HKSAR v. TSUI HOK TAK

DCCC 1020/2020

[2021] HKDC 197

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 1020 OF 2020

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REASONS FOR SENTENCE

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1.  The defendant pleaded guilty before me this morning to two counts of theft, which form the subject matter of Charge 1 and 3, and one count of passing or tendering counterfeit notes which are the subject matter for Charge 2.

2.  The facts for Charge 1 are as follows.  At around 8 pm on 8 December 2019, the defendant went into a jewellery shop called the Lao Feng Xiang Jewellery Hong Kong Limited at No 80 Nathan Road, Tsim Sha Tsui.  He asked a woman staff there if he could look at a necklace worth $23,015 and a pendant worth $13,179.  The staff placed these items on a table top.  The defendant then asked the staff if he could also look at another pendant and whilst the staff was seeing to that, the defendant took both the necklace and the pendant from the table top and fled.

3.  The offence under the 2nd charge took place at about 4 am on 28 May 2020.  The defendant at the time went into a Circle K convenience store at No 1 Prat Avenue, Tsim Sha Tsui.  He took out his mobile phone and showed the staff there his phone code and gave the staff 15 $100 bills and five $20 bills and asked the staff to top up his Alipay account for $1,600.  The staff did as requested and put the banknotes into the cash till.

4.  Now, because of the company rules on the keeping of cash, the staff later placed around $1,500 out of the $1,600 received from the defendant into a plastic bag and store it in the safe of the shop.  When the manager of the shop came to check the monies in the safe at around 9 am later that morning, he found that seven of the banknotes his staff received from the defendant earlier were counterfeits.  Six of these bills purported to be issued by the Hongkong Bank - and they were $100 bills - but they all had the same serial number.  The seventh bill purported to be a $100 bill issued by the Bank of China (HK).

5.  The matter was reported to the police and the seven bills were subsequently confirmed by an expert of the Commercial Crime Bureau to be all counterfeit banknotes.

6.  The facts for the 3rd charge bear a remarkable resemblance to those for the 1st charge.  Shortly before 8 pm on 3 June 2020, the defendant went to a jewellery shop called the Man Fook Jewellery Holding Limited at No 525 Nathan Road, Yau Ma Tei, and there he asked the staff if he could look at a pair of bracelets worth a total of over $70,000 and a pendant worth $23,326.  After these items were taken out by the staff from the display shelf, the defendant then asked the staff about discounts which he could have for these things.  The staff then placed the three pieces of jewellery on the chair near her and made a phone call to make the necessary enquiry.  Taking advantage of that moment, the defendant bent down to grab the jewelleries and make his way off.

7.  On each of these three occasions the defendant had put on a face mask and, for the occasions under the 2nd and the 3rd charge, he had also had a cap on.  In spite of that, based on their investigation, the police managed to locate the defendant on 5 June 2020.

8.  After the defendant was arrested for the 2nd and the 3rd charge, he said under caution these things: “I’m sorry, sir, I have so many debts to repay and I’m in need of money so I used the counterfeit banknotes to add value.  Also, I stole the two bracelets and the necklace from the gold shop.  Give me a chance.”

9.  The ID parades subsequently held by the police confirmed that the defendant was the person who went into each of the three shops named under the three charges.  For the staff at each of these shops were able to positively identify the defendant as the person.

10.  I turn now to the defendant’s background.  The defendant was born in the Mainland China on 8 April 1976.  He is therefore now 44½ years old.  He is a divorcee and he had received education up to secondary level.  In terms of career, I have been told by his counsel Mr Wong this morning that he had worked as a renovation worker and had also at times worked as a waiter in restaurants or food shop.  His last job before he committed the theft offence, according to Mr Wong, was indeed that of a waiter at a food shop where he earned about $10,000 per month.  When he was having a job, he gave about $3,000 to his aged parents in support of their living.

11.  The defendant has a total of 25 previous convictions.  Although most of them were for drug offences, the latest of these being entered in July 2019 for the offence of possession of dangerous drugs, it should be noted that the defendant also had convictions for attempt to obtain property by deception, robbery, blackmail and theft.  However, they all went a long way back.  In fact, the last of these offences was committed by the defendant in 2005. 

12.  For the offence under Charge 3, the defendant said he lost his job as a waiter because of the pandemic.  For Charge 2, the defendant said that the counterfeit notes was given to him by a person purportedly as part of repayment of a debt which he had earlier advanced to that person.  It is said on his behalf that although he realised that these were counterfeit banknotes, he nonetheless decided to use them as he did not want to lose the money.

Sentencing authorities

13.  I have been supplied by Mr Wong with three cases.  The decision of HKSAR v Cheng Sau Yuk CACC 495/2011 was cited as an authority for the theft charges.  And Mr Wong also drew my attention to the cases of HKSAR v Leung Wai Han CACC 102/2002, and HKSAR v Arthur John Paymer and other CACC 3/2004, both decisions relating to the tendering of counterfeit notes offence.

14.  I have considered these cases carefully and in coming to my view on the proper sentence to be imposed, I have taken them, as well as everything else which Mr Wong has advanced on the defendant’s behalf, into account.  Having done so, I am of the view that the starting point for the two theft charges should each be set at 2 years. 

15.  Whilst it is true that in the case of Cheng Sau Yuk the defendant was acting with accomplices, the way the defendant committed the present offences is no less professional in my view.  Except on the presence of accomplices in the Cheng case, what the Court of Appeal has observed in relation to the way the offence was committed in that case applies, in my view, with equal force to what we have here, and I quote.:

“16. The appellant, as part of a professional team of shoplifters, targeted luxury shops and stole expensive items from those shops. Their modus operandi was sophisticated, with careful planning and clinical execution. They did not do it once, but repeatedly. But for the diligence and persistency of the police officers, the criminal conducts of the appellant and her accomplices could have gone on unchecked.”

16.  Now, it is of course also well settled that when there is more than one offence of a similar nature committed at different times, it is right for the court to impose a higher sentence than if there had only been one offence (see R v Tong Hoi Fung [1998] HKLR 610).

17.  As to the 2nd charge, my view is that a term of 2 years’ imprisonment is likewise a proper starting point.

18.  As the defendant pleaded guilty to these charges at the earliest opportunity, he will of course get the full one-third discount.  This will reduce the sentence for each charge from 2 years to one of 16 months’ imprisonment.  However, given that the offences were separate and distinct, each committed at a different time and place, consecutive sentence should be imposed in these circumstances subject to the question of totality. 

19.  With that in mind, I have stepped back and take a global view of the matter. In my judgment, a total term of 32 months’ imprisonment would have been a fair and appropriate sentence for the three charges taken as a whole. 

20.  In order to give effect to that, this is what I am going to do.  For each of the three charges, the defendant is sentenced to a term of 16 months’ imprisonment.  8 months of the term for each of Charge 2 and 3 are to run consecutively to the term imposed for the 1st charge and with each other, thus making a total of 32 months’ imprisonment.