HKSAR v. CHEUNG MAN FEI (also known as CHEUNG KWOK FAI)

DCCC 486, 681 & 796/2019

(Consolidated)

[2021] HKDC 26

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 486, 681 & 796 OF 2019

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REASONS FOR SENTENCE

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1.  The defendant pleads guilty to one charge of theft, contrary to section 9 of the Theft Ordinance[1] (charge 1); ten charges of obtaining property by deception, contrary to section 17 of the Theft Ordinance (charges 3, 10, 11, 17-21, 23 & 24); four charges of attempting to obtain property by deception, contrary to section 17 of the Theft Ordinance and section 159G of the Crimes Ordinance[2] (charges 5, 6, 9 & 13) and one charge of possession of a false instrument, contrary to section 75(2) of the Crimes Ordinance (charge 26).

2.  Full particulars of the offences are set out in the re-re-amended consolidated summary of facts admitted by the defendant today. 

3.  In summary in June 2018 the defendant was working at Physical Fitness Centre in Lok Fu Estate when he stole a colleague’s credit card which he used to purchase a gold ornament for $23,668.  The defendant was arrested for these offences in April 2019 (charges 1 & 3).

4.  In November 2018 the defendant was working in Fortress in Mongkok when he “pegged” the credit card accounts of customers to the Apple Pay account on his mobile phone.  This enabled the defendant to make payments using the Apple Pay function on his mobile phone without producing the physical credit card.  On 5 November the defendant used the credit card accounts pegged to his Apple Pay account to make various purchases.  The defendant was arrested for these offences on 7 November 2018 (charges 5, 6, 9-11, 13 & 17).

5.  In December 2018 the defendant was working in CityLink in Yuen Long when he “pegged” the credit card account of a customer to the Apple Pay account on his mobile phone.  Between 25 December 2018 and 6 January 2019 the defendant used the credit card account pegged to his Apple Pay account to make six purchases.  The defendant was arrested for these offences on 23 January 2019 (charges 18-21, 23 & 24).

6.  Police seized in the defendant’s home a desk top computer containing the false instrument particularised in charge 26. 

Charges 1 & 3

7.  On 8 June 2018 the defendant was employed as a membership consultant at Physical Fitness Centre in Lok Fu Estate.  Five days later on 13 June the defendant resigned.

8.  On 12 June 2018 Mr Ma, a colleague of the defendant, received an SMS text message from the Standard Chartered Bank notifying him his credit card had been used for a $23,668 transaction.  Mr Ma found his credit card was missing and immediately contacted the bank who informed him the transaction was made at Chow Tai Fook jewellery store.  Mr Ma did not authorise the transaction and immediately cancelled his card.

9.  Mr Ma identified the defendant making the purchase from CCTV footage of the jewellery store. 

10.  The defendant was arrested for these offences on 1 April 2019.  Under caution the defendant admitted, inter alia, that he used the credit card to make the purchases after which he discarded the credit card. 

Charges 5, 6, 9-11, 13 & 17

11.  In November 2018 the defendant was working in Fortress in Mongkok when he “pegged” the credit card accounts of five customers to his Apple Pay account.  The defendant promoted to customers, holding Hang Seng Bank VISA card, a “cash dollars” rebate by paying with Apple Pay.   This required the customer to “peg” their credit card account to an Apple Pay account to enable payment to be made using a mobile phone in lieu of the physical credit card. 

12.  In the course of setting up the “peg” a one-time password would be sent to the customer’s mobile phone.  The defendant would assist the customer to set up the “peg” but at the same time would discretely use the one-time password to also “peg” the credit card account to the Apple Pay account on his own mobile phone. 

13.  On 5 November the defendant used the credit card accounts of the five customers pegged to his Apple Pay account to make seven purchases.  Only three purchases were successful.  A Dyson hair dryer for $2,980 (charge 10), an airpod for $1,288 (charge 11) and a bottle of perfume for $560 (charge 17) (total purchase price $4,828).  The purchase of a Rolex watch for $322,525 (charges 5 & 6), a gold ornament for $20,000 (charge 9) and an iPhone for $6,899 (charge 13) (total purchase price $349,424), were unsuccessful.

14.  The credit limit on the five credit cards varied from $10,000 to $200,000.

15.  The defendant was arrested for these offences on 7 November 2018.  Under caution the defendant admitted, inter alia, how he “pegged” the credit card accounts to his Apple Pay account and his use of the credit card accounts. 

16.  The police reviewed CCTV footage of the various shops where the defendant made the purchases.  In a house search the police recovered the Dyson hair dryer and the clothes worn by the defendant when making the purchases.  Staff of the shops also identified the defendant in identification parades.

Charges 18-21, 23 & 24

17.  In December 2018 the defendant was working as a sales staff in CityLink in Lee Kee Building, 3-19 Hong King Street in Yuen Long.  On 17 December 2018 the defendant again “pegged” the credit card account of a customer to his Apple Pay account.  The credit limit of the credit card was $99,000.

18.  Between 25 December 2018 and 6 January 2019 the defendant used the credit card account of the customer pegged to his Apple Pay account to make six purchases: three Dyson appliances and a cup with coaster for $9,900; a coffee maker for $2,128; dog food for $217; a television and accessories for $5,779; a scarf for $7,000 and McQueen hoodies for $3,100 (total purchase price $28,124).

19.  The defendant was arrested for these offences on 23 January 2019.  Under caution the defendant admitted, inter alia, how he “pegged” the credit card account to his Apple Pay account; how he used the credit card account to make the purchases and that he threw away his mobile phone.   

20.  On the same day the police searched the defendant’s home and recovered two of the Dyson appliances; the television and the coffee maker.

Charge 26

21.  The police also seized in the defendant’s home a desktop computer containing, inter alia, a false HSBC bank statement in the name of Ms Yip, which had apparent signs of alteration regarding the account holder and address.  A copy of the false statement has been submitted to court.  Under caution the defendant claimed that he had made the false statement but had never used the statement.

Mitigation

22.  In passing sentence, I have carefully considered the oral and written submissions of Mr Tang including that the defendant is 22, single and lives alone[3]. I take into account the defendant’s previous convictions were in 2015 when he was 16. 

23.  I have read the defendant’s mitigation letter in which he explains that due to financial difficulties he was in debt.  On learning his girlfriend was pregnant he felt under great pressure and committed the offences.  The defendant expresses his remorse and that he will never repeat the same mistakes again[4].  In court the defendant says that he also needed money for medical treatment arising from an accident he had in 2007.

24.  I have also read the four letters written by the defendant’s father.  The defendant asks for a lenient sentence so that he may see his father again. 

Sentence

25.  In passing sentence, I take into account the factors which a sentencing judge will need to consider in credit card frauds as set out by the Court of Appeal in R v Chan Sui To[5], including the size of the operation; the planning that had gone into perpetrating the fraud; whether there is an international dimension; and whether the accused played a major role.  The factors were not intended however to be exhaustive but provide valuable assistance to the court.  The courts have repeatedly stressed that deterrent sentences are to be imposed. 

26.  In HKSAR v Tu I Lang the Court of Appeal held that where the facts of the offence point to a small unsophisticated operation, involving one or a few forged cards uncomplicated by other evidence materially linking the offender to a larger operation, a starting point of 3 years or less would be appropriate[6].  

27.  In HKSAR v Lam See Chung, Stephen the Court of Appeal held that the starting point of 3 years’ imprisonment or less for simple cases of counterfeit credit card fraud also applied to the fraudulent use of stolen genuine credit cards[7]. 

28.  In HKSAR v Li Chi Yat the defendant pleaded guilty to one charge of theft, one charge of obtaining property by deception and two charges of attempting to obtain property by deception[8]. The defendant stole a credit card belonging to his colleague and then used the credit card three times to buy goods, once successfully to obtain a mobile telephone in the sum of $7,917 and twice unsuccessfully to obtain goods in the sums of $10,464 and $7,288.  The credit limit on the credit card was $20,000. 

29.  Taking into account that the defendant acted alone in opportunistically stealing a single genuine credit card, the potential loss was $20,000 and that there was no planning or elaborate operation, the Court of Appeal held that the case was at the low end of the scale of criminality.  In the circumstances the court was of the view the appropriate starting point on each of the deception charges should be 2 years’ imprisonment and 9 months’ imprisonment for the theft of the credit card.   

30.  The court R v Chan Sui To however emphasised that the sum of money was only one, and not the most significant factor.  The potential for loss is also to be considered. 

31.  I have also considered the judgment in HKSAR v Andriani Wibi Astutik referred to the court by Mr Tang[9]. The facts of that case are very different involving a domestic helper stealing the credit cards of her employer.  Each case is to be decided on its own facts and circumstances.   

Charges 1 & 3

32.  I am satisfied a starting point of 9 months’ imprisonment is appropriate for the theft of the credit card.  Taking into account the credit card was used once; the value of the goods obtained was $23,668, I am satisfied a starting point of 2 years’ imprisonment is appropriate. 

33.  Giving the defendant full credit for his pleas of guilty reduces the sentence on charge 1 to 6 months’ imprisonment and on charge 3 to 1 year and 4 months’ imprisonment.

Charges 5, 6, 9-11, 13 & 17

34.  Taking into account the defendant abused the trust placed in him not to misuse the credit cards of customers of the shop he worked in; the individual amounts of each charge and the credit limits of the credit cards, I am satisfied a starting point of 3 years and 6 months’ imprisonment is appropriate for charges 5 and 6 which involved the attempting to obtain a Rolex watch for $322,525 and 3 years’ imprisonment is appropriate for charges 9-11, 13 & 17.

35.  Giving the defendant full credit for his pleas of guilty reduces the sentence on charges 5 and 6 to 2 years and 4 months’ imprisonment and on charges 9-11, 13 & 17 to 2 years’ imprisonment.   

Charges 18-21, 23 & 24

36.  Taking into account the defendant again abused the trust placed in him not to misuse the credit card of a customer of the shop he worked in; the individual amounts of each charge and the credit limit of the credit card, I am satisfied a starting point of 3 years’ imprisonment is also appropriate on each charge.

37.  These offences were committed whilst the defendant was on police bail for charges 5, 6, 9-11, 13 & 17.  The commission of offences on bail is an aggravating feature of sentence.  I enhance the starting point on each charge by 3 months to 3 years and 3 months’ imprisonment.

38.  Giving the defendant full credit for his pleas of guilty reduces the sentence on each charge to 2 years and 2 months’ imprisonment.  

Charge 26

39.  I am satisfied the appropriate starting point for possession of a false bank statement is 9 months’ imprisonment.  Giving the defendant full credit for his plea of guilty reduces the sentence to 6 months’ imprisonment.

Totality

Charges 1 & 3

40.  The theft of the credit card is a separate and distinct criminal act on the part of the defendant warranting a partially consecutive sentence to reflect the defendant’s true culpability[10]. I order 3 months to be served consecutive and 3 months concurrent making a total sentence on charges 1 & 3 of 1 year and 7 months’ imprisonment.

Charges 5, 6, 9-11, 13 & 17 and charges 18-21, 23 & 24

41.  The offences committed in November 2018 and the offences in December 2018 and January 2019 are separate and distinct from each other and from charges 1 & 3.  Consecutive sentences are appropriate subject to totality of sentence to be served.

Charge 26

42.  Charge 26 is also separate and distinct and adds to the culpability of the defendant. A consecutive sentence is also appropriate subject to totality of sentence to be served.

43.  I am satisfied sentence must reflect seven different credit cards were used over a period of six months; the total amount obtained was $56,620; the total value of the attempts was $349,424 and the potential loss from the credit limits of the credit cards varied between $10,000 and $200,000. 

44.  I am satisfied a total sentence of 3 years and 9 months’ imprisonment properly reflects the defendant’s overall criminal culpability on the sixteen charges and takes into account the defendant’s personal circumstances, including his young age and the seriousness of the offences[11].

Delay

45.  Delay in bringing an offender to justice is a mitigating factor which may be taken into account in sentence.  All the circumstances must be looked at including whether the offender has acknowledged guilt and whether the time taken to bring the case to court was longer than necessary[12].

46.  The defendant was first arrested on 7 November 2018 when he was placed on police bail.  The defendant was re-arrested on 23 January 2019 since which time he has been in custody, almost two years.

47.  All three cases were consolidated on 31 October 2019 after which there have been various adjournments at the request of both the prosecution and the defence including an adjournment by reason of the closing of the courts during the General Adjournment Period. 

48.  Mr Tang asks the court to take into account that in May 2020 the defendant indicated he was ready to plead guilty, however, the prosecution applied to amend the charge sheet from 16 charges to 26 charges.  This resulted in further adjournments and the case not being heard until 30 December 2020.  On that day the prosecution applied for an adjournment as new evidence had arisen with regard to charge 26.  I allowed only a short adjournment until today.    

49.  I am satisfied I should take into account that the defendant  has been in custody for almost two years waiting for his case to be heard.[13].  In the circumstances I reduce the total sentence to be served by the defendant by 1 month to 3 years and 8 months’ imprisonment.

Sentence

50.  The defendant is convicted and sentenced as follows:

Charges 5, 6, 9-11, 13 & 17

Charges 5 & 6 - 2 years and 4 months’ imprisonment concurrent on each charge;

Charges 9-11, 13 & 17 – 2 years’ imprisonment on each charge concurrent and concurrent with charges 5 & 6.

Charges 18-21, 23 & 24

2 years and 2 months’ imprisonment concurrent on each charge with 12 months consecutive to charges 5, 6, 9-11, 13 & 17 and 14 months concurrent;

Charges 1 & 3

Charge 3 – 1 year and 4 months’ imprisonment.

Charge 1 – 6 months’ imprisonment 3 months consecutive and 3 months concurrent to charge 3;

3 months of the sentence on charges 1 & 3 consecutive to charges 5, 6, 9-11, 13 & 17 and charges 18-21, 23 & 24 and 16 months concurrent.

Charge 26

6 months’ imprisonment with 1 month consecutive and 5 months concurrent to charges 1, 3, 5, 6, 9-11, 13, 17-21, 23 & 24.

The total sentence to be served by the defendant is 3 years and 8 months’ imprisonment.