HKSAR v. CHING WA WAI

DCCC 155/2020

[2021] HKDC 175

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 155 OF 2020

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REASONS FOR SENTENCE

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1.  The defendant pleaded guilty to fourteen counts of theft[1] and fifteen counts of obtaining property by deception[2].

ADMITTED FACTS

Charge 1

2.  At the material time defendant was the assistant manager of the restaurant “Mixian Sense”.  A safe was kept in Offence Location 1 for storing its daily revenue.  The safe was secured with a key-lock and a password combination lock.  The defendant was given a key to the safe and he knew the relevant password.  After every shift duty, the defendant was responsible for transferring the cash kept in the cash register to the safe.

3.  On 25 February 2018 defendant came to Offence Location 1 to report duty. At around 1305 on that day, the defendant suddenly claimed that he had to deal with certain urgent matters and needed to leave Offence Location 1.  The defendant promised that he would come back at 1800 hours on that day.  The defendant however did not turn up as he had promised and did not report duty ever since.

4.  In the afternoon on 25 February 2018 (after the defendant left Offence Location 1), PW1 found that cash of HK$35,715 was missing from the safe.  PW1 tried to contact the defendant but defendant was out of reach.

5.  Under caution the defendant admitted that he stole HK$35,715.00 from the safe while working as assistant manager in the Offence Location 1.

Charge 2

6.  At the material time the defendant and PW2 were friends.  At 1730 hours on 4 July 2018 the defendant met PW2 at Offence Location 2 for a chat.  While they were chatting, the defendant claimed that his mobile phone was out of power and borrowed PW2’s iPhone for allegedly making a phone call.  After a while, PW2 found that the defendant had left the scene without informing her or returning the iPhone to her.  PW2 called her phone number but found that it was disconnected.  The defendant also became out of reach.  PW2 reported the matter to the police.  PW2’s iPhone was worth about HK$7,000.

7.  During the video-recorded interview (“VRI”) of the defendant, under caution the defendant admitted that at the material time he had stolen the iPhone from PW2 in the way as mentioned above.  Besides, the defendant had sold the iPhone after he left the scene.

Charge 3

8.  At the material time the defendant was a former colleague of PW3 and they were casually acquainted.  At 1630 hours on 21 September 2018, PW3 was working at his work place at “New Century Lightings Co” (“Offence Location 3”) and took out his own Nikon digital camera (“the Camera”, worth about HK$ 15,000) (with lens and memory cards) for a check.  At this juncture the defendant came to PW3’s work place.  As the defendant saw the Camera, the defendant told PW3 that he was interested in it.  PW3 thus lent the Camera to the defendant for him to have a look.  After that a number of customers entered Offence Location 3 and PW3 proceeded to provide services to the customers.  After 5 minutes, PW3 found that the defendant had left the scene without informing him or returning the Camera to him.  The defendant also became out of reach.  PW3 reported the matter to the police.

9.  During the VRI of the defendant, under caution the defendant admitted that at the material time he had stolen the Camera from PW3 in the way as mentioned above.  Besides, the defendant had sold the Camera after he left the scene.

Charge 4-29

10.  At all material times, the defendant arranged to meet various insurance agents, namely the victims in Charges 4-10, 12-14, and claimed he would like to take out insurance policy.  They would then meet for discussion in public restaurant, i.e. Starbucks or McDonald’s.  While the victims went to purchase food, the defendant would steal a credit card from their handbags.  The victim in Charge 11 was the defendant’s friend.  He stole her credit card at her home. 

11.  The defendant then used the credit card to purchase various mobile phones, namely the transactions in charge 15-29.  The mobile phones valued between HK$6,499 and 13,398.

12.  The defendant under cautioned admitted charges 4-29.

13.  In summary the charge, date, property involved and value of the property are listed in Annex 1.

PREVIOUS CRIMINAL CONVICTIONS

14.  The defendant has 2 criminal records with 4 convictions.  3 convictions related to dishonesty.  All convictions were recorded in 2009. 

MITIGATION

15.  The strongest mitigating factor in the present case is that the defendant pleads guilty so he should be entitled to one-third discount in sentence.  In order to show genuine remorse, the defendant chooses to plead guilty to all charges, even though he understands that the number of offences he has committed is vast (including 14 counts of “theft” and 15 counts of “obtaining property by deception”).  Defence invites the court to consider totality principle when sentencing this defendant and give him the most lenient sentence.   

16.  The defendant was born in 1991 in Mainland China.  In 1998, the defendant’s mother, elder brother, elder sister and himself were granted one-way permit to reunite with their father by the mainland government.  The defendant is single and he has resided with his current girlfriend, namely Leung Sin-man since 2012.  They have a son who was born on 23 February 2018 out of wedlock and three of them have been living together thereafter. 

17.  The defendant has received education in Hong Kong up to Form 5.  After completion of his studies, he has worked as a waiter at various restaurants.

18.  Since October 2017, the defendant has first started working as vice manager at the “Mixian Sense” (米線陣) which is the restaurant involved in the current case.  Later in February 2018, the defendant was assigned to Tai Po Branch (the concerned branch), working at the same position.  Upon committing the said offences, he resigned on 25 February 2018.

19.  Between his resignation and arrest, he has worked as a casual construction worker, earing around HK$700 per day.  His monthly income is approximately HK$3,000 to HK$4,000.

20.  The defendant’s father is about 75 years old and he is residing at a rehabilitation center.  His mother is about 65 years old and she is a housewife.  Since his girlfriend has been suffering from some emotional distress and depression, she does not have a job.  Regarding his 2-year-old son, he was diagnosed to have muscular dystrophy at birth.  His symptoms are that he has trouble moving his right hand freely and the mobility of his left hand is also limited.  Due to this disease, his son needs to receive long-term medical treatment.

21.  The reason of committing the present offences was recorded on his cautioned statement taken during police investigation where he admitted that he had a gambling habit of football-betting.  Since he had lost money on football-betting, he foolishly stole money from his company, hoping to recover the money lost.  However, all was in vain.  As his son had a birth defect, the defendant always desired the best for his son that he could receive treatments from private specialist doctors instead of government specialist doctors.  It is frustrating that the defendant has made the same mistakes again and again.  He first stole a camera and mobile phones from his friend then sold them.  Subsequently, he tried to make up excuses to steal credit cards from various victims, then used them to obtain goods from different shops by deception and resold them.  The defendant then used the money gained for living expenses and his son’s medical treatments.

22.  Although the defendant told the police that the concerned money was for living expenses during police investigation, around half of the money in fact went to his son’s medical expenses.

23.  The Defence now submits a total of 4 mitigation letters, which were written by (1) the defendant himself, (2) the defendant’s mother and his girlfriend, (3) his pastor and (4) a ministry officer, and the relevant supporting documents regarding his son, namely birth certificate, photographs, four medical appointment slips and Child Assessment Report. 

24.  A background report is obtained prior to sentence.  The background report mainly supports what was said in mitigation, except his son’s mother said the defendant moved out of her house in November 2018, prior to the birth of his son.  The defendant only visited her and son for a few times. 

SENTENCE

Charge 1

25.  This is a breach of trust case.  The defendant stole from his employer HK$35,715.  I have considered the principles laid down in R v Clark as applied in HKSAR v Cheung Mee Kiu as adjusted in HKSAR v Ng Kwok Wing.  For the offence of theft involving breach of trust involving $250,000 or less, the starting points should be below 2 years.

26.  Consider the nature of offence and the amount, I will adopt a starting point of 3 months’ imprisonment. 

Charge 2

27.  The defendant stole his friend’s iPhone, which was worth about HK$7,000.  Consider the nature and value of property, I will adopt a starting point of 6 weeks’ imprisonment. 

Charge 3

28.  Defendant stole a camera worth about HK$15,000 from his former colleague’s workplace.  Consider the nature and value of property, I will adopt a starting point of 6 weeks’ imprisonment. 

Charge 4-28

29.  As set out by the Court of Appeal in R v Chan Sui To, in cases involving credit card frauds, the sentencing judge will need to consider factors including the size of the operation; the planning that had gone into perpetrating the fraud; whether there is an international dimension; and whether the accused played a major role. The factors were not intended however to be exhaustive but provide valuable assistance to the court.  The courts have repeatedly stressed that deterrent sentences are to be imposed.

30.  The Court of Appeal held that where the facts of the offence point to a small unsophisticated operation, involving one or a few forged cards uncomplicated by other evidence materially linking the offender to a larger operation, a starting point of 3 years or less would be appropriate: HKSAR v Lam See Chung Stephen[3] and HKSAR v Tu I Lang[4].  

31.  I have considered the authorities submitted by the defence[5].

32.  In the case of HKSAR v Li Chi Yat[6], the Court of Appeal said that small-scale credit card offences cannot be subject to the strict guidelines because they can vary significantly in a number of ways, and that a starting point of 3 years’ imprisonment or less would be appropriate.

33.  In Li Chi Yat case, the appellant worked as a dispatcher for a transportation company.  One of the owners left his wallet in a vehicle that the appellant later used to do a delivery job.  The appellant stole the owner’s credit card which he used in an attempt to purchase certain items.  The Court of Appeal considered a starting point of 2 years appropriate for the offence of obtaining property by deception by use of the credit card.  The Court of Appeal also considered the sentencing judge was correct in adopting a starting point of 9 months’ imprisonment for the offence of theft of credit card.

34.  However, the facts of the present case are far more serious than the facts in the Li case.  The theft and usage of the credit card were all pre-meditated, with similar modus operandi.  In charges 4-10, 12-14, the defendant claimed he was interested in purchasing insurance, then arranged the insurance agents to meet up in Starbucks or McDonald’s.  The defendant then stole the victim’s credit card from their handbags while they went to buy food.  In charge 11, defendant stole his friend’s credit card at his home.  After obtaining the credit cards, defendant immediately went to purchase mobile phones.  There are total of 11 cards and 15 successful transactions over a period of 4 months.

35.  These offences involve sophisticated planning, multiple credit cards and multiple transactions in a relatively short period of time.  Even though defendant committed these offences on his own and there is no international element, I do not consider this is a small-scale credit card offence.

36.  For charge 4-14, I consider a starting point of 12 months’ imprisonment appropriate for each offence.

37.  For charges 15-29, I consider a starting point of 3½ years’ imprisonment appropriate for each offence. 

38.  The defendant pleaded guilty to all charges at the earliest opportunity, he is entitled to one-third discount.  I found no other mitigating factor for me to further reduce the sentence.  Defence submitted that defendant committed some of the offence due to his son’s condition.  However, his son was born on 23 February 2019.  By then, defendant had committed charges 1-4 already. Further, in the background report, his son’s mother said the defendant moved out from her home in November 2018 and he only visited her and his son for a few times.  I do not accept that defendant committed the offences for the benefit of his son.

39.  Therefore, the sentences are as follows:-

(i)  Charge 1: 2 months’ imprisonment;

(ii)  Charge 2 & 3: 4 weeks’ imprisonment each;

(iii)  Charge 4-14: 8 months’ imprisonment each;

(iv)  Charge 15-29: 28 months’ imprisonment each.

OVERALL SENTENCE

40.  I found the offences in charges 1-3 are totally separate and distinct criminal act from the offences of credit card theft and fraud.  In such case, they would run wholly consecutively to the sentences in other charges.  Bearing in mind the totality principle, the sentences in charges 1-3 are to be run concurrently. 

41.  Regarding all the offences relating to credit card theft and fraud, bearing in mind the totality principle, I am of the view a global starting point of 5 years appropriate for Charges 4-29.  With the timely guilty pleas, the overall sentence should be 40 months.  Together with charges 1-3, the total sentence would be 42 months. 

42.  To arrive at an overall prison term of 42 months for all charges, I order the sentences to run in the following manner:-

(i)  Charge 1-3 concurrent;

(ii)  Charge 4-14 concurrent, but wholly consecutive to Charges 1-3;

(iii)  Charge 15-19 concurrent, but 24 months consecutive to Charges 1-14;

(iv)  Charges 20-29 concurrent, but 8 months consecutive to Charges 1-19.

Annex 1