HKSAR v. FUNG KA KIT

DCCC 668/2019

[2020] HKDC 222

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 668 OF 2019

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REASONS FOR SENTENCE

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1.  The defendant Fung Ka Kit pleaded guilty before me to two charges of Obtaining property by deception, contrary to section 17(1) of the Theft Ordinance, Cap 210.

2.  The particulars are that Mr Fung, on (date), at (place), in Hong Kong, (“the said company”), dishonestly obtained from the staff of the said company one (property) (“the said goods”), with the intention of permanently depriving the said company thereof by deception, namely, by falsely representing that he was the genuine holder of one HSBC VISA Platinum credit card numbered 4201-8400-0326-xxxx in the name of Wong Chun Tong (“the said credit card”) and was authorized to use the said credit card to make payment for the said goods.

3.  For Charge 1, the date is 8 October 2016; the place is Hong Kong Suning Commerce Co, Limited, Shop No 626, Level 6, New Town Plaza, No 18 Sha Tin Centre Street, Sha Tin, New Territories; the property is iPhone 7.

4.  For Charge 2, the date is 9 October 2016; the place is Cyber Telecom Enterprise Limited, Shop C22, Level 3, Lucky Plaza, Nos 1-15 Wang Pok Street, Sha Tin, New Territories; the property is mobile phone.

Admitted facts

5.  The facts admitted by Mr Fung may be summarized as follows.

6.  Wong Chun Tong (“Wong”) and Mr Fung were colleagues.  Wong had a HSBC VISA Platinum credit card (“the Card”). Mid-October, he discovered from credit card statement that there were two unknown transactions.  The Card was still in his possession.

7.  He obtained from HSBC the relevant copy credit card receipts and confirmed that the signatures thereon were forged.  The details of the shops and the dates of the transactions are in the particulars of offence.  Charge 1 relates to a transaction amount of $8,488.  Charge 2 relates to a transaction amount of $4,700.

8.  Suspecting it was Mr Fung who did it, Wong confronted him.  Mr Fung admitted that it was indeed him; on each occasion, he placed the Card back in Wong’s wallet after the transaction.  Mr Fung said he would return the money and asked Wong for mercy.

9.  However, Mr Fung returned only $3,000 and disappeared after April 2018.  In August 2018, Wong made a police report.

10.  On 7 August, 2018, police arrested Mr Fung. Under caution, Mr Fung stated that he was really in need of money and that was why he stole his colleague’s card and used it to buy two mobile phones for reselling.

11.  In a subsequent cautioned interview conducted on the same day, Mr Fung stated, inter alia, that:-

(a) On 8 October 2016, Mr Fung and Wong went to work in the boutique as usual. In the storeroom, He saw a wallet on the shelf and took the Card from it. In the evening of the same day, he went to the location subject of Charge 1 and bought an iPhone 7 costing around $8,000 with the Card and forged Wong’s signature in the process. After that, he went to a shop in Sha Tin and resold the phone for about $7,000. He then returned to the storeroom and placed the Card back into Wong’s wallet;

(b) On 9 October 2016, Mr Fung found Wong’s wallet on the shelf again. He again took the Card. In the evening, he went to the location subject of Charge 2 and bought a mobile phone costing around $4-5,000 with it forging Wong’s signature in the process. He then resold the phone for about $4,000. He then went back to the boutique and placed the Card back; and

(c) His last contact with Wong was in May 2018. He was in financial difficulties and received many calls from creditors. He changed his phone number but forgot to tell Wong.

Criminal record

12.  Mr Fung enjoys a clear record.

Antecedents

13.  The agreed antecedents statement shows that Mr Fung is aged 27 (24 at the time of the offences), single, educated to F6, has worked as a driver from 2018 to present.  He resides with his father (58) and mother (54) in Fanling.

Mitigation

14.  Mr Lambert Lee of counsel assigned by the Director of Legal Aid mitigated on behalf of Mr Fung.

15.  Mr Lee submitted a Mitigation Bundle consisting of five documents namely, mitigation letter from the principal of Mr Fung’s kindergarten, two commendation certificates from Mr Fung’s secondary school, a volunteer certificate from an elderly centre and lastly Mr Fung’s tax return for the year 2019/2020.  The contents of the mitigation letter are generally that Mr Fung committed the offences out of ignorance, emotional disturbance and financial difficulties and he wants to turn over a new leaf.  The tax return is there to show that Mr Fung was in employment.

16.  Mr Lee further submitted letters of employment which show that Mr Fung had been employed as a Sampler in a testing centre since the end of August 2018 and his salary was raised to $15,000 a month since September 2018.  A letter dated 13 March 2017 of the Official Receiver’s Office was also submitted to show Mr Fung had been a subject of Bankruptcy proceedings.

17.  Mr Lee submitted that Mr Fung was the only child of the family; that his father is working and his mother is suffering from a physical condition which prevented her from entering the court room lest she became hysterical from seeing her son being placed into custody.

18.  Mr Lee submitted that Mr Fung took the job in the boutique after graduation from F6; that in early 2016, his father became unemployed for half a year which meant that Mr Fung junior had to shoulder the whole family’s burden; that he was earning $8,000 a month that time which was insufficient for a family of three; that he gave as much as he could to the family and he overdrew from credit card account(s) hence becoming incapable of repaying; that he saw the victim’s wallet and took the credit card from it on two days; that he regretted after two days and stopped; that he tried to repay bit by bit; that after the commission of crime, he tried to become fully engaged in other jobs; that he earns $14,000 a month and he still maintains the job and gives to the family.

19.  Mr Lee further submitted that Mr Fung went bankrupt in April 2017 and he has been paying $2,000 monthly to the Receiver under the bankruptcy order.

20.  Mr Lee asked for mercy and leniency because of the pleas of guilty and remorse.  Mr Lee submitted that after the commission of crime, Mr Fung continued to get himself fully engaged and continued to be a filial son; that Mr Fung was driven by sudden misfortune and he did not know how to manage his accounts; that Mr Fung knew that immediate custodial sentence is inevitable.

Sentence

21.  I have considered the mitigation submissions including the contents of all of the documents submitted.

22.  Obtaining property by deception is a serious offence especially when the means to do so involves the use of a forged or somebody else’s credit card.  It corrodes into the very heart of the consumer credit framework of a civilized society.  A substantial term of imprisonment is inevitable even for a first offender.

23.  Having reminded myself of the principle in HKSAR v Lam See Chung Stephen [2013] 5 HKLRD 242, I adopt a starting point of 3 years’ imprisonment for each charge.  Mr Fung has indicated pleas of guilty at an early stage which he has materialized.  I will give him the full 1/3 discount.  For his clear record, I will give him a further discount of one month (to be deducted after the 1/3 reduction) on each charge.  There are no other mitigating factors of sufficient weight to warrant a further discount.

24.  The two offences were committed on different days albeit close in proximity to one another.  Subject to the principle of totality, they call for consecutive sentences.

(Mr Fung, please stand)

25.  For Charge 1, I sentence Mr Fung to a term of 23 months’ imprisonment.  For Charge 2, I also sentence Mr Fung to a term of 23 months’ imprisonment.  If the terms were ordered to be served wholly consecutively, the resulting sentence would be excessive and out of all proportion to the culpability involved.

26.  Having taken into account all relevant circumstances, I determine that a global term of 29 months’ imprisonment after plea would be appropriate in the case of Mr Fung.  I therefore order 6 months of the sentence for Charge 2 be served consecutively to the sentence for Charge 1.  Hence, the total sentence is 29 months’ imprisonment.