HKSAR v. ATIENZA RICHARD MONTENEGRO

DCCC 1070/2015

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 1070 OF 2015

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REASONS FOR SENTENCE

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1. The defendant pleaded guilty to three counts of “Theft”, contrary to section 9 of the Theft Ordinance, Cap. 210 (1^st to 3^rd charges), eight counts of “Obtaining property by deception”, contrary to section 17(1) of the Theft Ordinance (4^th to 6^th, 8^th to 12^th charges) and one count of “Attempting to obtain property by deception, contrary to section 17(1) of the Theft Ordinance and section 159G of the Crimes Ordinance, Cap. 200 (7^th charge).

Facts

2. Mr Mc Gough was the holder of a HSBC credit card (“the Card”).  He last used the Card on 12 November 2014.  At around 1300 hours on 15 November 2014, he was informed by HSBC that some suspicious transactions were made with the Card on that day.  He had no knowledge of those transactions and had not authorized anyone to use the Card. He then checked his wallet and found the Card missing.  Case was reported.

3. The defendant’s fingerprint was found on a sales slip of one of the shops involved in the suspicious transactions.  The defendant was arrested on 13 October 2015 when he entered Hong Kong.  Under caution, he admitted he met and chatted with Mr Mc Gough in a park and saw him drop the Card on the ground.  They then left the park separately.  The defendant later returned to the park to pick up the Card.  He then used it in subsequent transactions.

4. Evidence revealed that the defendant used the Card to make two online payments on 15 November 2014.  He also misrepresented himself as Mr Mc Gough and used the Card to make purchases at various shops in Wan Chai on 9 occasions on the same day.  Details are as follows.  He used the Card to make two online payments each of HK$100 to “CSL M-Commerce” at 0724 hours and 1016 hours respectively (2^nd and 3^rd charges).  At around 1029 hours, he purchased a pair of shoes valued at HK$1,199 at “Wan Kee Sports Co Ltd” (4^th charge).  At around 1047 hours, he bought 2 bottles of perfume valued at HK$1,688 at “ColourMix Cosmetics” (5^th charge).  At around 1055 hours, he purchased a watch valued at HK$2,412 at “Citychain” (6^th charge).  At around 1117 hours, he attempted to purchase a mobile phone valued at HK$2,900 at “JC Mobile” (7^th charge).  The salesperson refused to give him the mobile phone after realizing he was not the cardholder.  At around 1128 hours, he purchased two suitcases valued at HK$2,878 at “Yung Hang Co Ltd.” (8^th charge).  At around 1157 hours, he purchased a game machine “Play Station 4” valued at HK$4,078.80 at “Game Zone” (9^th charge).  At around 1218 hours, he purchased some goods valued at HK$2,856.40 at “ColourMix Cosmetics” (10^th charge).  At around 1240 hours, he purchased a watch valued at HK$9,000 at “New Bowling Watch Company Ltd” (11^th charge).  Fingerprint of the defendant was found on the merchant copy of the credit receipt of this transaction.  The watch was recovered from the defendant when he was arrested.  At around 12:53 hours, he purchased another 3 watches valued at HK$4,260 from the same shop (12^th charge).  

5. Movement records of the defendant show he was in Hong Kong from 8 to 22 November 2014.

Mitigation

6. The defendant was born in the Philippines.  He is aged 36.  He is single and was living with his parents and siblings prior to the arrest.  He operated salon business in the Philippines, earning about HK$6,000 per month. 

7. In mitigation, Mr Chan acting for the defendant submitted that the defendant’s act was not pre-meditated, he was not part of a credit card fraud syndicate, only one credit card was involved and all offences were committed within the same day.  He just got greedy on a spur of moment when he saw Mr Mc Gough drop his credit card.  Although the defendant has 2 previous criminal convictions in Hong Kong, those offences are of different nature from the offences in the present case.  It was also submitted that one watch valued HK$9,000, the subject matter of the 11^th charge, was recovered from the defendant at the time of arrest.  The total loss was slightly less than HK$20,000.  Further, it was submitted that the defendant was prepared to compensate the victim for HK$10,000, which could be paid into court.  He would also be able to arrange shipment of one watch, the subject matter of the 6^th charge and one suitcase, the subject matter of the 8^th charge, to Hong Kong so that the same could be returned to the owners.

8. Mr Chan also referred this court to the judgment of HKSAR v Lam See Chung, Stephen, CACC 339/2012 and submitted that the considerations relevant to the sentencing of credit card fraud involving forged credit cards are applicable to cases involving use of genuine credit card and that the starting point would be about 3 years or less for cases of simple credit card fraud.  Mr Chan further submitted given the defendant’s plea and his offer to compensate the victim, he asked for lenient and concurrent sentences to be imposed on the defendant.

Sentence

9. Credit card offences are serious and must be deterred.  Offenders would expect to be punished by a substantial term of imprisonment.

10. In R v Chan Sui To and anor [1996] 2 HKCLR 128, the Court of Appeal laid down the various factors to be considered in sentencing this type of offence, which included the size and planning of the operation, whether there is any international dimension and the role played by the defendant.  In HKSAR v Tu I Lang, CACC 464/2006, the Court of Appeal stated that where the facts of the offence point to a small unsophisticated operation involving only one or a few forged cards uncomplicated by other evidence materially linking the offence to a larger operation, then a starting point of 3 years’ imprisonment or less would be appropriate (see para 10 of judgment).  In HKSAR v Lam See Chung, Stephen, the Court of Appeal has said those sentencing principle in consideration are equally applicable to credit card fraud in which genuine cards are used.

11. In this case, one genuine credit card was involved and used on 11 occasions without any marked degree of planning or organization.  Further, there is lack of international element. The total value of goods obtained is not high.  The defendant has no previous criminal conviction record of offences involving dishonesty.  In the circumstances, I consider it appropriate to adopt 3 years as the starting point for each of the 4^th to 12^th charges.  Given the defendant’s guilty plea, the sentence for each of these charges is reduced to 2 years’ imprisonment.

12. The basis for the theft charge is theft by finding.  I consider the appropriate starting point is 9 months’ imprisonment for the 1^st charge.  Given the defendant’s guilty plea, it is reduced to 6 months’ imprisonment.

13. For the 2^nd and 3^rd charges involving the use of the Card for online payments, I consider the appropriate starting point is 15 months’ imprisonment.  Given the defendant’s guilty plea, the sentence for each of the 2^nd and 3^rd charges is reduced to 10 months’ imprisonment.

14. The defendant has paid into court compensation in the amount of HK$10,000.  Regarding restitution, it is well settled that this can amount to mitigation, particularly when coupled with a plea of guilty (see HKSAR v Leung Shuk Man [2002] 3 HKC 424 and HKSAR v Cheung Suet Ting [2010] 6 HKC 249).  In the circumstances, he is entitled to a discount of 3 months from his sentence for each of the 2^nd to 12^th charges.  Whilst I note his indication to return one of the watches and suitcases he bought in those transactions, as the same has not been done and in any event this may not add much to the discount for the restitution, I will not at this stage grant further discount on the basis of his indication.  Therefore, for the 2^nd and 3^rd charges, the sentence is reduced to 7 months’ imprisonment while the sentence for the 4^th to 12^th charges is reduced to 21 months’ imprisonment for restitution. 

15. Taking into consideration the totality principle, I consider a total sentence of 2 years is sufficient to reflect the total criminality of the defendant.  In the circumstance, I order that the sentences for 2^nd to 12^th charges to run concurrently, while 3 months of the sentence for the 1^st charge to run consecutive to all other charges, making a total of 2 years’ imprisonment.