HKSAR v. CHEUNG CLINTON JOSEPH

DCCC 373/2015

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 373 OF 2015

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Reasons for Sentence

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1.  In these proceedings, the defendant pleaded guilty to six counts of Theft and nine counts of Obtaining Property by Deception. He was convicted on his own plea and admission of facts.

Facts

2.  The offences took place within the period between May 2014 and October 2014. 

3.  The Theft charges are all of the same modus operandi: with the use of a mobile phone App (a social media for homosexual men), the defendant befriended men of the same sexual persuasion and eventually arranged to meet up with them in a hotel room on separate occasions, during which he would find an opportunity and take their credit cards from their wallets.  The victims would only come to realise the theft long after the cards had been stolen. 

4.  In three of the instances (ie Charges 4, 9 and 11), the credit cards stolen were used by the defendant to commit the offences of “Obtaining by Property Deception” (ie Charges 14, 15 and 13).

5.  During a police raid (“the raid”) on 11 December 2014, the defendant was arrested inside a hotel room where the police officers found a number of stolen cards, amongst them the credit cards stolen from the victims of the theft charges 1 to 4, 9 and 11.

6.  The Obtaining Property by Deception charges were committed when the defendant used stolen credit cards to obtain goods from various stores by representing to the shop staff that he was authorised and entitled to use the said credit cards.

Charges 1 to 3: The Theft Charges

7.  Some time between May and December 2014, on three different occasions during the hotel room encounters with three victims, the defendant stole from each of the victims two credit cards from their wallets.  It was not until some time in October and November that the victims discovered the loss of their credit cards and made reports to the police.

8.  All six credit cards have been recovered in the hotel room during the raid.  The total credit card limit of the six cards are HK$410,000.

Charges 4 and 14: Theft and Obtaining Property by Deception

9.  Some time between May and December 2014, during a hotel room encounter, defendant stole the two credit cards of a victim surnamed Woo from his wallet.  On 12 October 2014, Woo reported the loss of the same to the police (Charge 4). 

10.  One of the credit cards was used to commit the offence in Charge 14 and was recovered during the raid. 

11.  The other credit card was surrendered to the police on 12 December by another victim (not involved in any of the charges in these proceedings), when he found it in his wallet while his own credit card had gone missing.

12.  On 5 October the defendant used the aforementioned Bank of East Asia VISA card in the name of Woo to buy three smartphones from a shop in Causeway Bay (Charge 14). 

13.  Total value involved:  HK$18,894.  The total credit limit of the credit cards: HK$51,000.

Charges 9 and 15: Theft and Obtaining Property by Deception

14.  Some time between 7 September and 14 October 2014, during a hotel room encounter with a victim named Wong, the defendant stole two credit cards from his wallet.  On 14 October 2014 Wong reported to the police upon discovering his credit cards were missing (Charge 9). 

15.  One of the cards, an American Express had never been recovered. 

16.  On 14 October 2014 the defendant used the Citibank credit card stolen from Wong to buy one iPhone from a shop in Tsim Sha Tsui (Charge 15).  The card was recovered by the Police during the raid on 11 December 2014.

17.  Total value involved:  HK$7,200.  Total credit limit of the two credit cards: HK$141,000.

Charges 11 and 13: Theft and Obtaining Property by Deception

18.  Some time between 24 September and 2 October 2014, during a hotel room encounter with a victim named Poon, the defendant stole two credit cards from the wallet of the latter.  On 2 October 2014, Poon reported to the police upon discovering that his credit cards had gone missing (Charge 11). 

19.  One of the credit cards, a Bank of East Asia VISA card in the name of Poon, had been used by the defendant on 30 September 2014 to commit the theft in Charge 13.  The Bank of East Asia VISA card was subsequently recovered during the raid, but the other credit card had never been recovered.

20.  On 30 September 2014, the defendant used the aforementioned Bank of East Asia card in the name of Poon to buy a smartphone (Charge 13). 

21.  Total value involved: HK$6,298.  Total credit limit of the two credit cards: HK35,000.

Charge 5:Obtaining Property by Deception

22.  On 20 May 2014 the defendant used a China Construction Bank VISA card in the name of a person surnamed Liu to buy a garment, a pair of shoes and a bag from a high-end department store in a shopping centre in Central.  

23.  Total value involved:  $25,190.  Credit limit of the card: HK$385,000.

Charge 6:Obtaining Property by Deception

24.  On 27 May 2014 the defendant used an HSBC MasterCard in the name of a person surnamed Kwok to buy a garment, a pair of shoes and a wallet from the Causeway Bay branch of a high-end department store.

25.  Total value involved: HK11,420.  Credit limit of the credit card: HK80,000.

Charge 7:Obtaining Property by Deception

26.  On 22 July 2014 the defendant used a Standard Chartered Bank MasterCard in the name of a person surnamed Pang and bought two pairs of shoes from a shop in Chai Wan. 

27.  Total value involved: HK$1,419.  Credit of the card: HK35,000.

Charge 8:Obtaining Property by Deception

28.  On 5 September 2014 the defendant used a Bank of East Asia VISA card in the name of a person surnamed Tang and bought a key-ring from a shop in Causeway Bay. 

29.  Total value: HK$15,000.  Credit limit of the credit card: HK$44,000.

Charge 10:Obtaining Property by Deception

30.  On 10 September 2014 the defendant used an American Express card in the name of a person surnamed Harraway and bought two iPhones from a shop in Central. 

31.  Total value involved: HK$9,376.  Credit limit of the credit card: HK$80,000.

Charge 12:Obtaining Property by Deception

32.  On 25 September 2014 the defendant used an American

Express card in the name of a person named Masters and bought a bag from a shop in Causeway Bay.

33.  Total value involved: HK$42,200.  Credit limit of the credit card: HK$120,000.

The arrest and admissions

34.  The defendant was arrested in a hotel room in Wanchai during the raid on 11 December 2014.

35.  During an interview under caution on 12 December 2014, the defendant admitted to have found victims through a computer network for homosexual men, befriended them, arranged to meet them in a hotel room and stole their credit cards.  He also admitted to have committed the six counts of Theft and nine counts of Obtaining Property by Deception in these proceedings.

Authorities

36.  There is no sentencing guideline for the charge of theft, as circumstances of its commission and thus the culpability of the perpetrators vary from case to case.

37.  In respect of the fraudulent use of credit cards, the authorities are consistent that the proper sentence order should be a term of imprisonment.

38.  The Court of Appeal in the case of Chan Sui To[1] identified some of the factors relevant to sentencing:- 

· The size of the operation, for example: whether it involved large sums of money; whether it concerned a large number of persons or forged credit cards;

· the planning that had gone to perpetrating the fraud: whether it was elaborate or simple;

· whether technical skills were used and to what extent;

· whether there was an international dimension;

· whether the accused played a major role (by, for example, running a syndicate, engaging in actual manufacture, organising the use of forged cards) or he was a mere cog in the wheel as a courier or a custodian or a keeper; and

· whether there was plea of guilty.

39.  The Court of Appeal also points out that the sum of money involved is one of the factors to be taken into account, but it is not the most significant factor.

40.  In the case of HKSAR v Cheung Ka Wo Johnny[2] the Court of Appeal goes further and states that the amount proved to have been lost by a fraudulent use of credit cards is not the most important factor to be taken into account in sentencing for this kind of offences:  it is the potential for loss which is the most important consideration. 

41.  The Court of Appeal has indicated that, even for unsophisticated operations involving a small number of forged credit cards, with no evidence linking the offender to a larger operation, a starting point of 3 years’ imprisonment is appropriate[3].

42.  In the case of Lam See Chung Stephen[4], the Court of Appeal states that the above guideline is equally applicable to fraudulent use of genuine credit cards, as the sentencing principle applicable and considerations are the same in both case:

“39. Those judgments which lay down a sentence of 3 years’ imprisonment or less for cases of simple credit card fraud are based on a number of sentencing principles and considerations. They are that counterfeit credit card offences require deterrent sentences, there is a need to protect the integrity of the credit card system, and the potential for loss is great and often greater than the actual loss. In fact, it is precisely because of this last consideration that the actual loss will not necessarily be an important factor when it comes to sentencing a credit card offender; rather, it is this potential for loss ‘which is the most important consideration.’”[5]

43.  In the Lam See Chung Stephen case, the defendant was engaged by a couple with a new-born baby to take care of the wife. He stole a credit card from the mother of the new born baby and used it on three occasions to buy three smartphones at a total value of $15,240. The Court of Appeal considers the 4 years’ starting point adopted by the trial judge for the three obtaining by deception charges “disproportionate to his culpability” and substituted it with 3 years and 6 months.

Other cases

44.  To get a proper perspective, I also take into account of other Court of Appeal decisions on facts of a similar nature.

Andriani Wibi Astutik[6]

A foreign domestic helper stole from her employer five credit cards and used the same on a total of 114 occasions to obtain payment for goods and services within a period of three months. The total value of the goods obtained was $159,949.30. She was charged with one count of theft and five counts of fraud for the use of credit cards. The trial judge adopted for the offence of theft a starting point of 2 years’ imprisonment and for the charges of fraud 3 years and 6 months. The Court of Appeal considers that the judge was entitled to stipulate an overall starting point for sentence of 5 years and 3 months, and that the 3 years and 6 months sentence eventually ordered was not manifestly excessive.

Wan Ka Ling[7]

The defendant succeeded in obtaining $9,700’s worth of property by credit card. Subsequently, another card was found on her. The defendant claimed that she found them by chance. The starting point of 48 months adopted by the sentencing judge on appeal was replaced by one of 39 months.

Lee Tat Hoi[8]

The defendant stole the credit card of his girlfriend and within a span of 27 days, used it for 11 times and obtained properties to the total value of $71,843. Full restitution. On a guilty plea in District Court, a starting point of 30 months was adopted. Apart from the one-third reduction, two months were further reduced to take into account of the full restitution. He was sentenced to 18 months for each count. One month of counts 2 to 11 was ordered to run consecutive to the first count, making the total sentence order to be 28 months. The Court of Appeal did not consider the final sentence order excessive.

Batbayar Tuguldur[9]

Shortly after its owner found his credit card had gone missing, the defendant, a Mongolian man arriving in Hong Kong two days before, had used the credit card to make three purchases from three different vendors in Causeway Bay on the same day and succeeded in obtaining property at over $20,000, none of which was recovered. For each count, the learned District Judge adopted 3 years as a starting point, but added 3 months by reason of the aggravating factor that the defendant came to Hong Kong specifically to commit the offences. The Court of Appeal refuses to grant leave to appeal again the sentence.

Discussion

45.  The prosecution and defence both confirmed that in all cases of obtaining by property deception the stolen cards were obtained in a similar manner.  In all, the defendant had stolen 18 credit cards.  He further used nine stolen credit cards to obtain goods to the total value of HK$136,997.

46.  All of the fraudulently acquired goods were vanity items, as, obviously, one does not need smartphones, smart clothing, a $15,000 key-holder or a $40,000 bag to survive.  As each card carried a high credit limit ranging from HK$10,000 to HK$385,000, the potential loss of the crimes are much higher than the values of the goods stolen.

47.  In respect of the theft charges, the defendant had used a social network in the cyberspace to first befriend men of the same sexual persuasion, then arrange to meet them in a hotel room and find an opportunity to take away the credit cards from their wallets.  Then (at least in the cases of the charges 4 and 14, 15 and 13) the defendant would make use of the window of ignorance to indulge in a shopping spree.

48.  In my view, the theft charges were but prelude to the fraudulent use of the stolen credit cards.  The charges are the manifestation of the different stages of the same criminal design.  Their culpabilities are equal and there should be no distinction in the sentencing. It will be artificial to separate the two lots of charges, as they form a long and continuous scheme of deception.

49.  It is clear that the defendant had set up a trap to prey on the unsuspecting and vulnerable.  It took substantial planning, effort and time to find the victims, gain their confidence and perhaps lure them into believing they were in for a real relationship, and arrange to meet them in a hotel room and find the opportunity to steal from them. 

50.  The sheer number of offences committed within a short period of eight months and the frequency of the commission are indicative that the defendant had been carrying on this design methodically and persistently.  It was certainly not done at the spur of the moment.  The victims had been deceived into lowering their guards and the defendant had taken the opportunity to take advantage of the moment.

51.  These are the aggravating factors which render the present case much more serious than the offence of simply using somebody’s credit card to obtain property.  Such behaviour is appalling and must be discouraged.  It is necessary to make a sentence order commensurate with the seriousness of the offence and also as a warning to the society.

52.  Having considered the overall culpability, in my view, an overall starting point of 45 months will be appropriate. 

Background

53.  The defendant is aged 22.  He had two previous convictions, both involving crimes of dishonesty.  In January 2013 he was convicted of one charge of a theft and was sentenced to Rehabilitation Centre. He could not expect leniency on account of his youth or previous good character.

54.  According to the Background Report, the defendant had a star-crossed beginning of his life.  His mother, 6-year-old sister and maternal grandparents were all victims to a murder when he was 4.  He also sustained injuries as a result.  But he survived it all and had been raised in a middle-class Christian background with sufficient care and supervision from his father and stepmother.

55.  He became rebellious when he was in high school and his academic results suffered.  In the year 2011 he left home to move to live with friends with dubious background.  His brushes with the law began in 2012 when he was 19.  He failed to hold a stable job, was hooked to illicit drugs and, in the words of the Probation Officer, “led a hedonistic lifestyle”. He committed the offences in order to sustain his lavish lifestyle.

56.  While the court has every sympathy for the unfortunate start of his life, the fact is what he has now is more than what a lot of people could hope for. Despite the unfortunate beginning, he could have led a perfectly normal and gainful life.

57.  He is, in fact, the author of his own misfortune.  He had preyed on the needy and the vulnerable part of the human psy. There is really nothing to justify an extra measure of leniency in sentencing.

58.  The only valid mitigating factor is his plea of guilty and his sentence is therefore reduced to 30 months for each count, all to run concurrently.

[1] R v Chan Sui To & Anor, [1996] 2 HKCLR 128

[2] [2002] 2 HKC 517

[3] HKSAR v Tu I Lang, unreported, CACC 464/2006, [2007] HKLRD (Yrbk) 403, [2007] HKEC 920 (18 May 2007).

[4] HKSAR v Lam See Chung Stephen, CACC 339/2012, [2013] 5 HKLRD 242 (3 September 2013)

[5] See the judgment of Lam See Chung Steven, supra, by McWalters J at paragraphs 39 to 40.

[6] HKSAR v Andriani Wibi Astutik, CACC 296/2014 (9 March 2015)

[7] HKSAR v Wan Ka Ling, CACC 318/2012 (2 May 2013), [2013] HKEC 644

[8] HKSAR v Lee Tat Hoi, CACC 164/2014). 

[9] HKSAR v Batbayar Tuguldur, CACC 73/2015 (25 June 2015).