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DCCC 754/2024
[2025] HKDC 135
IN THE DISTRICT COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
CRIMINAL CASE NO 754 OF 2024
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| Present: |
Mr Cheung Kam Wing, Adonis, counsel on fiat, for HKSAR |
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Ms Yuen W L, Joey, instructed by Littlewoods, assigned by the Director of Legal Aid, for the defendant |
| Offence: |
[1] Theft (盜竊罪) |
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[2] to [15] Obtaining property by deception（以欺騙手段取得財產） |
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REASONS FOR SENTENCE
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1. Sometime in the early hours of 13 September 2023, the defendant Mr Singh Gursewak, smashed the window of a car in Yuen Long and stole the items inside. The items belonged to a friend of the owner of the car. They included a rucksack, a wallet, some Macanese dollars, some Macanese personal documents and travel documents, an octopus card, together with three credit cards, five ATM cards, and some prescribed medicine.
2. After stealing the items, the defendant called a friend. Together they drove around in Yuen Long area, scouting convenience stores and making purchases with the stolen credit cards on 14 different occasions.
3. The broken window required $1,300 to repair. All the stolen property belonging to the Macau guest of the car owner has not recovered. The total value was $8,676. That did not included the trouble the victim had to go through to apply for the reissue of the various personal documents.
4. The defendant pleaded guilty to one count of theft from vehicle, and 14 counts of obtaining by deception.
5. For the 2nd offence, it involved the use of the stolen credit card inside a convenience store at Kau Yuk Road, Yuen Long to obtain $156 worth of merchandise.
6. The 3rd offence happened at about 4 am in another convenience store in Kau Yuk Road, where the defendant obtained merchandise with the sum of $78.
7. The 4th offence took place about five minutes later in another convenience store in Yuen Long, where he purchased cigarettes at a total value worth $814.
8. The 5th offence took place at about 0440 hours in a Shell petrol filling station shop, where he purchased cigarettes at a total value of $791 with the stolen credit card.
9. The 6th offence took place at another convenience store in Castle Peak Road, where he used the stolen credit card to purchase $1,560 worth of cigarettes.
10. The 7th offence took place at 0447 hours in another 7-Eleven store, where he bought 10 packets of cigarettes at the total value of $780 with the stolen credit card.
11. A few minutes later, he committed the 8th offence in another convenience store in Sai Ching Street, obtaining a total value of $600 worth of cigarettes.
12. One minute later, he committed the 9th offence by obtaining 20 packets of Marlboro cigarettes in yet another convenience store.
13. The 10th offence took place on the same morning, when he bought two anti-mosquito bracelets and 11 packets of cigarettes in another convenience store in Castle Peak Road.
14. The 11th offence took place a few minutes later in a convenience store in Yuen Long, On Ning Road but this time, he obtained goods in the value of $1,560 with the stolen credit card.
15. The 12th offence took place at 5.06 in the morning, again involving $792.50 by using the credit card at another convenience store in On Ning Road.
16. The 13th offence took place two minutes later, when he used the stolen credit card to obtain a bottle of energy drink and 10 packets of cigarettes in Yuen Long, On Ning Road.
17. The 14th offence took place two minutes later in Yuen Long Trade Centre and this time, he purchased $1,560 worth of merchandise.
18. The 15th offence took place at 0513 hours, where he obtained, with the stolen credit card, goods in the value of $788.50.
19. All these were recorded by the CCTV installed in the shops in question. The defendant was arrested in the evening on 13 September.
20. Under caution, the defendant admitted he smashed the window of the vehicle with a metal pole and took the rucksack inside. He kept one of the three cards, and disposed of the rest of the items in a rubbish bin. He then called a friend who had a car and drove around in Yuen Long locating the 14 convenience stores and made purchases therein with the stolen credit card.
21. On his plea and admission of facts summarised above the defendant is convicted of all 15 charges.
Sentencing
22. Theft from a vehicle is an offence which varies in culpability depending on the facts. In this case, the defendant pleaded that he was drunk but admitted that he had a specific intent of stealing, however drunkenness is a non-issue as it is never a defence.
23. There are no clear guidelines for this kind of case. The most important was the defendant damaged others’ property (a private car) which has equivalent to a private space. There may be personal items one stores in that place. So it is comparable to breaking into a home and carries similar criminal liability.
24. Furthermore, the defendant stole a rucksack containing personal documents, including travel documents, bank cards, ID cards from a person visiting Hong Kong. Rather than taking whatever is useful to him and leaving the rest alone, he disposed of them. That added insult to the injury as it meant that the owners of the item would have to go through the trouble of replacing all these documents essential to his daily life.
25. The defendant also committed the offence on a vehicle which normally is parked unattended in a car park, making it impossible for the owner to keep an eye on their properties. This case is comparable to a break in.
26. I accept the case may have been committed at the spur of the moment, but this would not make the victim feel better nor would it reduce the damage caused. What is worse is the defendant disposed of the rest of the properties, rendered them untraceable. Having to consider the matter as a whole, I consider a starting point of 30 months for the 1st charge.
27. For the next 14 charges, they involve the use of a single credit card. This is not a normal credit card fraud for it the indicias of forging a credit card or a concerted effort to make a credit card are missing.
28. It does involve some kind of planning after he obtained the stolen credit card. The defendant asked a friend so that he could be driven around to make purchases in difference convenient stores with the stolen credit card. The purchases were relatively small in value; this obviously was a way to avoid attention and suspicion.
29. The offences were committed without elaborate organisation and planning. There was no international dimension and the offences did not take much technical skill. That the defendant enlisted the assistance of an accomplice to commit the offences and went on a shopping spree on the same night, running up a total bill of $14,223 worth of merchandise had rendered the offences more serious.
30. That all 14 acts of theft had committed within a short sum of time. I consider the whole shopping spree involving 14 purchases as one transaction. Taking into consideration the amount involved, I will adopt 24 months as a starting point for each count to run concurrently.
31. Having considered the Totality Principle, I would order 12 months of the second lot to run consecutive to the 1st count, making a total of 42 months as the starting point.
32. The defendant had pleaded guilty to the charge. So it would be reduced down to 28 months as directed by the Court of Appeal.
Background
33. The defendant is 41 years of age, he emigrated to Hong Kong in 1996. The defendant only completed Primary 1 and made a living by labour works earning about HK$10,000 per month. He is divorced and has two daughters and one son. The family now lives in a unit of a public housing estate. The eldest daughter has some mental health issues and had been receiving treatment from Tuen Mun Hospital.
34. The defendant has seven previous convictions, involving a total of 11 charges. Three of them were dishonesty related.
35. That the defendant and his family are living in the kindness of the Hong Kong government, that of hence the Hong Kong people. After the defendant had come to Hong Kong, he made no obvious effort to make an honest living to support his family. Instead, he had been committing offences since 2011.
36. The last conviction of any significance was 2021, when he was convicted of two counts of counterfeit currency and one count of conspiracy to make counterfeit currency notes. He was sentenced to a total of 32 months. It did not seem that he learned from this experience.
37. I accept that of his various convictions, not a lot of them was related to dishonesty. So I would not increase his sentence by reason of his previous convictions. On the other hand, he cannot really claim that he was young and had a clear record to expect leniency from this court. Although I feel sorry for his children, that is not a valid reason for reducing his sentence.
38. Having considered the whole set of circumstances and his background, I do not find any valid reason to further reduce the sentence. Therefore, he is now sentenced to 28 months of imprisonment.
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