HKSAR v. CHUI CHI KIT

DCCC175/2011

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 175 OF 2011

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Reasons for Sentence

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1.  The defendant last appeared before me on 18 May 2011 and pleaded guilty to one charge of theft (C6) and six charges of obtaining property by deception (C1 – 2, 4, 7, 9 - 10) contrary to section 9 and section 17(1) of the Theft Ordinance, Cap.201, respectively.

2.  There are originally 10 charges of obtaining property by deception but for those four charges to which the defendant had pleaded not guilty (C3, 5, 8 & 11) the prosecution is content that they could be left in the court file and not to be proceeded with. 

3.  According to the Summary of Facts admitted by the defendant, the victims of the present offences involved two drunken persons. Both fell asleep on the streets after a night of heavy alcohol consumption and later woke up only to find that their wallets together with the credit cards inside had gone missing.

4.  They subsequently reported the loss of the credit cards to the issuing banks and it was found that their credit cards had already been used to obtain goods or services on a number of occasions already. 

5.  In the case of the first victim, Wong C T Charlton, the defendant successfully used one credit card on three occasions to obtain goods from various shops to the value of HK$8,581 whereas in the case of the second victim, Ng Chun-chun, the defendant successfully used two credit cards on four occasions, involving HK$2,794.80.

6.  The defendant was arrested because after the second victim made a report, the police discovered that his credit card had been used to purchase movie tickets and as a result, the defendant was intercepted by the police when he appeared in the cinema around the opening time of the movie in question.          

7.  After arrest, under caution, the defendant stated that he found the wallets together with the credit cards on the street and he admitted using the credit card to purchase movie tickets.  He denied his involvement in the other charges however.

8.  Before sentencing, I have carefully considered everything said on behalf of the defendant by Mr Lee together with the mitigation letters submitted. 

9.  The defendant has in the past a total of six previous conviction records, all of which are related to offences of dishonesty including theft, pickpocket and robbery.

10.  In 1997, for the offence of robbery he was sentenced in the District Court for 4 years.  His last conviction in 2009 was 13 similar charges of obtaining property by deception and 3 similar charges of attempting to obtain property by deception, for which he was sentenced to a total of 2 years and 4 months’ imprisonment.  

11.  Looking at his record, it is clear that the defendant is a persistent offender in the offences of dishonesty.  The previous sentences have clearly had no deterrent effect upon him.  (See HKSAR v Chan Pui Chi [1999] 2 HKLRD 830)  

12.  In passing sentence, I will need to take into account the factors that is relevant in considering in sentence for credit card fraud as set out by the Court of Appeal in R v Chan Sui To [1996] 2 HKCLR 128.  These factors include the size of the operations, the planning that had gone into perpetrating the fraud and whether the accused plays a major role.      

13.  The factors were not intended, however, to be exhaustive but provide valuable assistance to the court.  The courts had in the past repeatedly stressed that for these kind of offences deterrent sentences are to be imposed.  In HKSAR v Tu I Lang, CACC464/2006, the Court of Appeal has said that:

“Where the facts of the offence point to a small unsophisticated operation involving one or a few forged credit cards, uncomplicated by other evidence materially linking the offender to a larger operation, then a starting point of 3 years’ imprisonment or less would be appropriate.”

14.  Each case is however to be decided on its own facts and circumstances.  According to the defendant or to the mitigation made on behalf of the defendant, he picked up the credit cards from both victims on the street.  Luckily for him, the prosecution confirmed that they are ready to accept this explanation and considered that there is no evidence that the defendant had stolen the credit cards from the body of these two victims.  In other words, in relation to the theft charge, it would be a theft by finding as opposed to a pickpocketing situation.    

15.  Furthermore, the amounts involved in these six charges of obtaining property by deception are by no means large.  However, I must stress that the amount involved in each charge is only one of the factors to be considered. 

16.  One of the special features in this case is the closeness of the dates of commission of his last case, namely, DCCC651/2009 and the present case.  The two cases are only 2½ months apart and the modus operandi are nearly the same.          

17.  In the case of DCCC651/2009, the victim was also a drunken person and his credit card was found stolen after he woke up.  Similarly the defendant made use of the credit card of the victim and committed the offences. He tried to obtain the goods and services on this credit card in 13 occasions.

18.  After the defendant was arrested by the police in that case, the defendant committed the present offences.  In other words, the defendant committed the present offences whilst on police bail and on behalf of the defendant, Mr Lee sensibly accepted that by itself, this is already an aggravating factor.  Having said that, however, there are still a couple of mitigating factors which I cannot overlook.

19.  First, there was a delay in prosecution.  Whilst in DCCC651/2009 the prosecution was unusually quick in that it only took less than 4 months from the date of the defendant’s arrest to his being convicted in the District Court, the present case took a total of about 24 months, that is 2 years, before the defendant was convicted before me.  

20.  Because of that, I have asked Mr Lam on behalf of the prosecution for the reasons for the delay and the short answer was that during the time there had been a change of the officer-in-charge of the case.  Apparently, the new officer-in-charge was not satisfied with the work done by her predecessor and as a result, the whole file had to be investigated again.  Worse still, for reasons best known to the police, this case did not receive a high priority over the other cases when it was being handed over.  

21.  From whatever angle one looks at it, it is a very unsatisfactory situation of affairs.  It is an inordinate delay, especially in light of the fact that the defendant had now already served and completed his last prison term and was discharged earlier this year.  Because he was not given bail in the present case, he continued to be remanded pending the sentence of this case.        

22.  The anxiety and uncertainty that was hanging over the head of the defendant could be imagined and it is not at all conducive to the rehabilitation of an offender.  In this regard, Mr Lam had properly conceded that the court in the end should accord some discount on account of this delay.

23.  The second mitigating factor is that through the effort of the defendant, he had made a partial restitution of HK$5,000.  I have specifically adjourned the sentence for 2 weeks for this purpose and this morning, Mr Lam had confirmed that they had already received the sum from the defence and they are going to arrange for the partial compensation of the appropriate victims.       

24.  I was told that this money was actually coming from the hard-earned salary of the defendant while he was serving his term and also from the contribution of the defendant’s aged old father who was in the court today to support his son.

25.  Although the sum represented only about 40 per cent of the total amount suffered from the two victims, I am satisfied that the defendant had tried his best to compensate the victims in the circumstances.

26.  Accordingly, had it not been the delay in the prosecution of the present case, the defence could well have applied that the two cases be heard together and the sentence to be dealt with in one go.  In DCCC651/2009, Deputy Judge Dufton took the view that the overall starting point of 3 years and 6 months is appropriate and after the one-third discount, he received a total sentence of 2 years and 4 months’ imprisonment on the last occasion.

27.  In passing the sentence in this case, I took into account of that sentence and I considered that had this case been heard together with DCCC651/2009, the overall sentences should at least be one of 4 years and 9 months.  Since the defendant committed the offences whilst on bail in relation to the present offences, the sentences should be increased for a further 6 months to 5 years and 3 months.  As he had already made a partial restitution, in the end, I considered an overall starting point of 5 years (that is, a reduction of 3 months) is appropriate.

28.  Defendant had pleaded guilty and he is entitled to the usual one-third discount. The resulting sentences for all the obtaining property by deception charges should therefore be 40 months.  As the defendant had already received 2 years and 4 months on the last occasion.  Therefore he should receive an additional 12 months for each of his six obtaining property by deception charge.

29.  I order that the sentences to be run concurrently on those charges and that is Charge 1, 2, 4, 7, 9 and 10.  For Charge 6, the theft offence, as I have said, as this is only a theft by finding, I will use 6 months as a starting point, and after discount, the sentence will be further reduced by 2 months and  the sentence that I pass for this charge is 4 months. 

30.  This sentence however should run consecutive to the all remaining charges.  The total sentences that the defendant receives for all the 7 charges in this case is therefore 16 months’ imprisonment.