HKSAR v. TSUI YIN CHUNG, KEN

 DCCC1365/2009

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 1365 OF 2009

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

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

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

Reasons for Sentence

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

1.  The defendant pleaded guilty to 21 charges of “Theft”, contrary to section 9 of the Theft Ordinance, Cap.210.

2.  The facts of this case are straightforward. Miss Ho for the Prosecution has summarised them succinctly in one paragraph. The crimes took place between April and August 2009. On the offence dates, the defendant entered into the respective piano shops or music centres using various pretexts, such as waiting for his sister to finish her piano lesson, making enquiries about music lessons or browsing generally inside the shop, with a view to looking for wallets which were left unattended. As a result, the defendant stole the items as particularised in Charges 1 to 21.

3.  Having obtained the credit cards, the defendant used them to make numerous purchases of consumer products such as dried seafood, bird’s nests, mobile phones, health pills, footwear, clothes and cash coupons. The total value of those fraudulent purchases amounted to over HK$260,000. Under caution, the defendant made full admissions about his stealing acts and the purchases he made using the stolen credit cards.

4.  The defendant is now 35 years old. He has 3 previous records and his last conviction (DCCC│815/2006) in October 2006 is of similar nature. Miss Ho has helpfully submitted copies of the Charge Sheet and Summary of Facts in that case for my reference. It was shocking to note that the defendant had previously pretended to be customers and stolen unattended wallets from shopkeepers. He then used the stolen credit cards to purchase various consumer products. The defendant was charged with a total of 25 offences of “Theft” and “Obtaining property by deception” in DCCC│815/2006 and was sentenced to a total of 3 years and 4 months imprisonment. He was released in September 2008.

5.  The defendant’s personal and family background is unremarkable. He completed up to Form 2 and received training as a cook after leaving school. Defence lawyer Mr Chan submitted that the defendant is remorseful for his wrongdoing. He was also co-operative with the Police throughout the investigation of this case.

6.  For reasons unknown, the defendant was not charged with any “Obtaining property by deception” offence in the present case, though the Prosecution has disclosed in great details in the Summary of Facts about the fraudulent purchases made by the defendant using the stolen credit cards. In the Court of Appeal judgment in HKSAR v Luk Hau Cheung CACC│323/ 2000 (unreported), Keith J held:

“It goes without saying that facts which may constitute separate offences for which a defendant has not been charged or convicted may be taken into consideration to determine the gravity of, and the appropriate punishment for, the offence of which the defendant has been convicted.”  (See 2^nd paragraph, page 4)

7.  I have reminded myself that I should sentence the defendant on the basis of “Theft”. However, in my determination of the appropriate sentence, I am entitled to take into consideration of the defendant’s purpose of stealing the credit cards, the subsequent fraudulent purchases made by him as well as the total value of such purchases.

8.  I consider each stealing act akin to “Pickpocketing”, which warrants a starting point of 12 months imprisonment. The subsequent fraudulent purchases and the fact that the defendant re‑offended in the same modus operandi some 7 months after release from prison are plainly aggravating factors. A deterrent sentence is required in these circumstances. Accordingly, I will increase the starting point of each charge to 15 months to reflect the aggravating factors and deterrent element. One-third discount is given for his guilty pleas. The sentence is therefore 10 months imprisonment for each charge. Having considered the totality principle, I order that the sentences for all 21 charges to run in the following manner:

Charges 2 and 3, concurrently but consecutive to all other charges;

Charges 4 to 9, concurrently but consecutive to all other charges;

Charges 10 and 11, concurrently but consecutive to all other charges;

Charges 12 to 16, concurrently but consecutive to all other charges;

Charges 17 to 21, concurrently but consecutive to all other charges.

Thus, arriving at an overall term of 60 months (5 years) imprisonment.