HKSAR v. RUBIO AZUERO GERARDO

DCCC 1025/2014

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 1025 OF 2014

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REASONS FOR SENTENCE

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Introduction

1.  On 23 March 2015, the defendant (D1) pleaded guilty to a charge of attempting to obtain property by deception, contrary to s 17(1) of the Theft Ordinance, Cap 210 and s 159G of the Crimes Ordinance, Cap 200.  His sentence was adjourned pending the outcome of the trial of his co-accused (D2) who was jointly charged with him, there being some indication that D1 might be required to give evidence for D2.  In the event, D1 had not been called to give evidence at D2’s trial.  On 27 April 2015, D2 was acquitted.  The Reasons for Verdict were given to Mr Dunn, counsel for D1.  I now proceed to deal with the sentence of D1. 

Facts

2.  Shortly stated, on 28 August 2014, at TSL Jewellery Shop (TSL) on Park Lane Shopper’s Boulevard, D1 attempted to use a credit card (P1) and then a debit card (P2) to pay for a gold wrist chain which he had chosen for his female companion (D2).  However, none of the cards were accepted by the credit card machine.  In the event, D1 left TSL with his female companion without making any purchase.  Unbeknown to D1, a police party had kept him under observation outside the shop.  See that the defendants were leaving, the police party went forward and intercepted them outside TSL.  D1 put up a brief struggle but was soon subdued.  The cards which D1 had used were retrieved from the ground nearby and were subsequent sent to the Government Chemist for examination.  The Government Chemist found that the cards were genuine.  The two cards were issued by foreign banks and none of them bore the name of D1. The price of the gold wrist chain which D intended to obtain was HK$4,052.  

Antecedent

3.  D1 is now aged 54.  He is married with 3 children and his family is now in South America.  He has a clear record in and outside Hong Kong.  He previously worked as a sailor and he came to Hong Kong on 16 August 2014.

Mitigation

4.  Mr Dunn said that D1 obtained the two cards the subject matters of the charge from two Filipino sailors who owed him money and D1 accepted the cards to clear the debts.  D1 knew that he had no right to use the cards and what he did was dishonest.  Mr Dunn stressed the fact that the cards were genuine cards, which had either been lost or stolen and had apparently been cancelled by their owners.  Therefore, the chance of anyone suffering any loss as a result of the use of those cards was very small. 

5.  As to D1’s health condition, he has suffered from epilepsy and had lost an eye in an accident some years ago.  Whilst in custody, D1 fell and injured his right knee and is now also suffering from related back pain. 

6.  Mr Dunn referred the court to the case of HKSAR v Tu I Lang (CACC 464/2006) and asked for a starting point which is lower than the usual 3 years’ imprisonment (as is common for small scale credit card frauds) on the basis of the above mitigation.

7.  Regarding the credit card (PP3) and the Filipino identity card (P4), both of which bearing the name of Mark Wilson Claveria and found in the possession of the co-accused D2, Mr Dunn accepted on behalf of D1 that they were given to her by D1.  Mr Dunn’s instruction was that D2 had nothing to do with D1’s offence.  However, Mr Dunn had no instruction as to why D1 had given PP3 and P4 to D2 prior to the offence.   

Case authorities

8.  The Court of Appeal has repeatedly emphasized that credit card offences are widespread and prevalent, and must be dealt with severely.  Litton JA (as he then was) observed in R v Kwan Ying Ho, (CACC 527/1992) (unreported) that:-

“Credit card frauds have in recent years been an insidious poison in the community. It affects a large number of citizens. It erodes the credit card system and damages Hong Kong’s standing in the international community.”

9.  There is no sentencing tariff as such for credit card frauds.  However, in the well-known case of R v Chan Sui-to & Another [1996] 2 HKCLR 128, the Court of Appeal listed out various factors which a sentencing judge will need to consider when ascertaining the sentence for credit card frauds, including:-

(a) the size of the operation, eg, whether it involved large sums of money, whether it concerned a large number of persons or forged credit cards;

(b) the planning that had gone into perpetrating the fraud, whether it was elaborate or simple, whether technical skills were used, and to what extent;

(c) whether there was an international dimension;

(d) whether the accused played a major role, eg, running a syndicate, engaging in actual manufacture, organising the use of forged cards, or whether he was a mere “cog in the wheel” as a courier or a custodian or keeper; and

(e) whether there was a plea of guilty.

These factors are, however, not intended to be exhaustive. The court also pointed out that the sum of money involved is of course only one of the factors to be taken into account and it is not even the most significant factor.

10.  In the case of HKSAR v Cheung Ka Wo Johnny [2002] 2 HKC 517, the Court of Appeal went further and said that the amount proved to have been lost by the fraudulent use of credit cards is not an important factor to be taken into account in sentencing for this kind of offences.  It is the potential for losses which is the most important consideration.

11.  In HKSAR v Lam See Chung Stephen [2013] 5 HKLRD 242, it was held that sentencing principles and considerations that are applicable to credit card offences in which false credit cards were used are equally applicable to cases where genuine credit cards were used.  The Court of Appeal said also that they could see no good reason why the three year starting point for simple cases of counterfeit credit card should not also apply to simple cases of credit card fraud where stolen genuine credit cards were used to commit the offence.

Sentence

12.  I note that there is no evidence before the court as to whether the two cards used by the defendant had in fact been stolen or lost.  D1 is to be sentenced for the use of the cards and not the stealing of them.  However, the important sentencing considerations applicable to credit card frauds such as the need to protect the integrity of the credit card system are equally applicable in the present case.  

13.  Applying the sentencing authorities cited above to the present case, I find that the present offence is a small unsophisticated operation, involving just two cards and uncomplicated by other evidence materially linking the defendant to a larger operation.  In view of the fact that D1 had stayed in Hong Kong for some time before he committed the present offence, I do not treat him as one who came to Hong Kong for the purpose of committing credit card offences. 

14.  Although D1 is convicted of an attempt rather than a full offence, the facts which he has admitted clearly show that he had done everything necessary for the commission of the full offence and only failed because of the security measure taken by the credit card companies.  The fact that he had used two cards successively indicated his boldness and the extent to which he was prepared to commit the offence: see HKSAR v Yau Hoi Shan Shanly [2007] 3 HKC 284.

15.  I note that the prosecution is unable to inform the credit limits of the cards concerned.  For this reason, I am unable to form an accurate assessment as to the potential for loss.  Basing on the evidence before me, the chance of anyone successfully using the cards was small.  However, the chance is not zero.  For this reason, I adopt an imprisonment term of 2 years and 6 months as the starting point, which is slightly lower than the usual sentence of 3 years imprisonment for small scale credit card frauds like the present one: see HKSAR v Tu I Lang, supra. 

16.  There is, however, one aggravating factor in the present case, namely that the defendant had caused his female companion (D2) to be involved, whether or not she was a knowing party or just an innocent dupe used as a prop for his dishonest gain.  Even if one were to accept that D1 did not intend to cause D2 any harm, by giving the credit card (PP3) and Filipino identity card (P4) to D2 immediately prior to the offence and taking her to a jewellery shop when he knew that he was going to commit a credit card fraud in that shop, what he had done clearly exposed D2 to a substantial risk of being implicated in his offence.  For this aggravating factor, I add 3 months to the starting point, making a total of 2 years and 9 months’ imprisonment before mitigation.

17.  For D1’s guilty plea, there is the customary one-third discount which reduces the sentence to 22 months’ imprisonment.  Apart from the plea, I can see no reasons to further reduce the sentence.  As regards D1’s physical condition and the need for medical attention, I am sure that the Correctional Services Department will look into that and provide suitable assistance to him.  In any event, there are ample authorities for the proposition that clemency is a matter for the executive and that a defendant’s health condition generally would not reduce an otherwise appropriate sentence.

18.  Therefore, D1 is sentenced to 22 months’ imprisonment.