HKSAR v. BATBAYAR TUGULDUR

DCCC 1083/2014

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 1083 OF 2014

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REASONS FOR SENTENCE

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Introduction

1. The defendant pleaded guilty in the District Court before me this morning to three counts of obtaining property by deception, contrary to section 17(1) of the Theft Ordinance, Cap 210.  He admitted the Summary of Facts and was duly convicted of all three charges accordingly.

The Facts

2. The circumstances of the offences are simple and straightforward.  The deceptions by the defendant in all three charges were in relation to credit card frauds.  The credit card used by the defendant is one American Express card numbered 3763-810974-71007 (“the credit card”).  The cardholder (“the victim”) is a French male who first noticed that all his personal belongings including his wallet and the credit card were missing from his rucksack when he went to Stanley for meal in the afternoon on 25 May 2014.  The victim could not find his belongings and he immediately reported the loss of the card to American Express and also to the police.

3. Upon enquiry, the victim learned from American Express that his credit card was subsequently used on three occasions on the same date by a person other than himself, firstly, at 1627 hours at Sasa to purchase cosmetic/beauty products; secondly, at 1651 hours at Fortress to purchase two smartphones and finally, at 1713 hours at Sunion Telecom to purchase one iPhone. 

4. The three transactions had a total value of $20,845.50.

5. The defendant’s image was captured in the CCTV recordings provided by Sasa and Fortress at the time of the transactions.  The police later identified the defendant as the fraudster when his fingerprints were detected on two of the credit card payment slips.

6. The defendant arrived at Hong Kong on 23 May 2014 on a visitor status and he was in Hong Kong at the material times.

The background of the defendant

7. At the time of the sentence, the defendant is 25 years old.  He is single and he is unemployed.  He is a Mongolian male travelling to Hong Kong and he has been educated up to primary school in Mongolia. 

8. It was unclear what is the purpose of his visiting in Hong Kong but I was told that whilst in Hong Kong, apart from the present three charges, he further committed a theft offence on 1 June 2014 and he was subsequently convicted of pickpocketing in the magistrates’ court for which he was sentenced to 8 months’ imprisonment.  Therefore, it is clear to me that he came to Hong Kong to commit criminal offences.

9. Whilst serving his sentence, he was arrested for the present offence.  I was told he had already served his sentence in respect of his pickpocketing offence. 

Mitigation

10. In mitigation, Mr Louis Fung, solicitor appearing on behalf of the defendant, had firstly submitted on the defendant’s behalf a short letter written by the defendant in English which stated that he was very remorseful. He told the court that he was regretful for what he has done.  He also informed the court that he was going to be a father soon and he had promised the court to reform himself and asked the court for mercy and to allow him to go back to his family and his newborn baby after serving the sentence.

11. Mr Fung stressed the fact that the defendant had pleaded guilty and therefore saving the court’s time.  He told the court that the defendant was just an opportunist in this case because he picked up the lost credit card and committed the present offences.  He reminded the court that the three charges involve only one credit card which is stolen, but not forged, and therefore could be categorised as a small-scale operation involving the defendant alone and without any international dimension.

12. He said the defendant was very remorseful and learned the lesson in a hard way.  While in custody he was studying bible and is trying to be a Christian and his wish was to go back to his family to be reunited with his family members. 

13. Mr Fung had said that he had already advised the defendant about the usual starting point for this type of offence which is in the region of 3 years.  When I also observed that the defendant came to Hong Kong to commit the offence which is an aggravating factor, Mr Fung also conceded that and said that he had already explained the same to the defendant.

Sentencing considerations

14. Before passing the sentence, I took into account the facts of the case, the mitigation which has been put forward and also the case authorities.  In relation to the type of a simple, small-scale use of forged credit cards, it is true that a sentencing tariff of 3 years’ imprisonment or less has been said to be appropriate by the Court of Appeal. 

15. In the case HKSAR v Tu I Lang CACC 464/2006, McMahon J said at paragraph 10 of the judgment - and I quote:-

“Where the facts of the offence point to a small unsophisticated operation, involving only one or a few forged credit cards uncomplicated by other evidence materially linking the offender to a larger operation, then a starting point of 3 years’ imprisonment or less would be appropriate. This case was followed up by another division of the Court of Appeal in HKSAR v Chan Ka Chung CACC 379/2010”

16. According to another Court of Appeal case, HKSAR v Lam See Chung Stephen [2013] 5 HKLRD 242, the Court of Appeal has said that those sentencing principles in consideration are equally applicable to credit card fraud offences in which genuine cards are used.  The Court of Appeal has said it very clearly that they can see no good reason why the 3-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. Although in this case, technically speaking, the credit card in question is genuine and not forged, it does not go to serve as a mitigating factor.  I therefore would still adopt as a starting point 3 years in respect of all three charges because there are not only one offence and three offences involved.

18. Further, there is an aggravating factor which I have identified earlier and that is the fact that the defendant came to Hong Kong for the purpose of committing offences.  To this extent, bearing in mind the feature of the case, I shall only increase the starting point by 3 months to 39 months. 

19. The defendant pleaded guilty, which is the only effective mitigation in this case, for which he shall be entitled to the usual one-third discount. After the reduction, for each offence, he will have to go to prison for 26 months and I order that the sentences on all these three charges shall run concurrently.