HKSAR v. TUMURBAGANA ENKHTUR

DCCC 550/2014

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 550 OF 2014

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REASONS FOR SENTENCE

The defendant pleaded guilty to 3 charges of "Attempting to obtain property by deception". He tried to use credit cards belonging to another person to purchase consumer goods at retail shops.

Summary of Facts

2.  About 1:00 pm on 13 May 2014, Mr. Ross (PW1) lost his HSBC VISA Card (Card 1) and American Express Corporate Card (Card 2).

Charge 1

3.  About 3:00 pm the same day, the defendant and another Chinese male were seen entering "Fortress" situated at Lockhart Road, Causeway Bay ("the Shop") together.  The defendant told a salesperson, Mr. CHOW (PW2), that he would like to buy 5 smart phones and 5 watches (collectively "the Goods") which valued $42,480 in total.

4.  Since the Shop did not have sufficient stock, PW2 suggested the defendant to pay first and PW2 would get the Goods from a Fortress branch nearby.  The defendant agreed.  He presented Card 1 to settle payment but it was rejected.  PW2 requested the defendant to provide proof of identity but he refused.

5.  PW2 found the defendant suspicious, so he alerted the manager of the Shop, Mr. TAI (PW3).

Charge 2

6.  When Card 1 was rejected, the defendant presented Card 2 to pay for the Goods, which was successful.  PW2 told the defendant that the Goods would be ready in about half an hour.  The defendant then left the Shop.  The case was reported to the Police.

7.  About 4:00 pm, the defendant returned to the Shop alone and asked about the Goods.  PW2 had not taken the Goods to the Shop yet.  PW3 pointed the defendant out to the Police.  He was intercepted outside the Shop when he tried to leave.

8.  Upon search, Cards 1 and 2 were found inside the defendant's wallet.  The defendant's name does not match the names printed on the cards.  Card centres confirmed that Cards 1 and 2 were reported lost.

Charge 3

9.  On the same day, the defendant had also tried to use Card 2 at "Sasa" situated at Lockhart Road, Causeway Bay to purchase 5 bottles of perfume which valued $5,171 in total.  The transaction was rejected.

Admissions

10.  The defendant admitted under caution that after 3:00 pm on 13 May 2014, he found Cards 1 and 2 on a pavement near the Shop.  Out of stupidity and momentary greed, he used Card 2 to purchase smart phones and watches from the Shop.  He also tried to use Card 2 to purchase perfume but was unsuccessful.

Mitigation & Sentence

11.  The defendant is 25, married and has a clear record.  He comes from Mongolia.  Defence lawyer Mr. Cleves informed me that the defendant was about to commence his final year in university, but will lose his government grant as a result of the present case.  He came to Hong Kong on 12 May (the day before the offences).

12.  Mr. Cleves submitted that the 2 credit cards are in the name of a Westerner; the defendant's chances of success were slim. Mr. Cleves explained that the defendant in fact intended to buy one Samsung Galaxy 5 instead of 5 phones.  The salesperson misunderstood him since the defendant does not speak English, Putonghua or Cantonese.

13.  Mr. Cleves further submitted that the defendant attempted to use lost (but genuine) credit cards.  The potential loss should be less comparing to the use of forged credit cards since card owners are likely to report to the bank of their lost cards.  Hence, the court can consider a lower starting point for the present offences.

14.  Credit card offences are serious and must be deterred.  In HKSAR v CHEN Wing Hong CACC 40/2005, the Court of Appeal observed that "… in this day and age the integrity of the credit card system is highly important and those who attempt to beat the system by fraudulent methods necessarily erode the confidence which people are entitled to place on this aspect of modern commercial life."[1]  A clear message must be conveyed to the general public that "credit card fraud" is a serious crime and that offenders would be punished by a substantial prison term.

15.  In HKSAR v Tandon William CHAING CACC 404/2012, Macrae J (as he then was) endorsed a starting point of 3 years' imprisonment for the unauthorised use of 1 credit card belonging to another person on a single occasion in order to obtain jewellery and watches which valued $56,116 in total.[2]

16.  In the present case, the defendant tried to use Cards 1 and 2 respectively to obtain cell phones and watches with a total value of $42,480 (Charges 1 and 2).  He also tried to use Card 2 to obtain perfume with a total value of $5,171.  I consider the appropriate starting point for each charge to be 3 years' imprisonment.  A one-third discount is given for the guilty pleas, reducing the sentence to 2 years for each charge.  Apart from this, I see no other mitigating factors which warrant any further discount.

17.  Charges 1 and 2 arose from the same attempt to make purchase at the same shop, whereas Charge 3 arose from a separate attempt to purchase goods at another shop.  Having considered the totality principle, I order the sentences to run in the following manner :-

(i) Charges 1 and 2, concurrent;

(ii) 6 months in Charge 3 consecutive to Charges 1 and 2

Thus, arriving at a total prison term of 2 years and 6 months.