HKSAR v. CHUNG CHI-YIN

DCCC 1054/2020

[2021] HKDC 666

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 1054 OF 2020

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Reasons for Sentence

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1.  The defendant has pleaded guilty today to a total of seven offences. Two offences of attempted fraud, one of actual fraud, one offence of burglary, and one offence of an attempted burglary, one offence of theft, and one offence relating to identity documents, particularly ID cards.

2.  The offences originate on the indictment with the three fraud-related charges and they result out of the loss of a rucksack by the first prosecution witness, which contained amongst other things his identity card and other cards.  He had left the rucksack in a locker inside a stadium in Yuen Long.  It was not there when he returned. 

3.  In September 2019, the rucksack being lost in August 2019, the victim found that his identity card was being used to apply for credit cards and loans.  In total, there were three loans applied for.  The first one with a company called PrimeCredit in October 2019, a total of $45,000 had been requested.  The victim’s identity card being presented with a loan application.  The loan was refused, in fact, by PrimeCredit. 

4.  The second offence of attempted fraud occurred around 8 November 2019 with a company called Welend Limited.  Again, there was an application for a loan of $25,000 from Welend in the name of the victim, PW1.  A photograph was uploaded along with the identity document.  The loan was refused again by Welend.

5.  The third and final offence of fraud relating to identity documents was on 22 November 2019.  The defendant applied for a loan for $40,000 representing he was the first prosecution witness and presenting the identity card of the first prosecution witness.  In total, $30,000 was received by way of a loan by the defendant. 

6.  The fourth offence on the indictment is the attempted burglary. That results out of an attempt to burgle premises in Mong Kok.  The premises was owned by a company.  It was a residential unit, however the premises have been vacant since 2015 and the defendant tried to enter the premises without permission of the company and that is what is known about that offence. 

7.  Chronologically, offences five and six are the next ones on the Summary of Facts and these are offences of theft and the identity card offence.  The defendant gave PW1’s identity card to a police officer when challenged to prove his identity on 7 February 2020.  Also, there was a search of the defendant and his rucksack and at that time various items were found which form the basis of 5th charge and these are the stolen items, Hong Kong identity card, a home visit permit, driving licence, some nine bank cards, stamps and coins and the like. 

8.  The final offence is the seventh offence which occurred in January 2020, that was the home of the fourth prosecution witness in Mong Kok.  A residential unit was left unlocked and was not occupied from 22 January 2020.  During the period that the premises was empty between 11.45 am and 8 pm that evening, the premises had been entered, the wooden doors were left ajar, the signs of ransacking and various items were missing, totally valued at $171,500.  The defendant was implicated of this offence by the discovery of his fingerprints inside the premises. 

9.  The defendant was investigated in February 2020.  He made admissions to all the offences and made full admissions in respect of offences 1 to 3, offence 4, offence 5 and offence 6.  He was later interviewed in respect of offence 7, that is the burglary and was unable to say or could not recall his whereabouts in January 2020 and did not know why his fingerprints were found inside that location.  The defendant makes full admission of the facts. 

10.  The defendant is now aged 40.  He has previous convictions dating back to 2013.  It could seen from these convictions the defendant has had a problem with drugs.  Convictions for trafficking in drugs in 2013 led to a drug addiction treatment centre sentence.  Again in 2015, possession of dangerous drugs leading to another period in the drug addiction treatment centre.  The defendant again in 2018 convicted of two offences leading to a further drug addiction treatment centre order.  The defendant has been convicted of handling stolen goods which is akin to the dishonesty offences and was sentenced to 8 months’ imprisonment. 

11.  As far as the defendant’s mitigation is concerned, he is aged 40.  He has, since 2013, spent a good part of that time in drug addiction treatment centres to deal with his addiction and he says that he has been a taker of methamphetamine for some four years.  

12.  In mitigation, it is put forward the defendant has been co-operative, has indicated a plea to all charges and wishes to clear his slate of the offences he has committed in the past.  He has shown considerable remorse in the sentencing process.  He has accepted his responsibility and has, I am told recently, completed the drug addiction treatment centre training that he was receiving as a result of the sentence in 2018. 

13.  He found, when he was released early from the drug addiction treatment centre on the last occasion in what was then 2020, he was unable to cope or find work and has led him to committing these offences. It is noted there are a number of offences here which in itself is an aggravating feature.  Nevertheless, it was asked that the court to consider the overall totality of sentence and pass a sentence that would give the defendant some hope in respect of his release into the community in the future.

14.  As far as the approach to sentencing is concerned, there are guideline sentences in respect of two of these offences. Firstly, using an identity card relating to another person.  These offences can, after plea of guilty, lead to sentences in the range of 12 to 15 months’ imprisonment.  Secondly, the offences of burglary.  Both of the premises here were residential premises burglaries.  The guideline sentence in respect of a residential premises burglary for a person of clear record convicted after trial would be one of 36 months’ imprisonment starting point. 

15.  In respect of the attempted burglary in this case, the premises have been empty since 2015.  That would be a factor that could allow me to determine in respect of the fourth offence a lower starting point from the one of 36 months’ imprisonment. 

16.  In respect of the second burglary charge in Charge 7, of course that is another residential premises burglary.  It is a substantial burglary and that some $170,000 worth of items were taken and it would represent the beginning of what could be seen as a sequence in that that offence has occurred on 22 January 2020 and the further attempt to burgle was committed on 7 February 2020.

17.  Finally, what may be seen as some mitigation in respect of the 7th charge, burglary, is the burglary was committed when it was know that there would be nobody inside the premises, that they were empty during the period when the burglary took place. 

18.  I determine the starting point for sentence and the final sentences as follows, then I will consider what the overall totality sentence should be. 

19.  In respect of the first three offences, that was the offence of attempted fraud and fraud, I am going to take a starting point of 18 months’ imprisonment on each offence and reduce that to 12 months’ imprisonment for the defendant’s plea of guilty. 

20.  In respect of the fourth offence, that is the attempted burglary, I take into account although this was a residential premises they had been empty since 2015.  No entry to the premises was achieved.  He was simply prising the door.  I will take a starting point of 27 months’ imprisonment and reduce that to 18 months’ imprisonment for the defendant’s plea of guilty. 

21.  In respect of the charges of theft, although they are thefts by finding, I will take a starting point of 12 months’ imprisonment and reduce to 8 months’ imprisonment for the defendant’s plea of guilty. 

22.  On the 6th charge, it will be a sentence of 12 months’ imprisonment. 

23.  On the 7th charge, although I have set out in my consideration of this offence that it could be considered that there are aggravating factors in respect of this offence.  I have still determined that the starting point for sentence should be one of 36 months’ imprisonment reduced to 24 months’ imprisonment for defendant’s plea of guilty. 

24.  I must determine what the overall total sentence should be for this sequence of offences that took place over a number of months in 2019 and 2020.  I consider an overall total of 36 months’ imprisonment is appropriate here.  I shall achieve by making the following order that Charges 4 and 7 are to be served concurrently to one another to a total of 24 months; Charge 1, 2, 3, 5 and 6 will be served concurrently to one another to a total of 12 months but will be served consecutively to 4 and 7, gathering an overall total of 36 months’ imprisonment.