HKSAR v. TSE CHI KWAN, TOMMY

DCCC78/2009

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 78 OF 2009

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Reasons for Sentence

1.  Defendant pleads guilty to four counts of fraud.  Mr Tse King-tung, PW1, was defendant’s father.  He normally stayed in China.  Defendant was his son but defendant lived apart from PW1 after the two had been on bad terms.  Nevertheless, defendant still worked in PW1’s company at the material time.

2.  In July 2007, PW1 got a Citibank Visa card.  He did not activate nor use it.  In early December 2007, defendant asked his father to give him his ID card and bank book for photocopying.  He told his father that those documents were required for business purposes.  On 18 December 2007, defendant pretended to be PW1 and reported loss of the Citibank Visa card.  The bank then issued a replacement card, that is the one mentioned in charge 1, and sent it to PW1’s post-box.  Defendant got the card.  He on 22 December 2007 activated that card.  On 22 December 2007, PW1 was informed that someone used the replacement card to purchase $7,980-worth  of merchandise at an electrical appliance shop, Broadway.  PW1 objected to that purchase on the phone.

3.  Later on in May 2008, PW1 returned to his home in Hong Kong.  He found there were letters from various banks.  Those banks included the Bank of East Asia, BEA, the Hongkong & Shanghai Bank, HSBC, and the Bank of China, BOC.  They said they had issued a supplementary credit card to defendant.  The BEA supplementary card, that is the one mentioned in charge 2, had incurred expenses of more than HK$14,000; that HSBC supplementary credit card, that is the one mentioned in charge 3, had incurred expenses over $40,000; that BOC supplementary credit card, that is the one mentioned in charge 4, had incurred expenses of over HK$65,000.  PW1 could not get into contact with defendant.  He later reported the matter to the police.

4.  Police arrested defendant on 10 December 2008 when defendant came back from China.  Defendant admitted forging PW1’s signature to apply for the BEA, HSBC and BOC credit cards.  He also admitted fraudulently reporting loss of PW1’s Citibank credit card and got himself a replacement card.  He had used the cards to make purchases.  He never paid the bills except a portion of one transaction relating to the BEA card.  Police found on defendant’s person the BEA, HSBC and BOC credit cards.  Defendant said he had thrown away the Citibank card already.

5.  Defendant applied to BEA for that Visa card on an application dated 1 January 2008.  He received the card on the 12th of the same month.  He made the fraudulent application to HSBC on 21 February 2008.  He received the credit card from HSBC on 29 February 2008. 

6.  Defendant made another fraudulent application to BOC on 13 March 2008.  He received the credit card from BOC on the 28th of the same month.

7.  Defendant had used the four cards on 27 occasions altogether between January and April 2008 to purchase goods and to withdraw cash totalling HK$160,093.40.

8.  Defendant is now aged 25.  He has a clear record.  Counsel says defendant had a girlfriend in China, he overspent.  He used the cards fraudulently to buy goods and to refill his lorry with petrol.  He kept some of the goods while others were sold for money. 

9.  Prosecutor tells the court that the banks bore the losses.  Counsel says defendant intended to repay the banks but defendant has no means to do so.  Nevertheless, counsel says defendant had been co-operative with the police and has been remorseful throughout.  Counsel further submits that defendant’s acts were not sophisticated operations.  Defendant committed the crimes alone, there was no breach of trust involved.  He had been in custody since arrest on 10 December 2008. 

10.  Counsel refers me to two cases, CACC47 of 2003 and CACC484 of 2006 on matters of quantum.  Those two cases actually do not lay down any sentencing tariffs.  Each case must be decided on its own facts. 

11.  No doubt defendant has a clear record before the present case.  His misdeeds were not sophisticated operations, there was no international element involved, defendant had been co-operative with the police, he pleaded guilty at the earliest opportunity.  There was no breach of trust.  Nevertheless, practicing fraud on banks and on the credit card system should always be considered as serious offences.  Defendant did not just commit one offence, he committed four crimes against four different banks.  Defendant did not act out of momentary impulse or greediness.  Although his acts were not sophisticated, there were still planning and premeditation.  Defendant perpetrated fraud on four different banks over a period of four months.  He used the cards on many occasions resulting in bringing in his gain of more than HK$160,000.  Virtually nothing was recovered. The banks had to bear the losses.  Although defendant says he intends to repay, he has no means to do so.

12.  In the circumstances of this case, I adopt 30 months’ imprisonment as the starting point for each offence.  After one-third discount, defendant is sent to prison for 20 months on each offence.

13.  Counsel asked me to consider concurrent sentences.  The four offences are actually separate ones but considering the principle of totality and the proximity of those four offences in terms of time and nature, I order 18 months of each of the term imposed in respect of charge 2, 3 and 4 to run concurrently with charge 1.  The remaining two months of each of the terms for charge 2, 3 and 4 are to run consecutively with each other and consecutively with charge 1.

14.  The final result is that defendant has to go to prison for a total of 26 months.