HKSAR v. KHURELBAATAR NARANBAYAR

DCCC 805/2016

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 805 OF 2016

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REASONS FOR SENTENCE

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1.  The defendant has pleaded guilty to two charges of attempting to obtain property by deception, contrary to section 17(1) of the Theft Ordinance, Cap 210 and section 159G of the Crimes Ordinance, Cap 200.

Facts

2.  The facts admitted by the defendant indicated that on two different occasions within four days, he had used two different credit cards (belonging to two different persons) at different branches of a jewellery shop, trying to purchase goods worth over HK$170,000.

3.  On 27 March 2016, at around 3:20 pm, the defendant entered one of the shops of Luk Fook Jewellery in Tsing Yi and selected a gold bar priced at around HK$36,000.  He then presented an American Express credit card for payment.  As the defendant was acting suspiciously, the staff of the shop contacted the credit card centre and requested the defendant to speak with the personnel of the card centre.  The defendant terminated the call shortly after he had picked it up.  He then left the shop without making any purchase.  CCTV captured the images of the defendant’s appearance, and the staff members of all Luk Fook Jewellery were alerted about the incident, with CCTV images being circulated within the company.

4.  At around 12:45 pm on 31 March 2016, the defendant went to another shop of Luk Fook Jewellery in Causeway Bay.  He selected a gold bar priced at $110,000 and presented a Visa card for payment.  Again the defendant’s suspicious acts alerted the staff.  While payment for the gold bar was being processed, the defendant indicated to one of the staff of the shop that he also wanted to purchase a gold necklace valued at HK$28,000.  The defendant further requested that payment for the gold necklace would be settled by the same Visa card he presented earlier on.  The manager of the shop recognised the defendant from the alert messages within the company and called the police.  The defendant was subsequently arrested before he could leave the shop.

5.  Upon initial enquiries, the defendant told the police that he needed money.  In a cautioned video record of interview, he refused to answer any questions.

6.  Travel movement records show the defendant entered Hong Kong on 25 March 2016.

7.  It was revealed subsequently that the American Express card had been reported lost in the United Kingdom.  In relation to the Visa card, the card was terminated by the cardholder at around 1:20 pm on 31 March 2016.

Mitigation

8.  The defendant is a Mongolian.  He is now 30 years old and married.  He obtained his bachelor’s degree in the United States.  He then started working as a car seller for two years and returned to Mongolia and worked in an insurance company and a construction company.  His wife, his son and a newborn daughter are currently residing in Mongolia while his parents are living in the United States.

9.  The defendant has a clear record in Hong Kong.

10.  Mr Sherry, counsel for the defendant, informed the court that the defendant was having financial difficulty in Mongolia.  He borrowed money from the loan sharks and was beaten by them as he was unable to repay the loan.  The local police, however, did not offer sufficient protection to him.  He then foolishly took the opportunity to commit the present offences.

11.  It is emphasised by Mr Sherry that the two events were both unsophisticated operations with the use of only two credit cards to make purchases, which at the end of the day, the transaction did not complete.  No loss was suffered by the jewellery shop at all.

12.  Various letters written by the defendant, his wife and parents were submitted.  In gist, they recounted the violent acts that the defendant had encountered in Mongolia and they asked for the court’s leniency in sentencing the defendant.

13.  Mr Sherry referred the court to four authorities and suggested that bearing in mind the facts of the present case, a starting point of less than 3 years is appropriate for each charge, as the defendant did not obtain any goods from the deception he employed against the shops.

Consideration of sentence

14.  In R v Chan Sui To [1996] 2 HKCLR 128 at 134, in dealing with the range of sentences imposed for credit card offences in various cases cited to it, the Court of Appeal stated:-

“Allowing for the different facts and the varying degrees of culpability, it is impossible to formulate a set of principles of sentencing from those decisions. We think however that it would be helpful to the courts if they were guided by some criterion. We would therefore suggest that an accused who plays an active but not necessarily a key role in a medium-size operation involving between $50,000 and $150,000, with no elaborate planning and equipment, and without an international dimension, should receive a sentence of 5 to 6 years after trial. Sentences may be adjusted upwards or downwards according to the circumstances.

It is equally true that in a number of other cases involving the simple possession or use of a small number of credit cards, this court has approved starting point of sentence of 3 years’ imprisonment, where the operation involved can be fairly described as small scale.”

15.  The Court of Appeal further added that:-

“Where the facts of the offence point to a small unsophisticated operation, involving only one or a few forged cards uncomplicated by other evidence linking the offender to a larger operation, then a starting point of 3 years’ imprisonment or less would be appropriate.”

16.  In HKSAR v Lam See Chung, Stephen [2013] 5 HKLRD 242, a case of credit card fraud committed with no international element, involving the use of genuine rather than counterfeit credit cards, the Court of Appeal referred to and reviewed a number of previous authorities and said those sentencing principles in consideration are equally applicable to credit card fraud in which genuine cards are used.

17.  It has been stressed in numerous cases that the offences involving use of credit card are serious, as the integrity of the credit card system is highly important and those who attempt to beat the system by fraudulent methods necessarily erode the confidence which people are entitled to place on this aspect of modern commercial life: see HKSAR v Chen Wing Hong, CACC 40/2005.

18.  I do not lose sight of the fact that the defendant is convicted of an attempt and not full offence for both charges.  However, he had done everything necessary for the completion of the full offence.  The transactions could have been completed if not the staff was alerted of the defendant’s suspicious acts.

19.  I have considered everything that had been urged upon me by Mr Sherry in mitigation, including the authorities submitted to the court.  I accepted that the facts of the case do resemble a small unsophisticated operation, with no degree of planning carried out by the defendant with the use of two different credit cards.  No aggravating features, such as evidence pointing to international dimension, are present even though the defendant committed the first offence two days after he arrived in Hong Kong.  Although the value of the property attempted to obtain in respect of the 2nd charge was around HK$140,000, it has been stated in Chan Sui To that the value of the property was only one of the considerations in sentencing.

20.  For Charge 1, I will adopt a starting point of 2 years and 6 months’ imprisonment.  The defendant is entitled to one-third discount of sentence upon his plea.  For Charge 1, he is sentenced to 1 year and 8 months’ imprisonment. 

21.  For Charge 2, bearing in mind the value of the goods that the defendant attempted to obtain was around HK$140,000, a starting point of 2 years and 9 months would be appropriate.  The sentence is reduced to 1 year and 10 months upon his plea of guilty.

22.  Both offences are separate and distinct.  Two credit cards were used.  Bearing in mind the totality principle, I order 6 months of the sentence of Charge 1 to be run consecutively to the sentence of Charge 2.  The defendant is sentenced to 2 years and 4 months’ imprisonment for both charges.