HKSAR v. LI WING PUI

DCCC 1146/2017

[2018] HKDC 724

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 1146 OF 2017

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REASONS FOR SENTENCE

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1.  The defendant pleaded guilty to two counts of “Theft”, contrary to section 9 of the Theft Ordinance, Cap. 210 (charges 1 & 2), two counts of “Attempting to obtain property by deception”, contrary to section 17(1) of the Theft Ordinance and section 159G of the Crimes Ordinance, Cap. 200 (charges 3 & 4) and four counts of “Obtaining property by deception”, contrary to section 17(1) of the Theft Ordinance (charges 5-8).

Facts

2.  Ms Li, the defendant’s elder sister, held a number of credit cards including one issued by China Construction Bank (Asia) as particularized in charge 3 (“the CCB credit card”) and one issued by Bank of China as particularized in charge 6 (“the BOC credit card”).

3.  On a day between June 2016 and 22 September 2016, the defendant stole the CCB credit card (charge 1).  On a day between June 2016 and 24 September 2016, the defendant stole the BOC credit card (charge 2).

4.  On 22 September 2016, Ms Li was alerted of transactions effected with the CCB credit card.  As she was not able to locate the CCB credit card, she reported the matter to the police.  Monthly statement of the CCB credit card recorded 4 transactions effected on 22 September 2016.

5.  The defendant was arrested on 29 September 2016.  Under caution,  he admitted:

(a) using the CCB credit card in purchasing a mobile phone from Wilson Communications Limited for HK$5,098.50. He resold the phone and spent all the proceeds from the resale (charge 5);

(b) using the BOC credit card in purchasing a diamond pendant and a wrist chain from Hei Dor Fook Jewellery Company Limited at HK$3,000 and HK$3,440 respectively (charges 6 & 7) and a wrist chain from 3D-Gold Jewellery Company Limited at HK$3,300 (charge 8). The defendant subsequently pawned them and spent all the money; and

(c) attempting to purchase a mobile phone valued HK$4,790 from Citylink Electronics Limited and one valued HK$4,717 from Hong Kong One Telecom Limited with the CCB credit card. As staff of both shops found out the defendant was using another person’s credit card, the phones were not given to him (charges 3 & 4).

6.  At all material times, Ms Li had not used the CCB credit card or BOC credit card for the above purchases and had not passed the same to anyone for use.

Mitigation

7.  The defendant is aged 33 and divorced.  Prior to the arrest, he had been working for the same company for 4 years and was living with his parents, his elder sister and his elder brother.  The defendant has 10 previous conviction records, none of which is similar to the present offences.

8.  In mitigation, it was submitted that the root of the problem and all the previous conviction records was the defendant’s drug addiction.  The defendant was determined to turn over a new leaf and had attended voluntary residential drug addiction treatment by The Christian New Being Fellowship for 12 months.  He is already free from drug but he chose to stay there to receive further training and is prepared to help others receiving treatment there.  It was also submitted that Ms Li, the rightful owner of the two credit cards, has already forgiven the defendant. Mitigation letters from the defendant, his elder sister, the Fellowship and Revival Christian Church Limited were submitted. 

9.  It was further submitted that the scale of the operation was small, only two credit cards were involved and the total amount of properties involved was less than HK$25,000.  The defence referred to the case of HKSAR v Wan Ka Ling, CACC 318/2012 and submitted that the appropriate starting point was around 3 years.   It was also pointed out that the defendant wished to be given a chance and be granted a probation order. The court was urged to impose lenient sentence on the defendant. 

Sentence

10.  Credit card offences are serious and must be deterred.  Offenders would expect to be punished by a substantial term of imprisonment.  Despite the defendant’s wish to be sentenced to a probation order, I do not consider this to be an appropriate option.

11.  In R v Chan Sui To and anor [1996] 2 HKCLR 128, the Court of Appeal laid down the various factors to be considered in sentencing this type of offence, which included the size and planning of the operation, whether there is any international dimension and the role played by the defendant.  In HKSAR v Tu I Lang, CACC 464/2006, the Court of Appeal stated that where the facts of the offence point to a small unsophisticated operation involving only one or a few forged cards uncomplicated by other evidence materially linking the offence to a larger operation, then a starting point of 3 years’ imprisonment or less would be appropriate (see para 10 of judgment). In HKSAR v Lam See Chung, Stephen, CACC 339/2012, the Court of Appeal stated that the aforesaid sentencing principles were equally applicable to credit card fraud in which genuine cards are used.

12.  In this case, two genuine credit card were involved and used on 6 occasions without any marked degree of planning or organization. Further, there is lack of international element.  The total value of goods obtained is not high.  The defendant has no previous criminal conviction record of offences involving dishonesty.  In the circumstances, I consider it appropriate to adopt 3 years as the starting point for each of charges 3-8.  Given the defendant’s guilty plea, the sentence for each of these charges is reduced to 2 years’ imprisonment.

13.  For the two charges of theft, I consider the appropriate starting point is 9 months’ imprisonment for charges 1-2.  Given the defendant’s guilty plea, the sentence is reduced to 6 months’ imprisonment for each of charges 1-2.

14.  Apart from the defendant’s guilty plea, I do not see other mitigating factor justifying further reduction of sentence.

15.  Taking into consideration the totality principle, I consider a total sentence of 2 years and 3 months is sufficient to reflect the total criminality of the defendant.  In the circumstance, I order that the sentences for charges 3-8 to run concurrently, while sentences for charge 1-2 to run concurrently, with 3 months from the combined sentence of charges 1-2 to run consecutive to charges 3-8, making a total of 2 years and 3 months’ imprisonment.  I hereby sentence the defendant to 2 years and 3 months’ imprisonment.