HKSAR v. TSEA WAI HUNG

DCCC 55/2025

[2025] HKDC 869

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 55 OF 2025

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REASONS FOR SENTENCE

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1.  The defendant TSEA Wai-hung (謝偉雄)  (D)  pleaded guilty before me to 2 Charges. Charge 1 “Fraud”, contrary to section 16A of the Theft Ordinance, Cap. 210. Particulars of Offence stated that on 27 April 2023, D, with intent to defraud, induced the staff member of ePay Links Technology Co. Limited  (ePay Links)  to approve an application for an account with ePay Links by falsely representing that he was the holder of a HKID card in the name of LAU King-man, Clement (LAU). Charge 2 “Attempted Fraud”, contrary to the same section and section 159G of the Crimes Ordinance, Cap. 200.  Particulars of offence stated that he, with intent to defraud, attempted to induce the staff member of Fusion Bank Limited (Fusion Bank)  to process and approve an application for an account with Fusion Bank by falsely representing that he was the holder of a HKID card in the name of LAU.

Facts

2.  The facts of the case as admitted by D reveal that LAU reported loss of his wallet containing, inter alia, his HKID card and several credit cards on 29 October 2022.

Charge 1

3.  On 27 April 2023, D submitted an online application to ePay Links for opening an account. Following the procedures required by ePay Links, he made the application with the HKID card details of LAU. Photographs of the front and back side of LAU’s HKID card and a self-portrait of D, purporting to be the applicant LAU, were submitted in support. After verification performed by the computer system and staff of ePay Links, the application was approved and an ePay Links account in the name of LAU was opened on 8 May 2023.

4.  On 15 June 2023, ePay Links conducted a re-verification of D’s application and discovered that the person depicted in the self-portrait submitted did not resemble the portrait of LAU as it appears on his HKID card. As a result, ePay Links froze the account on 16 June 2023 and closed it on 21 July 2023. No transaction was recorded from the time the account was opened until it was frozen.

Charge 2

5.  On 1 May 2023, D submitted an online application to Fusion Bank for opening a bank account.

6.  Following the procedures required by Fusion Bank, D presented an image of a forged HKID card purporting to belong to LAU, with LAU’s details and a portrait of D. He then showed his own face to the camera of the mobile phone he used to submit the application for facial verification.

7.  Upon verification performed by staff of Fusion Bank, the application was declined as the HKID card submitted was suspected to have been forged.

Arrest and admissions

8.  D was arrested by the police on 24 August 2023 at his residence. 6 mobile phones, the HKID card and 2 credit cards belonging to LAU were found thereat.

9.  In the subsequent interview with the police, D admitted under caution the above offences. He claimed, inter alia, that he purchased LAU’s HKID and credit cards from a drug addict. He replaced the portrait of LAU’s HKID card by his own portrait and submitted it to Fusion Bank in support of the application in Charge 2.

10.  Relevant photographs and video clips relating to the commission of the 2 offences were found in 3 of the 6 mobile phones seized from D’s residence upon arrest.

Defendant’s Backgrounds and Mitigation

11.  D is 33 years old, born in Hong Kong on 26 March 1992. He received education up to Form 3 level and worked as a part-time delivery assistant earning a monthly salary of about $15,000. He is single and resided with his father. He has a daughter who is now 3 years old with his previous girlfriend. He has a total of 9 previous convictions, mainly dangerous drugs and gambling related, but none similar to the present offences. He was last released from DATC in April 2021 for “Possession of Dangerous Drugs”. His last conviction came on 17 February 2022 for “Gambling in a Gambling Establishment” and was given a fine of $1,500.

12.  Ms Wong representing D submitted in mitigation that at the time of the offences, i.e., mid-2023, he was co-habiting with his unemployed girlfriend and their one and a half years old daughter. He was the sole bread-winner but as a part-time transportation worker, his income was not sufficient to make ends meet. His backgrounds prevented him from obtaining personal loans from financial institutions to meet his financial needs. It was under such difficult circumstances that he came to commit the present offences.

13.  D was kept in custody after his arrest in August 2023 until bail was granted to him in March 2025. During the period, his girlfriend abandoned the daughter who was later found by a passer-by loitering in a public park. The daughter has since been placed under the care of Po Leung Kuk. After he was granted bail in March 2025, D has been in constant contact with the social workers taking care of his daughter, with a view eventually to take her back into his care.

14.  D deeply regrets what he has done and pleaded guilty to the offences at the first available opportunity in Court.

15.  So far as sentence is concerned, Ms Wong submitted that there is no guideline for the present offences. Citing HKSAR v HO Ka Keung (No.2), unrep., CACC 196/2007, 14 November 2008 and HKSAR v Ho Yung Yin, unrep., CACC 417/2012, 12 August 2013, she submitted that while this case involved some aggravating factors, including the use of another person’s ID card and interference with the financial loan system, no actual financial loss had been caused to the financial institutions involved, D committed the offences alone with no international implications, the operation employed was not particularly sophisticated, the 2 offences took place within a few days and that he had no similar prior convictions. She pointed out that D had been in custody for the present offences for 20 months before he was granted bail by the District Court. She invited the Court to consider an overall sentence of less than 24 months, with most of the sentences for each offence to run concurrently.

Sentence

16.  There is no tariff for the present offences under consideration. In Ho Yung Yin, a case involving fraudulent bank loans, the CA stated:

“25. Undoubtedly, the Court of Appeal was right in Man Kam Fai in saying that there is no sentencing guideline for the offence with which it was dealing and likewise in respect of the offence of fraud. A reason for this is this offence can be committed in many forms and even in respect of false loan applications the level of culpability can range from the very serious fraud involving large amounts of dishonestly obtained monies to the relatively minor fraud of which this case is an example.”

17.  In Ho Ka Keung, a case involving insurance fraud, the CA stated:

“11. …. It is well established that commercial frauds will attract, other than in exceptional circumstances, an immediate custodial sentence, even for a first offender. Obviously the length of that sentence will be determined by reference to factors such as, but not exclusively, the nature of the fraud itself; the duration of the fraud; its sophistication; the role played by the convicted person; the effect it may have on the marketplace; whether there are cross-border or international implications; and the nature and extent of the risk to the victim's proprietary interests, as well as, albeit to a minimal extent, the extent of any loss actually sustained.”

18.  Similar principles have been adopted in NZ. In Matthew John Young v R [2018] NZCA 604, the NZCA stated:

“Culpability is to be assessed by reference to the circumstances and such factors as the nature of the offending, its magnitude and sophistication; the type, circumstances and number of the victims; the motivation for the offending; the amounts involved; the losses; the period over which the offending occurred; the seriousness of breaches of trust involved; and the impact on victims.” (paragraph 44)

19.  I agree with the submissions by Ms Wong in relation to the factors affecting the starting point in paragraph 15 above. Taking all relevant factors into consideration, I adopt 24 months as the starting point for each offence. D pleaded guilty at the first available opportunity,  and is entitled to a full 1/3 discount. There is no other factor warranting further reduction of the sentence. For each offence, he is sentenced to 16 months imprisonment.

20.  The 2 offences are separate and distinct, involving different financial institutions on different dates, the sentences should run consecutively with each other. Taking totality principle into consideration, I order that 4 months of Charge 2 be run consecutively to that of Charge 1, making a total sentence of 20 months. This should allow D to be released immediately so that he can continue to work on taking back his daughter into his custody and hopefully take good care of her.

21.  D is therefore sentenced as follows:

Charge 1: 16 months,

Charge 2: 16 months, 4 months consecutive to Charge 1

Total sentence: 20 months.