HKSAR v. ZHANG XIAOLING AND ANOTHER

DCCC 137/2020

[2020] HKDC 1116

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 137 OF 2020

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REASONS FOR SENTENCE

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1.  D1 and D2 are jointly charged with an offence of "Obtaining property by deception" (Charge 1). D2 alone faces a charge of "Theft" (Charge 2) as an alternative to Charge 1. They both pleaded guilty to Charge 1. There is no need to deal with Charge 2.

2.  Both D1 and D2 came from the mainland to purchase consumer goods at a retail store using lost credit cards.

Summary of Facts

3.  D1 entered Hong Kong as a visitor on 31 October 2019; whereas D2, on 4 November 2019.

4.  About 12:45 p.m. on 4 November 2019, PC 19566 (PW2) was observing both defendants, a female and a male (collectively "the Arrestees") near the junction between Haiphong Road and Canton Road.  He saw D1 showing some beauty products to D2 and the Arrestees.  PW2 then intercepted them for enquiry.

5.  Upon search, an HSBC Visa card bearing 7588 as the last 4 digits and the name ABHIJEET AWASTHI (Card 1) and a Citibank Visa card bearing 6941 as the last 4 digits and the name PRASHANT P BHANUSHALI (Card 2) were found in D2's hand.  Some beauty products and 2 sale invoices (collectively "the Invoices") issued by T. Galleria situated at Lippo Sun Plaza in Tsim Sha Tsui ("the Shop") were found in a shopping bag held by the female Arrestee.

6.  At the scene and in the presence of an interpreter, D1 admitted under caution that Cards 1 and 2 were given to her by a male at Tsim Sha Tsui MTR Station earlier that day.  The male asked her to use the credit cards to purchase some beauty products at the Shop.  Also in the presence of an interpreter, D2 claimed that he did not remember when and where he picked up Cards 1 and 2.

7.  A staff member of the Shop, PW1 Madam Chau, confirmed that on 4 November 2019, D1 purchased some beauty products at the price of $14,780.  She presented Card 1 to PW1 for payment.  As there was a reward campaign, PW1 split D1's purchase into 2 transactions for the benefit of D1.  PW1 first charged $10,442 to Card 1, which was successful.  She then tried to use the same credit card to charge the remaining sum of $4,338, which was unsuccessful.  D1 then presented Card 2 and the charge went through.  PW1 issued the Invoices to D1.

Admissions

8.  In her video recorded interviews, D1 admitted that she met someone through an online forum named Baidu.  That person claimed that he was looking for an agent to buy beauty products in Hong Kong.  D1 then communicated with him via WeChat.  She was told to meet with someone at Tsim Sha Tsui MTR Station.  She would receive a credit card to be used for purchasing SK-II products at the Shop.  She would receive 5% of the total invoiced amount as her reward.  D1 was approached by 2 males at the MTR station.  One of them (i.e. D2) handed Cards 1 and 2 to her.  After she made the purchase, D1 returned both cards to D2.  She was arrested when she was about to hand over the beauty products to D2.  WeChat text messages obtained from D1's mobile phone confirmed her story.  She and the male reached an agreement on 3 November 2019.

9.  In his video recorded interview, D2 claimed that he picked up Cards 1 and 2 in Hong Kong.

10.  Cards 1 and 2 were sent to the Government Laboratory for examination.  Card 1 was confirmed to be authentic; however, the authenticity of Card 2 could not be determined.  The respective owners of Cards 1 and 2 could not be located.  CCTV footage of the Shop captured D1 purchasing beauty products.

Mitigation

D1

11.  She is 25 and has a clear record.  Her counsel Ms. Chu informed me that D1 resides with her mother in Hebei Province.  D1 started working after junior secondary school.  In mitigation, Ms. Chu submitted that D1's father was diagnosed with stomach cancer in 2016 and passed away in 2018.  D1 has spent all her savings on medical expenses and has incurred a debt in the sum of $130,000.  In April 2019, D1 was laid off and could only find a job with considerably less income. She thus had trouble keeping up with the monthly repayments of her debt.  D1 then started to look for part-time jobs on the internet.  This is how she ended up in Hong Kong shopping with lost credit cards.

D2

12.  He is 43 and has a clear record.  His counsel Mr. Ma informed me that D2 is a farmer with a disadvantaged family.  D2's wife has brain problems and cannot take care of their children.  D2's younger son suffers from facial handicap (some kind of disfigurement).  D2's mother (aged 70) suffers from long-term rheumatism.  D2 himself suffers from gout and kidney stones.  He sustained serious leg injuries in a car accident in 2010 and was issued a handicapped person certificate in 2017.

Sentence

13.  According to the relevant authorities on sentencing[1], credit card offences are serious and must be deterred.  Even a small scale credit card fraud with small losses by an offender who is not alleged to be part of a larger syndicate can attract a starting point of 3 years' imprisonment.  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[2]."

14.  When people realize that the court would not treat "foot soldiers" of credit card shopping syndicates lightly, there would be, hopefully, fewer willing "shoppers"; thus making it difficult for those syndicates to exploit people like the defendants in the present case.  D1 and D2 may have their own "excuses" for committing the offence; however, the court has, time after time, expressed in very clear terms that having a sick family member or being in financial difficulty (no matter how serious) is no mitigating factor for coming to Hong Kong to commit a crime.

15.  When determining the proper starting point for Charge 1, I have borne in mind the sentencing principles laid down in The Queen v CHAN Sui-to [1996] 2 HKCLR 128.  In the present case, I find the following features exist :

(i)  some degree of advance planning was required (i.e. someone obtained the "lost" credit cards in advance either by actively stealing them or picking them up from the streets after they were lost);

(ii)  a cross-border element is involved (i.e. both defendants came from the mainland and D1 was recruited in the mainland for a specific purpose);

(iii)  D1 was given clear instructions as to where to go and what to buy using Cards 1 and 2; and

(iv)  both defendants made admissions upon arrest and pleaded guilty in a timely manner.

16.  The total value of the purchase made by D1 is not significant.  All the products purchased by D1 were recovered.  On the other hand, if D1 and D2 were not stopped by the Police, they could have continued to make further purchases, thereby causing more losses to other retail stores, a fact which I cannot overlook.  What D1 did is clearly not a one-person's job.  A syndicate of some degree of sophistication was behind to orchestrate the collection of "lost" credit cards, recruitment and deployment of "shoppers" and conversion of "purchased" merchandise into cash.  At least a medium-sized operation must have been involved in order to coordinate and accomplish all these tasks.

17.  For the reasons stated above, I adopt a starting point of 3.5 years' imprisonment for both D1 and D2.  With their timely guilty pleas, their sentences are reduced to 28 months each.  Apart from this, I see no other mitigating factors which warrant any further reduction.  I sentence them each to 28 months' imprisonment.