HKSAR v. TSEVEEN-OCHIR BATJARGAL

CACC 250/2016

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO 250 OF 2016

(ON APPEAL FROM DCCC NO 239 OF 2016)

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J U D G M E N T

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1.  Following his plea of guilty before Deputy Judge Chainrai (“the judge”) in the District Court on 7 July 2016, the applicant was convicted of one charge of theft, contrary to section 9 of the Theft Ordinance, Cap 210 (Charge 1), and one charge of attempting to obtain property by deception, contrary to section 17(1) of the Theft Ordinance and section 159G of the Crimes Ordinance, Cap 200 (Charge 2). On 21 July 2016, the applicant was sentenced to an overall term of 1 year and 8 months’ imprisonment.

2.  On 8 August 2016, the applicant filed a Notice of application for leave to appeal (Form XI), and he now seeks leave to appeal against his sentence.

The facts

3.  The applicant entered Hong Kong as a visitor on 21 January 2016.  At around 5:10 pm on 24 January 2016, he was seen acting furtively inside the “Apple Store” (“the Shop”) of Apple Asia Limited at International Finance Centre Mall, 8 Finance Street, Central (“the Mall”).  Police officers in plain clothes thus placed the applicant under close observation.

4.  The applicant was served by a salesman in the Shop.  He asked to buy five iPhone 6s 64 GB (at HK$6,388 each plus service fees) and seven iPhone 6s Plus 64 GB (at HK$7,188 each plus service fees).  In order to make payment, the applicant produced a Capital One VISA Credit Card (“the Credit Card”) numbered 4147-0981-6451-8227 in the name of “Reggi Y Wilson” from a black wallet in his possession.  Since the salesman noticed that the Credit Card was not issued in Hong Kong and had been issued to someone with a Western name, he asked the applicant whether he was the cardholder named on the Credit Card, to which the applicant answered that he was a Korean national.  The salesman subsequently proceeded with the transaction, which came to a total of HK$95,312.50 for the twelve iPhones. However, when the transaction was unsuccessful, the applicant took back the Credit Card and left the shop.

5.  The police officers then followed the applicant and intercepted him at around 5:15 pm at the exit of the Mall.  Upon search, the Credit Card was found in the black wallet, which the applicant was at the time holding; accordingly, the applicant was duly arrested.  In a subsequent video-recorded interview under caution, conducted in the presence of a Mongolian and an English interpreter, the applicant stated, inter alia, that the black wallet belonged to him; and that he had picked up the Credit Card on a street in Mongkok.

Mitigation

6.  The applicant was 32 years of age at the time of sentence and had a clear record in Hong Kong.  He was a Mongolian national with a wife and three children, as well as an elderly mother to care for.  He was said to be a university graduate in music.  He was a self-employed musician in Mongolia and would usually perform in clubs and bars, earning up to the equivalent of HK$10,000 in a busy month.  It was asserted that the applicant was a heavy gambler, who had borrowed money from his wife and family to pay off debts, thus placing an immense strain on his relationship with both.

7.  It was explained on the applicant’s behalf that he was very remorseful and ashamed of his actions and would be unlikely to reoffend.  It was further submitted that his was an opportunistic offence, involving a single course of conduct with no actual loss, and without any element of breach of trust.  Accordingly, a starting point of less than 3 years’ imprisonment was urged upon the court.

Reasons for sentence

8.  The judge remarked that credit card offences were serious and must be deterred.  In particular, she referred to the statement by Litton JA (as he then was) in R v Kwan Ying Ho[1], at p 5, that

“[c]redit card frauds have in recent years been an insidious poison in the community. It affects a large number of citizens. It erodes the credit card system and damages Hong Kong’s standing in the international community.”

9.  The judge noted, in respect of Charge 2, that the applicant had only been convicted of an attempt rather than the full offence.  Nevertheless, the facts which he had admitted clearly demonstrated that he had done everything necessary to enable the commission of the full offence.  Had the transaction been successful, he would have obtained the twelve iPhones valued at HK$95,312.50.  She considered that the only mitigation of any weight was the applicant’s guilty pleas.

10.  Since the prosecution had proceeded on the basis that his possession of the Credit Card in Charge 1 was a theft by finding, an appropriate starting point would be 9 months’ imprisonment, which would be reduced to 6 months’ imprisonment for plea.

11.  With regard to Charge 2, the judge considered that there was no marked degree of planning or organisation involved. There was no evidence of any international element, no one had suffered any actual financial loss and the applicant had no previous criminal convictions.  Accordingly, she was of the view that an appropriate starting point for this charge should be 30 months’ imprisonment, reduced to 20 months’ imprisonment for plea.  She then ordered the two sentences to run wholly concurrently with each other, resulting in an overall sentence of 20 months’ imprisonment.

Grounds of appeal

12.  In his Form XI filed on 8 August 2016, the applicant complained that the judge had imposed too heavy a sentence and, further, that he was the only one to take care of his family, since his wife earned very little money.

13.  In a subsequent letter, filed with the court on 25 October 2016, the applicant submitted that he was very remorseful for committing the offences; all he had wanted to do was to help his family financially.  He averred that, having served some 9 months of his sentence, he had already learned a severe lesson.  He also felt that his sentence was too long for a first offender in circumstances where no actual loss was suffered by the victim.  He asked the court to reduce his sentence, out of compassion for his family’s hardship.  He has developed these points before me this morning.

The respondent’s reply

14.  So far as the applicant’s alleged financial difficulties were concerned, Mr Ned Lai, on behalf of the respondent, relied on R v Kwok Yau Fat[2] to submit that no weight should properly be given to financial pressure which leads to the commission of a criminal offence.

15.  So far as Charge 2 was concerned, the judge had had proper regard to the principles of sentencing for the fraudulent use of credit cards as set out in HKSAR v Lam See Chung Stephen[3], where the court had said, at 251-252:

“37. …True it may be that the earlier cases dealing with sentencing for credit card fraud were concerned with the use of counterfeit credit cards and many of the aggravating features listed in cases such as R v Chan Sui To [1996] 2 HKCLR 128 were peculiar to syndicated counterfeit credit card fraud.

38. But these aggravating features will not be present in the type of simple, small-scale use of forged credit cards for which a sentencing tariff of 3 years’ imprisonment or less has been said to be appropriate. …

39. Those judgments which lay down a sentence of 3 years’ imprisonment or less for cases of simple credit card fraud are based on a number of sentencing principles and considerations. They are that counterfeit credit card offences require deterrent sentences; there is a need to protect the integrity of the credit card system; and the potential for loss is great and often will be far greater than the actual loss. In fact, it is precisely because of this last consideration that the actual loss will not necessarily be an important factor when it comes to sentencing a credit card offender; rather “it is this potential for losses which is the most important consideration.”[4]

40.  These sentencing principles and considerations are equally applicable to credit card fraud offences in which genuine credit cards are used and we can see no good reason why the three-year starting point for simple cases of counterfeit credit card fraud should not also apply to simple cases of credit card fraud where stolen genuine credit cards are used to commit the offence.”

16.  Mr Lai submitted that the judge had duly taken into account all the mitigation urged on the applicant’s behalf and all relevant authorities in arriving at a lower starting point of 30 months’ imprisonment.  The sentences imposed by the judge were in line with the relevant sentencing authorities for credit card fraud where there was no international dimension.

Consideration

17.  Credit card fraud is a very serious offence, for which a significant component in sentencing must be deterrence.  That is particularly so with foreign defendants who arrive in Hong Kong as visitors and within a matter of hours or days (in this case 3 days) set about committing frauds of substantial value with stolen credit cards.

18.  The starting point of 30 months’ imprisonment in respect of Charge 2 is unimpeachable, as is the starting point of 9 months’ imprisonment in respect of Charge 1.  Nor can the applicant make any complaint about the discount for plea, which is entirely in line with authority, nor with the ordering of the two sentences to run wholly concurrently.  If anything, the applicant may consider himself perhaps fortunate that he was not dealt with more severely for the two offences concerned, which were separate and distinct offences, one involving the theft by finding of the Credit Card in question, the other its use in attempting to defraud a substantial quantity and value of goods, namely 12 iPhones valued at over HK$95,000.  Strangely, no information was placed before the judge as to how and when the owner of the Credit Card had lost his property, which might have put the applicant’s claim that the offences were opportunistic into context and shed some light on his real purpose in coming to, and remaining in, Hong Kong for three days when he was apparently so short of money.  As things stood, however, there is no arguable complaint about the judge’s sentence.

19.  No significant effect can be given to the applicant’s domestic circumstances, which cannot amount to any excuse for committing such serious offences, particularly in a foreign country, or reducing an otherwise appropriate sentence in respect of them.

20.  The application for leave to appeal against sentence is refused.  The applicant is advised that he has the right to renew his application for leave to appeal to the Court of Appeal.  However, he should also be warned of the consequences of renewing his application, which may include a direction for any loss of time spent in custody, if the Court of Appeal were to come to the view that there was no justification for the renewal of the application.