A A
DCCC1272/2011
B IN THE DISTRICT COURT OF THE B
HONG KONG SPECIAL ADMINISTRATIVE REGION
CRIMINAL CASE NO. 1272 OF 2011
C C
----------------------
D D
HKSAR
E v. E
Chen Zhigang
F F
----------------------
G G
Before: Deputy District Judge Woodcock
Date: 31 January 2012 at 3.39 pm
H Present: Miss Clara Ma, PP of the Department of Justice, for H
HKSAR
Mr Yeung Lung-sang, Sam Lennon of Messrs Lennon &
I Lawyers, assigned by the Director of Legal Aid, for I
the Defendant
J Offence: (1) Conspiracy to Steal (串謀偷竊) J
(2) Possessing equipment for making false instruments
(管有用作製造虛假文書的設備)
K K
(3) Possessing false instruments with intent (有意圖而管
有虛假文書)
L (4) Possessing false instruments (管有虛假文書) L
(5) Breach of condition of stay (違反逗留條件)
M M
---------------------
N N
Reasons for Sentence
O --------------------- O
P P
1. Defendant has pleaded guilty to Charge 1, conspiracy
Q
to steal, contrary to section 9 of the Theft Ordinance, Cap. Q
210, and section 159A of the Crimes Ordinance, Cap. 200.
R Particulars of that offence are that he conspired between April R
2011 and 8 June 2011 with three named persons and others unknown
S to steal from ATMs situated in Hong Kong. Charges 2, 3 and 4 S
were alternative charges to Charge 1.
T T
2. Charge 5, the defendant pleaded guilty to breach of
U U
condition of stay contrary to section 41 of the Immigration
CRT26/31.1.2012/NB 1 DCCC1272/2011/Sentence
V V
A A
Ordinance, Cap. 115. He overstayed his tourist visa by
approximately seven months.
B B
C 3. The facts agreed by the defendant are as follows. In C
June 2011 several banks complained to the Commercial Crime
D Bureau that their ATMs were being targeted, in particular in the D
Nathan Road area. The attempts were made to withdraw cash with
E E
bank cards containing data of overseas card holders. Commercial
Crime Bureau investigated the complaint and suspected the
F F
defendant.
G G
4. On 8 June last year he was put under surveillance. He
H was followed for approximately two hours in the Nathan Road H
area. He was seen using 16 different ATM machines. He was then
I I
followed back to his guesthouse and arrested not long after. The
police found on the defendant 16 bank cards and $6,400 in cash.
J J
In his guesthouse where he was residing they found many
K
incriminating exhibits. The exhibits seized included 64 bank K
cards, a card tipping machine with a roll of gold foil, an
L embossing machine, a magnetic strip card reader, a laptop and L
various USB memory sticks, various online banking devices,
M $57,600 in cash, 607 ATM withdrawal slips, eight pieces of blank M
white cards with self adhesive tape, five sets of PRC identity
N N
cards with relevant bank documentations and statements, a PRC
identity card and a US driving licence both bearing the
O O
defendant’s image but not his name, as well as various
P remittance receipts. P
Q 5. When the defendant was arrested for theft he admitted Q
he had stolen the money. Subsequently, in a record of interview,
R R
the defendant fully cooperated with the police. He made a full
admission. However, in that record of interview he did not tell
S S
the police he was forced to commit the crime as it has been put
T forward today. He did tell the police that he came to Hong Kong T
to escape from creditors. Once here he met, online, some
U criminal elements. He agreed to manufacture forged bank cards. U
CRT26/31.1.2012/NB 2 DCCC1272/2011/Sentence
V V
A A
Once that agreement was made he received data from other people
and inputted the data onto bank cards using the magnetic strip
B B
card reader and the computer. He explained that an associate who
C resided in the United Kingdom gave him instructions over the C
Internet, and he had altered the data of the 80 bank cards that
D were found on him and in his guesthouse. D
E E
6. He explained that the machinery and the batch of bank
cards were delivered to his guesthouse. He had to account for
F F
each successful cash withdrawal and would receive 11 to 12 per
G cent of the proceeds of each withdrawal. Investigations revealed G
that 688 withdrawals were attempted at 20 different banks in a
H period of just under three months. Of those 688 attempted H
withdrawals 214 were successful, resulting in a loss to the
I I
banks of $475,800. 474 attempts were unsuccessful. If they had
been successful the banks would have suffered a further loss of
J J
$993,700.
K K
7. The facts of this case are very serious and a term of
L imprisonment is inevitable. I have heard mitigation put forward L
on behalf of the defendant. I have heard that he is now 29 and a
M university graduate, as well as married and from the mainland. M
In Hong Kong he has a clear record, but as he is not a Hong Kong
N N
resident it is of little value, this fact.
O O
8. It has been explained that he had started his own
P business some three years ago, but unfortunately it failed with P
significant amount of debt, which led to him having to leave
Q Mainland China to escape creditors approaching him and his Q
family. Once in Hong Kong it seems he got involved with some
R R
criminal elements, which led to this offence. I imagine he got
involved out of desperation because he would be unable to find
S S
work in Hong Kong on a tourist visa.
T T
9. Despite the submission and mitigation there is no
U evidence that he was forced in that he had a knife held to his U
CRT26/31.1.2012/NB 3 DCCC1272/2011/Sentence
V V
A A
throat to commit these offences. There are several factors which
are very relevant when considering sentence. These factors are
B B
very similar to those referred to in the authority of the R v
C Chan Sui To CACC115/1996. That authority refers to credit card C
fraud schemes.
D D
10. What is relevant here is that clearly the operation
E E
was sophisticated. There was obviously an international element
to this scheme. It took place over a period of time. It was a
F F
systematic operation. There were many, many bank cards that
G meant the potential for loss was substantial, and this is of G
paramount relevance. Moreover, the defendant had the capability
H and the machinery to make more and more cards to continue and H
perpetuate this offence. The actual loss is relevant, and it was
I I
over $475,000. There is no evidence of any repayment to date.
J J
11. I accept there is no evidence that the defendant was
K
the mastermind. As is usual in cases of this nature, the K
mastermind would not be the one walking the streets trying ATM
L after ATM, risking arrest. I accept the defendant is a cog in a L
wheel of a sophisticated operation. Nevertheless, these
M operations could not go ahead without people like the defendant. M
These types of offences cause huge losses and potential losses
N N
to financial institutions and have a great effect on the
reputation of Hong Kong. It was stressed in mitigation the
O O
defendant would be willing to give evidence against any
P accomplice. However, seven months have passed since the P
defendant was arrested and there has been no further arrest. It
Q is not likely to happen. Therefore his submission is not Q
something I place great weight on. The best mitigation today is
R R
the defendant’s plea of guilty.
S S
12. Prosecution counsel has referred me to an authority,
T HKSAR v Ionut Leonard Oancea & Ors DCCC782/2011. In that T
authority other similar authorities are referred to. That
U authority is relevant and similar. The amount stolen in that U
CRT26/31.1.2012/NB 4 DCCC1272/2011/Sentence
V V
A A
authority is much higher than the amount stolen here, but the
defendant in this case was in possession of sophisticated
B B
machinery capable of perpetrating and continuing this offence.
C Ultimately this was a well organised and well executed operation C
designed to cause losses, huge losses to many banking
D institutions indiscriminately. D
E E
13. Defendant, please stand up. After careful
consideration of the facts of this case, the exhibits seized,
F F
the relevant factors to sentencing I have outlined, the
G mitigation put forward on your behalf, your clear record in Hong G
Kong and your plea today, I will take for Charge 1 a starting
H point of 4 years and 6 months. Because of your plea you are H
entitled to a discount of one-third. For Charge 1 you will
I I
ultimately be sentenced to a term of 3 years’ imprisonment.
J J
14. Charge 5, the overstaying in Hong Kong offence, I take
K
a starting point of 3 months. You are entitled to a discount of K
one-third for your plea. For Charge 5 you are sentenced to
L 2 months’ imprisonment. L
M 15. The 3 year sentence of Charge 1 and the 2 months M
sentence of Charge 5 will be served concurrently. That is a
N N
total of 3 years’ imprisonment.
O O
P P
Q A. J. Woodcock Q
Deputy District Judge
R R
S S
T T
U U
CRT26/31.1.2012/NB 5 DCCC1272/2011/Sentence
V V
A A
DCCC1272/2011
B IN THE DISTRICT COURT OF THE B
HONG KONG SPECIAL ADMINISTRATIVE REGION
CRIMINAL CASE NO. 1272 OF 2011
C C
----------------------
D D
HKSAR
E v. E
Chen Zhigang
F F
----------------------
G G
Before: Deputy District Judge Woodcock
Date: 31 January 2012 at 3.39 pm
H Present: Miss Clara Ma, PP of the Department of Justice, for H
HKSAR
Mr Yeung Lung-sang, Sam Lennon of Messrs Lennon &
I Lawyers, assigned by the Director of Legal Aid, for I
the Defendant
J Offence: (1) Conspiracy to Steal (串謀偷竊) J
(2) Possessing equipment for making false instruments
(管有用作製造虛假文書的設備)
K K
(3) Possessing false instruments with intent (有意圖而管
有虛假文書)
L (4) Possessing false instruments (管有虛假文書) L
(5) Breach of condition of stay (違反逗留條件)
M M
---------------------
N N
Reasons for Sentence
O --------------------- O
P P
1. Defendant has pleaded guilty to Charge 1, conspiracy
Q
to steal, contrary to section 9 of the Theft Ordinance, Cap. Q
210, and section 159A of the Crimes Ordinance, Cap. 200.
R Particulars of that offence are that he conspired between April R
2011 and 8 June 2011 with three named persons and others unknown
S to steal from ATMs situated in Hong Kong. Charges 2, 3 and 4 S
were alternative charges to Charge 1.
T T
2. Charge 5, the defendant pleaded guilty to breach of
U U
condition of stay contrary to section 41 of the Immigration
CRT26/31.1.2012/NB 1 DCCC1272/2011/Sentence
V V
A A
Ordinance, Cap. 115. He overstayed his tourist visa by
approximately seven months.
B B
C 3. The facts agreed by the defendant are as follows. In C
June 2011 several banks complained to the Commercial Crime
D Bureau that their ATMs were being targeted, in particular in the D
Nathan Road area. The attempts were made to withdraw cash with
E E
bank cards containing data of overseas card holders. Commercial
Crime Bureau investigated the complaint and suspected the
F F
defendant.
G G
4. On 8 June last year he was put under surveillance. He
H was followed for approximately two hours in the Nathan Road H
area. He was seen using 16 different ATM machines. He was then
I I
followed back to his guesthouse and arrested not long after. The
police found on the defendant 16 bank cards and $6,400 in cash.
J J
In his guesthouse where he was residing they found many
K
incriminating exhibits. The exhibits seized included 64 bank K
cards, a card tipping machine with a roll of gold foil, an
L embossing machine, a magnetic strip card reader, a laptop and L
various USB memory sticks, various online banking devices,
M $57,600 in cash, 607 ATM withdrawal slips, eight pieces of blank M
white cards with self adhesive tape, five sets of PRC identity
N N
cards with relevant bank documentations and statements, a PRC
identity card and a US driving licence both bearing the
O O
defendant’s image but not his name, as well as various
P remittance receipts. P
Q 5. When the defendant was arrested for theft he admitted Q
he had stolen the money. Subsequently, in a record of interview,
R R
the defendant fully cooperated with the police. He made a full
admission. However, in that record of interview he did not tell
S S
the police he was forced to commit the crime as it has been put
T forward today. He did tell the police that he came to Hong Kong T
to escape from creditors. Once here he met, online, some
U criminal elements. He agreed to manufacture forged bank cards. U
CRT26/31.1.2012/NB 2 DCCC1272/2011/Sentence
V V
A A
Once that agreement was made he received data from other people
and inputted the data onto bank cards using the magnetic strip
B B
card reader and the computer. He explained that an associate who
C resided in the United Kingdom gave him instructions over the C
Internet, and he had altered the data of the 80 bank cards that
D were found on him and in his guesthouse. D
E E
6. He explained that the machinery and the batch of bank
cards were delivered to his guesthouse. He had to account for
F F
each successful cash withdrawal and would receive 11 to 12 per
G cent of the proceeds of each withdrawal. Investigations revealed G
that 688 withdrawals were attempted at 20 different banks in a
H period of just under three months. Of those 688 attempted H
withdrawals 214 were successful, resulting in a loss to the
I I
banks of $475,800. 474 attempts were unsuccessful. If they had
been successful the banks would have suffered a further loss of
J J
$993,700.
K K
7. The facts of this case are very serious and a term of
L imprisonment is inevitable. I have heard mitigation put forward L
on behalf of the defendant. I have heard that he is now 29 and a
M university graduate, as well as married and from the mainland. M
In Hong Kong he has a clear record, but as he is not a Hong Kong
N N
resident it is of little value, this fact.
O O
8. It has been explained that he had started his own
P business some three years ago, but unfortunately it failed with P
significant amount of debt, which led to him having to leave
Q Mainland China to escape creditors approaching him and his Q
family. Once in Hong Kong it seems he got involved with some
R R
criminal elements, which led to this offence. I imagine he got
involved out of desperation because he would be unable to find
S S
work in Hong Kong on a tourist visa.
T T
9. Despite the submission and mitigation there is no
U evidence that he was forced in that he had a knife held to his U
CRT26/31.1.2012/NB 3 DCCC1272/2011/Sentence
V V
A A
throat to commit these offences. There are several factors which
are very relevant when considering sentence. These factors are
B B
very similar to those referred to in the authority of the R v
C Chan Sui To CACC115/1996. That authority refers to credit card C
fraud schemes.
D D
10. What is relevant here is that clearly the operation
E E
was sophisticated. There was obviously an international element
to this scheme. It took place over a period of time. It was a
F F
systematic operation. There were many, many bank cards that
G meant the potential for loss was substantial, and this is of G
paramount relevance. Moreover, the defendant had the capability
H and the machinery to make more and more cards to continue and H
perpetuate this offence. The actual loss is relevant, and it was
I I
over $475,000. There is no evidence of any repayment to date.
J J
11. I accept there is no evidence that the defendant was
K
the mastermind. As is usual in cases of this nature, the K
mastermind would not be the one walking the streets trying ATM
L after ATM, risking arrest. I accept the defendant is a cog in a L
wheel of a sophisticated operation. Nevertheless, these
M operations could not go ahead without people like the defendant. M
These types of offences cause huge losses and potential losses
N N
to financial institutions and have a great effect on the
reputation of Hong Kong. It was stressed in mitigation the
O O
defendant would be willing to give evidence against any
P accomplice. However, seven months have passed since the P
defendant was arrested and there has been no further arrest. It
Q is not likely to happen. Therefore his submission is not Q
something I place great weight on. The best mitigation today is
R R
the defendant’s plea of guilty.
S S
12. Prosecution counsel has referred me to an authority,
T HKSAR v Ionut Leonard Oancea & Ors DCCC782/2011. In that T
authority other similar authorities are referred to. That
U authority is relevant and similar. The amount stolen in that U
CRT26/31.1.2012/NB 4 DCCC1272/2011/Sentence
V V
A A
authority is much higher than the amount stolen here, but the
defendant in this case was in possession of sophisticated
B B
machinery capable of perpetrating and continuing this offence.
C Ultimately this was a well organised and well executed operation C
designed to cause losses, huge losses to many banking
D institutions indiscriminately. D
E E
13. Defendant, please stand up. After careful
consideration of the facts of this case, the exhibits seized,
F F
the relevant factors to sentencing I have outlined, the
G mitigation put forward on your behalf, your clear record in Hong G
Kong and your plea today, I will take for Charge 1 a starting
H point of 4 years and 6 months. Because of your plea you are H
entitled to a discount of one-third. For Charge 1 you will
I I
ultimately be sentenced to a term of 3 years’ imprisonment.
J J
14. Charge 5, the overstaying in Hong Kong offence, I take
K
a starting point of 3 months. You are entitled to a discount of K
one-third for your plea. For Charge 5 you are sentenced to
L 2 months’ imprisonment. L
M 15. The 3 year sentence of Charge 1 and the 2 months M
sentence of Charge 5 will be served concurrently. That is a
N N
total of 3 years’ imprisonment.
O O
P P
Q A. J. Woodcock Q
Deputy District Judge
R R
S S
T T
U U
CRT26/31.1.2012/NB 5 DCCC1272/2011/Sentence
V V