zhao said these goods were obtained through fraud by using these mobile phones.

10.  Mr Zhao was cautioned and was asked further questions.  He said he purchased these goods from different shops using the credit cards that were tied to these mobile phones; that someone named Ah On gave these mobile phones to him; that he believed Ah On had stolen the mobile phones so that the credit card owners would not know their money had been misappropriated by him ie Mr Zhao; and that some of the goods were purchased with the man next to him.

11.  At about 2300 hours, police arrested Mr Zhao for “obtaining property by deception”.  Under caution, Mr Zhao said, “I only wanted to make some money; that is why I used these mobile phones to fraudulently obtain these goods for resale.”

12.  On 22 August 2023, during three separate cautioned VRIs, Mr Zhao cumulatively stated the following:

(a)  He came to know Ah On via WeChat, who offered him a quick cash job; he was promised remuneration for purchasing goods by using mobile phones passed to him by Ah On;

(b)  He arrived in Hong Kong via Lo Wu Control Point on 20 August 2023 with Ah On but they entered separately through different lines/channels; this was his first visit to Hong Kong; thereafter, Ah On led him to meet up with two other male persons in Mong Kok;

(c)  On 20 and 21 August 2023, Ah On and one of the two male persons led him and the remaining male person to purchase goods at different shops with mobile phones provided;

(d)  Ah On decided on the method for choosing the goods to be purchased; after the goods were selected, he ie Mr Zhao would pay at self-checkout machines by using credit cards stored inside mobile phones provided by Ah On while Ah On would wait outside the shop;

(e)  When making payment, he could use any of the credit cards stored inside the mobile phones; if successful, he would use the same credit card a few more times until it eventually failed; when it failed, he would use another credit card stored in the same or a different mobile phone;

(f)  All goods purchased on 20 August 2023 were taken away by one of the male persons;

(g)  All mobile phones used to purchase goods on 21 August 2023 were originally stored inside the green suitcase; after use, they would be stored inside his backpack;

(h)  He was only following the instructions of Ah On; he did not question Ah On as to why the latter did not make the purchases himself;

(i)  The green suitcase and the mobile phones seized from the backpack were provided by Ah On; while the goods found inside the green suitcase were purchased either by him or by the other male person using credit cards stored inside the e-wallets of the mobile phones; and

(j)  All transactions listed on the receipts found inside the green suitcase were made either by him or by the other male person.

13.  Registration record of Harbour Plaza Resort City Hotel situated at Tin Shui Wai shows that Room 955 was registered under Mr Zhao’s name from 20 to 21 August 2023.  CCTV of the hotel captured the movement of Mr Zhao with one to two other male persons on 20 and 21 August 2023 within the hotel.

14.  CCTV of the various shops subject of the 4 charges show that it was Mr Zhao who made all of the purchases relating to the 4 charges.

15.  Travel Index Check records show that Mr Zhao entered Hong Kong on 20 August 2023 at 1213 hours via Lo Wu Control Point.

16.  Upon investigation by the police of the mobile phones seized from Mr Zhao’s backpack, it was revealed that:

(a)  The 3 or 4 credit cards used for 4 of the 10 transactions under Charge 1 (accounting for a total of $1,526.50), and the 2 credit cards used for the two transactions under Charge 3, were stored therein; and

(b)  A total of 177 credit cards were stored therein and all of them were issued by overseas banks.

Criminal record

17.  Mr Zhao has a clear record in Hong Kong.

Antecedents

18.  Mr Zhao is a visitor from the Mainland, aged almost 29 (27 at the time of the offences), educated to junior high school level.  He used to work for an online store earning RMB6,000 per month.  Mr Zhao is single.  His mother and elder brother are living in the Mainland.

Mitigation

19.  Mr Paul CL Leung of counsel assigned by the Director of Legal Aid mitigated on behalf of Mr Zhao.  The following is a summary of the mitigation submissions.

20.  Mr Zhao was a first-time visitor to Hong Kong.  His father passed away in 2009.  His mother is 48 years old and operates a small store selling teas.

21.  Mr Zhao last worked as a salesperson in an online shop in Shenzhen, earning RMB5,000 to 6,000 a month.  As the family has incurred debt from doing business and constructing a village house, Mr Zhao would give his mother RMB2,000 per month to repay the debt.

22.  Mr Zhao has no previous conviction in Hong Kong or in the Mainland.  He committed the current offences in order to earn quick money.

23.  In the leading case of R v Chan Sui To & Anor [1996] 2 HKCLR 128, the Court of Appeal laid down guidelines for sentencing credit card offences (at p131E-H).  A sentencing judge would need to consider various factors including:

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

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

(c)  Whether there is an international dimension;

(d)  Whether the accused played a major role; and

(e)  Whether there is a plea of guilty.

24.  In HKSAR v Lam See Chung Stephen [2013] 5 HKLRD 242, the Court of Appeal observed (at paras 37-40)  that for simple small-scale use of stolen credit cards, a sentence of 3 years’ imprisonment or less is appropriate.

25.  Mr Leung submits that:

(a)  This case is not a large scale operation: amount involved ($8,471.10)  is small;

(b)  Only 3 to 4 persons were involved and therefore not a large criminal syndicate;

(c)  Although a large number of credit cards were stored inside the mobile phones, only 11 were actually used;

(d)  There is no evidence on potential loss (such as credit limits);

(e)  Some of the goods were recovered;

(f)  Mr Zhao’s role is rather limited: he was not involved in the procurement of the mobile phones nor the credit card details; nor did he participate in the resale of the stolen goods; and

(g)  Mr Zhao had not received any remuneration yet.

26.  Mr Leung emphasizes that Mr Zhao had fully cooperated with police and made full confessions; that he has learned a bitter lesson through long-term remand; that he promises never to re-offend.  Mr Leung reminded the court to give Mr Zhao the usual 1/3 sentencing discount for the latter’s timely guilty pleas.

27.  Mr Leung submits that the 4 charges form part of the same criminal scheme committed within 2 days and thus should be treated as a single course of transaction.  Mr Leung reminded the court to consider totality and asks for concurrent sentences for all charges.

28.  Mr Leung concedes that this case is not a simple small-scale offence involving one or a few stolen credit cards.  However, in light of his earlier submissions, Mr Leung submits that if the court is thinking of a starting point of more than 3 years, a minor upward adjustment would be sufficient to reflect Mr Zhao’s culpability.

29.  Lastly, Mr Leung asks for leniency on behalf of Mr Zhao so that the latter may be re-united with his family in the Mainland at an earlier time.

30.  Upon enquiry by the court, Mr Leung acknowledges that this case involves international dimension and that Mr Zhao came to Hong Kong with the objective to commit credit card offences.

Sentence

31.  Mr Zhao committed the first 3 offences right after he set foot on Hong Kong and even before he checked in at the hotel.  Under caution, he admitted he crossed the border to enter Hong Kong with Ah On with each of them using a different line/channel.  This arrangement indicates a degree of pre-planning even before their coming into the territory.  The hotel room was booked only for one night between the two days of offences.  All of these pieces of evidence point to only one inescapable conclusion.  Mr Zhao came to Hong Kong with the specific objective of committing crimes subject of the charges.  This is an aggravating factor.

32.  The mobile phones seized from Mr Zhao’s backpack were filled with a large number of credit cards all issued by overseas banks.  This is an international dimension that aggravates the offences as a whole.

33.  I have borne in mind the various sentencing considerations submitted by Mr Leung with support from Court of Appeal authorities.

34.  Although the eventual loss is small and some, not much, of the stolen property have been recovered, one cannot ignore the large number of credit cards involved and the organization of manpower and transport from Mong Kok to Central, then back to Mong Kok and then to Tin Shui Wai, and eventually to Sha Tin ie the place of arrest.

35.  With respect, Mr Leung rightly concedes that this case is not a simple small-scale offence involving one or a few stolen credit cards.  For Mr Zhao’s participation in the joint enterprise of this scale, I take an initial starting point of 3 years and 2 month’s imprisonment for each charge before consideration of the two aggravating factors aforesaid.

36.  Because of the dual aggravating factors, I increase the starting point by 4 months to 3 years and 6 months’ imprisonment.

37.  Mr Zhao pleaded guilty to the offences in good time.  He shall be given the full 1/3 sentencing discount.  For his clear record, I shall additionally grant Mr Zhao one further month off on each charge after the 1/3 discount. There are no other mitigating factors of weight to justify another sentence reduction.

38.  Although the offences span two days and took place at different locations, upon a consideration of the totality principle, I shall order the sentences to be served wholly concurrently.

(Mr Zhao, please stand)

39.  For each of Charges 1 to 4, the sentence is 2 years and 3 months’ imprisonment.

40.  I order that the sentences are to run wholly concurrently.