HKSAR v. PONG YU YIN, ELSON

DCCC675/2012

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 675 OF 2012

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Reasons for Sentence

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1.  The defendant has pleaded guilty to a charge of theft by finding in relation to two credit cards. He has also pleaded to five further charges of using those credit cards to obtain property by deception. All the offences were committed on the same day, namely, 22 November 2010.

2.  The credit cards were stolen during the course of a burglary on the same day, 22 November.  Between 11 o’clock and 2 pm on that day, the home of a Mrs Wong situated on the 20th floor of premises in Tsuen Wan in the New Territories were burgled, and amongst the items stolen were the two credit cards, the subject of the charges before the court.

3.  Between 2021 hours and 2248 hours on 22 November, the defendant used both cards to make five purchases at three different shops located at Yuen Long and Tuen Mun.  The total amount involved was $25,976.  The purchases varied from amounts of $2,232 to $7,690.

4.  CCTV footage of certain of the shops were viewed and one of the salespersons identified the defendant as being involved in one of the obtainings by deception.  His fingerprints were also found on two credit card transaction slips.

5.  The defendant was eventually intercepted almost a year later on 9 November 2011, and he was arrested in that for burglary and under caution said he had not done it.  He was positively identified as being in connection with one of the obtainings by deception.

6.  The defendant has three previous convictions recorded against him: in 2006, 2007 and 2009, and the last offence involving dealing with goods to which the Dutiable Commodities Ordinance applies and he was given a suspended prison sentence of 1 month.  The offences before the court were committed during the currency of that suspended sentence, and no grounds have been put before the court to suggest that I should not activate that suspended sentence.

7.  In mitigation, I was told that the defendant is now 24 years of age and he was educated up to Form 5 standard.  He has a long-term girlfriend with whom he has a daughter who is now aged 4.  I am told that the daughter lives with the mother of the girlfriend.  He lives with the girlfriend who works as a salesperson at a jewellery store.  The defendant has worked at a number of clerical positions but does not seem to have held jobs down for very long periods of time.

8.  A letter was placed before the court from the defendant in which he indicated that he comes from a broken family.  He says that his father left home when he was young and he has two elder siblings and a younger sister.  His elder brother left home many years ago and the defendant has been brought up by his mother.  I am told that the defendant became a father at the age of 19 or 20 and he was unprepared for that but it has had a dramatic effect on his life. 

9.  I am told that the circumstances in which the 1st charge was committed were that on the day in question, the defendant was in the Mongkok area to celebrate his birthday with some friends.  At around 6 pm, he took a PLB in the Mongkok area, intending to go back to Yuen Long.  I was told he was intending to go back to work and he found the cards wrapped in a piece of paper in front of his feet on the floor of the bus.  I am told that after picking them up, out of greed, he decided to use them.  I am told that his motive was to raise some money to help assist his financial situation with his family.  At the time, he was under financial strain and he resold everything except the garments to help his family get by.

10.  Offences involving the abuse of the credit card system are obviously serious.  Deterrent sentences are required to maintain public and business confidence in the integrity of the system.  These are offences which are not committed on the spur of the moment.  To commit the obtaining-by-deception offences, one has to be prepared to go into a store or shop, to pose as the rightful owner of the card, and one has to then forge a signature on the credit transaction slips.

11.  In this case, the defendant entered into five transactions over a period of just over two hours in two plazas in Yuen Long and Tuen Mun.  The amount involved was just under $26,000. Most of the property was purchased with a view to reselling it to raise cash.

12.  In respect of the theft by finding, Charge 1, I take the view that a starting point of 15 months is appropriate given the nature of the items that were found.  The defendant is entitled to a full discount for his guilty plea.  The sentence will therefore be a sentence of 10 months on that offence.

13.  On Charges 2 to 6, the offences were committed one very shortly after the other, over a period of just over two hours.  I take the view that a starting point of 30 months’ imprisonment is appropriate, and the defendant is entitled to that being reduced by one-third to 20 months to reflect his guilty pleas. 

14.  Having considered the question of totality, I have decided that the sentences shall all run concurrently.  I activate the suspended sentence in order that the period of imprisonment of 1 month should be served consecutively to the sentence of 20 months.  Defendant will therefore go to prison for a total period of 21 months.