HKSAR v. NG CHI YEUNG AND OTHERS

DCCC 1189/2010

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 1189 OF 2010

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REASONS FOR SENTENCE OF D5

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1.  D5 pleads guilty to two charges of attempted fraud, contrary to section 16A of the Theft Ordinance, Chapter 210 and section 159G of the Crimes Ordinance, Chapter 200 (charges 15 & 16). D5 is jointly charged with D1 on charge 15 and with D1 and D4 on charge 16. D1 and D4 have already pleaded guilty and were sentenced in January this year.

2.  In summary on the 14th and 15th March last year D5 used a credit card in the name of Lau Li. On the 14th March D5 attempted to use the card to purchase two Apple iPhones to the value of $12,576 and on the 15th March to purchase goods from Louis Vuitton to the value of $46,370.

3.  Both occasions the transactions were unsuccessful. On the first occasion notwithstanding the card was in the name of a female the defendant acted alone. On the second occasion he acted together with HO Shuk-mei, Sara (D4).

4.  Lau Li had never applied for the credit card, which had been obtained when forged documents in her name were submitted to Citibank. Citibank issued the credit card which was sent to the address of Lau Li but because false applications for redirection of mail and for the holding of mail had been made to Hong Kong Post the credit card was never received by Lau Li. The defendant is not charged with obtaining the credit card, only with using the card on two occasions.

5.  In passing sentence I take into account the factors which a sentencing judge will need to consider in credit card frauds as set out by the Court of Appeal in R v CHAN Siu-to [1996] 2 HKCLR 128, including the size of the operation; the planning that had gone into perpetrating the fraud; whether there is an international dimension; and whether the accused played a major role. The factors were not intended to be exhaustive but provide valuable assistance to the court. The courts have repeatedly stressed that deterrent sentences are to be imposed.

6.  Where the facts of the offence point to a small unsophisticated operation, involving one or a few forged cards uncomplicated by other evidence materially linking the offender to a larger operation, a starting point of 3 years or less may be appropriate (see HKSAR v TU I Lang CACC 464/2006; and HKSAR v WONG Chin-hang CACC 409/2008).

7.  The Court of Appeal have however also upheld starting points higher than 3 years imprisonment for similar offending, see for example HKSAR v AU Yeung Shu-sang CACC 474/2006, where the Court of Appeal said where the defendant was not acting alone and was obviously part of a wider organisation that had caused cards to be printed specifically for him a starting point of 3 years and 6 months imprisonment was appropriate. Each case is however to be decided on its own facts and circumstances.

8.  In passing sentence I have carefully considered everything said by Mr Davies on behalf of D5. Mr Davies submits that the background of D5 and the role played by D5 are similar to that of D4 and asks that I sentence D5 in a way which does not greatly depart from the sentence imposed on D4.

9.  D1 and D4 were sentenced on the 5th January by HH Judge Chan. I have had the opportunity of reading the reasons for sentence. In respect of the credit card D1 faced a total of six charges (charges 11-16) including theft of mail, obtaining the credit card and the use of the card. D2 faced only one charge, namely charge 16.

10.  In respect of D1 a starting point of 3 years imprisonment was taken on all charges and for D4 a starting point of 2 years imprisonment was taken on charge 16. In my view considering D1’s involvement in the theft of the mail and the obtaining of the credit card an overall starting point of 3 years on each of the offences appears somewhat lenient. As does, in my view, the starting point of 2 years taken in respect of D4, though this may be because D4 faced only one charge.

11.  Whilst only one card was involved and could therefore be said to be a small-scale operation, the operation was well planned involving forged documents. Although the defendant is not involved in the obtaining of the card he is jointly charged with NG Chi-yeung (D1), who was involved in theft of the mail and the obtaining of the credit card. The association with D1 shows a connection between D5 and the syndicate responsible for obtaining the credit card.

12.  Mr Davies submits in respect of the two charges there has been no loss as the transactions failed. In CHAN Siu-to the court said that the sum of money involved is only one factor to be taken into account and is not the most significant factor. The potential loss on the card was up to $200,000 per month, being the credit limit imposed by Citibank. No doubt the credit card would have been used again had it not been for the actions of Citibank in detecting the unusual transactions and reporting the case to the police.

13.  Taking into account D5’s connection with the syndicate responsible for obtaining the credit card; that goods of not insignificant value were targeted; and in respect of charge 16 D5 went to Louis Vuitton together with D4, I am satisfied the proper starting point after trial for each charge is one of 3 yearsimprisonment.

14.  I disagree that the background of D5 is similar to that of D4. D4 has 5 convictions, three of which relate to fraud for which she was sentenced to 10 months imprisonment in 2005. D5 on the other hand is a persistent offender having 25 convictions, 17 of which relate to credit card fraud for which he has served sentences of imprisonment. The last occasion was in March 2008 when he received a total sentence of 3 years imprisonment for six offences. Further the defendant was released from that sentence on the 15th December 2009 and within three months was committing credit card fraud again.

15.  Clearly past sentences have had no deterrent effect on the defendant. I am satisfied by reason of the defendant being a persistent offender and the commission of offences shortly after release from prison the starting points are to be increased by 6 months imprisonment to 3 years and 6 months(seeHKSAR v AU Yeung Shu-sang,paragraph 9).

16.  Giving the defendant full credit for his pleas of guilty he is sentenced 2 years and 4 months imprisonment on each charge. Considering totality of sentence and taking into account the offences were committed one day apart with the same card being used, I am satisfied concurrent sentences are appropriate. I am satisfied a total sentence of 2 years and 4 months imprisonment properly reflects the defendant’s criminal culpability on the two charges.