HKSAR v. LEUNG FONG HO AND ANOTHER

DCCC 938/2018

[2019] HKDC 639

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 938 OF 2018

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REASONS FOR SENTENCE

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1.  In this case the 1^st defendant, Mr Leung, is faced with a total of 11 charges, whereas the 2^nd defendant, Madam Zhao, is faced only with one charge, that under Charge 12 of the charge sheet.

2.  As can be seen from the facts admitted, the first 10 charges the 1^st defendant is convicted of related to two Visa credit cards which he stole from Madam Cheung, the mother of his friend, whilst the 1^st defendant was staying at their place.  These two Visa credit cards were issued by OCBC bank and the BOC bank respectively.  I shall call the two cards OCBC and BOC card respectively from now on.

3.  The theft of the 2 cards formed the subject matter of the first two charges.  After stealing the cards between 14 April 2018 and 30 April 2018, the 1^st defendant used and/or attempted to use the two cards to make purchases at various shops.  These include going to:-

(a) the Wilson shop at YOHO Mall at 1:38 pm on 14 April 2018 to buy an iPhone with Madam Cheung’s OCBC card;

(b) the Fortress of the same shopping centre at 1:43 pm in the same afternoon to buy another iPhone with the BOC card;

(c) a Sunion in the same shopping centre at 1:53 pm, same day, to buy a third iPhone with the BOC card;

(d) the Suning at the same shopping centre at 2:02 pm in the same day, to try to buy a fourth iPhone with the BOC card but without success;

(e) the Circle K in Hung Hom at 3:45 pm in the same afternoon, to make a purchase in the sum of HKD $614.19 with the BOC card.

4.  Together these formed the subject matter for Charges 3 to 7.

5.  On 15 and 16 April 2018, the 1^st defendant used the BOC card to settle payments for 2 online hotel bookings.  These were for rooms in Shenzhen and they formed the subject matter for Charges 8 and 9. 

6.  For Charge 10, the 1^st defendant went to a McDonald’s in Whampoa Garden in Hung Hom on 30 April 2018 and attempted to use the BOC card to pay for some food.  The bill came to HKD $58.50. The 1^st defendant could not do it as the credit limit for that card had been exhausted with the hotel bookings made.

7.  Turning to Charge 11, this happened on 24 May 2018 when the 1^st and the 2^nd defendants went into a watch shop at Canton Road where the 2^nd defendant chose a Rolex studded with diamonds and was sold at a cost of HKD $1.5 million.  The 1^st defendant produced what was later found to be a forged American Express card for payment.  However, as the card was made too thick, it could not go through the card slot.  Also, the staff at the shop noticed that the card was past its expiry date.  A report was therefore quietly made to the police and the card centre.

8.  As a result, shortly after the 1^st and 2^nd defendants left the store, they were intercepted and arrested by the police.  The forged American Express credit card was still in the 1^st defendant’s hand. 

9.  Under caution, the 1^st defendant told the police that he bought the forged American Express card on Taobao.  The 2^nd defendant, on the other hand, told the police under caution that she picked the BOC card up somewhere in Hong Kong.  She also told the police that she had never used it. 

10.  In a video interview, the 1^st defendant made admissions to the facts under Charges 1 to 11.  He said he had thrown away Madam Cheung’s OCBC card and had left the BOC card at his flat in the mainland.  The 2^nd defendant, he said, was his girlfriend at the time and she had picked it up. 

11.  In a body search, the police actually found from the 2^nd defendant’s wallet Madam Cheung’s BOC card.  The 2^nd defendant also owned up in a subsequent interview that, in fact, she had kept the BOC card after the 1^st defendant left it, together with some other cards, at her place in the mainland.

12.  Today I have been told by her counsel that she knew that it was a stolen card at the time and this is the subject matter under Charge 12.

13.  From the above, it could be seen that the charges faced by the 1^st defendant could be treated as falling into the following three groups.  The first one relates to the theft of the cards from Madam Cheung, Charges 1 and 2. The second group consists of the thiefs under Charges 3 to 10, meaning the use or attempted use of the cards for the various purchases.  The use of the forged American Express card could be treated as falling into the third category or group.  These I shall come back to shortly.

14.  I turn next to the defendants’ background.  The 1^st defendant is 24 years old.  He is single.  I was told by his counsel, Mr Sadhwani, on the last occasion that after he left school he worked with his father in his construction business.  However, he fell out with his father and left his business in 2018.  He had been living on his savings since.

15.  On his behalf, it was admitted by Mr Sadhwani that he had abused the hospitality and trust extended to him by Madam Cheung.  The iPhones bought with the two cards, I was told, were bought and then sold in order to help pay his rent.  As to Charge 11, it was said by Mr Sadhwani that the 1^st defendant bought the American Express on Taobao just so that he could flash it around and when he and the 2^nd defendant walked into the watch shop on 24 May last year, the attempted purchase of the Rolex was meant more at the time to be a show to impress the 2^nd defendant. It was said by Mr Sadhwani that the 1^st defendant did not really at the time expect it to work anyway.  

16.  In respect of the last point made, I must say that I have some doubts.  Rough as the forged American Express’ making no doubt is, the 1^st defendant clearly had the intention to use it, in my view.  Whether he was also trying to impress the 2^nd defendant is something which would only be known by themselves. 

17.  In any event, this is not the first time the 1^st defendant had committed offences involving dishonesty.  On 11 August 2015, the 1^st defendant was convicted of a total of 6 thefts, 2 charges of taking a conveyance without authority and 4 charges of driving without a licence, and lastly, 4 charges of driving without third party insurance. 

18.  I was told by Mr Sadhwani that the thefts were in relation to some car keys including those for the cars which he subsequently took for a ride.  Whether that is so or not I cannot tell, but from the records it appears that the court on that occasion was taking a lenient view of the matter as he was put on probation for all these offences. 

19.  Turning to the 2^nd defendant, she is 31 years old, born and bred in mainland China.  She is married and has one daughter who is now 6 to 7 years old.  To earn a better living, she left her hometown to work as a masseuse in Shenzhen whilst her husband and her daughter stayed home.  She met and became the 1^st defendant’s girlfriend while she was working in that capacity in Shenzhen.  She has a clear record.

20.  Her counsel, Mr Fong, had placed before me letters not only from herself but also from her husband and mother, her uncle and aunt.  They all spoke positively of her and asked for leniency. 

Sentencing authorities

21.  On the last occasion, I have been referred by Mr Sadhwani to various decisions of my brethren in the District Court.  And I have also been taken by Mr Fong to the Court of Appeal judgment in HKSAR v Wang Shuai, CACC 183/2016. 

22.  Now, in arriving at the sentence to be imposed in this case I have considered carefully the cases I have been referred to by counsel.  What cannot be over-emphasised, however, is that this is a credit card fraud for which the courts have repeatedly stressed that deterrent sentences are to be expected.  The factors which a sentencing judge will need to consider in credit card frauds have been set out by the Court of Appeal in R v Chan Sui To [1996] 2 HKCLR 128.  Thess included the size of the operation, the planning that had gone into perpetrating the fraud, whether there is an international dimension, and whether the accused played a major role, etc. 

23.  Now, whilst Chan Sui To’s case concerned forged credit cards, these factors apply to credit card frauds generally.  As was said in HKSAR v Wong Wan Shan, CACC 9 & 10/2002:-

“This court has said on many occasions that credit card frauds are insidious poison in the community, one which affects a large number of citizens and erodes the credit card system and also damages Hong Kong’s standing in the international community. This court has also said that those who engage in it can expect to be dealt with severely by the courts.”

24.  Now, bearing in mind the above authorities, the facts of the present case and, of course, the background of the defendants, I am of the view that:-

(a) for Charges 1 and 2, a proper starting point should be one of 2 years’ imprisonment for each charge.

(b) for Charges 3 to 11, a proper starting point should be set at 3 years’ imprisonment for each charge.

(c) for Charge 12, a proper starting point would be one of 2 years’ imprisonment.

25.  As both defendants pleaded guilty at the earliest opportunity, they will each be entitled, of course, to the full one-third discount so that:-

(a) for Charges 1 and 2, the sentence will be reduced to one of 16 months’ imprisonment.

(b) for Charges 3 to 11, the sentence will be reduced to one of 24 months’ imprisonment.

(c) for Charge 12, the sentence will be reduced to one of 16 months.

26.  That said, the court is left with two matters, one for the 1^st defendant and the other for the 2^nd defendant.  Now, first thing first, insofar as the 1^st defendant is concerned, there is, of course, the question of totality.  Taking a step back, I am of the opinion that a total term of 32 months’ imprisonment would have been appropriate.

27.  To give effect to a total term of 32 months, I shall order that sentence for Charges 1 and 2 to run concurrently with each other.  The sentence for Charges 3 to 10 also to run concurrently with each other.  10 months of the 24 months’ term for Charges 3 to 10 and 6 months of the 24 months’ term for Charge 11 to run consecutively to the 16 months’ term for Charges 1 and 2, making thus a total of 32 months’ imprisonment.

28.  The second matter is about the compensation offer to be made by both defendants but only made good in the circumstances by the 2^nd defendant.  As has been observed by the Court of Appeal, this is a further sign of remorse and should be encouraged.  As only the 2^nd defendant is able to make good her words, she will get an extra discount of one month.

29.  So in the 2^nd defendant’s case, the total sentence for her becomes one of 15 months’ imprisonment. 

30.  As against the 2^nd defendant, by consent of the parties, I shall also make an order for compensation under section 73(1) of the Criminal Procedure Ordinance in the sum of HKD $17,970.90.  This compensation is in relation to Charges 4, 5, 7, 8 and 9 of the charge sheet.