HKSAR v. LO TSZ FUNG

DCCC 941/2020

[2021] HKDC 1114

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 941 OF 2020

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REASONS FOR SENTENCE

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1.  The defendant pleaded guilty to a total of 13 charges. 8 charges are theft of credit cards with the remaining charges of fraud. Charge 9 and 13 to be left on the court’s file and not to be proceeded without the leave of the court.

Summary of facts

2.  It is unnecessary to recite all the facts in this case.  Suffice to say that the defendant worked as a waiter in the Vesper Bar and Thai Doa restaurant.  One of his duties was to handle payments by customers.  When the customers paid by credit cards to settle the bills, he delivered the credit cards to the cashier.  After settling payments, he brought the credit cards back to the customers.

3.  It was during his work as a waiter, he stole the credit cards belonging to the customers except the stolen credit cards in charge 3 and 4 belonged to a staff of Vesper.

No	Charge	Date	PW	Loss due to Fraud using Card	Total Loss due to Theft of Card	Credit Limit
1	Theft	19.05.2019	PW1			C1: HK$25,000
2	Theft	11.06.2019	PW2			C2: HK$68,000 C3: HK$213,000
3	Theft	16.07.2019	PW3		$6,118.50	C4: HK$45,000
4	Fraud	16.07.2019	PW3	$4,200.00
5	Theft	12.08.2019	PW4		$92,063.63	C5: HK$196,000
6	Fraud	13.08.2019 – 03.09.2019	PW4	$27,938.40
7	Theft	15.08.2019	PW5		$15,500.00	C6: HK$40,000
8	Fraud	15.08.2019	PW5	$15,500.00
10	Theft	12.10.2019	PW6		$53,196.08	C7: HK$256,000
11	Theft	18.10.2019	PW7		$40,388.70	C8: HK$150,000
12	Fraud	21.10.2019 – 25.10.2019	PW7	$19,388.70
14	Theft	30.11.2019	PW8		$37,447.46	C9: HK$275,000
15	Fraud	02.12.2019	PW8	$16,814.80
				Total = $83,841.90	Total =  $244,714.37

4.  As to charge 2, apart from two credit cards were stolen, other stolen items included PW2’s identity card, a membership card and one octopus card.

5.  For the first two theft charges, PW1 and PW2 found out their cards were missing and suspended them before they suffered any loss.

6.  The defendant used other stolen credit cards to make purchase from various shops.

7.  The total amount was $244,714.37 and it included $83,841.90 as stated in the fraud charges.

Mitigation

8.  The defendant has turned 21 this February.  He was 19 at the time of committing the present offences.

9.  His parents divorced while he was an infant.  He was raised by his grandparents.  He came to Hong Kong since the age of 8 years old.  They lived in poverty.  His grandparents worked hard to raise him.

10.  The defendant started to take up part-time job when his grandfather passed away.  He then came across bad peers and was under the bad influence of his undesirable friends.  His friend told him to make quick money by using stolen credit cards.

11.  Since he was remanded in custody, he missed the DSE examination this year.  The defendant in his mitigation letter expressed remorse.  His girlfriend continued to stand by him and asked for lenient sentence on his behalf.

Cases

12.  The defence referred me to 3 cases:-

(a)  HKSAR v Fung Wai Kwan DCCC 189/2009

(b)  HKSAR v Fu Pui Yee Victoria DCCC 177/2017

As to these two case, there was an element of breach of trust.

(c)  HKSAR v Li Chi-yat CACC 189/2018.

(i)  This is a case involved the theft of a single credit card by the appellant who used it to purchase an item around $8,000 successfully and with 2 unsuccessful attempt to make purchase of items about $10,000 and $8,000.

(ii)  The Court of Appeal recognized that “small –scale credit card offences cannot be subjected to strict guidelines because they can vary significantly in a number of ways and that a starting point of 3 years imprisonment of less can be appropriate”.

Sentence

13.  In passing sentence, I bear in mind of all mitigating factors put before me and the cases which have been referred to me by the defence.

14.  The offences were committed on different days over a period of 6 months.

15.  There were a total of 9 credit cards being stolen from 8 victims.  He used 5 stolen credit cards to commit the offence of fraud.  The defendant make purchases from different stores including some luxuary stores, such as Alexander McQueen, Balenciaga, Christian Dior and Saint Lauren.

16.  The total amount involved in the fraud charges were $83,841.90 while the actual lost was $244,714.37.

17.  The most significant loss of the theft charge was charge 5, there were 97 fraudulent transactions with a total sum of $92,063.63.  The defendant used that credit card belonged to PW5 from 13 August to 3 Sept to make purchases from various shops. (charge 6)

18.  The defendant committed the present offences when he was employed by the Vesper Bar and the restaurant of Thai Dao as a waiter.

19.  When the prosecution witnesses suspended their cards, clearly they could no longer be used.  However, the defendant kept their cards and used those cards to present them to other victims as their own ones:-

Charge 5:- he returned PW2’s suspended card to PW4

Charge 7:- he returned PW1 ‘s suspended card to PW5

Charge 10:- he returned PW4’s suspended card to PW6

Charge 11:- he returned PW5 ‘s suspended cards to PW7

Charge 15 :- he returned PW6’s suspended cards to PW8

20.  All the cards he returned to those witnesses were in fact from the same banks with the same designs on the face of the cards.  This goes to show that the defendant ‘s action was premeditated and he planned ahead when he committed those offences. 

Charge 1 and 2

21.  As for the 8 theft charges, apart from charge 1 and 2 which did not have any fraudulent credit card transactions because the card owners suspended the cards on time.

22.  I adopted a starting point of 9 months reduced to 6 months after 1/3 discounts.

Charge 3, 7, 10, 11 and 14

23.  As to charge 3, 7, 10, 11 and 14, the amounts varied from $6,118.50 to $53,196.08. The defendant actually used those cards to satisfy his materialistic needs.  They were used on numerous occasions.  They covered a period from 16.7.2019 to 30.11.2019.  A total of 4 and a half months.

24.  They are more serious than a simple theft of a credit card.  I therefore adopted a starting point of 12 months which was reduced to 8 months after 1/3 discount.

Charge 5

25.  The most significant loss of the theft charge was charge 5.  There were 97 fraudulent transactions with a total sum of $92,063.63.  The defendant used that credit card belonged to PW4 from 13 August to 3 September to make purchases from various shops.

26.  I considered that a 15 months starting point is appropriate, reduce to 10 months after 1/3 discount.

Charge 4, 6, 8, 12 and 15

27.  As to the fraud charges, namely, charge 4, 6, 8, 12 and 15.

Charge 4	$4,200	16th July, 2019 One transaction from Alexander Macqueen for $4,200
Charge 6	$27,938.40	Between 13th August to 3rd of September 2019 A total of SEVEN transactions with purchases from various shops
Charge 8	$15,500.00	Two  transactions with a total $15,500 on 15th August 2019 in making a purchase from Balenciaga.
Charge 12	$19,388.70	21st to 25th October, 2019 Four transactions with  purchases  from Watson ( $228 ), Christian Dior ( $8,900 )  , Saint Laurent ($10,200)  , Watson ($60.70 )
Charge 15	$16,814.80	2nd December,2019 4 transactions
	Total:- $83,841.91	Total:- 17 transactions

28.  There were altogether 5 stolen credit cards involved in the 5 fraud charges from 5 card holders.  A total of 17 transactions with a total sum of $83,841.91.

29.  It is very much different from the case of Li Chi Yat CACC 189/2018 which only concerned one card on one item on one day.

30.  Therefore, the number of fraudulent transactions, the actual loss from each credit card and period of time that the credit card being used are all the sentencing factors to be considered.

31.  There are multiple transactions covered a period of 4.5 months with a total of $83,841.90.

32.  To this extend, the defendant cannot pray in aid of the case of Li Chi Yat.  I considered that a starting point of 3 years for all the fraud charges is appropriate, reduced to 2 years after 1/3 discount.

33.  There are several sets of charges which involved the same witness with his/her stolen cards.  They are:-

(a)  charge 3 and 4 involved PW 3’s credit cards;

(b)  charge 5 and 6 involved PW4’s credit cards;

(c)  charge 7 and 8 involved PW5’s credit cards;

(d)  charge 11 and 12 involved PW7’s credit cards;

(e)  charge 14 and 15 involved PW8’s credit cards.

34.  To this end, the sentence of each charge:-

Charge 1: -	6 months
Charge 2: -	6 months
Charge 3: -	8 months
Charge 4: -	2 years 3 months from charge 3 to run consecutively to charge 4 A total sentence for charge 3 and 4 is 2 years and 3 months
Charge 5: -	10 months
Charge 6: -	2 years 3 months from charge 5 to run consecutively to Charge 6 A total of 2 years and 3 months
Charge 7: -	8 months
Charge 8: -	2 years 3 months from charge 7 to run consecutively to Charge 8 A total of 2 years and 3 months
Charge 10: -	8 months
Charge 11: -	8 months
Charge 12: -	2 years 3 months from charge 11 to run consecutively to Charge 12 A total of 2 years and 3 months
Charge 14: - Charge 15: -	8 months 2 years 3 months from charge 14 to run consecutively to Charge 15 A total of 2 years and 3 months
2 months of Charge 1 to run consecutively to Charges 5 & 6
2 months of Charge 2 to run consecutively to Charges 5 & 6
2 months of Charges 3 & 4 to run consecutively to Charges 5 & 6
2 months of Charges 7 & 8 to run consecutively to Charges 5 & 6
2 months of Charge 10 to run consecutively to Charges 5 & 6
2 months of Charges 11 & 12 to run consecutively to Charges 5 & 6
2 months of Charges 14 & 15 to run consecutively to Charges 5 & 6

35.  The sentence:-

The defendant is ordered to serve a total of 3 years and 5 months.