HKSAR v. KAM WING KI

DCCC 977/2022

[2023] HKDC 1303

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 977 OF 2022

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REASONS FOR SENTENCE

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1.  The defendant pleaded guilty to two counts of Attempted to obtain property by deception and two counts of Obtaining services by deception before me this morning.

2.  The facts admitted by the defendant are as follows.  By way of background:

(a)  The defendant was employed by a beauty company called the Zkin Advanced Beauty since 10 October 2014;

(b)  Her duties included, among other things, processing payments to Zkin from customers and in order to allow her to do that she is given charge of a merchant credit card machine to process credit card payments of the customers;

(c)  PW1, Chang Kit Hoi; PW2, Anne Wong and a third person, Chan Kan, all customers of Zkin and who had used their credit cards to settle their bills there.

3.  On 1 October 2020, Anne Wong (“PW2”)  received two SMS from her bank informing her of two payments made with her HSBC MasterCard (“Card 2”)  to “Hotels.com” in the sum of HK$3,491.39 and HK$11,770 respectively.  As she knew nothing about these bookings, she reported the matter to the bank hoping, no doubt, to terminate the transactions.

4.  On 4 October 2020, Chan Kit Hoi (“PW1”), received on her phone a SMS showing a payment was made to Zara Asia Limited for the sum of HK$6,396 (the figure was subsequently corrected to HK$5,997 according to the bank statement, Ms. Chan subsequently received from the bank).  The card used for this payment was a Hang Seng Bank VISA card of Ms Chan (“Card 1”).

5.  The matter was reported by Ms Chan to the police which led to some investigation made and as a result the following came up. According to the records of Zara, there was an order form number 51798464203 dated 6 October 2020 for three pairs of jeans, four pairs of shoes, two pairs of trousers, one T shirt, one sweatshirt, one overshirt and one hoodie, which cost a total of HK$5,997 for which payment Card 1 was used.  And according to the police investigation, the delivery address for the order placed at Zara was Zkin’s office address. The email address provided was kamwk20032003​@yahoo.com.hk.

6.  The police also found out that in fact on 11 September 2020, the same card was used by PW1 to pay for a beauty package at Zkin at HK$35,200.

7.  In addition, the police found from Zara’s records that there is another order, order form number 51797697829 dated 3 October 2020, for two bottles of fragrance, one scented candle, seven T-shirts, one sweatshirt, one shirt and one jacket.  These items cost HK$3,347 and payment was made with a Bank of China MasterCard held by the said Chan Kan (“Card 3”).  The delivery address for this order was likewise Zkin’s office address and the same email address, namely kamwk20032003​@yahoo.com.hk was given to Zara. 

8.  Neither Chan Kit Hoi nor Chan Kan had ever authorised the defendant to use their cards.

9.  As to Anne Wong’s HSBC MasterCard, that is Card 2, the police found out from the guest registration record of The Olympian, a hotel cum residence in West Kowloon, that the defendant had checked in on 3 October 2020 and spent a night there.  The booking records show that one of the email addresses given to the hotel were kamwk20032003​@yahoo.com.hk.

10.  The cost for the hotel room was paid with Card 2.  And when the police checked with The Olympian’s management, it was found that the defendant was captured by the CCTV at the hotel lobby and corridors on 3 October 2020.

11.  Apart from The Olympian, the police found out from the guest registration record of The Ritz-Carlton that the defendant had checked in on 9 October 2020 and checked out on 11 October 2020.  The bill in the sum of $11,770 was made with Card 2.  And obviously, the defendant was never authorised by PW2, for the use of her card.

12.  On 9 December 2020, PW2 was informed by the bank about these two transactions, first at The Olympian and later at The Ritz-Carlton, and a report was then made by her to the police.

Defendant’s Arrest and Caution

13.  The defendant was arrested first on 23 October 2020 presumably in relation to Charge 1 and 2.  And she was re-arrested on 17 December 2020 following the report by PW2.

14.  The defendant was interviewed by police on three occasions and, under caution, she told the police among others, the following things:

(a)  She had been working at Zkin since the beginning of 2019 as a clerk and she was the only person responsible for, among others, processing payments at the beauty centre;

(b)  She used to make hotel bookings with her own credit card, however, since the pandemic she was forced to take no pay leave and her savings as a result ran out. However, she was greedy and still wanted to stay in hotels. Therefore, soon after Zkin resumed service in October 2020, she started using the customers’ credit card details to make hotel bookings;

(c)  If a customer paid by credit card but did not want to have the bank slip, the defendant would keep it and also memorise the three-digit security code at the back of the credit card. She would then use these details to make hotel bookings with the customers’ cards;

(d)  She had used the credit card details of three customers at Zkin and these included the bookings made at The Olympian and The Ritz-Carlton;

(e)  In October 2020, she had used another credit card of a customer to make online purchase at Zara and she had selected some baby clothes totalling a few thousand dollars. When placing the order, she had filled in her own name and her office address for the delivery of the goods;

(f)  Sometime later, she did the same in placing another order with Zara for baby clothes which likewise costs, a few thousand dollars. However, the orders with Zara fell through and she did not get any goods from them.

Defendant’s Background

15.  Defendant is now 33 years old.  She is married to a man who is a Form 8 holder.  Together they have a daughter who is now 4 years old.

16.  I was told by Mr McGowan this morning, who is appearing for the defendant, that the child has language and/or learning difficulties and is currently waiting for treatment.  I was told also that after the defendant’s remand in February this year, her daughter was being taken care of by the defendant’s parents.

17.  The defendant had received education up to Form 5 in Hong Kong.  She has never been in trouble with the law before.  At the time of the offences, she was an employee of Zkin earning a little over HK$20,000. Following her arrest, her employment at the beauty centre was terminated and she had to get a job at the wet market from which she earned about HK$12,000 per month.

Mitigations and Sentencing Principles

18.  As part of the mitigation, the defence has put before me a few letters, one from the defendant and the others from her family members, all saying that the defendant had learned a bitter lesson and would not re-offend.  I have taken this into account when considering the proper sentence.

19.  These apart, her counsel, Mr McGowan has also listed out in his written submissions for mitigation a total of seven factors which he said I should also take on board.  These included and I quote:

(a)  Her early plea and apology and hence remorse;

(b)  She was, at the time of offence, under personal, financial and relationship stress;

(c)  The transactions under the four charges were all small and they took place within a matter of two weeks or so. Given that fact and the fact that the defendant has a clear record, it was advanced by Mr McGowan that at least partially concurrent sentences should be considered. For this argument, Mr McGowan sought to borrow weight from a judgment from the High Court, HKSAR v James Steven Pollard, HCMA 211/2010;

(d)  Only losses were those to the hotels and the defendant is willing, ready and able to make full restitution today;

(e)  Delay from the time the defendant made full admissions to the police and the eventual disposal of this matter by court;

(f)  The defendant’s desire to be returned to her family, in particular her daughter as soon as possible; and lastly

(g)  She had, Mr McGowan said, experienced a clang of prison gates.

20.  Now in relation to these matters, let me say this.  Whilst I have little difficulty in accepting the points put forward under (a), (b), (c), (f)  and (g), I do not think I can accept what is said in paragraphs (d)  and (e).

21.  Insofar as paragraph (d)  is concerned, it has been said time and time again by courts of all levels that credit card fraud has to be dealt with seriously as the harm done by it goes well beyond the loss of the card holders and/or the particular merchants being cheated.

22.  As stated by the Court of Appeal in HKSAR v Lam See Chung Stephen, CACC 339/2012:

“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.”

23.  On the other hand, I have no difficulty in accepting that some small credit is due for the restitution made by the defendant in respect of the offences under Charges 3 and 4, very late as this may be.

24.  As to the question of delay, namely point (e), I have confirmed with Mr McGowan that the defendant is not saying that there has been undue delay.  All that he is saying is that, in light of the lapse of time, the defendant has suffered additional mental pressure for which some small allowance could be considered by the court in exercising its discretion.

25.  Now having pondered upon this for a while, I would accept the defence’s suggestion, albeit not entirely without hesitation.  The defendant was first arrested in October 2020, then re-arrested in December the same year. Yet, she was only eventually charged in August 2022 and she was brought to court the following month.

26.  This morning I was given a chronology of events which shows that after getting the first legal advice from the Department of Justice in May 2021, by which the police was asked to conduct further investigation, it took the police a whole year to come up with what they were asked to do before returning the file to the DOJ for further advice.

27.  Now with the social events and the pandemic, I do not think the police could be blamed for the lapse of time.  But the fact is that a significant period of time had lapsed and, as I said, a small reduction of sentence may well be warranted.

Sentences

28.  Bearing in mind the sentencing principles I have referred to and also the cases brought to my attention by the defence, I am of the view that the starting point for each of these offences should be one of 2½ years’ imprisonment.

29.  With the defendant’s plea, the sentence for each charge will be reduced to one of 20 months.  For the restitution made and the delay, so to speak, I shall allow a reduction of 1 month for each of these factors, thus resulting in a sentence of 18 months’ imprisonment for each charge.

30.  The next question that we have to ask is what is the appropriate total sentence.   Now although the offences were all independent acts, I have to accept that they were reasonably close in time. For this reason and also of course taking into account the totality principle, I believe a total sentence of 27 months’ imprisonment would be sufficient to meet the competing need for punishment on the one hand, and rehabilitation and compassion on the other.  And on this basis, I shall order that 3 months of the sentence for each of Charges 2 to 4 to run consecutively to the 18 months’ term for Charge 1, making a global term of 27 months’ imprisonment.