HKSAR v. FENG LIN

DCCC 873/2015

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 873 OF 2015

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Reasons for Sentence

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1.  The defendant has pleaded guilty to four charges today: one charge of obtaining property by deception, contrary to section 17 of the Theft Ordinance, Cap 210, Charge 2; and three charges of attempting to obtain property by deception, under the same ordinance, Charges 1, 3 and 4.

2.  The facts are as follows.  A Mr Jean-Claude Victor Marie Jamar was at the Airport Express Hong Kong Station on 13 July this year.  At about 4.10 pm, he queued up in front of a ticketing machine to buy a ticket to the airport.  He left his suitcase and hand bag behind him as he purchased the ticket.  He then proceeded to the train platform to take the train.

3.  Fifteen minutes later, at 4.25 pm, he received SMS messages on his mobile phone informing him that his credit cards were being used in several shops.  It was only then that he realised that his hand bag was missing.  In that hand bag he had two credit cards, a United Overseas Bank Visa credit card and a Singapore Airlines Krisflyer American Express credit card.

4.  As I said, he had left his bags unattended at about 4.10 pm, when he was buying a ticket.  By 4.19 pm, the defendant had walked into the Rolex shop in the IFC Mall above the Express Hong Kong Station with his two credit cards.  That is within 10 minutes.  In that Rolex shop, the defendant picked out a $45,410 Tudor watch to purchase.  The defendant gave the staff member the victim’s Visa credit card to pay for it.  This transaction was unsuccessful.  That is Charge 1.

5.  The defendant then gave the same staff member the victim’s American Express credit card, and that was successful; Charge 2.

6.  At 4.26 pm, the defendant left the Rolex shop.  It is clear from the photograph album that she was given a black carrier bag with the Tudor watch inside.  She leaves carrying the black carrier bag. At 4.40 pm, not long after, the defendant enters the Alfred Dunhill shop on the same floor as the Rolex shop.  From the photograph album it is clear she is no longer carrying that black carrier bag from the Rolex shop.  This Tudor watch was never recovered.

7.  In the Alfred Dunhill shop the defendant choose five items within a very short period of time, and produce the victim’s American Express card.  That staff member serving her was suspicious of the defendant because she chose the five items very quickly and did not inquire about the prices.  As a result of those suspicions, that staff member took the American Express card into the staff office with the intention of calling the card centre to check its authenticity.

8.  The defendant got impatient, perhaps suspicious, and asked for the American Express card back.  The staff member returned it without having had a reply from the American Express card centre.  That is Charge 3.

9.  The defendant, when she received the American Express card, produced the victim’s second credit card, the Visa card, to pay for those five items.  However, when that same staff member went to the staffroom, the defendant again stopped him and asked for the card back.  She then left the Alfred Dunhill shop very quickly.

10.  As she left, that staff member saw a security guard of the IFC Mall and stopped him.  He pointed out the defendant to the security guard and told him that he thought the defendant had tried to use fake credit cards.  That security guard intercepted the defendant some distance away whilst the Dunhill shop staff member called the police.

11.  That security guard took the defendant to a cargo lift lobby to wait for the police.  Whilst waiting for the police, the defendant took out two credit cards and tried to dispose of them, but her actions were observed by the security guard.  Later, the police recovered the victim’s two credit cards.

12.  The Dunhill shop staff member identified the two credit cards as those produced by the defendant being the same ones as those recovered by the police.

13.  I have heard mitigation put forward on behalf of the defendant.  She is 29 years old and single, and a resident of mainland China.  She lives with her boyfriend, but has the financial responsibility to look after her mother.  In China she had a job working with a PR firm.  I have received a letter from the defendant expressing her remorse.  In the letter she says her mother has been diagnosed with a lung disease and is now in hospital.

14.  I have also been told the defendant has a clear record in Hong Kong.  However, I do bear in mind that she is not a Hong Kong resident.

15.  The letter from the defendant expressing her remorse also explains that she picked up the two credit cards in the street. When I asked where the Tudor watch had disappeared to between the Rolex shop and the Alfred Dunhill shop, Mr Lee had instructions from the defendant that she had thrown away the $45,000 watch.

16.  I rejected this explanation.  I am sure the defendant handed it to an accomplice.  I do not believe the defendant acted alone.  I do not believe she found two cards and within minutes decided to spend with the two cards.  I do not believe that after successfully using someone else’s card to buy an expensive watch, she threw it away before she entered a second high‑end shop to purchase more expensive items.

17.  During mitigation Mr Lee has produced two authorities for me to consider, HKSAR v Kwan Po Keung CACC 79/2011 and HKSAR Tandon William Chaing CACC 404/2012.  Mr Lee submits that for the facts of this case, a 3-year starting point or less would be appropriate.  He also submits concurrent sentences for all four charges would also be appropriate.

18.  The prosecution have also produced an often-quoted authority, R v Chan Sui To and Another CACC 115/1996. That authority sets out relevant factors to consider when sentencing credit card fraud cases.

19.  I referred myself to another authority, HKSAR v Lam Sze Chung Stephen [2013] 5 HKLRD 242.  There, the Court of Appeal finds that the sentencing approach for forged credit cards and stolen genuine credit cards should be the same.  The Court of Appeal there is of the view that a 3-year starting point is appropriate for a simple credit card fraud case.

20.  Mr Lee submits that this is a simple credit card fraud.

21.  It is relevant that there were two cards used here.  It is also relevant that the actual loss suffered was $45,000‑odd. However, the potential loss is also relevant.  In this case, we know that the limits of both credit cards total over HK$350,000.

22.  The defendant’s plea is obviously relevant, and although the defendant here says she acted alone, I am sure that she handed the watch to somebody else, which is the usual modus operandi of these cases.  She would have done this before she entered the next shop.

23.  I also referred myself to the authority of HKSAR v Bat Byor Tuguldur CACC 73/2015.  There, the sentencing judge found the defendant had come to Hong Kong with the intention to commit an offence. Because of this aggravating factor, the sentencing judge added 3 months to the starting point.  The Court of Appeal upheld that sentence.

24.  Defendant, please stand up.  I take into account mitigation today and your plea, as well as the authorities produced by both parties and others I have referred to which I consider relevant.

25.  I will take a starting point of 3 years’ imprisonment for each charge.  I do not distinguish between an attempt and a substantive charge.  However, I am going to add 3 months to each starting point because I am sure the defendant came here and, with another or others, committed these offences.  I do not believe nor have had proof that the defendant was here in transit for several days on her way to Malaysia on a business trip.

26.  Therefore, the starting point for each charge is 3 years and 3 months.

27.  The defendant has pleaded guilty today and is entitled to a discount of one-third from the starting points.

28.  After that discount is applied, for each charge, Charges 1 through to 4, the defendant is sentenced to 2 years and 2 months’ imprisonment.

29.  I have considered the facts and the submission that they all be served concurrently.  I agree, and order that all four charges be served concurrently.

30.  Therefore, the total sentence is one of 2 years and 2 months.