HKSAR v. LAM LAI TAK

DCCC 361/2016

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 361 OF 2016

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Reasons for Sentence

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1.  The defendant has pleaded guilty to two offences of theft and five of obtaining property by deception, and the offences all relate to the theft and subsequent use of a credit card.

2.  The credit card belonged to the first prosecution witness, and he became aware of suspicious transactions whilst reviewing the transaction records of his credit card, and that was on 4 January 2014.  Eventually, it was confirmed that the credit card was used in 63 transactions involving an amount of $6,103 at 38 locations between 26 December 2013 and 4 January 2014.  PW1 had no knowledge of these transactions.  He had not authorised anyone to use the credit card.  He found that his credit card was missing from his wallet.

3.  It transpired that one of the 63 transactions involved the purchase of a mobile phone on 27 December 2013.  The mobile phone was subsequently pawned in a pawnshop on 31 July 2014 by a person using the defendant’s identity card and contact details. 

4.  The defendant was arrested.  He made a video-recorded interview.  As part of his admissions made under caution, he said that he picked up the credit card on the ground near an ATM machine in Sham Shui Po on 25 December 2013.  He confirmed he made all the 63 transactions on the card out of greed.  He identified some particular transactions in relation to certain shops, and these related to purchase of some property at a Baleno Shop for $100 on 27 December, some food on 27 December, a mobile phone also purchased on 27 December for $2,360, some clothing on 28 December and some more food on 2 January 2014.  And those represent the charges that have been brought in relation to obtaining by deception.

5.  The defendant also stole what can be called PW1’s credit balance on the credit card.  That was in the sum of $3,110 incurred in the remaining 57 transactions on the card, and that forms the theft in Charge 7.  Charge 1 relates to the theft by finding of the credit card.

6.  The defendant is 52 years old.  He has a total of three previous appearances in court involving 10 charges.  Of some relevance are offences of obtaining by deception, attempting to obtain property by deception and obtaining property by deception back in 2005 where the defendant received sentences of 8 months’ imprisonment.  This year, he was fined for an offence of theft. 

7.  The defendant has had a number of offences of dishonesty in the past.  At the time, he was in receipt of CSSA in a relatively small amount.  He says he took opportunity of the finding of the card to buy what were small-value items.

8.  In mitigation, it is said that the total value of the items taken is small, involving low-value items such as clothing and food.  The defendant has admitted his offences from an early stage after being arrested and has pleaded guilty today.  Also, it is submitted that the offending constitutes what is really a single transaction.

9.  The court has outlined its or this approach to the offence of credit-card fraud as long ago as 1996 in the case of R v Chan Sui To & Another [1996] 2 HKCLR 128, and the approach is the same in respect of both forged credit cards and genuine credit cards used fraudulently.  It has been said in a small credit-card fraud of the most simple kind, a starting point of 3 years’ imprisonment can be appropriate.  This is because of the potential damage to the financial system of credit-card fraud.

10.  This case involves a stolen credit card being used to purchase small-value items except perhaps the phone.  The defendant acted alone.  I consider that this falls into the category of a small credit-card fraud of a simple nature. 

11.  So, accordingly, for the offences of obtaining by deception which involve the use of the credit card, starting points of 3 years’ imprisonment should be appropriate.  I do have to consider whether the defendant’s previous offending of the same nature in 2005 constitutes a factor that could aggravate and increase the starting point for sentence for those offences.  However, as those offences were over 10 years ago now, I will not adopt them as an aggravating factor in the sentence in this case. 

12.  I consider the overall starting point for sentence would be one of 3 years in this case.  What I should do is sentence as follows, bearing in mind that the defendant is entitled to one-third deduction for sentence from the immediate starting point.  On Charge 1, the theft of the credit card which is a theft by finding, I will take a starting point of 12 months’ imprisonment and reduce that to 8 months’ imprisonment for the defendant’s plea of guilty. 

13.  On each of Charges 2 through to 6 inclusive which involve the obtaining by deception of the use of the credit card to obtain items, I will take a starting point of 3 years’ imprisonment on each of those and reduce that to 2 years’ imprisonment for the defendant’s plea of guilty.  

14.  On Charge 7 which involves the theft by use of the remaining credit balance, I shall also adopt a 3 years’ starting point and reduce that to 2 years’ imprisonment for the defendant’s plea of guilty.

15.  I consider that having regard to the question of overall totality and the nature of the offending that the sentences should all be served concurrently to a total of 2 years’ imprisonment.