HKSAR v. SO WAI YIN

DCCC 279/2018

[2018] HKDC 1012

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 279 OF 2018

----------------------

----------------------

--------------------------------

Reasons for Sentence

--------------------------------

1.  The defendant has pleaded guilty to two offences of theft arising out of an incident that occurred in 2012. The incident came to light when the defendant surrendered himself to police on 26 November 2012 and he told the police that time that he had picked up an HSBC credit card in the early morning of 24 November 2012 in Des Voeux Road Central and then later that morning had used that card to make a payment of around $2,000 at a bar in Tsim Sha Tsui and then the defendant surrendered the credit card at that time.

2.  He expanded upon that in a subsequent interview, but the features were the same, that he had picked up a card outside a public toilet at Des Voeux Road, then used it to pay a bar bill for himself and his friends, and he surrendered to the police because he felt regret for that.

3.  Bank records show that the credit card had effected a transaction of $2,000 at a “Club Phoenix” in Tsim Sha Tsui. 

4.  So, based on those facts, the defendant has been convicted.

5.  As far as the defendant’s antecedents are concerned, he is currently aged 33.  He has been remanded in the custody of the Correctional Services Department since 3 February this year.  He has worked in the past as a bar manager in Macau. 

6.  The defendant has a criminal record with no similar convictions.  They are largely convictions for drug offences, for which he has been sentenced to both imprisonment and Drug Addiction Treatment Centre.

7.  The offences were committed in 2012 and the defendant was in fact charged and would have gone for trial in the Magistrates’ Court in the year 2013.  He was granted court bail and at some point, whilst on bail, as he was permitted to leave Hong Kong, he left to go to Australia. Whilst in Australia, he committed an offence and was detained between 2013 and 2017, and so was imprisoned in Australia during that period. 

8.  In February 2018 he was returned to Hong Kong by the Australian authorities, where he was detained because of his failure to attend his trial in 2013, but it would appear the failure to attend his trial was a result of his involuntary detention by the Australian authorities back in 2013, so the Secretary for Justice very sensibly has preferred no charge in respect of that.

9.  The defendant says that he committed the offence because he was drunk and he was greedy.  He prays in aid his surrender to the police; the fact that the case is somewhat old now, 2012; and his remorse.

10.  Now, turning to the appropriate starting points for sentence.  In respect of the first charge of theft, the starting point is somewhat at large.  There is no defined guideline for an offence of this nature.  It would appear on the defence case to be what is described as theft by finding, which is generally treated more leniently than other forms of theft.  In respect of that offence, I will simply take a starting point of 6 months’ imprisonment and reduce that to 4 months’ imprisonment for his plea of guilty.

11.  On the second offence, by his admission, that involves the use of the credit card.  The use of credit cards in criminal transactions is taken seriously by the courts of Hong Kong and, a simple case involving the use of a credit card, the court can adopt a starting point as high as 3 years’ imprisonment, even in the most simple cases.

12.  I have looked at the facts of this case and this would appear to be the most simple of all credit card offences - simply using the credit card to pay a bar bill.  Normally, the card is used to obtain goods of value and I think that, in those circumstances, the starting point of 3 years’ imprisonment is appropriate.  However, in this case, given the somewhat petty nature of the offence, I consider a lower starting point would be appropriate and I will take an initial starting point of 30 months’ imprisonment.

13.  There are also other mitigating factors which would lead to a reduction of the sentence. 

14.  In this case, the defendant surrendered himself to the police and provided, in effect, the evidence which secures his conviction.  He has indicated a plea of guilty in this court. 

15.  Alongside that factor is the fact the offence was committed some six years ago and so it is stale.  The reason for its staleness is the defendant’s incarceration in Australia but it is still a factor that it is still a number of years old.

16.  The third possible mitigating factor in this case is the fact that the defendant was originally charged in the Magistrates’ Court, which may have led to an expectation in his mind that a lower starting point would be adopted, having regard to the jurisdictional limits of that court.

17.  I consider these are all factors that should weigh in a reduction of the initial starting point for this particular offence and I am, in fact, going to reduce the starting point for the second offence to one of 21 months’ imprisonment. 

18.  I am prepared to give the defendant credit of one-third, given that he has always indicated a plea in this court, which leads to a sentence on the second charge of 14 months’ imprisonment.

19.  I do take these as being effectively one transaction - the stealing, the taking of the card, especially as it is a theft by finding, then the use of the card later.  So I am going to order that the two sentences be served concurrently.

20.  That leads to a final sentence of 14 months’ imprisonment.