HKSAR v. YAU KIN PONG

DCCC 669/2022

[2023] HKDC 1479

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 669 OF 2022

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REASONS FOR SENTENCE

The defendant faces 9 charges of "Fraud" (Charges 1 to 5 and 7 to 10)  and 3 charges of "Attempted fraud" (Charges 6, 11 and 12). He pleaded guilty to Charges 1, 3, 5, 6, 8, 10 and 12.

2.  I granted the prosecution's application to leave Charges 2, 4, 7, 9 and 11 in the court file; not to be proceeded against the defendant without leave of court.

Summary of Facts

Background

3.  From 1 March to 6 December 2016, the defendant was employed as a sales representative of Now TV (a subsidiary of PCCW).  His monthly remuneration consisted of a basic salary plus commission.  His pay slips and bank records both revealed that between March and November 2016, the defendant's monthly salary ranged from $7,173.85 to $33,711.17.

4.  The defendant's taxable income for the period between 1 April and 6 December 2016 was $129,457.

Charge 1

5.  On or about 6 July 2016, the Bank of East Asia ("BEA")  received an online application for a credit card made under the defendant's name.  Amongst other supporting documents, BEA received 3 bank statements of the defendant's account with Hang Seng Bank ("HSB")  for the months of April, May and June 2016, which purportedly showed that his monthly salary received from PCCW was around $47,000.

6.  BEA issued a MasterCard (with 8642 as the last 4 digits)  to the defendant.  The credit card was activated on 15 July 2016.  Its credit limit was $142,000; it has an outstanding balance in the sum of $95,068.78.

Charge 3

7.  On or about 12 July 2016, the Standard Chartered Bank ("SCB")  received an online application for a credit card made under the defendant's name.  Amongst other supporting documents, SCB received 3 bank statements of the defendant's HSB account for the months of April, May and June 2016, which purportedly showed that his monthly salary received from PCCW was around $47,000.

8.  SCB issued a Visa platinum card (with 5535 as the last 4 digits)  to the defendant.  The credit card was activated on 23 July 2016.  Its credit limit was $83,000; it has no outstanding balance.

Charge 5

9.  On or about 20 July 2016, the DBS Bank ("DBS")  received an application for a credit card made under the defendant's name.  Amongst other supporting documents, DBS received 3 bank statements of the defendant's HSB account for the months of May, June and July 2016, which purportedly showed that his monthly salary received from PCCW ranged from $47,000 to $53,000.

10.  DBS issued a Visa card (with 5004 as the last 4 digits)  to the defendant.  The credit card was activated on 23 July 2016.  Its credit limit was $200,000.  On 9 August 2016, a cash advancement in the sum of $180,000 was made on this credit card. Only a total sum of $13,500 was repaid.  The outstanding balance is $184,851.84 (including interest and handling fees).

Charge 6

11.  On or about 30 July 2016, the Industrial and Commercial Bank of China (Asia)  Limited ("ICB")  received an online application for a credit card made under the defendant's name.  Amongst other supporting documents, ICB received 3 bank statements of the defendant's HSB account for the months of May, June and July 2016, which purportedly showed that his monthly salary received from PCCW ranged from $47,000 to $53,000.  The application was, however, rejected.

Charge 8

12.  On or about 2 August 2016, the Citibank (Hong Kong)  Limited ("Citibank")  received an online application for a credit card made under the defendant's name. Amongst other supporting documents, Citibank received 3 bank statements of the defendant's HSB account for the months of May, June and July 2016, which purportedly showed that his monthly salary received from PCCW ranged from $47,000 to $53,000.

13.  Citibank issued a Visa platinum card (with 0903 as the last 4 digits)  to the defendant. The credit card was activated on 11 August 2016.  Its credit limit was $148,000; it has an outstanding balance in the sum of $127,931.59.

Charge 10

14.  On or about 18 August 2016, the Bank of China (Hong Kong)  Limited ("BoC")  received an application for a credit card made under the defendant's name. Amongst other supporting documents, BoC received 3 bank statements of the defendant's HSB account for the months of June, July and August 2016, which purportedly showed that his monthly salary received from PCCW ranged from $47,000 to $53,000.

15.  BoC issued a Visa card (with 0014 as the last 4 digits)  to the defendant.  The defendant collected the credit card in person on 21 September 2016 and it was activated on the same day.  Its credit limit was $175,000; it has an outstanding balance in the sum of $225,404.

Charge 12

16.  On or about 29 September 2016, DBS received an application for a personal loan made under the defendant's name.  Amongst other supporting documents, DBS received 3 bank statements of the defendant's HSB account for the months of July, August and September 2016, which purportedly showed that his monthly salary received from PCCW was around $50,000.  Suspecting that the bank statements submitted by the defendant were not genuine, DBS rejected the application.

Arrest and admissions

17.  The defendant was arrested at his home on 25 April 2017.  Under caution, he admitted that he had cheated the bank for the credit limit of the credit card out of momentary greed and his need for money.

18.  The credit cards issued by BEA (Charge 1), SCB (Charge 3), DBS (Charge 5), Citibank (Charge 8), BoC (Charge 10)  and 6 other credit cards issued by other banks as well as credit card statements and receipts were seized from the defendant's home.

19.  In his video recorded interview, the defendant admitted, inter alia, that he had worked as a salesperson of PCCW from March to December 2016.  He received a basic salary of $6,000 per month plus commission.  He earned about $30,000 in the first 3 months working for PCCW.  One day in June 2016, the defendant told his colleague, Lui Ka-wai, Ronald, that banks have refused to issue him credit cards.  Lui offered to help him.  Lui asked the defendant to give him the relevant documents.  Around mid-June 2016, the defendant gave Lui a copy of his Hong Kong ID Card, salary statements and bank statements.  Subsequently, the defendant received about 10 credit cards.  The defendant claimed that he did not know how Lui obtained the credit cards for him.  The defendant admitted having used the credit cards on entertainment, daily expenditures and gambling.  He was unable to repay the banks and became bankrupt.

Mitigation & Sentence

20. The defendant is 31 and has a clear record. Defence counsel Mr. Leung informed me that the defendant is single and resides with his family. The defendant completed F.5 in 2010 and started to work. The defendant filed for bankruptcy on his own initiative in October 2016. His bankruptcy order was discharged on 29 November 2020. He was unemployed for while during the pandemic. He became a surveying assistant in November 2022 earning about $20,000 per month. He resigned recently in order to face this case.

21. In mitigation, Mr. Leung submitted that the defendant committed the present offences because he had indulged in gambling, which led him to the need for money. He has learned a bitter lesson and is truly remorseful. He was cooperative during the police investigation and has admitted his crimes in full. Finally, Mr. Leung raised the issue of undue delay as a mitigating factor.

22. I will deal with the issue of "delay" first. Prosecuting counsel Mr. Wong has helpfully prepared a Chronology of Events for my reference. I need not go into the details, suffice it to say that it took the Police almost 2 years to investigate this case and to submit the case file to the Department of Justice ("DoJ")  for legal advice; and then 3 years for the DoJ to issue its legal advice.

23. The investigation took place from early April 2017 to the end of March 2019. In other words, it began and was completed before any major social events and the Covid-19 pandemic. The DoJ received the case file at the end of March 2019; OC case held a meeting with advising counsel in mid-July 2019; but legal advice to charge the defendant with the present offences was not issued until the end of March 2022. Mr. Wong has sensibly indicated that he did not have much to say about the delay.

24. To complete the picture, the defendant first appeared at Shatin Magistracy on 7 June 2022; first appeared in the District Court on 23 August 2022; the case was adjourned twice on 18 October and 13 December 2022 respectively for legal advice and plea negotiation. On 7 February 2023, a plea & sentence date was fixed for 26 September 2023.

25. The defendant was arrested at the end of April 2017 but was not charged until mid-May 2022. In my view, 5 years from arrest to laying charges were excessive in the present case. The defendant has made full and frank admissions. The investigation might have been tedious but should have been straightforward. As far as the defendant is concerned, clearly there was undue delay in bringing criminal prosecution against him.

26. Although this case does not involve the Barrick type of breach of trust, I find the sentencing guidelines laid down by the Court of Appeal in HKSAR v Ng Kwok Wing [2008] 4 HKLRD 1017 nevertheless relevant. In my view, such guidelines are simply a yardstick. For cases which are not of the Barrick type, the court may still follow the guidelines in Ng Kwok Wing or impose a sentence which is higher or lower than the guidelines, depending on the facts of each case[1].

27. The defendant has only himself to blame. Instead of properly resolving his gambling debts, he resorted to illegal and fraudulent means to obtain money. The plan might have been devised and executed by his friend Lui, but the fraudulently obtained credit cards and loans were solely for the defendant's benefit[2]. Based on the fraud employed in the present case, I consider its seriousness commensurate with the sentencing guidelines in Ng Kwok Wing. Hence, I will follow those guidelines. Also, since the purpose of the fraud was to obtain credit cards/loans, I will sentence the defendant according to the credit limit/the loan amount rather than the unpaid sum.

28. Charge 1 involves a credit limit in the sum of $142,000 (with $95,068.78 outstanding). According to Ng Kwok Wing, if the amount stolen is below $250,000, the starting point should not be higher than 2 years' imprisonment. Applying a strict arithmetical approach, the starting point should be 12 months. With the timely guilty plea, the sentence is reduced to 8 months. Apart from this, I see no other mitigating factors which warrant any further reduction. I sentence the defendant to 8 months' imprisonment for this charge.

29. Charge 3 involves a credit limit in the sum of $83,000 (with no outstanding amount). Applying a strict arithmetical approach, the starting point should be 9 months. With the timely guilty plea, I sentence the defendant to 6 months' imprisonment for this charge.

30. Charge 5 involves a credit limit in the sum of $200,000 (with $184,851.84 outstanding). Applying a strict arithmetical approach, the starting point should be 21 months. With the timely guilty plea, I sentence the defendant to 14 months' imprisonment for this charge.

31. The credit card application in Charge 6 was rejected. The credit limit attempted is unknown. I adopt a starting point of 9 months. With the timely guilty plea, I sentence the defendant to 6 months' imprisonment for this charge.

32. Charge 8 involves a credit limit in the sum of $148,000 (with $127,931.59 outstanding). Applying a strict arithmetical approach, the starting point should be 12 months. With the timely guilty plea, I sentence the defendant to 8 months' imprisonment for this charge.

33. Charge 10 involves a credit limit in the sum of $175,000 (with $225,404 outstanding). Applying a strict arithmetical approach, the starting point should be 15 months. With the timely guilty plea, I sentence the defendant to 10 months' imprisonment for this charge.

34. Charge 12 involves a personal loan in the sum of $400,000 (but the application was rejected). Applying a strict arithmetical approach, the starting point should be 27 months. With the timely guilty plea, I sentence the defendant to 18 months' imprisonment for this charge.

Totality

35. In all 7 charges, the total sum of credit card limits successfully obtained was $748,000 (with $633,256.21 outstanding). There are also an unsuccessful credit card application (credit limit unknown)  and an unsuccessful $400,000 personal loan application. In other words, the total sum involved was at least $1,148,000.

36. According to Ng Kwok Wing, if the amount stolen is between $1 million and $3 million, the starting point is 3 to 5 years' imprisonment. Applying a strict arithmetical approach, the starting point for $1,148,000 should be 3 years. I consider a global starting point of 3 years' imprisonment just and appropriate in the present case. With the timely guilty pleas, the overall sentence becomes 2 years. I would not give any discount for the total outstanding amount being less than $748,000. On the other hand, I would grant an additional discount of 4 months to reflect the undue delay, reducing the overall sentence to 20 months. To achieve this, I order the sentences to run in the following manner :-

(i)  Charges 8 and 10 to run concurrently; with 1 month to run consecutive to Charges 1, 3, 5 and 6; and

(ii)  Charges 1, 3, 5 and 6 to run concurrently; with 1 month to run consecutive to Charges 8, 10 and 12.