HKSAR v. CHUI TAK MAN

DCCC 1282/2023

[2024] HKDC 1497

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 1282 OF 2023

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REASONS FOR SENTENCE

The defendant pleaded guilty to a charge of "Handling stolen goods" (Charge 1)  and 4 charges of "Obtaining property by deception" (Charges 2 to 5). He used a lost credit card to make purchases at various retail shops within 2 hours after it was lost. The total sum of the goods involved was $19,392.

Summary of Facts

The lost credit card

2.  Mr. Wu (PW1)  last saw his Standard Chartered Bank ("SCB")  credit card No.5520-XXXX-XXXX-XXXX-6893 ("the Card")  in his wallet around 7:30 p.m. on 4 July 2020.  At 8:56 in the same evening, he received a text message from SCB notifying him of a $2,000 purchase made with the Card at a 7-11 store.  PW1 then discovered the Card missing.

Charges 2 to 5

3.  SCB records showed that the following transactions were made with the Card on 4 July 2020 :-

(i)  a purchase in the sum of $5,477 was made at 8:37 p.m. at "CD Rom Distributors" situated at Shop 115, UG/F, 298 Computer Zone, 298 Hennessy Road, Wanchai ("the Shop")  (Charge 2);

(ii)  a purchase in the sum of $6,915 was made at 8:44 p.m. at the Shop (Charge 3);

(iii)  a purchase in the sum of $2,000 was made at 8:55 p.m. at a 7-11 store situated at G/F, 72 Thompson Road, Wanchai ("the 7-11 Store")  (Charge 4); and

(iv)  a purchase in the sum of $5,000 was made at 8:56 p.m. at the 7-11 Store (Charge 5).

Police investigation

4.  Mr. Kung (PW2), owner of the Shop, provided a still photo of the now overwritten CCTV footage depicting the face of the culprit who used the Card to make purchases (later confirmed to be the defendant).  PW2 confirmed that about 8:30 p.m. on 4 July 2020, the culprit used the Card to make 2 purchases at the Shop; and has signed on the respective credit card slips.  On one of the 2 credit card slips provided by PW2, a print of the defendant's left forefinger was found.

5.  CCTV footage of the 7-11 Store also captured the defendant making the purchases.

Arrest and admissions

6.  In the evening on 27 August 2020, PC 20892 (PW3)  stopped the defendant on the street for enquiry.  When being questioned, the defendant admitted having used the Card to purchase a $2,000 and a $5,000 iTunes gift cards at the 7-11 Store. PW3 arrested him.  Under caution, the defendant claimed that the Card was given to him by a Filipino man at Tin Lok Lane (Charge 1).  He then went to the 7-11 Store to purchase 2 iTunes gift cards, respectively $2,000 and $5,000 in value. The defendant returned the Card to the Filipino man afterwards.

7.  In his video recorded interviews, in relation to Charges 2 and 3, the defendant claimed that between 7:30 p.m. and 8:21 p.m. on 4 July 2020, he was at Tin Lok Lane waiting for a foreign male friend named "Jacky".  Jacky gave him the Card and asked him to make some purchases.  The defendant admitted having purchased 2 phones at the Shop.  In relation to Charges 4 and 5, the defendant claimed that about 8:55 p.m. on 4 July 2020, he was at Tin Lok Lane waiting for a foreign male friend named "Kevin".  He claimed that he used a credit card belonging to Kevin to purchase 2 iTunes gift cards at the 7-11 Store.  The defendant also identified himself in the CCTV footage of the 7-11 Store.

Mitigation & Sentence

8.  The defendant is 48 and has 20 conviction records, which included 5 "Theft" offences and some other types of offences (mainly related to drugs and violence).  Defence counsel Mr. Lam informed me that the defendant was a delivery worker earning about $10,000 per month.  He needs to support his father (aged 70).  During his remand in jail custody, the defendant had a pacemaker implanted in his heart in April this year.

9.  In mitigation, Mr. Lam raised the issue of delay. In gist, Mr. Lam submitted that the defendant was arrested in August 2020, but was not charged and brought to court until October 2023.  According to the Chronology of Events prepared by prosecuting counsel Mr. Tan, the defendant was released without further police bail in March 2021 (i.e. 8 months after his arrest).  It took the Police almost another 9 months to submit the case file to the Department of Justice for legal advice on 13 December 2021.  Legal advice was promptly given on 23 December 2021.  Yet, the Police waited almost 3 months to act on the legal advice to obtain a further witness statement from PW2. PW2's further witness statement was obtained on 4 April 2022.  Between 3 May 2022 to 11 September 2023, the Police tried to contact the defendant but was unsuccessful.  The defendant was put on the Wanted List on 22 September 2023. He was re-arrested on 5 October 2023.  Having reviewed his criminal record, we now know that the defendant was sentenced to 8 months' imprisonment for a " drug trafficking" offence (ESCC 2620/2020)  on 19 October 2021.  In other words, he could still be in prison in early May 2022 when the Police tried to contact him.

10.  I am aware that this case and its investigation took place during the pandemic.  I have given the Police the appropriate latitude when assessing if there was any unnecessary delay.  My assessment is there was delay in submitting the case file for legal advice and obtaining a further witness statement from PW2.  The lacuna between 3 May 2022 to 11 September 2023 was not the defendant's fault.  Had the Police bothered to check the prison record, at least the defendant's whereabouts (if not his actual person)  could have easily been ascertained.

11.  According to the relevant sentencing authorities[1], credit card offences are serious and must be deterred.  Even a small scale credit card fraud with small losses by an offender who is not alleged to be part of a larger syndicate can attract a starting point of 3 years' imprisonment.  In HKSAR v Chen Wing Hong CACC 40/2005, the Court of Appeal observed that "… in this day and age 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[2]."

12.  When people realize that the court would not treat the "foot soldiers" of credit card shopping syndicates lightly, there would be, hopefully, no more or fewer willing "shoppers"; thus making it difficult for those syndicates to exploit people like the defendant in the present case.

13.  When determining the proper starting points for Charges 2 to 5, I have borne in mind the sentencing principles laid down in The Queen v Chan Sui-to [1996] 2 HKCLR 128.  In the present case, I find the following features exist :

(i)  some degree of advance planning was required (i.e. someone obtained the "lost" credit card in advance either by actively stealing it or picking it up from the street after it was lost);

(ii)  the defendant was given clear instructions as to where to go and what to buy using the Card; and

(iii)  the defendant made admissions upon arrest and pleaded guilty in a timely manner.

14.  The total value of the purchases made by the defendant is not significant; however, what he did was clearly not a one-person's job.  A syndicate of some degree of sophistication was behind to orchestrate the collection of the "lost" credit card, recruitment and deployment of a "shopper" and conversion of the "purchased" merchandise into cash.

15.  For reasons stated above, I adopt a starting point of 3 years' imprisonment each for Charges 2 to 5.  With the timely guilty plea, the sentence is reduced to 2 years each.  Apart from this, I see no other mitigating factors which warrant any further reduction.  I sentence the defendant to 2 years' imprisonment for each charge.

16.  For Charge 1, I consider it unnecessary, superficial and academic.  According to the Summary of Facts, the defendant was given the Card and immediately told to use it to buy certain consumer goods.  The handling act coincided with using the Card to shop.  I adopt a starting point of 9 months' imprisonment.  With the timely guilty plea, the sentence is reduced to 6 months.  I sentence the defendant to 6 months' imprisonment for this charge.

Overall sentence

17.  Bearing in mind the totality principle, I consider a global starting point of 3.5 years' imprisonment to be appropriate for all 5 charges.  With the timely guilty pleas, the overall sentence is reduced to 28 months.  I will grant a further discount of 2 months for the delay caused by the Police, reducing the overall sentence to 26 months.

18.  To arrive at an overall prison term of 26 months for all 5 charges, I order the sentences to run in the following manner :-

(i)  Charges 1 to 3 concurrent; and

(ii)  Charges 4 and 5 concurrent; but 2 months consecutive to Charges 1 to 3.