HKSAR v. SHEK CHUN HEI JOHNNY AND ANOTHER

DCCC 655/2017

[2018] HKDC 44

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 655 OF 2017

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REASONS FOR SENTENCE

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1.  The 1^st defendant committed two burglaries. Both were of domestic premises. Credit cards were stolen in the second burglary. Two of the cards were used by the 1^st and 2^nd defendants together to purchase two iPhones. The 2^nd defendant alone used the same two cards to purchase a dehumidifier and another smartphone. All the purchases were made on the same day and shortly after the burglary in Charge 2 had taken place. That is the background of this case.

PREVIOUS CONVICTIONS

2.  The 1^st defendant has seven convictions, three relating to dishonesty.  The last was in 2011, which was for fraud and he was sent to the Drug Addiction Treatment Centre.  The 2^nd defendant also has seven previous convictions, including one for theft in August 2015 when he was fined $500.

3.  In mitigation, I heard that the 1^st defendant is 41.  He is divorced.  He has a son and a daughter, 11 and 9 years old respectively.  Each month the defendant would contribute around $8,000 to his family.  He also pays rental at $11,000.  He committed the present offences due to financial difficulties.  He was cooperative upon his arrest and gave full details of the offences to the police saving their time.  Miss Kam pointed out that no one was disturbed in the commission of the burglaries.  He had entered timely guilty pleas and saved a lot of the court’s time.  The 1^st defendant wrote a letter admitting his guilt and showing genuine remorse.  Miss Kam advised the 1^st defendant about the sentencing tariff concerning burglary of a domestic premises but urges the court to give consideration to the defendant’s guilty plea, his cooperativeness and saving of the court’s and the police’s time.

4.  As for the 2^nd defendant, he was 39 at the time of the arrest.  He was unemployed and was receiving comprehensive social assistance of $6,000 per month.  He committed the offences out of greed.  Mr Hui pointed out that most of the defendant’s records were -- in fact six of the records, previous convictions were for offences committed prior to 1998.  From 1998 to date, his only other conviction is for a shoplifting offence in 2015.  Mr Hui urges the court to ignore the earlier offences which were committed over 19 years ago.  Mr Hui informed the court that in relation to the facts of the present case, the “Ah Keung” mentioned in the facts was not the 2^nd defendant.  Mr Hui pointed out the total amount involved in Charges 3 to 7 is $19,000.  If the dehumidifier which was valued at $2,375 and which was recovered was taken away from that sum, the total amount of loss would be around $17,000.

5.  Mr Hui submitted that the credit card cases were committed within a short range of time and, in principle, on different occasions and would warrant consecutive sentences.  Mr Hui suggested that taking into consideration the principle of totality, the overall sentence should be in the region of 2 to 3 years.

SENTENCE

Charge 1: The 1st defendant’s Burglary

6.  It is trite law that the starting point for burglary of a domestic premises is 3 years’ imprisonment for a first offender subject to the presence of any aggravating or mitigating factors.  The 1^stdefendant’s burglary of the premises was committed with another person.  This is an aggravating factor for which I would enhance the sentence by 3 months.  There are no other aggravating factors in the commission of this offence.  The 1^st defendant’s sentence for Charge 1 is therefore 39 months’ imprisonment.  The 1^st defendant had entered a timely plea and is entitled to the full one-third discount leading to a sentence of 26 months’ imprisonment after plea.

Charge 2

7.  The flat that the 1^st defendant burgled in Charge 2 was also a domestic premise.  He burgled the flat together with the same accomplice, Ah Keung.  The 1^st defendant is sentenced to 26 months’ imprisonment after plea for Charge 2.

Charges 3 to 7

8.  Charges 3 to 7 all involve the use of credit cards that were stolen from one of the residents of the flat that was burgled in Charge 2, Miss Man.

9.  Sentencing guidelines for credit card frauds are found in the case of R v Chan Sui To.  The Court of Appeal directed that judges should consider various factors including the size of the operation, the planning, whether elaborate or simple, whether there is an international dimension, whether the accused played a major role, for example running a syndicate, and whether there is a plea of guilty.  The Court of Appeal suggested that at the time of that case amounts up to $50,000 may be considered relatively small.  They suggested that an accused who plays an active but not necessarily key role in a medium sized operation with no elaborate planning and equipment and without an international dimension should receive a sentence of 5 to 6 years after trial. Sentences may be adjusted upwards or downwards according to circumstances.  The Court of Appeal stressed that the sum of money involved is only one of the factors to be taken into account, it is not even the most significant factor.

10.  I will deal with the sentence of Charge 3 now.  Charge 3 is the theft of $100 by the 2^nd defendant.  He used the credit card to do a top-up at a 7-Eleven convenience store to the value of $100.  Given the small amount involved, I will adopt a starting point of 3 months’ imprisonment which is discounted to that of 2 months’ imprisonment upon the 2^nd defendant’s timely guilty plea.

Charges 4 and 5

11.  That is the obtaining by deception charges committed jointly by the 1^st and 2^nd defendants.  Here the properties that the defendants obtained were two iPhones at $6,380 each.  The operation must be regarded as small-scale.  Although each was committed by the defendants jointly, I find that their joint enterprise did not add much to the overall culpability and does not warrant an enhancement of sentence.  I find that a proper starting point for each of Charge 4 and 5 against each defendant is 18 months’ imprisonment.  The sentence against the 1^st and 2^nd defendants for Charge 4 and 5 after plea is therefore 12 months’ imprisonment.

Charge 6

12.  The 2^nd defendant committed the deception in Charge 6 alone. The property involved was a dehumidifier that was sold for $2,375.  Even taking into consideration that this was a third use of a stolen credit card by the 2^nd defendant, it is still a small operation with no aggravating features.  Just as in Charges 4 and 5, the deception was straightforward and unsophisticated.  I find that a proper starting point for Charge 6 is also 18 months’ imprisonment leading to the discounted sentence after plea of 12 months’ imprisonment.

Charge 7

13.  The 2^nd defendant is charged alone for this deception.  The property involved is a smartphone sold at $3,798.  I will adopt the same starting point as in Charge 6.  The 2^nd defendant is therefore sentenced to 12 months’ imprisonment on Charge 7 after granting him the full one-third discount.

Totality

14.  The 1^st defendant committed the two burglaries just a few days apart.  The 1^st defendant committed the obtaining by deception offences in Charges 4 and 5 on the same day as his burglary in Charge 2.  The use of the stolen credit cards by the 1^st defendant in Charges 4 and 5 were connected to his burglary of the flat in Charge 2.  Taking a step back, I find that an overall sentence for all the offences after plea should be 3 years’ imprisonment.  I will therefore order that the sentences in Charges 4, 5 and 2 to be served concurrently and that 10 months of the sentence in Charge 1 to be served consecutively to the sentences in Charges 2, 4 and 5, the balance concurrently.  The final sentence for the 1^st defendant in relation to Charges 1, 2, 4 and 5 is that of 36 months’ imprisonment.

The 2^nd defendant

15.  The 2^nd defendant committed the five offences he is being sentenced for on the same day, that is 26 February 2017.  The iPhones in Charges 4 and 5 were obtained at around the same time and in the same shop.  The dehumidifier and smartphone in Charges 6 and 7 were from two different shops. Taking a step back, I find that an overall sentence after plea should be 2 years’ imprisonment for all the offences.  I will therefore order that the sentences in Charges 4 and 5 to be served concurrently, the sentences in Charges 6 and 7 to be served concurrently, those two sentences to be served consecutively, and the 2-month sentence in Charge 3 to be served concurrently to the rest of the sentences.  The final sentence for the 2^nd defendant in relation to Charges 3, 4, 5, 6 and 7 is that of 24 months’ imprisonment.