HKSAR v. NG BOON PENG AND OTHERS

DCCC 750/2016

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 750 OF 2016

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REASONS FOR SENTENCE

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1.  D1 pleaded guilty to Charges 1-4, 6-7, 9 and 10.

2.  D2 pleaded guilty to Charges 5, 9 and 10.

3.  D3 pleaded guilty to Charges 9 and 10.

4.  D4 pleaded guilty to Charges 9 to 11.  Charge 8 was ordered to be left in court file and could not be proceeded with without court’s leave.

Facts of the case

Incidents on 29 April 2016 (Charges 1 to 5)

5.  PW1 lastly saw his two credit cards in question (Card 1 and Card 2) with him at Central MTR station at 1642 hours on 29 April 2016 and he received a message from the Bank that a transaction of $53,953 was made with Card 1 at 1717 hours on the same day.  Evidence later revealed that D1 had used Card 1 to purchase the following items:-

(a) two computers and two iPhones at HK$53,953 at 1717 hours at IFC Apple Store; then one more computer and one more iPhone at the same shop at 1722 hours (Charge 2: Obtaining properties by deception);

(b) 3 handbags and 2 wallets valued at HK$47,250 at 1736 hours at Landmark LV shop; then 3 more handbags at the same LV shop at 1746 hours (Charge 3: Obtaining properties by deception);

(c) Later on the same day, D1 attempted to buy 2 handbags and 1 wallets valued at HK$30,750 at a Gucci shop at IFC mall but did not succeed as Card 1 had been reported lost. D1 then presented another credit card (Card 2) which was rejected again as it was also a lost credit card. D1 subsequently left the shop without taking away the two credit cards (Charge 4: Attempt to obtain properties by deception).

6.  D1 and D2 were arrested at a hotel room on 1 May 2016.  In D1’s possession, an iPhone purchased with Card 1 of Charge 2 was found.  On a shelf beside D2’s bed, another iPhone purchased with Card 1 of Charge 2 was found (Charge 5: Handling stolen goods).

Incidents on 1 May 2016 (Charges 6-7, 9-11)

7.  Ms Loh (PW2), a Singaporean visitor in Hong Kong, lastly saw her purse which contained her credit card in question (Card 3) at about 1150 hours on 1 May 2016 when she was taking MTR from Mongkok to Wanchai.  About an hour later, she found her purse missing and called the bank to suspend the service of the credit card immediately but was told that the same had been used in a transaction amounted to HK$26,977 at an Apple Store at TST at 1237 hours.

8.  Mr Lui (PW3) lastly saw his two credit cards in question (Cards 4 and 5) at about 1700 hours on 1 May 2016.  At 1755 hours, he received a call from the bank that someone had used Card 4 to make two purchases at HK$26,976.50 and HK$16,547 at IFC Apple Store (Charge 9: Obtaining property by deception).  It was the time when he discovered the said two credit cards missing.  He then call the bank of Card 5 to suspend the service and was told that the same card had also been used in a transaction of HK$18,888.50 at the same Apple Store at 1746 hours (Charge 10: Obtaining property by deception).

9.  Meanwhile, D1 and D3 were seen acting furtively inside IFC Apple Store by a team of police officers.  D1 was seen using Card 4 to made the above purchases of altogether 1 computer, 3 Phones and an iPhone case which were the subject matter of the Charge 9.  D3 was also observed using Card 5 to purchase a computer at the same store (Charge 10).

10.  Furthermore, after D1 had purchased the first slot of items at 1747 hours at IFC Apple Store, he immediately brought the white shopping bag out of the shop and passed it to D4 who was standing near the IFC Mall exit leading the footbridge.  D4 then took out the stolen items and put them inside his shoulder bag before he left the mall and joined D2 at the footbridge nearby.  D1 was then seen to go back to the Apple Store and use the same card making another purchase.

11.  Meanwhile, D3 was observed leaving the Apple store with the purchased items in respect of Charge 10 and heading towards the footbridge where D2 and D4 were waiting.  D3 then passed the items to D4 in front of D2.  At this juncture, D2 to D4 noticed the observing police officers and feld in an opposite direction but was soon intercepted.  D1 also finished the purchase almost at the same time and was intercepted too.

12.  TIC records showed that D1 arrived at Hong Kong on 21 April 2016.  D2 arrived at Hong Kong on 24 April 2016 and departed at 1052 hours on 30 April and returned again at 1459 hours on the same day.  The records also showed that D3 entered Hong Kong at 1433 hours on 1 May 2016 while D4 had no record of entering Hong Kong after his departure on 8 March 2016.

Admission

13.  Under caution, D1 admitted that:-

(a) He was unemployed in Malaysia and came to Hong Kong to assist his friend in purchasing goods with credit cards;

(b) He worked upon instruction of D4 who had given him various credit cards on different occasions. He knew the credit cards were actually stolen (Charge 1: Handling stolen goods);

(c) On 1 May 2016, he was instructed by D4 to purchase goods at Apple Store at TST in the afternoon (Charge 7: Obtaining property by deception). D1 purchased a computer and an iPhone which he then passed to D4;

(d) He was then asked to purchase at another Apple Store at IFC in the evening (Charge 9). He had been given two credit cards at Central MTR station. He then purchased 3 iPhones, one Macbook and an iPhone case which were then passed to D4 at the footbridge as instructed. He was subsequently arrested there and then.

(e) D4 would offer him 5% of the value of the stolen goods as reward. D1 received a stolen iPhone and $4,000 from D4 so far.

14.  D2 admitted under caution that:-

(a) He knew D1 through their friends in Malaysia, he received D1 in the airport and stayed in the same hotel room with D1 in Hong Kong for half a month. The rental of the hotel was paid by him;

(b) He had gone to Shenzhen for 4 to 5 days and only came back to Hong Kong 2 days ago;

(c) D1 asked him to receive D3 in the airport on 1 May 2016 which he did and paid for his meal as well as bringing D3 to meet D1 at the footbridge. On that day, he also brought D4 to tour around in Hong Kong.

15.  D3 admitted under caution that:-

(a) He read a newspaper advertisement recruiting electrician to work in Hong Kong. He then contacted the agent who told him to buy air tickets to Hong Kong himself;

(b) On 1 May 2016, he arrived at Hong Kong at 1415 hours and received a call from D2 who later met him in a hotel in Jordan. D2 paid for his meal and gave him a SIM card and an Octopus card;

(c) D2 told him that he was not available at the moment and asked D3 to buy a computer for his daughter with a credit card given by D2. He did as asked and passed the same to D4 who was a colleague of D2 at the footbridge.

16.  D4 admitted under caution that:-

(a) he came to Hong Kong to receive goods because he had no money. He further admitted that he paid RMB3,500 and took a boat from Gongbei, Shuhai to Lautau, Hong Kong. He then took a taxi to TST;

(b) When he was sitting in Kowloon Park, D2 approached him and asked if he wanted to work for him for a reward of $5,000. He agreed and went to Central MTR station with D2 then to the footbridge to receive goods from D1 and D3.

Mitigation

D1

17.  He is aged 30, married with two sons in Malaysia.  He had a daughter who passed away years ago.  He had a clear record in Hong Kong.  He worked as a waiter in Malaysia before but was unemployed recently and had financial difficulty.  Therefore he agreed to work for his friend to come to Hong Kong to earn some quick money.  He knew what he did was criminal offences and was remorseful.  He was cooperative upon arrest and was frank in admitting the offences.  He indicated he would plead guilty on the plea day on 11 October 2016 and before that, he had also indicated his willingness to give evidence for the authority against D2.  An Non-prejudicial Statement was taken from him on 9 February 2017 and he was listed as a prosecution witness.  He was subsequently told that he did not need to testify as D2 would plead guilty too.

D2

18.  D2 is a Malaysian too, aged 44.  He divorced 4 years ago and had three children who no longer lived with him.  He has a clear record in Hong Kong.  He was a businessman in Malaysia earning around $20,000 per month and gave $2,000 to ex-wife per month.  He had a girlfriend in Shenzhen and that was why he needed to travel to and from between China and Hong Kong.

19.  Although D2 did not indicate his plea of guilty at the plea day, his later indication of plea by way of letter dated 17 February 2017 came before he received the Non-prejudicial Statements from other defendants.  It was mitigated that it was on his own initiative that he decided to plead guilty finally.

20.  Counsel for D2 submitted the case of Lam See Chung Stephen [2013] 5 HKLRD 242 to the court and asked the court to adopt a starting point of three years’ imprisonment.

21.  It was further said on behalf of D2 that the total values involved was just more than 60,000 and the potential loss was not substantial as D2 and others were stopped very soon after the purchases in question.  It was also said that D2 was along outside the shop and did not receive the goods at all.

D3

22.  D3, aged 31, is also a Malaysian who has no criminal record in Hong Kong. He worked as an electrician in Malaysia earning $6,000 per month.  He is married with 2 children aged 11 and 13.  He came to Hong Kong as he was in financial difficulty and wanted to earn some quick money in Hong Kong for his family.

23.  He indicated his plea of guilty on plea day and, like D1, had also given a non-prejudicial statement to police on 9 February 2017 against D2 and was listed as a prosecution witness.  He was required subsequently due to D2’s later indication of plea.

D4

24.  D4 is a mainlander, aged 43, married and had a grown-up daughter.  He worked as a cook in mainland earning about RMB3,000 per month.  It was said that his wife got cancer and his daughter had a new born baby but her husband was currently unemployed.  He had two previous criminal records in 2010 and 2015 respectively of offences related to theft.  He was imprisoned for 8 months and 10 months as a result.

25.  D4 also indicated his plea of guilty on plea day and gave a Non-prejudicial Statement in February and was willing to testify against D2.

Consideration of sentence

26.  It must be remembered that the courts regard credit card fraud, including the fraudulent use of both genuine and credit card, as itself a very serious matter.  As Litton JA (as he then was) said in R v Kwan Ying Ho[1], at p 5:-

“…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.”

27.  More recently, in HKSAR v Lam See Chung Stephen[2], the Court held:-

“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 card 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 card are used to commit the offence.”

28.  The Court of Appeal in the case of Chan Sui To [3] identified some of the factors relevant to sentencing:-

(a) The size of the operation: 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 to perpetrating the fraud: whether it was elaborate or simple;

(c) whether technical skills were used and to what extent;

(d) whether there was an international dimension;

(e) whether the accused played a major role;

(f) background and mitigation put forward on behalf of the defendant.

29.  The Court of Appeal has said on many occasions that it is a serious factor of aggravation and the commission of an offence that the offender has come to Hong Kong in order to commit crime.  Yeung JA, as he then was, said as much in the judgment of this Court in HKSAR v Tan Hong Sheng [4], in which the applicant and his co-defendant at trial were convicted of pick-pocketing the day after they had arrived in Hong Kong from the Mainland.

30.  That principle was re-affirmed in the more recent judgment of the Court of Appeal in HKSAR v Sandagdorj Altankhuyag & Another[5], in which the applicant and his co-applicant, Mongolian nationals, were convicted of a charge of theft from the handbag of a customer in a bar in the early hours of the morning.  For his part, the 1^st applicant had entered Hong Kong less than five and a half hours before the theft.

31.  In the case of HKSAR v Batbayar Tuguldur[6], the Court of Appeal wassatisfied that the judge was entitled to determine that the applicant had come to Hong Kong in order to commit crime and found that was an aggravating factor in the commission of the offence.  In that case, the applicant committed the offence in less than one hour upon arrival in Hong Kong.  The enhancement of sentence of three months’ imprisonment that the judge imposed for that aggravating factor was entirely justified, as observed by the Court of Appeal.

32.  In the present case, I consider that there is some degree of planning in that the defendants were recruited to play different roles including, purchasing and receiving goods.  A number of credit cards were involved and the potential loss could be substantial.  There are also international elements involved as all defendants were not Hong Kong citizens and I am satisfied that they all came to Hong Kong to commit the present offences, as revealed from the facts.  I therefore take 39 months’ imprisonment as the starting point for the offence involving credit card fraud in respect of all the defendants as I found them taking almost equally important roles in the commitment of the offences.

33.  For D1, D3 and D4, apart from their guilty plea indicated as early as in the plea day, I am satisfied that they had offered useful assistance to the authority and were willing to give evidence against D2 who only indicated to plead guilty at a much later stage.  I will give them altogether 45% in total including the guilty plea and assistance given.

34.  D2 indicated his plea before the first day of trial but after trial day was fixed, I will give him 25% discount in that regard.

35.  Having considered all the circumstances, I sentence the defendants as follows:-

D1

Charge 2: 39 months as the starting point, reduced to 21 months after 45% discount;

Charge 1: 12 months as the starting point, reduced to 6 months and two weeks after 45% discount, 1 month to be served consecutively due to totality principle;

Charge 3: 39 months as the starting point, reduced to 21 months after 45% discount, 1 month to be served consecutively due to totality principle;

Charge 4: 39 months as the starting point, reduced to 21 months after 45% discount, 1 month to be served consecutively due to totality principle;

Charge 6: 12 months as starting point, reduced to 6 months and 2 weeks after 45% discount, 1 month to be served consecutively due to totality principle;

Charge 7: 39 months as the starting point, reduced to 21 months after 45% discount, 1 month to be served consecutively due to totality principle;

Charge 9: 39 months as the starting point, reduced to 21 months after 45% discount, 1 month to be served consecutively due to totality principle;

Charge 10: 39 months as the starting point, reduced to 21 months after 45% discount, 1 month to be served consecutively due to totality principle.

Total sentence to be served: 21 + 7 = 28 months’ imprisonment.

D2

Charge 9: 39 months as the starting point, reduced to 29 months after 25% discount;

Charge 10: 39 months as the starting point, reduced to 29 months after 25% discount, 1 month to be served consecutively due to totality principle;

Charge 5: 12 months as starting point, reduced to 9 months after 25% discount, 1 month to be served consecutively.

Total sentence to be served: 29 + 2 = 31 months’ imprisonment.

D3

Charge 9: 39 months as the starting point, reduced to 21 months after 45% discount;

Charge 10: 39 months as the starting point, reduced to 21 months after 45% discount, 1 month to be served consecutively due to totality principle;

Total sentence to be served: 21 + 1 = 22 months’ imprisonment.

D4

Charge 9: 39 months as the starting point, reduced to 21 months after 45% discount;

Charge 10: 39 months as the starting point, reduced to 21 months after 45% discount, 1 month to be served consecutively due to totality principle;

Charge 11: 15 months after plea of guilty^[7], 6 months to be served consecutively due to totality principle;

Total sentence to be served: 21 + 1 + 6 = 28 months’ imprisonment.