HKSAR v. FUNG WAI YIP

CACC 231/2018

[2019] HKCA 418

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO 231 OF 2018

(ON APPEAL FROM DCCC NO 1017 OF 2017)

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J U D G M E N T

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1.  The applicant applies for leave to appeal against his total sentence of 4 years and 4 months’ imprisonment, following his conviction on his own plea to 32 charges of theft of credit cards belonging to other persons, and one charge of conspiracy to obtain property by deception through the fraudulent use of the stolen credit cards.

2.  This is a very serious case of credit card fraud.  Between 1 October 2016 and 20 April 2017, the applicant had on 29 occasions at different public swimming pools, stolen a total of 32 credit cards belonging to other persons.  On each occasion, except for two, after the credit card was stolen, it was used to make a purchase on the same day at a particular shop.  Different shops were used on different occasions.  The total value of the purchases made with the credit cards was about $660,000.  Whilst the applicant gave his confederates a small percentage of the proceeds from these transactions, he kept most of it, which he claimed he used to pay off a loan shark.

3.  The applicant was 35 years old at the time of sentence and single.  It was said on his behalf that he came from a good background but because of difficulties with the family business he had to interrupt his schooling abroad and return to Hong Kong. Over the years he worked for electrical appliances companies, however misfortune struck when he went guarantor for the sale of mobile telephones for which he incurred a liability of $800,000.  It was said that he paid the debt by borrowing money from a loan shark who in turn recruited him to carry out this crime in order to pay off his debt.  He claimed that he was given the master keys of lockers at swimming pools, which he used to steal credit cards from the lockers and later used the stolen credit cards to buy goods with the assistance of his two co-defendants.

4.  The judge in her sentencing remarks concluded that this credit card fraud was a medium size operation of over 6 months’ duration, which required a degree of planning.  She adopted a starting point of 6 years’ imprisonment.  Of the role of the respective defendants in relation to the conspiracy charge, particularly the applicant, who was the second defendant, she said:

“The three defendants play different roles in the operation. I accept the firstand third defendants were not the mastermind or main organiser of the operation. In mitigation, counsel for the second defendant submitted that the second defendant was not the mastermind of the operation and that he was provided with the keys by the loan shark and was told to steal credit cards. I find this part of mitigation inconsistent with the second defendant’s admissions under caution. Nevertheless, I will proceed to sentence the second defendant on the basis that he was not the mastermind of the syndicate. Having said that, there is no dispute that after the properties were obtained and resold, the second defendant was the person who kept the majority part of the proceeds. Even if he used his share of proceeds to repay the loan shark, this does not diminish his role in the operation. In this operation, I consider the second defendant is the main organiser of the operation, which means he is more culpable than the first and third defendants.”

5.  As for the conspiracy charge, the judge adopted a starting point of 6 years’ imprisonment which she enhanced by 6 months in relation to the applicant because of his role and higher level of culpability.  After making allowance for the applicant’s guilty plea, she reduced his sentence by one third to 4 years and 4 months’ imprisonment.

6.  As for the 32 charges of theft, the judge adopted a starting point on each charge of 12 months’ imprisonment because of the planning involved which she reduced by one third for the applicant’s guilty plea to 8 months’ imprisonment. 

7.  The judge considered that the theft charges were part and parcel of the overall operation of the fraud and therefore she ordered that sentences on the theft charges be served concurrently with the sentence on the conspiracy charge.

8.  The applicant complains that the term of imprisonment of 4 years and 4 months’ imprisonment imposed on him by the judge was far longer than those ordered in similar cases and that in many similar schemes conducted on a larger scale more lenient sentences were handed down.

9.  The judge referred to R v Chan Sui-to and Another [1996] 2 HKCLR 128, where it was held that sentencing credit card fraud cases necessitated the consideration of various factors, including the size and planning of the operation, whether an international element was present and the role that the defendant played.  It was further held that defendants having played an active but not necessarily a key role in a medium size operation involving between $50,000 and $150,000, with no elaborate planning or equipment, and without an international dimension, should expect to receive a sentence of 5 to 6 years’ imprisonment after trial.  It was also noted that sentences might be adjusted in accordance with any aggravating or mitigating factors.

10.  The applicant seeks to question his sentence by comparing it with sentences in other cases which he submits involved terms of imprisonment considerably less than he received.  As pointed out by Ms Florrie Chan, for the respondent, two of the four cases, DCCC 791A/2015 and DCCC 828/2017, that the applicant has referred to did not concern credit card fraud, although they involved offences of dishonesty. 

11.  One of the other cases referred to by the applicant is DCCC 970/2016, which concerned two defendants stealing a total of 18 credit cards from lockers of various clubhouses over a two-month period which were subsequently used to purchase goods in the sum of $373,000.  The two defendants pleaded guilty to 5 and 3 burglary charges respectively and to one conspiracy to obtain property by deception.  The judge in that case for the 5 and 3 burglary charges adopted a starting point of 3 years and 2 years and 6 months’ imprisonment respectively, and for the conspiracy charge adopted a starting point of 3 years’ imprisonment.  The judge in sentencing the defendants in that case seemed to be guided by the case of HKSAR v Lam See Chung Stephen [2013] 5 HKLRD 242, which was also referred to by the applicant.  That was a case where this Court held that the 3 years starting point for simple cases of counterfeit credit card fraud also applied to the fraudulent use of stolen genuine credit cards.

12.  This was not a simple case of stolen genuine credit cards but one that the judge was correct to described as a medium size operation.  As this Court has frequently stated, comparing sentences in other cases is seldom of much utility when considering the appropriateness of the sentence in a particular case on appeal.  As experience has shown, cases will vary, and in any event, the task of an appellate court is to determine whether a proper sentence was passed in the particular circumstances of the case under consideration.

13.  In my view, there is no doubt that this was a medium size operation, involving a degree of sophistication and planning.  Swimming pools, with certain types of lockers, were targeted by the applicant which were compatible with master keys in his possession.  He would rummage through the lockers to steal a person’s credit card which he would then pass on to another so that it would be used fraudulently to buy goods that were later sold and with most of the proceeds of the sale going to the applicant.  A total of 32 credit cards were stolen and a total sum of $660,000 was misappropriated (the value of the goods) during the operation of this fraudulent scheme.

14.  It would have been preferable for the judge to have sentenced in relation to the totality of the theft charges, and separately from the conspiracy charge.  This would then involve a consideration of the sentences on the theft charges and the conspiracy charge with an appropriate adjustment taking into account the criminality involved and the totality principle.  The stealing of such a large number of credit cards over a prolonged period would have resulted in a substantial term of imprisonment for that conduct alone.  However, the applicant’s criminality was not just limited to the stealing of the credit cards but also extended to the fraudulent use of them as reflected by the conspiracy charge.  No criticism can be levelled against the judge for the ultimate sentence she imposed on the applicant for the nature and multiplicity of the offending.

15.  In my view, the applicant has no basis to complain of the sentence that was ultimately imposed on him and his application is refused.

16.  The applicant is reminded of his right to renew his application for leave to the Court of Appeal, but he is also warned of the consequences of doing so, which may include a direction for any loss of time spent in custody pending his appeal, if the Court were to come to the view that there was no justification for the renewal of his application.