HKSAR v. LIN PENG

DCCC 588/2018

[2019] HKDC 431

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 588 OF 2018

----------------------

----------------------

-----------------------------

Reasons for Sentence

-----------------------------

1.  The defendant faced a total of 8 counts of theft. After discussion, the Prosecution applied to amend the particulars of the offence in relation to Charges 5, 6 and 8 so as to clarify the actual owner of the chose in action concerned. Defence counsel has no objection and leave was granted.

2.  Upon plea bargaining, the defendant pleaded guilty to Charges 1, 2, 4, 5, 6 and 8 and was convicted accordingly. The remaining charges, namely Charges 3 and 7, are left on court file.

The Prosecution case - Charges 1, 2, 5 and 6

3.  PW1 Li was the holder of the Standard Chartered Bank MasterCard numbered 5523-4384-XXXX-8258 (SCB card).  PW1 had last used the SCB card on 8 September 2017.  On 11 September 2017, PW1 was notified that an unauthorised transaction of $14,776 had been made at Apple Store in Hysan Place, Causeway Bay, in the afternoon of the day (Charge 5).  PW1 then realised that his SCB card was missing. 

4.  In addition, PW1 also held an American Express card numbered 3763-790051-3XXXX (the AE card).  He had last used the said AE card on 30 August 2017.  On 26 September 2017, PW1 discovered from his online bank statement that the card had been used to make 7 unauthorised transactions in Hong Kong in September 2017, totaling $69,482 (Charge 6).  He then discovered that his AE card was also missing.

5.  The defendant is one of PW1’s friends and is a two-way permit holder from Mainland China.  PW1 would allow the defendant to stay in his home when the defendant came to Hong Kong.  The defendant stayed at PW1’s home on 9 September 2017.  The traffic check indicated that the defendant entered Hong Kong on 9, 15 and 23 September 2017 and departed on 12, 16 and 24 September respectively.

6.  The defendant was arrested on 28 March 2018. Under caution, the defendant made his admission as follows:

(1) He has known PW1 for 3 years. In early September 2017, he stole the SCB card and the AE card at PW1’s home.

(2) He used the SCB card to purchase 2 iPhones and sold the phones in Shenzhen for about RMB $10,000. He then discarded the SCB card.

(3) He used the AE card on 7 occasions to purchase iPhones and resold the phones in Shenzhen for about RMB $50,000.

Charges 4 and 8

7.  Zhang Dan (Zhang) was the holder of the China Merchants Bank Visa credit card numbered 4391-8805-8143-XXXX (the CMB card) and the HSBC Visa credit card numbered 4679-3200-0122-XXXX (the HSBC card).  He had last used the CMB card on 27 March 2018.

8.  On 28 March 2018, Zhang was informed that the CMB card was used to pay a transaction amounted to $30,952 at the Apple Store in Hysan Place, Causeway Bay. Zhang then realized that both the CMB card and HSBC card were missing. 

9.  The defendant is one of Zhang’s friends and Zhang had allowed the defendant to stay in his home on 27 March 2018 when the defendant came to Hong Kong in the afternoon of the day. 

10.  On 28 March 2018 when the defendant was arrested, the CMB card, the HSBC card, 3 iPhones in their original packaging boxes and a pair of Apple AirPods in the box were found in a bag carried by the defendant.

11.  Under caution, the defendant made the admission as follows:-

(1) He came to Hong Kong on 27 March 2018 and stayed in Zhang’s home. He stole the CMB card and the HSBC card;

(2) He used the CMB card to purchase 3 iPhones and the AirPods. He planned to sell them off in Shenzhen.

Mitigation

12.  Defence counsel submitted a mitigation bundle which includes 5 cases and the mitigation letters from the defendant, the defendant’s parents and his uncle.

13.  Today, the defendant’s parents, uncle and aunt are all in court to show their support to the defendant. 

14.  It was submitted that the thefts were opportunistic and not planned nor systematic.  The unauthorised use of the credit cards incurred a total cost of about $115,000 odd but the unrecovered loss only amounted to $84,000 odd.  Some of the iPhones were sold in Shenzhen. The defendant was willing to compensate the victims once he starts to make a living.

15.  It is submitted that the defendant is remorseful and expressed profound regret.  He confessed fully to the crimes and made frank admissions.  He apologised to his 2 victim friends and promises not to reoffend again. 

16.  The defendant was the sole breadwinner of his family and has to support his parents by contributing about RMB $2,000 to $3,000 to the family. He committed the offences out of momentary greed.

17.  Defence counsel submitted that this is not a breach of trust case but accepted that it can be regarded as an abuse of position in relation to his friendship to the 2 victims who allowed the defendant to stay in their homes at times.

18.  The defendant is willing to compensate $2,000 to the victims but defence counsel, as discussed, accepts that there may be issues in relation to who are the actual victims in this case.

19.  The defendant was arrested on 28 March 2018 and has been remanded ever since.  It is submitted that as the defendant had a clear record, a greater weight could be given for the purpose of rehabilitation and restoration.  It is further said that if the court adopts a starting point of 2 years, it would effectively allow the defendant to be released soon.

Sentence

20.  The defendant was born in Guangdong province and is now aged 30.  He lived with his parents and grandmother in Shenzhen.  He has a bachelor degree in electrical engineering from Southwest Jiaotong University in Chengdu.  He had a clear record in Hong Kong.

21.  Although strictly speaking this case is not a case involving breach of trust, it is accepted that the defendant was abusing his position when he stayed in the 2 victims’ home.  It is common sense that a flat owner would not allow a person or even his friend to stay in his house overnight had he known that his guest would commit a criminal wrong. 

22.  The defendant made use of the hospitality of his 2 friends when he came to Hong Kong, and took the opportunity to steal their credit cards.  He stole the AE card first (Charge 1), and then SCB card (Charge 2) from PW1.  The defendant committed the offences within a short span of time.  He used the SCB card first on 11 September 2017 (Charge 5), and then used the AE card to make purchases on 7 occasions from 15 to 24 September 2017 (Charge 6). 

23.  He went to Zhang’s home and used similar modus operandi to steal 2 credit cards.  He then used the CMB card to buy more iPhones and accessory on 28 March 2018 (Charge 8).  The defendant resold some of the iPhones in Shenzhen, though 3 iPhones and the AirPods were recovered upon the defendant’s arrest. 

24.  Given the chronology of the events, I cannot accept that the defendant committed the offence out of momentary greed.  It was calculated and premeditated.  He resold the iPhones in Shenzhen, not in Hong Kong.  The defendant stole 4 credit cards but used 3 to make purchases totaled $115,000 odd, even though some stolen property to the value of about $84,000 odd was recovered.

25.  Defence counsel suggested that the iPhones so recovered could be given back to Zhang so as to reduce his loss. I have reservation about this arrangement, and there may well be an issue of interpleading between Zhang and CMB.  The issue of compensation can also complicate the matter as no one should be unjustly enriched.  In this regard, I would not make any compensation order, but I take the offer to compensate $2,000 to the victims as a gesture of remorsefulness and good intention.

26.  The defendant in his mitigation letter says he is remorseful and promises not to reoffend.  He had hurt his family members and his friends.  The defendant asks for a lenient sentence.  The defendant also thanks his uncle for looking after his parents. 

27.  In another letter, the defendant apologized to his parents for committing the offence due to momentary greed.

28.  The defendant’s parents wrote that the defendant is a simple and filial son.  The defendant’s parents have medical problems and have to rely on the defendant to support the family.

29.  In HKSAR v Lam See Chung Stephen [2013] 5 HKLRD 242, the Court of Appeal, while adopting the principles in HKSAR v Tu I Lang CACC 464/2006, said the 3-year starting point for simple cases of counterfeit credit card fraud also applied to the fraudulent use of stolen genuine credit cards, and the same sentencing principles for loss which often exceeded the actual loss, applied to both types of offence.

30.  It is accepted that the present case involved the defendant who acted alone. There were no syndicated criminal gangs involved and the offences were committed in an unsophisticated way. But it is apparent that this can be a cross border crime as the defendant came to Hong Kong to visit his friends, stole the credit cards, made the purchases with these 3 credit cards and then resold the stolen property in Shenzhen.  The offences were committed over a period of time, and actual loss to the victims was incurred. 

31.  There are 2 groups of offences in this case:  3 charges involved the stealing of the credit cards and 3 relating to the use of the stolen credit cards.  I would adopt a lenient approach as I have confidence that the 30-year-old defendant will turn a new leaf and not to commit any wrongdoing again.

32.  For the first group of offences of theft of credit cards, viz Charges 1, 2 and 4, I would adopt a starting point of 2½ years for each of these three charges. With the guilty plea of the defendant, I reduce the sentence to 20 months, to be served concurrently.

33.  As regards the second group of the offences of using the stolen credit cards to steal, viz Charges 5, 6 and 8, I would adopt a starting point of 3 years for each of these 3 charges. I reduce the sentence to 24 months, to be served concurrently.

34.  I have to consider the totality principle and order that all these sentences are to be served concurrently.  That means the sentence for all 6 charges will be 24 months in total.

35.  On the other hand, I also take into account that the defendant’s offer to compensate, though the amount so offered is meagre, is a gesture of remorsefulness, coupled with the defendant’s promise to be a good and law abiding citizen in future. I would further reduce the sentence by 2 months. Hence, I sentence the defendant to 22 months. I will not make any compensation order.