HKSAR v. CHEN TAI WEN

 DCCC506/2008

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 506 OF 2008

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Reasons for Sentence

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1.  Defendant, you have pleaded guilty to one offence of conspiracy to defraud, contrary to common law and punishable under section 159C(6) of the Crimes Ordinance, Cap.200; one offence of police assault, contrary to section 36(b) of the Offences Against the Person Ordinance, Cap.212; and one offence of failing to submit to custody without reasonable cause, contrary to sections 9L(1) and (3) of the Criminal Procedure Ordinance, Cap. 221.

2.  You admitted the Brief Facts and I convicted you.  The facts were as follows.  From February 2000(2007?), members of a syndicate had asked for replacement credit cards from various banks, claiming to be the genuine holder.  Their requested urgent replacement cards were delivered to the address of the genuine holder by courier.  Members of the syndicate would wait near the premises and claim to be the holder.  They obtained credit cards in this way.  Further, they diverted calls away from the genuine holder’s mobile phone to another mobile.

3.  On 25 April of 2007, an unknown male claimed to be Lo Kam-hung, Robert (PW1) and requested American Express to issue a replacement card as he had lost his credit card.  He provided the mobile phone number, residential and office phone numbers, also the identity card number.  He requested delivery between 1 pm and 3 pm on 26 April at the billing address named, namely, Flat M, 7th Floor, Hong Kong Mansions, No. 1 Yee Woo Street, Causeway Bay.

4.  However, at around 2 pm on 26 April, American Express staff called PW1 to ask if he had lost his credit card.  He had not.  He was told not to cancel the call divert to his mobile so that the police could investigate.

5.  PC1252, PW3, posed as a member of staff of DHL and took the card to PW1’s address.  At about 4.15 pm, PW3 called PW1’s mobile and an unknown male claiming to be PW1 answered.  PW3 said he would deliver it in 15 minutes.

6.  At around 4.30 pm, PW3 took the lift to the 7th floor of Hong Kong Mansion.  He got out of the lift and found that you were behind him.  PW3 asked if he was PW1, and you confirmed this.  You showed PW3 a letter bearing PW1’s name and address.  When asked, you claimed to have forgotten to bring your ID card.

7.  PW3 took out a package and told you to sign the receipt.  Then you took the package.  However, PW3 declared his police identity and grabbed your arms.  You struggled and punched PW3 twice on the left side of his face.  You fled and PW3 pursued you.  He caught you as you pushed open the door to the staircase.  However, again you punched PW3 but this time on the body.  PW3 tried to grab you but you ran towards a flat.  PW3 grabbed you by the shirt which tore.  You abandoned your shirt and slippers.  Therefore, PW3 grabbed your neck but you continued to struggle and punch.  You punched PW3 several times on the face.  At this point, other officers arrived and subdued you.

8.  PW3 tried unsuccessfully to lure other members of the syndicate to the scene by phone.  As a result of the assault, PW3 suffered redness and bruising to his upper limbs and back; further, haematoma to his left side of his face and abrasion on his upper lip.

9.  In relation to the 3rd charge, you failed to answer your bail at this court on 1 August 2008.  You were re-arrested on 22 April of 2009, and you have been in custody ever since.  You admitted 12 previous convictions, four of which involved violence. 

10.  As you will recall, on the day that you entered your plea of guilty to the present offences, I adjourned the case for a probation officer’s background report.  That report is before me and accepted by you.  I have taken that report into consideration when assessing sentence.

11.  Mitigation was entered on your behalf.  In fairness to Miss Mak, there was not an awful lot that could be said in these circumstances.  I am told you are 30 years of age, married and a father of a young daughter.  You are remorseful and you beg for leniency.  A letter of support was produced and considered by me.  I understand you have tried to assist the police, but it seemed that that achieved little.  Prior to your incarceration, you had an unstable income.

12.  Prosecution did submit various sentencing authorities, but in fairness, they bore little relationship to the facts of the present case save that they involved dud credit cards.  The only principle to emerge of this in such cases: only a substantial prison sentence was appropriate.  I bore those authorities in mind.

13.  In sentencing you, I took into account the facts and nature of each of the cases, the mitigation advanced, the contents of the probation officer’s background report, and as I have mentioned, the sentencing authorities.  Any offence involving the misuse of credit cards or potential misuse is serious and calls for a custodial sentence of some duration. 

14.  Whilst the facts of the present case are somewhat different from the usual scenario, they are nonetheless equally serious.  This case involved a well-organised syndicate using a fairly sophisticated method to obtain credit cards.  Though it is clear from the facts that you were but a foot soldier, you were not a prime mover.  I have to say you have done little to inspire the sympathy of the court by your assaulting the police officer at the scene and then your absconding on bail.  I do, however, accept that you have assisted the police to try to trace other members of the syndicate, but that has proved ineffectual.  I accept that you are now remorseful.

15.  Taking all the facts into consideration, on the 1st charge, I take as a starting point 4 years’ imprisonment reduced to 2 years’(2 years and 8 months’?) imprisonment for your plea of guilty. 

16.  Turning to the assault on the police officer, whilst you do have a history of violence, the injuries to the police officer were not as serious as some.  However, any assault on a police officer is serious.  I take as a starting point 6 months’ imprisonment reduced to 4.

17.  For the offence of absconding, I take as a starting point 3 months’ imprisonment reduced to 2.

18.  In cases such as this, it is normal to estreat the bail.  However, I do take into account the dire circumstances which your family will now find themselves, and as an act of mercy, I am not going to do that.  So that money will remain available for your family’s use. 

19.  I take the view that the prison sentence is sufficient.  The sentences will be served in the following way.  You will go to prison for 2 years and 8 months on the first offence.  As I said, you will serve 4 months consecutive for the assault on the police officer.  And applying the principle of totality, the 2 months for your absconding will be served concurrently.  It is a total of 3 years’ imprisonment.  2 years and 8 months and 4 months making 3 years’ imprisonment.