HKSAR v FOK TIK SANG AND ANOTHER

DCCC 1102/2023

[2024] HKDC 376

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 1102 OF 2023

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REASONS FOR SENTENCE

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1.  In these proceedings, there are two sets of distinct offences involving 2 defendants. Although the undersigned has his suspicion that the two sets of offences are somehow related, the prosecution stated that there was no evidence to this effect. So I would deal with them separately.

2.  The first seven counts are against D1, Fok Tik Sang.  They are offences of the same nature, namely, ‟Obtaining Property by Deception,ˮ contrary to section 17(1)  of the Theft Ordinance, Cap 210.  These seven offences can be separated into 2 groups: the first group involved five counts took place on the 11^th day of January 2023 in different shops situated inside the APM Millennium City, (a shopping mall situated in Kwun Tong).  The 2^nd group involved 2 counts took place on 31^st day of the same month in a different shopping mall.

Charges 1-5 (First group)

3.  On 11 January 2021 D1 used a credit card stolen from a Madam Liang group to make purchases of electronic products from 4 different shops in the same shopping mall.  The total value of was $38,994.  In addition, he spent $10 at a 7-Eleven Store.  His action was recorded by the CCTV set up in the shopping mall.

Charges 6-7 (Second group)

4.  The remaining two offences took place on 31 January 2023 at different shopping mall.  D1 used a credit card stolen from a Madam Yeung and purchased a total of three units of smartphones from two different shops in a Kowloon Tong Shopping Mall.

5.  After the purchase, D1 left the shopping mall and boarded a vehicle driven by D2 Mr Wajid Syed Zakir.

6.  D1 was subsequently arrested.  Under caution, he admitted that he was instructed by someone to make purchases in different shops for a reward of several thousand dollars.  He did not provide any particulars to identify the said individual.

7.  The getaway vehicle which was driven by D2.  He drove the vehicle to evade the police’s attempt to approach him.

8.  From the CCTV footage, I noticed that D2 was in a vehicle on the middle lane of a three lane road.  When the 7-seaters driven by the police attempted to intercept him, the D2 swerved onto the third lane and sped towards Lion Rock Tunnel.  During the chase D2 kept cutting lanes abruptly and on one occasion, crossed a single white line to cut into another lane to overtake a vehicle.  Other users of road had to broke abruptly to avoid collision.

9.  D2 exited the Lion Rock Tunnel and continued to drive towards Sha Tin.  He rammed into the back of two private vehicles in front of a traffic light in Tin Sam Street.  D2 did not stop but went on to drive in the gap between the two vehicles he had collided into and collided into three more vehicles.  After the collisions, D1 together with three other unknown persons left the vehicle fled immediately.

10.  As a result of the collisions, one of the vehicles, sustained damages which caused $206,669 to repair.  Its driver had a neck sprain and left ribs contusion for which he has given 90 days of sick leave.

11.  The driver of another vehicle damaged by D2’s vehicle sustained neck and right shoulder sprain for which he was given 22 days of sick leave. His passenger also suffered neck pain and right upper limb numbness for which she was given 15 days of sick leave.  The vehicle was so severely damaged that it was written off as total loss.  The market value of that vehicle was $40,000.

12.  The front, rear bumper and rear door of the third vehicle D2 collided into were damaged requiring $26,080 to repair.  The fourth vehicle was also damaged and the repair costs was $51,780.4.  The fifth vehicle had its rear bumper and rear door damaged; the prosecution did not provide any information for its repair cost.

13.  The D2 was a Form 8 recognisance holder since 2015.

Charge 8-10

14.  For his manner of driving, the prosecution contended that D2 failed to keep a proper lookout and keep a proper distance with other road users, and his manner of driving constituted dangerous driving. (Charge 8)

15.  It turned out that at the time D2 did not hold a valid driving licence in Hong Kong and the policy of insurance related to the vehicle was therefore not valid or did not cover D2.  As a result, he was charged with driving without a licence (Charge 9), and driving without third-party insurance. (Charge 10).

D1’s Sentence

16.  D1 was aged 26. He had a total of seven previous convictions, including two counts of dishonesty-related offences.  Therefore, he cannot expect leniency for his youth on the lack of previous convictions.

17.  In considering the sentence for D1, I take into account that it is a credit card fraud.  He had used two stolen credit cards, to deceive various business into parting with various items of electronic products.  The total loss was $76,000.

18.  The police did not seize the products stolen, therefore, the loss fell on the merchants concerned or the issuer of the credit cards.

19.  For this kind of offences, there is no clear sentencing guidance.  The Court of Appeal, however, had laid down some principles and pointed some relevant matters for this court to consider in order to arrive a proper sentence. (see Chan Siu To and Another [1996] 2 HKCLR 128)

20.  In the present case, the relevant considerations were :

(i)  There was no clear evidence as to the number of persons involved in the front, but D1 had admitted he was asked by some mysterious figure(s)  to do the shopping for a reward. Therefore the operation must have involved more than one person, there were people who were responsible for stealing the credit cards, responsible for handing the credit cards over to D1. some would have to give instructions buy specified items are and then some to receive and, most likely, resell them.

(ii)  There must be some planning involved because after the D1 committed the last offence (charge 7); he left the shopping mall and boarded a getaway car immediately. That getaway car disobeyed police instructions to stop and subsequently got into a series of collisions with other vehicles.

(iii)  On the facts available, D1 was the one who executed the plan. He was only part of the operation. There was no evidence as to his knowledge of the extent of the operation and the personnel involved.

21.  D1 had been less than forthcoming in disclosing information about his co-defendants to the police, his position as a foot soldier was however essential to the whole operation.

22.  In mitigation, D1’s counsel put forward a number of cases.  In HKSAR v Li Chi Yat [2019] HKCA 458, CACC 189/2018, the appellant stole his employer’s credit card and attempted to use it to make purchases amounting to the total of about $25,000.  Only one of the attempts had been successful.  The trial judge adopted a starting point of 3 years’ imprisonment for the charge of obtaining by deception. The case involved a breach of position since the appellant had stolen the credit card from his employer.  On appeal, the sentence was reduced to 19 months’ imprisonment, as the Court of Appeal considered that the starting point of 3 years’ imprisonment manifestly excessive.

23.  The Court of Appeal also pointed out that credit card fraud cases require deterrent sentences in order to protect the integrity of the credit card system and to punish the offender for the loss, inconvenience to the credit card company and the card holder.

24.  In my view, the present case involve two different occasions and a total of 7 transactions and had obviously been planned in advance.  To reflect the gravity of the offence and the aggravating factor that the two sets of offences were committed within a short period of time, I would adopt a starting point of 3 years for the charges from 1 to 5.  They are all to run concurrently.  Charges 6 and 7 took place on a different date from the first set of offences but the total sum involved was about the same. Therefore, it is appropriate to adopt 3 years as starting point for each offence both to run concurrently.  Having considered the totality of sentence, I would order that 4 months of the sentence for charge 6 and 7 to run consecutive to the 36 months for charge 1-5, making a total of 40 months, reduced to 26 month to reflect his guilty plea. I did not consider the defendant’s age and his financial circumstances mitigating factors.

25.  For the reasons given, D1 is sentenced to a total of 26 months to take effect immediately.

D2’s Sentence

26.  The court accepts that there is no evidence to show that D2 was complicit in the theft or in the use of stolen credit cards, he is only sentenced on the basis of his manner of driving and also the fact that he did not have a valid driving licence and third-party insurance.

27.  In charge 8 (dangerous driving), there is no clear sentencing guideline as each case is dependent on its own facts.  I noted that D2 must have been aware of the presence of the police.  He decided to swerve on to a different lane in order to avoid being intercepted. He then drove in a dangerous manner by swerving between the lanes and then before ramming into two cars from behind.

28.  After that he did not stop and further crashed into three other cars, resulting in costly damages to others’ property and also serious injuries to the drivers and passengers of the two cars in front of him.

29.  The court has been conscientious of the fact that D2 was not charged with dangerous driving causing grievous bodily harm.  Yet the fact remains that the victims of his driving suffered serious injuries.  One of drivers were given 90 days of sick leave and had suffered serious financial consequences.  The other driver sustained neck and right shoulder sprain for which he was given 22 days of sick leave.  The third person, who was a passenger, sustained neck pain and right upper limb numbness for which she was given 15 days of sick leave.  The total financial damage he caused to the owners of the vehicles exceeded $300,000.

30.  What made this case worse is the fact that it was not a temporarily loss of control, but instead a deliberate and desperate attempt to evade police arrest.  It was a reckless disregard for the lives and properties belonging to persons.

31.  Another aggravating factor was the fact that he did not have a valid driving licence, accordingly the loss was not covered by any third-party insurance.  Accordingly other drivers and the owners of the damaged properties had no recourse but to D2 himself, who obviously could not afford the compensations.

32.  For Charge 8 (dangerous driving), I would adopt that a sentence of 2 years as starting point.  For the driving without third-party insurance charge (Charge 10), 9 months’ imprisonment.

33.  For Charge 9 (driving without a valid licence), he is be sentenced to 1 month imprisonment.  As it is inextricably related to Charge 10 (driving without third-party insurance), I order the two counts (Charge 9 and 10)  to run concurrently.  He is sentenced to a total of 9 months.

34.  For the 8^th count, he is sentenced to a total of 24 months.  By law I would have to disqualify his ability to drive and also ability to apply for a driving licence, unless there are special circumstances not to.  As the defence had not put forward any, so I order he be disqualify for him drive for 3 years.

Other Sentencing Considerations

35.  D2 was a torture claimant, he was allowed to stay by virtue of his Form 8 recognisance.  He had never been formally employed in Hong Kong since his arrival in 2015.  He married another Form 8 claimant in 2020 and has a daughter now 3 years old.  That means that he has been living on the largess of the Hong Kong government since 2015.  In my view, this is an aggravating factor which I must take into account and that would be reflected in the total sentence.

36.  By having taken into account of the totality principle, I would order that 6 months of the sentenced imposed for the 9^th and 10^th charges to run consecutive to the 8^th charge.  The total sentence shall be 30 months’ imprisonment.

37.  D2 had pleaded guilty.  In accordance with the directions of the Court of Appeal, his imprisonment would be reduced from 30 down to 20 months.

38.  D1 is sentenced to 26 months’ imprisonment.  D2 is sentenced to 20 months’ imprisonment.