HKSAR v. KWOK SHING LOK

DCCC1024/2009

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 1024 OF 2009

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Reasons for Sentence

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1.  The defendant in this case has pleaded guilty to eight charges. The charges are all charges of fraud, contrary to section 16A of the Theft Ordinance, Cap.210.

2.  All the charges relate to the defendant using false documentation and making false representation to banks in order to obtain credit cards.

3.  The first offence was committed on 8 December 2008 and the last on 18 June 2009. The second and third offences were committed in March 2009, and the fourth to the seventh offence were committed in May 2009.

4.  The Summary of Facts admitted by the defendant discloses that a Madam Kam Yat-kwan came to know the defendant in 2005. They developed a relationship, and in 2006 and subsequently they co-habited together, together with Kam’s daughter, a Miss Chan Yin-yu, who is now 18. They co-habited at a flat in Chatham Road, Hung Hom. In 2007, the couple’s relationship deteriorated.

5.  On 26 October 2008, Kam left Hong Kong to go to Canada, leaving her daughter in the defendant’s custody. Madam Kam entrusted the defendant with a copy of her Identity Card, a Standard Chartered Bank passbook and documents of her deposits kept with that bank. It appears from the mitigation that the purpose of her doing that was to enable the defendant to meet expenses he might incur in connection with looking after Madam Kam’s daughter.

6.  The documents which Madam Kam left with the defendant he used at the various banks to obtain the credit cards, the subject of the eight charges.

7.  At the first offence committed, the bank involved in that case was the Bank of China, and the defendant sent Miss Chan to collect that credit card. There is no suggestion that she was aware of what was going on.

8.  The credit card, the subject of the 2nd charge and the 5th to the 8th charges, were all sent to the defendant by post, and the credit cards, the subject of the 3rd and 4th charges, were collected by the defendant personally.

9.  It was after he had committed the eighth offence that the bank involved in that case, which was Citibank, became suspicious. The defendant opened that account with Citibank on 18 June. He purportedly made the application in the name of Madam Kam and gave the address of the flat in Hung Hom.

10.  The application for the credit card was approved, and on 23 June, a Visa card in the name of Kam was sent to the applicant’s address by post. The credit limit of the card was $80,000.

11.  On 24 June 2009, the card was activated by the cardholder by phone. The same day the PIN code was sent to the cardholder’s address by post.

12.  On 28 June, the card had a purchase record of $251.10. At around noon the following day the card had a withdrawal record of $4,000. The Security Department of Citibank was alerted. The staff called the cardholder on the mobile phone number that had been supplied. The call was answered by a male, who confirmed that he had withdrawn the money from Citibank. However, as the cardholder was supposed to be female, the bank staff became suspicious and suspended the card at 1302 hours on 29 June.

13.  Records show that nine attempts of withdrawal in a total sum of $56,000 were made in respect of that card between 1351 hours and 1437 hours. That was all on 29 June.

14.  At 1500 hours on 29 June, a staff of Citibank called the cardholder on the same mobile phone number. At first, the phone was picked up by a male, but after the bank staff introduced himself, the voice of the person answering the phone turned into a female’s voice. That person claimed to be Kam Yat-kwan, the cardholder, and inquired why the card was defunct. The bank staff instructed the cardholder to bring the card to Citibank office in King’s Road, Quarry Bay, for examination. The person on the phone claiming to be Kam said that the husband of Madam Kam would attend.

15.  At 1650 hours the defendant turned up at the bank with the card and claimed to be Madam Kam’s husband and produced his Identity Card. This was photocopied and the defendant left the card with the Citibank, who said that they would make further inquiries.

16.  On 6 July 2009, the defendant turned up at Citibank with a copy of Kam’s Identity Card and a letter purportedly signed by her authorising the defendant to pick up the card.

17.  The defendant was arrested and under caution he admitted the offence of using a false instrument. He not only admitted the offence in relation to the Citibank, but he also admitted the seven other offences which he had committed in relation to obtaining credit cards using identification belonging to Madam Kam.

18.  A search was conducted at the defendant’s residence, which was not the Hung Hom flat, the address he had supplied to the bank, and there they found an HSBC Visa card purportedly filled in by Madam Kam.

19.  The police learned that the mobile phone number which had been supplied to open the account was in fact the defendant’s mobile phone number.

20.  The defendant made a full and frank admission of all the offences. He told the police that Kam was his ex-girlfriend and they had co-habited together with Kam’s daughter at the Hung Hom flat. He admitted that she had gone to Canada, leaving Chan in his custody, and also leaving him with a copy of her Identity Card, Standard Chartered Bank passbook and statements for him to arrange for Miss Chan to study abroad.

21.  He admitted that without the consent of Madam Kam he had used the personal details of Madam Kam and her bank statements to obtain the eight credit cards, the subject of the charges. Those which had been sent by way of post he recovered from the Hung Hom flat mailbox in which he used to co-habit with Madam Kam.

22.  He said at first he mistakenly thought that only a relative was able to collect a credit card on behalf of a cardholder and he therefore forged an authorisation letter by Madam Kam instructing her daughter to collect a credit card from the Bank of China. He insisted that Chan knew nothing about the fraud. Thereafter, he either collected the credit cards personally or had them sent by post to the Hung Hom flat.

23.  He admitted that in answering inquiries from the banks by telephone he imitated the voice of Madam Kam.

24.  He was shown transaction records and admitted that all the transactions were concluded by him.

25.  He also said that to avoid credit cards being suspended, he repaid some of the credit card debts.

26.  As a result of the fraud practised by the defendant, the losses sustained by the banks amounted to $206,177.10.

27.  I noted that the total credit card limit available to him in respect of all the eight credit cards amounted to just over $400,000.

28.  The defendant has a clear record.

29.  His counsel gave very full mitigation on the previous occasion when she appeared before the court.

30.  She informed me that the defendant is 42 years of age and she said that he had pleaded guilty at the earliest opportunity and had not attempted any plea bargaining.

31.  She said that as a sign of her client’s remorse, notwithstanding that bail was not opposed by the prosecution, no application for bail was made and he has been remanded in custody since his arrest in respect of these charges and this has saved everybody’s time and resources. He was co-operative with the police, he admitted everything when he was arrested, and she urged upon me that the amount involved was at the lower end of the spectrum for offences of this kind. He did not use the cards to get as much money as possible, and she said that he has learnt a big lesson from his involvement in this fraud.

32.  I was told that as regards the defendant’s background that he has been a hairstylist since he was 17 years of age and at one stage owned his own hair salon. I am told that he married in 1985 and that from that relationship there is a son, who is 10. Counsel described the relationship as a happy relationship, but she said that personality conflicts led to the couple separating in 2005. I am told that he pays maintenance to his wife and son, or did, in the sum of $6,000 to $8,000 per month. Notwithstanding the separation from his wife and son, I am told that he has shown a caring attitude towards them, and he is a filial son to his parents.

33.  I was told that the defendant met Madam Kam after he was separated from his wife. They started to co-habit in 2006 and he treated Madam Kam’s daughter, Miss Chan, extremely well. I was told that he contributed towards the daily expenses of that household. I am told that Madam Kam was very different to his ex-wife. The defendant’s wife is a domestic helper, Madam Kam is a keen investor in the stock market, and this was an interest in which she got the defendant involved and this led to his financial difficulties.

34.  I was told that in 2007 a lease on a hair salon which the defendant was running expired. The business was not good, he closed the salon and started to work elsewhere as a hairstylist, earning some $11,000 to $12,000 per month.

35.  Under the guidance of Madam Kam, he started to invest in the stock market and, in fact, used the account of Madam Kam’s stock broker. I was told that he lost all his savings and since then the relationship began to deteriorate with frequent quarrels over money. I was told that he felt inferior to Madam Kam.

36.  He and Madam Kam separated for a short time in 2007, and when they resumed co-habitation, the defendant gave her all the money he had managed to save during the period of separation. I am told that he had worked with his family members on a renovation project and earned some $40,000, which he gave to Madam Kam. Notwithstanding the turbulent relationship with Madam Kam, I am told that the defendant treated her daughter very well.

37.  I am told that eventually Madam Kam decided to leave and left her daughter in the care of the defendant. I am told that she left him with a few cheques and would call him from time to time regarding these cheques and told him that she had put money into her account and that was to cover the expenses of the daughter. The defendant was responsible for all the household expenses.

38.  He was earning only $11,000 to $12,000 per month and he did not tell Madam Kam that he was paying maintenance to his previous family. I am told that in April 2009 he lost his job, and it was against that financial background that he committed the offences which have brought him before the court.

39.  Apparently since he has been in custody his ex-wife has decided to renew her relationship with the defendant and she has visited him frequently whilst he has been in custody. Apparently his son and parents know nothing of this matter, and I am told that the situation with his ex-wife has progressed to the stage where they intend to co-habit when the defendant is released from prison.

40.  Defence counsel has placed before the court a letter from the defendant’s ex-wife in which she said that they had been together for over 20 years and the defendant had always been a hardworking and dutiful father and husband. He had been law-abiding and, in fact, done voluntary work, such as providing free haircuts for the elderly in the area of Wong Tai Sin. She says that she has decided to return to her husband and face the challenges of life together. She asked for leniency.

41.  I have also had placed before me a letter from the defendant himself in which he said that he is very remorseful and has reflected a lot about his stupidity and he regrets that he cannot turn the clock back. He had been detained at that stage for 4 months and felt ashamed about the hurt that he had caused to people who love him. I am told that his son really misses him and he feels ashamed about his situation and he regrets that he has neglected an important chapter of his son’s life and failed to give him the support and encouragement a son should have. He says that he has learnt a big lesson and will mend his ways once he returns to society and intends to make a positive contribution to society when he does come out of prison.

42.  The offences which the defendant has committed are serious offences. They were separate frauds on eight banks. The amount obtained was in excess of $200,000 and the credit limit available was in excess of $400,000.

43.  I have been given a number of similar cases by the prosecution and I have had observations on those by defence counsel, and also she submitted a case of R v Chan Sui To.

44.  It seems from the Court of Appeal cases in sentencing involving false application for credit frauds and the fraudulent use of those credit cards that 3 to 5 years’ imprisonment has been adopted as the starting point. Each case depends on its own peculiar facts.

45.  I have considered very carefully those cases and also the various features of this case that have been placed before me.

46.  I accept that the defendant is genuinely remorseful. He is 42 years of age and had a clear record, and as a sign of his remorse, he did not ask for bail, notwithstanding that it was not opposed by the prosecution. There is no question of these offences being in any way part of a syndicate or organised crime, and I accept he has learnt a big lesson.

47.  I have decided in all the circumstances for all the offences to take a starting point of 3 years’ imprisonment. The defendant has pleaded guilty so he will be entitled to a reduction of one-third to reflect his guilty plea.

48.  I propose to impose a sentence therefore in respect of all the offences of 2 years’ imprisonment, the sentences to run concurrently.