HKSAR v. LUK KIT CHUN

DCCC 756/2020

[2021] HKDC 137

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 756 OF 2020

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REASONS FOR SENTENCE

The defendant pleaded guilty to 1 charge of "Theft" (Charge 1); 12 charges of "Obtaining property by deception" (Charges 2, 3, 5 to 12, 14 and 15); and 2 charges of "Fraud" (Charges 4 and 13). She stole a credit card which was dropped by someone and used it to make purchases at various retail shops within a period of 4 days. The total sum of the goods involved is about $7,800.

Summary of Facts

Charge 1

2.  In November 2018, the defendant was a cashier supervisor at a supermarket chain store ("the Store") situated at Oi Man Plaza, Oi Man Estate, Ho Man Tin ("the Mall").

3.  About 2:00 p.m. on 7 November 2018, Madam Ho (PW1; aged 89) used her credit card ("the Card") to shop at the Store. Thereafter, she dropped the Card without knowing.  A customer picked up the Card and handed it to a staff member, who then handed it to the duty manager. The manager put the Card in the Store's safe room pending its owner's claim. 

4.  The safe room was used for storing cash and valuable items of the Store; only the defendant and 2 managers could access the safe room using a key.

5.  On 11 November 2018, PW1 found the Card missing. Upon contacting the issuing bank, PW1 was informed of unauthorized transactions made using the Card.  PW1 alerted the Police.

6.  CCTV footage captured the defendant entering the safe room and taking the Card around 1:20 p.m. on 8 November 2018.

Charges 2 and 3

7.  Between 6:00 p.m. and 7:05 p.m. on 8 November 2018, the defendant used the Card to purchase consumer goods from 2 shops situated at the Mall.  The respective value of the purchases was $627 and $663.70.

Charges 4 to 7

8.  Between 11:15 a.m. and 12:35 p.m. on 9 November 2018, the defendant used the Card to pay for food at a restaurant and to purchase consumer goods from 3 shops, all of which were situated at the Mall.  The respective value of the restaurant bill and the purchases was $185, $1,136, $2,080 and $611.80.

Charges 8 and 9

9.  Between 6:40 p.m. and 7:15 p.m. on 9 November 2018, the defendant used the Card to purchase consumer goods from 2 shops situated at the Mall.  The respective value of the purchases was $224.60 and $880.

Charges 10 and 11

10.  Around 11:20 a.m. and 5:50 p.m. on 10 November 2018, the defendant used the Card to purchase consumer goods twice from the same shop situated at the Mall.  The respective value of the purchases was $471.90 and $194.50.

Charges 12 to 15

11.  Between 11:15 a.m. and 11:50 a.m. on 11 November 2018, the defendant used the Card to purchase consumer goods from 3 shops and pay for food at a restaurant, all of which were situated at the Mall.  The respective value of the purchases and the restaurant bill was $468.70, $94.50, $77 and $126.10.

Police Investigation

12.  On 18 November 2018, police officers located and arrested the defendant at the Store. She opened her locker using a key.  The Card was seized from the defendant's wallet, which was placed in her locker.  Under caution, the defendant admitted that she had taken the Card and used it to make unauthorized payments.

13.  The defendant's home was searched.  The police found 5 pairs of shoes, 2 handbags, 3 jackets, 1 dress, 1 shirt, 4 sweaters, an array of personal care products and 7 packs of candy.  Under caution, the defendant admitted that all of those items were purchased by her using the Card.

14.  In her video recorded interview, the defendant admitted that she took the Card from the safe room of the Store and made unauthorized payments.  She intended to return the Card to the safe room afterwards, but did not expect the Police to arrive so soon.

Mitigation & Sentence

15.  The defendant just turned 50 and has 1 conviction record, which involved 1 "Theft" offence and 4 "Obtaining property by deception" offences.  Defence solicitor Mr. Tang informed me that those previous offences (in DCCC 470/2019) were also related to picking up someone's credit card and using it.  The defendant was sentenced to a total of 23 months' imprisonment on 15 November 2019.  She is expected to be released next month.  Ms. Au for the prosecution informed me that the offences in the present case and those in DCCC 470/2019 were committed 2 years apart.  Mr. Tang stressed that the defendant did not commit the present offences whilst on bail.

16.  Mr. Tang also informed me that the defendant is divorced with 2 adult daughters.  The elder one is working; whereas the younger is still a student.  In mitigation, Mr. Tang submitted that the defendant cooperated with the Police throughout by making full and frank admissions.  She is also willing to make full compensation.  I have asked parties to settle the compensation issue before I sentence the defendant.  Mitigation letters were placed before me; their contents are duly noted.

17.  This afternoon, Mr. Tang informed me that the issuing bank of the Card indicated that its legal department needs about 1.5 months to process the compensation matter[1]. Mr. Tang suggested the court to make a compensation order in the sum of $7,840.80 in favour of the bank; the defendant is willing and ready to make a payment into court.

18.  Credit card offences are serious and must be deterred.  In HKSAR v CHEN Wing Hong CACC 40/2005, the Court of Appeal observed that "… in this day and age the integrity of the credit card system is highly important and those who attempt to beat the system by fraudulent methods necessarily erode the confidence which people are entitled to place on this aspect of modern commercial life[2]." A clear message must be conveyed to the general public that "credit card fraud" is a serious crime and that offenders would be punished by a substantial prison term.

19.  In HKSAR v Tandon William CHAING CACC 404/2012, Macrae J (as he then was) endorsed a starting point of 3 years' imprisonment for the unauthorized use of 1 credit card belonging to another person on a single occasion in order to obtain jewellery and watches which valued $56,116 in total[3].

20.  In the present case, the defendant stole a credit card left behind by a customer at her workplace and used it for 14 times in various retail shops and a restaurant over a period of 4 days to purchase various types of consumer goods and to pay for food with a total value of roughly $7,800.

21.  For Charge 1, since it involves a Barrick type of breach of trust, I consider a starting point of 12 months' imprisonment appropriate.  With the timely guilty plea, the sentence is reduced to 8 months.  I sentence the defendant to 8 months' imprisonment for this charge.

22.  For Charges 2 to 15, in view of the relatively small sums involved, I adopt 2.5 years' imprisonment as the starting point for each charge.  With the timely guilty pleas, the sentence for each charge is reduced to 20 months.

Overall Sentence

23.  Bearing in mind the totality principle, I consider a global starting point of 3.5 years' imprisonment to be appropriate for all 15 charges.  With the guilty pleas, the overall sentence is reduced to 28 months.  I will grant a further discount of 2 months for the full compensation made by the defendant, reducing the overall sentence to 26 months.

24.  To arrive at an overall prison term of 26 months for all 15 charges, I order the sentences to run in the following manner :-

(i)   Charges 2 to 9 concurrent;

(ii)  3 months in Charge 1 consecutive to Charges 2 to 9;

(iii) Charges 10 to 15 concurrent; but 3 months consecutive to Charges 1 to 9.

25.  I have considered the totality principle again in relation to the defendant's existing sentence in DCCC 470/2019.  Since the offences in that case and the present case were committed more than 2 years apart, there are all the reasons for the overall sentence in both cases to run consecutively.  And I see no reason why I should make any order otherwise. Hence, I order the overall sentence in the present case to run consecutive to the overall sentence in DCCC 470/2019.