HKSAR v. SETO CHI KWONG

DCCC 802/2018

[2019] HKDC 208

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 802 OF 2018

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

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

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

REASONS FOR SENTENCE

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

1.  This is literally a one-minute burglary. One afternoon, while the owner of a restaurant went out taking the rubbish to a dumpster, a thief quickly walked into the restaurant and got away with the owner’s wallet left unattended on the table. The owner returned less than a minute later only to find that his wallet had gone missing.

2.  Apart from the usual identification papers like the ID card and driver’s licence, the owner also carried plenty of cards in his wallet including 3 bank cards, 2 credit cards and $150 cash.

3.  The losses to the victim did not stop there because the thief went on a shopping spree thereafter; about half an hour later, the thief visited a nearby jewellery shop to buy expensive gold ornaments with one of the stolen credit cards, but he only managed to go through the first transaction but not the second before making his escape.

4.  The defendant is the thief in question who pleaded guilty to one count of burglary (charge 1), and two counts of deception (obtaining property by deception (charge 2) and attempted to obtain property by deception (charge 3)).

5.  The restaurant is situated in Shanghai Street, Mong Kok which is newly-decorated but yet open for business. In the afternoon of 25 June 2018, the owner, Mr. Pang, and his father were in the process of tidying up the place, there came a time when the two of them took rubbish out leaving behind an empty restaurant with its front door closed but not locked. 

6.  Mr. Pang’s wallet was placed on a table nearest to the front door and briefly forgotten about. They returned less than a minute but the wallet was already gone. The surveillance camera of the restaurant captured the defendant’s action – he entered the restaurant, put the wallet in his back pocket and then left – all that happened within 30 seconds.

7.  About half an hour later, the defendant went to a nearby jewellery shop in Nathan Road to buy a gold pendant worth $6,085, he paid with one of Mr. Pang’s credit cards- an HSB credit card (charge 2)  But when he went on to buy a much more expensive jewellery, a $16,000 worth of gold ornament, he was told by the shop assistant to wait while they were getting the authorization code from the card centre. Obviously, the defendant didn’t want to wait, took back the card and then left the shop (charge 3).

8.  Later in the evening, with intent to cash the gold pendant, the defendant went back to the jewellery asking for a refund; this time he was told by the shop manager it might take some time, but the defendant couldn’t wait any longer, and he left the shop.

9.  In the following morning, the defendant visited the jewellery again for the purpose of selling the pendant back to them, the manager getting hold of the pendant told him to wait while his request was being processed. After five minutes, the defendant suddenly left the jewellery without the pendant. The defendant was actually running away from the shop while police siren was wailing. Later the jeweller handed over the pendant to the police.     

10.  Later in the evening at around 8 o’clock, patrol officers stopped the defendant in Reclamation Street, Mong Kok because he resembled the thief in looks as captured in the CCTV of the restaurant.

11.  The defendant, aged 54, has amassed 29 prior convictions over the past almost 40 years, the vast majority of which are to do with dishonesty – 2 burglary, 20 theft (mainly pickpockets). His first conviction is in 1980 – he was put on probation for burglary; his last in 2017, he was sentenced to 8 months for pickpocketing.

12.  In mitigation, the court heard that the defendant was married but his wife is living in the Mainland. They have a daughter, now 21, is not living with them. The defendant has been a drug addict for about 20 years. As he needed money, so he repeatedly committed stealing, counsel said.

13.  Counsel also said that although the defendant had a long criminal record, he was able to keep out of trouble and quit drugs for 4 years during the period from 2012 to 2016 because he landed a casual job. Unfortunately, he suffered a mild stroke in 2016 which led him to relapse into his bad habits of taking drugs.

14.  Looking at his records, the defendant is undoubtedly a career criminal. He has spent the best part of his life seeking to profit from crime and the past sentences did not seem to deter him in any way.

15.  Here the defendant committed a burglary on non-domestic premises which in the absence of aggravating features would normally attract a sentence of 30 months; but the defence argued that the circumstances of the commission of it in the instant case might justify a departure from the usual guidance in that the defendant’s acts had no planning in advance and it was something more of an opportunistic burglary.

16.  On the evidence before the court, all I can say is that I can not rule out the possibility that the defendant just happened to walk past the restaurant, spotted the wallet inside, got in, stole it and then left. This is typical of an opportunistic who takes advantage of opportunities as and when they arise regardless of planning or principle.  

17.  For an opportunistic burglary like the one in the instant case, I take 21 months as the starting point but I would add 3 months for his being a recidivist, which would take the starting point to 24 months.

18.  Now turning to credit card fraud, in Yang Xingyun CACC 155/2016, where the court held that a starting point of 3 years’ imprisonment was appropriate in simple cases of credit cards fraud.

19.  It is well established that a sentence of 3 years is the norm for a small unsophisticated operation involving only one or a few (forged or genuine) cards uncomplicated by other evidence materially linking the offender to a larger operation.

20.  But I have also come across cases where the higher court did not see fit to disturb a starting point slightly less than 3 years such as 2 years and 8 months in similar circumstances. In the instant case, based on what is said above, I would adopt 3 years as starting point for each of the deception charge but would not increase it on the ground of his recidivism.  

21.  Insofar as his mitigation is concerned, apart from his guilty pleas, there isn’t anything of substance. His pleas are timely so he is entitled to the full 1/3 discount. After giving the appropriate discount, the individual sentence for each charge is as follows:-

Charge 1 : 16 months;

Charge 2 : 24 months;

Charge 3 : 24 months.

22.  Taking into account the totality principle, I order that charge 2 be run concurrently with charge 3 but consecutively with 9 months of charge 1, the total term is one of 33 months’ imprisonment.