HKSAR v. IONUT LEONARD OANCEA AND OTHERS

DCCC782/2011

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 782 OF 2011

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Reasons for Sentence

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1.  Defendants, all three of you, pleaded guilty to a single joint offence of conspiracy to steal, contrary to section 9 of the Theft Ordinance, Cap.210 and sections 159A and 159C of the Crimes Ordinance, Cap.200.

2.  The facts were as follows.  The three of you conspired together with an unknown person to steal cash from ATMs using fake bank cards.  Some retailers in the United Kingdom, real and online, such as Marks & Spencer, iTunes, W H Smith and Toys ‘R’ Us, issue gift cards with stored values which can be used to purchase goods from those establishments. On the back of each card is a magnetic strip for storing information, namely the balance.  You three and the wanted person used these gift cards to make withdrawals from ATMs.

3.  You made a total of 1,100 attempts to withdraw from 6 ATMs.  Of these, 628 were successful.  The amounts withdrawn ranged from $1,000 to $3,000.  The total successfully withdrawn was HK$1,563,500 and the failed attempts would have yielded a further $1,108,900.

4.  On 25 January of this year, a member of security for DBS spotted dubious activities at its Johnston Road Wanchai Branch. Numerous attempts of withdrawing had been made from 22 January; a total of 17 suspicious gift cards had been retained by the ATM.  A report was made to the police.

5.  Between 3.26 pm on 22 January and 12.46 am on 25 January at this ATM there were 172 attempts to withdraw money using fake bank cards.  74 were successful yielding $72,000.  Had the other 98 been successful, a further $101,900 would have been withdrawn. 

6.  Later it was discovered that D3, you alone, had attempted 12 withdrawals, 6 of which were successful from the ATM of DBS at 574 Nathan Road, Mongkok.  This yielded $5,100.  The amount of the failed attempts would have been $5,000.

7.  HSBC confirmed similar activities at two of its branches in Hennessy Road, Wanchai.  73 suspicious gift cards were retained. Between 12.06 am on 22 January and 11.09 pm on 25 January at the first location there were 263 successful withdrawals yielding $726,400 and 253 refused which would have given an extra $674,000.  60 fake cards were retained.  The total number of attempts was 516.

8.  Between 1.21 am on 22 January of this year and 11.25 am on 25 January, fake bank cards were used in 131 attempted withdrawals from the third ATM, 90 were successful.  The total withdrawn was $255,500.  Had the refused withdrawals been successful, a further $120,000 would have been withdrawn.

9.  Similar attempts were made at the ATM of Citibank, Hennessy Road, between 7.27 pm on 22 January and 8.16 am on 24 January.  183 withdrawals were made giving 468,500.  None were unsuccessful and no credit cards were retained.

10.  Attempts of withdrawal were made from the ATM of the Bank of Communication, Johnston Road, Wanchai.  86 attempts were made, 12 of which were successful.  The amount taken was $36,000 and 208,000 was refused. 

11.  CCTV and journal entries of DBS and HSBC led to your arrest.  At about 6 pm on 25 January you D1 and you D2 were seen entering the King’s Hotel, 305 Jaffe Road.  D1, you were intercepted at the junction of Jaffe Road and Tonnochy Road at about 7.15 pm.  You had in your wallet HK$11,435 and a key card to Room 221.  Police entered that room and arrested you D2 and you D3. 

12.  The room was searched and the following items were found and seized:

(a) A suitcase containing 2 gift cards and HK$36,500;

(b) A suitcase containing an envelope containing cash of €44,000, a jacket with €13,300, a receipt for money exchanges and flight information for you D2;

(c) A wallet on the table containing your Romanian ID card, D2, and cash of HK$670 and 4 gift cards;

(d) A shoulder bag under the table containing 3 money exchange receipts;

(e) A blue suitcase near the table containing €48,100;

(f) A suitcase containing 13 gift cards, HK$107,200 bundled with 5 gift cards and a money exchange receipt and €85,350;

(g) A suitcase containing HK$3,000;

(h) In a drawer in your room, D1, your Romanian identity card and 5 gift cards;

(i) A laptop computer between the beds containing a file; and

(j) Your clothing.

13.  The total seized was HK$147,370 and €190,750.  This is equivalent to HK$2,193,625.

14.  Video recorded interviews were conducted with each of you.  D1, you made no real admissions therein, and D2, similarly.

15.  All of you are of clear record in Hong Kong.  Mr Morley on behalf of each of you entered mitigation.  He said that in each case pleas of guilty had been indicated from the initial hearing in the District Court.  All of you had worked in Spain where you had gone from Romania as the prospects were considered better.  In this scheme you were foot soldiers, not masterminds or planners and were expendable.

16.  Turning to your personal particulars, he told me that you D1, are 30 years of age, married with a son of 5.  Your parents live and work in Spain.  There you had been employed in the construction industry and also assisting your father’s car-repair business.  Your average earnings per year were €5,000 to €6,000.

17.  D2, he told me you are 25, the middle child of a family of 3.  Your family went to Spain in 2002 or 2003.  In Spain, like your father, you too work in construction.  You have a girlfriend of 5 years who is about to give birth to a baby.  

18.  D3, you are the elder of 2.  You are 25 years of age.  Your family went to Spain in 2007, but your parents returned to Romania and left behind you and your sister.  Your sister is a student in Spain. 

19.  He stressed that all three of you are of clear record.  And in respect of you, D3, he produced a certificate from the Romanian authorities to show that there were no convictions.  He added that you too, D3, are a construction worker.

20.  All of you, he described, as working class on low incomes and not highly educated nor sophisticated. 

21.  Mr Morley referred me to three sentencing authorities.  First, he referred me to the well-known case of R v Chan Sui To & another, CACC115/1996, especially to page 131, paragraphs F and G where the Court of Appeal listed the factors to be considered when sentencing similar cases to this.  Briefly, those factors are as follows: one, the size of the operation, for example, the amount of money involved, the number of persons involved and the number of forged or fake credit cards involved; two, the level of sophistication and planning; three, if there is an international dimension to the fraud; four, the role of the accused, were they planners or mere cogs in the wheel?  Finally, of course, whether or not the defendants pleaded guilty. 

22.  Very fairly, Mr Morley conceded the sum of money was sizeable but submitted that it may not be the main consideration.  That is one factor.  He also accepted that there was an international dimension.  He referred me to two sentencing cases in the District Court, the first was HKSAR v Darren Kavangh & another, DCCC572 of 2008, where there was successful withdrawal of $447,100 and attempted withdrawal of $891,600.  This involved 564 bank accounts, 30 banks and 238 cards which were recovered.  In this case there appears to be an international dimension and only a fraction of the cash returned.  My colleague, Judge Browne, took a starting point of 4 years, reduced it to 32 months for the pleas of guilty.

23.  The second case was decided by myself, that was HKSAR v Aktas Alim & another, DCCC61 of 2009.  This involved a lesser amount of $87,000 with attempts to take a further $124,000.  However, full compensation was made in that case.  Like the other case, there was an international dimension. I took as a starting point of 3 years’ imprisonment, reduced it to 2 years for pleas of guilty. 

24.  Mr Morley pointed out that this case now before the court, there would be full compensation from the money seized, so the banks would lose nothing.  He pointed out also that you were co-operative with the police and that you landed Hong Kong on your own genuine passports.  On your behalf, he urged leniency.

25.  I turn now to the sentence.  This was a well-organized, well-planned and well-executed scheme.  The only inference that I can draw from the facts is that from abroad Hong Kong was targeted for attack by a band of foreign nationals, not all of whom has been arrested.  There is therefore clearly an international dimension.  The illicit 628 successful withdrawals totalled $1,563,500 and the 472 failed attempts would have netted $1,108,900.  Had all the 1,100 attacks on ATMs been successful, this would have yielded $2,672,400.  As I have said, of course not all were successful.  The sum recovered is equivalent of HK$2,193,625 which is more than enough to cover the losses of the banks.  It is therefore a matter of mitigation that nobody has lost anything. 

26.  I accept that you are but foot soldiers and not planners in the scheme nor manufacturers of the false cards.  It is of course an aggravating feature that you acted together as a gang working in concert. Whilst I note your clear records, this factor is of little or no relevance in the circumstances. 

27.  Taking into account all the facts, the nature of the charge, the mitigation and the sentencing authorities that have been placed before me, I take in this case as a starting point 5 years’ imprisonment. Because of the mitigation, you will have of course a discount, that includes the discount for a plea of guilty, you will each go to prison for 3 years.