HKSAR v. CHAN KIN MING AND ANOTHER

DCCC 463/2024

[2025] HKDC 1174

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 463 OF 2024

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REASONS FOR SENTENCE

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1.  D1 and D2 pleaded guilty to 3 joint charges of “Obtaining property by deception”, contrary to section 17(1)  of the Theft Ordinance, Cap 210 (charges 28-30).

2.  D1 also pleaded guilty to 22 additional charges of “Obtaining property by deception” (charges 1-3, 7-25); 1 charge of “Attempt to obtain property by deception”, contrary to section 17(1)  of the Theft Ordinance and section 159G of the Crimes Ordinance, Cap 200 (charge 26); and 1 charge of “Theft”, contrary to section 9 of the Theft Ordinance (charge 27).

3.  In addition to charges 28-30, D2 pleaded guilty to 1 further count of “Obtaining property by deception” (charge 5)  but not guilty to 2 counts of “Obtaining property by deception” (charges 4 and 6); upon the prosecution’s application, charges 4 and 6 are to be left on the court file and not to be proceeded with without the court’s leave.

4.  I shall not repeat in detail the facts in the Amended Summary of Facts dated 4 July 2025 agreed to and admitted by the defendants. In gist, 7 stolen credit / debit cards (Cards 1-7)  were used to make / attempt to make purchases as follows:

(1)  By D1 and D2 jointly (charges 28-30), on 4 November 2023: 6 bottles of liquor, totalling HK$11,328.00.

(2)  By D2 (charge 5), on 2 October 2023: 1 bottle of liquor in the amount of HK$1,780.00.

(3)  By D1:

(a)  Clothing, food and liquor, totalling HK$2,480.50, on 2 October 2023 (charges 1-3).

(b)  Liquor, groceries, and other goods, totalling HK$10,020.20, on 7 October 2023 (charges 7-14).

(c)  Liquor, food, clothing etc, totalling HK$12,961.00, on 27 October 2023 (charges 15-20).

(d)  Goods totalling HK$8,580.00, on 27 October 2023 (charges 21 and 22).

(e)  Liquor and other goods totalling HK$5,466.00, on 27 October 2023 (charges 23-25).

(f)  Attempted to purchase goods worth HK$6,800.00 but failed, on 27 October 2023 (charge 26).

5.  Moreover, when D1 and D2 were intercepted and arrested by the police after having committed charges 28-30, search of the defendants and D1’s taxi turned up the 9 credit cards (Cards 7-15)  which are the subject of charge 27 (a theft charge, only against D1). Under caution, D1 claimed, inter alia, that D2 was his girlfriend, and he was a day-shift taxi driver; he had found some of the credit cards in his taxi which had been left by passengers; he had taken the credit cards with the intention to use them for shopping. D1 and D2 made full admissions regarding the charges under caution.

6.  As such, the transactions involving D1 (for charges 1-3, 7-26 and 28-30)  total approximately HK$57,000. The transactions involving D2 (for charges 5 and 28-30)  total approximately HK$13,000.

Background and mitigation of D1

7.  D1 is aged 60. He received education up to Form 3 level. He was a taxi driver before the time of arrest, earning around HK$20,000 per month. D1 has a criminal conviction record in 2010 involving 22 charges of “Theft” and “Obtaining property by deception”.

8.  The defence submitted various mitigation letters. D1 is divorced and has a daughter who is aged 10. He has been deprived of access to his daughter (who now lives with his ex-wife on the Mainland)  since 2022. The defence submits that D1 committed the offences because he “simply could not withstand the tremendous financial pressure and change of attitude of his ex-wife in terms of restrictions against his access to his daughter.”

9.  The defence submits that D1 is very remorseful, confessing immediately after his arrest. D1 now has the support of his brother and has turned over a new leaf.

10.  D1 relies on HKSAR v Yang Xingyun CACC 155/2016 and HKSAR v Lam See Chung Stephen [2013] 5 HKLRD 242 and agrees that the appropriate starting point for each of the charges for credit card fraud (i.e., charges 1-3, 7-26, and 28-30)  is 3 years’ imprisonment. D1 further submits that “the culpability of D1 in the commission of [these charges] had already been absorbed in the culpability of D1 in the commission of the 27^th charge” (charge 27 being the theft charge).

11.  D1 further relies on HKSAR v Leung Shuk Man [2002] 3 HKC 424 and Secretary for Justice v Lin Min Ying [2002] 2 HKLRD 823 and submits that he is “entitled to 50% discount of sentencing” given his indication of willingness to make full repayment to the victims.

Background and mitigation of D2

12.  D2 is aged 54. She is single. She works in a taxi radio call service centre managed by her sister. D2 submitted a number of mitigation letters written by herself, her sister, and persons who know her from work. The defence urges the court to consider her guilty plea and clear record, that she was not the instigator of the offences and the case did not involve any criminal syndicate. D1 was her first boyfriend and she was desperately looking for love and companionship; D2 foolishly agreed to participate in the offences upon D1’s influence. D2 is willing to compensate the victims in full.

13.  D2 also relies on Yang Xingyun and Lam See Chung Stephen but asks the court to adopt a lower starting point for her given the aforesaid mitigating factors. The defence cites HKSAR v Li Chi-yat CACC 189/2018 and submits that a starting point lower than 2 years 3 months should be adopted for each charge. D2 further asks for “most of the sentences to run concurrently”.

Sentence

14.  For the charge of theft of 9 credit cards (charge 27), I have considered the case of HKSAR v Fung Wai Yip CACC 231/2018 and HKSAR v Andriani Wibi Astutik CACC 296/2014; and I am of the view that the appropriate starting point is 18 months’ imprisonment.  Given D1’s guilty plea, the sentence is reduced to 12 months’ imprisonment.

15.  For the charges of obtaining property by deception (and attempt to do so), debit cards / credit cards were used in the commission of the offences. The Court of Appeal has reiterated in Li Chi Yat (para 22)  that “credit card fraud offences require deterrent sentences in order to protect the integrity of the credit card system and to punish the offender for the loss and inconvenience to the credit card company and the cardholder, as the case may be.”

16.  In Lam See Chung Stephen, the Court of Appeal stated that:

“38. … In HKSAR v Tu I Lang CACC 464/2006; unreported, 18 May 2007, McMahon J said at paragraph 10 of the judgment:

‘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 offender to a larger operation, then a starting point of three years’ imprisonment or less would be appropriate.’

39. Those judgments which lay down a sentence of 3 years’ imprisonment or less for cases of simple credit card fraud are based on a number of sentencing principles and considerations. They are that counterfeit credit card offences require deterrent sentences; there is a need to protect the integrity of the credit card system; and the potential for loss is great and often will be far greater than the actual loss. In fact, it is precisely because of this last consideration that the actual loss will not necessarily be an important factor when it comes to sentencing a credit card offender; rather ‘it is this potential for losses which is the most important consideration.’

40. These sentencing principles and considerations are equally applicable to credit card fraud offences in which genuine credit cards are used and we can see no good reason why the three year starting point for simple cases of counterfeit credit card fraud should not also apply to simple cases of credit card fraud where stolen genuine credit cards are used to commit the offence.”

17.  In R v Chan Sui To and anor [1996] 2 HKCLR 128, the Court of Appeal set out the various factors a sentencing judge would need to consider for offences involving credit card fraud, and stated these factors include: the size of the operation e.g. whether it involves large sums of money, whether it concerned a large number of persons or credit cards; the planning that has gone into perpetrating the fraud, whether it is elaborate or simple, whether technical skills were used, and to what extent; whether there is an international dimension; whether the accused played a major role; whether there is a plea of guilty.

18.  In this case, for D1, 7 genuine credit / debit cards were involved and used on 26 occasions (charges 1-3, 7-26 and 28-30); for D2, 2 genuine credit cards / debit cards were involved and used on 4 occasions (charges 5 and 28-30). I do not accept that D1 just found the credit cards in his taxi; however, the prosecution agree there is no evidence to say precisely how D1 came to have access to so many credit cards / debit cards, so the court can only say that the evidence does not show there was a marked degree of planning or organisation; nor did the case involve an international element. The total value of goods obtained is not high – for the charges faced by D1, totalling around $57,000; for the charges faced by D2, totalling around $13,000. All the offences were committed within a period of around 1 month. 

19.  D1 has a criminal record, but it was in 2010 (i.e., 15 years ago). I have not / will not take his record into account when sentencing him. D2 is of clear record.

20.  In the circumstances, regarding the offences of misuse of credit cards / debit cards, I consider it appropriate to adopt 2 years and 6 months as the starting point for each charge (for D1: charges 1-3, 7-26 and 28-30; for D2: charges 5 and 28-30).  Given the defendants’ guilty pleas, the sentence for each of these charges is reduced to 20 months’ imprisonment.

21.  It is trite that restitution when coupled with a plea of guilty is a mitigating factor; voluntary restitution is to be encouraged; and the reduction should be made on top of / after the discount for having pleaded guilty (see Sentencing in Hong Kong, Eleventh Edition, [30-344] to [30-351]; HKSAR v Leung Shuk Man [2002] 3 HKC 424; HKSAR v Cheung Suet Ting [2010] 6 HKC 249; and HKSAR v Wong Mei Heung CACC 273/2010). 

22.  Both defendants have offered to pay restitution fully compensating the victims; however, only (1)  the Bank of China  has been willing to accept HK$5,466.00 from D1 (for charges 23-25)  and (2)  the victim of charges 21 and 22 has agreed to accept HK$8,580.00 from D1 for those charges. The other victim companies / persons have not replied as to whether they would accept restitution / compensation. Given the offers made by the two defendants (which I believe are genuine), the effort to make the payments, as well as the actual restitution paid by D1, I am of the view each defendant should be given a discount of 3 months for each charge of misuse of credit / debit card.  In other words, the sentence for each of charges 1-3, 7-26 and 28-30 is reduced to 17 months’ imprisonment for D1; the sentence for each of charges 5 and 28-30 is reduced to 17 months’ imprisonment for D2.

23.  Apart from the above, I do not see other mitigating factors justifying a further reduction of sentence.

24.  Taking into consideration the totality principle, I am of the view that a sentence of 2 years 6 months is sufficient to reflect the total criminality of D1.  In the circumstance, I order (1)  the sentences for charges 1-3, 7-26 and 27 (“the 1^st group of charges”)  to run concurrently; (2)  the sentences for charges 28-30 (“the 2^nd group of charges”)  to run concurrently; and (3)  13 months of the sentence for the 2^nd group of charges to be consecutive to the sentence for the 1^st group of charges. For D2, I consider a sentence of 1 year 6 months to be sufficient to reflect her total criminality; I therefore order the sentences for charges 28-30 to run concurrently, and 1 month of the sentence for charge 5 to run consecutive to that.

25.  I hereby sentence D1 to 2 years 6 months’ imprisonment and D2 to 1 year 6 months’ imprisonment.