HKSAR v. WONG TO KWAN

DCCC 522 & 524/2013

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASES NOS. 522 & 524 OF 2013

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REASONS FOR SENTENCE

1.  In DCCC 522/2013, the defendant pleaded guilty to 2 charges of "Blackmail" (Charges 1 and 2); 2 charges of "Obtaining services by deception" (Charges 3 and 4); 9 charges of "Fraud" (Charges 5 to 13); and a charge of "Attempted Fraud" (Charge 14).

2.  In DCCC 524/2013, the defendant pleaded guilty to 2 charges of "Theft" (Charges 1 and 2) and 7 charges of "Using a false instrument" (Charges 3 to 9).

Summary of Facts

DCCC 522/2013

3.  On or about 7 May 2012, the PCCW shop situated at Phase I, Tuen Mun Town Plaza had a relocation.  It was later discovered that 26 sets of mobile services application forms went missing.  Each set of these application forms contains personal data of the respective applicant such as HKID Card number, telephone number and credit card information.

4.  In the afternoon on 30 October 2012, 3 applicants received text messages sent from phone number 5937 5616 asking them to contact the sender for the return of certain PCCW application forms which contained their personal data; or otherwise, those documents would be handed over to the Police.  In the same evening, the matter was brought to the attention of Mr. TSANG (PW3), a District Manager of PCCW.

Charge 1

5.  About 3:00 pm on 31 October 2012, PW3 called the phone number 5937 5616.  The male who answered the call (later identified as the defendant) told PW3 that he had found 20 odd PCCW application forms from a rubbish bin in the vicinity of Tuen Mun Town Plaza. The defendant claimed that he had returned some of the forms to the persons named therein and had handed over some to the Police.  He added that most of the people who got back their forms have given him "Lai Sze" or tea money.  PW3 replied that he had to seek instructions from his company first and gave his phone number to the defendant.

6.  On 1 November, the defendant phoned PW3 telling him that he had just found another set of PCCW application form from a rubbish bin in Tuen Mun Town Hall.  He asked PW3 if he would like to have it back.  PW3 fixed a meeting with him.

7.  About 6:30 pm on the same day, PW3 met with the defendant in a restaurant located at Phase II, Tuen Mun Town Plaza.  PW3 used his mobile phone to record their conversation.  At the same time, Madam PO (PW4), Security Supervisor of PCCW, took a photograph of the defendant.

8.  At the meeting, the defendant returned an application form to PW3.  He told PW3 that he found that particular application form on a street in Tuen Mun.  Officers from the Office of Privacy Commissioner for Personal Data ("OPCPD") and the Office of the Communications Authority have contacted him.  Most people who got back their forms have paid him tea money.  The defendant also reminded PW3 that the media could have been alerted, had the forms been in the hands of other people.  Having heard what the defendant said, PW3 replied that he would seek instructions from his company first.

9.  On 11 November, the defendant called PW3 asking him about the progress and whether PCCW would give him money.  He also told PW3 that the OPCPD would interview him within a few days.

Charge 2

10.  About 12:30 pm on 14 November, Madam CHENG (PW5), Legal Advisor of PCCW, phoned the defendant to find out if he still had any other PCCW documents in his possession.

11.  In their conversation, the defendant told PW5 that those PCCW customers who were contacted by him had given him money for the return of their documents.  Since he had done something for PCCW, money should be given to him.  The defendant claimed that he would be interviewed by the OPCPD in 2 days' time.  If PCCW had known better, he would not say anything indiscriminately.  Even if he had to say something, he would say something nice.  Just wait and see what would happen if PCCW refused to pay him.

Charge 3

12.  On 29 October 2012, without the consent of or authorization from his friend Mr. CHUNG (PW11), the defendant used PW11's name to register for a service account No.01324131 with Sky Leader Limited.

Charge 4

13.  On 30 October 2012, without the consent of or authorization from Madam CHENG (PW6), the defendant used PW6's name, identity card number and credit card number to register for a service account No.01324138 with One Tel Limited.

Charges 5 to 14

14.  On the respective dates of Charges 5 to 14, the defendant used or attempted to use PW6's Bank of China Visa Gold Card No.4938-9100-9156-0820 (the details of which were contained in her missing PCCW application form) to pay for the telephone bill particularized in each charge.

15.  The total amount of payments involved in Charges 5 to 13 is $7,317.30.  The transaction specified in Charge 14 was unsuccessful and the amount involved is $11,975.90.

16.  The defendant was arrested in connection with this case on 21 December 2012.  Under caution, he made full admissions to all 14 offences.

DCCC 522/2013

Background

17.  In mid-July 2011, Madam CHAU (PW1), holder of Hang Seng Bank ("HSB") account No.024-365-361401-001, applied for a cheque book under that account.  The cheque book was delivered to PW1's registered address (namely Ground Floor, Chit Wing Building, Nos.2-6 Kau Yuk Road, Yuen Long) by ordinary mail.

18.  PW1 did not receive the cheque book.  She made enquiry with HSB and discovered that it was delivered to an address at which she no longer resides.  She instructed HSB to cancel the cheque book and HSB did so accordingly.

19.  Mr. MOK (PW2) was the authorized signatory of an HSB account (No. 024-390-410744-001) held in the name of PETNSHOP.  In November 2011, PW2 applied for a cheque book under that account.  The cheque book was delivered to the registered address of PETNSHOP.

20.  In mid-December 2011, PW2 still did not receive the cheque book.

Charges 3 to 9

21.  On the respective dates of Charges 3 to 9, the defendant used cheques contained in PW1's cheque book to make payments for the transactions particularized in paragraph 5 of the Summary of Facts.

22.  The total amount of payments involved in Charges 3 to 9 is $935,080.

Arrest

23.  About 1:00 am on 21 December 2012, the defendant was stopped by PC 11140 for enquiry at Tuen Mun Park.  Upon search, the cheque books which belonged to PW1 and PW2 were found in the defendant's left jacket pocket.  This is Charges 1 and 2.

24.  Under caution, the defendant admitted stealing PW1's cheque book from a mailbox located on Ground Floor, Chit Wing Building, Nos.2-6 Kau Yuk Road, Yuen Long in late July 2011. He also picked up PW2's cheque book from a wooden bench in Shui Che Kwun Street Playground in Yuen Long in early December 2011.  He forged the signature of the account holder on the cheques involved in Charges 3 to 9.  The defendant also admitted having issued cheques from PW2's cheque book in the mainland to pay for his entertainment there.

Mitigation & Sentence

25.  The defendant is now 29, single and resides alone.  He has 10 conviction records, which involve multiple theft and deception offences.  Defence counsel Mr. Omar informed me that the defendant was a transportation worker, but he injured his waist in 2011.  He has been receiving social security and disability allowance since.

26.  At the request of Mr. Omar, 2 Psychiatric Reports and a Background Report were obtained to assist sentencing.

27.  Paragraph 8 of the Background Report reads "…the Accused has been a repeated offender since his late teens.  In order to earn quick money, he had mostly engaged in theft-related offences… His repeated imprisonment did not seem to serve a deterrent effect on him and he dared to commit the index offences which he took advantage of the opportunities when he found the application forms and cheque books to meet his greed without regards for the legal consequences."

28.  Dr. Hon commented that the defendant shows no remorse towards his offences.  Dr. CHOI commented that the defendant has longstanding and severe problems in personality since young, marked by impulsivity, deceitfulness, readily put blames on others and lack of ability to learn from adverse experiences.  Dr. CHOI concluded that the defendant suffers from a severe form of personality disorder, and has limited insight and poor motivation to change.

29.  Mr. Omar submitted that the 2 blackmail offences in DCCC 522/2013 were not particularly nasty; the defendant was merely an opportunist.  In relation to the other charges in the same case, there was no substantial loss.  Regarding DCCC 524/2013, all the cheques were bounced; no actual loss was suffered by the bank or the account holders.

30.  I am in complete agreement with the descriptions of the defendant made by the Probation Officer.  The defendant might have been an opportunist; he has a greedy and evil mind as well.

DCCC 522/2013

31.  I accept that the defendant's conduct in this case is not particularly nasty, but it is certainly repulsive.  He took advantage of the lost application forms and created much nuisance for both the PCCW customers and PCCW.  He also caused the phone service companies in Charges 3 to 14 to suffer financial loss.

32.  For the blackmail charges (Charges 1 and 2), I adopt a starting point of 2.5 years' imprisonment each.  A one-third discount is given for the guilty plea, reducing the sentence to 20 months.  Apart from this, I see no other mitigating factors which warrant any further discount. Hence, I sentence the defendant to 20 months' imprisonment for each charge.

33.  For the phone services fraud (Charges 3 to 14), I adopt a starting of 12 months' imprisonment each.  A one-third discount is given for the guilty plea, reducing the sentence to 8 months.  I sentence the defendant to 8 months' imprisonment for each charge.

34.  Having considered the totality principle, I order the sentences to run in the following manner :

(i) Charges 1 and 2, concurrent;

(ii) Charges 3 and 4, concurrent; but consecutive to Charges 1 and 2;

(iii) Charges 5 to 14, concurrent; but consecutive to Charges 1 to 4.

Thus, arriving at a total prison term of 36 months.

DCCC 524/2013

35.  The defendant took advantage of the lost cheque books.  Although the bank and the account holders suffered no loss, the payees of the cheques might have.  The Hospital Authority certainly has.  Again, the defendant's conduct may not be nasty as such, but clearly repulsive.

36.  For the stealing of cheque books (Charges 1 and 2), I adopt a starting point of 12 months' imprisonment each.  A one-third discount is given for the guilty plea, reducing the sentence to 8 months.  I sentence the defendant to 8 months' imprisonment for each charge.

37.  For the issuing of forged cheques (Charges 3 to 9), I adopt a starting point of 15 months' imprisonment each.  A one-third discount is given for the guilty plea, reducing the sentence to 10 months.  I sentence the defendant to 10 months' imprisonment for each charge.

38.  Having considered the totality principle, I order the sentences to run in the following manner :

(i) 4 months in Charge 2 consecutive to Charge 1;

(ii) Charges 3 to 6, concurrent; but 6 months consecutive to Charges 1 and 2;

(iii) Charges 7 to 9, concurrent; but 6 months consecutive to Charges 1 to 6.

Thus, arriving at a total prison term of 24 months.

Overall Totality

39.  Having considered the overall totality of imprisonment in both cases, I order 12 months in DCCC 524/2013 to be served consecutive to the prison term in DCCC 522/2013.  In other words, the total prison term for both cases is 48 months.