HKSAR v. CHUI CHI KIT

DCCC 651/2009

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 651 OF 2009

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REASONS FOR SENTENCE

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1.   The defendant pleads guilty to thirteen charges of obtaining property by deception and three charges of attempting to obtain property by deception, contrary to section 17 of the Theft Ordinance, Chapter 210 and section 159G of the Crimes Ordinance, Chapter 200.

2.   Full particulars of the offences are set out in the facts admitted by the defendant. In summary in the early hours of the morning of the 4th April this year a credit card belonging to Fan Wai-kwok was stolen. Later the same day the defendant successfully used the credit card on six occasions to obtain goods from various shops to the value of $7,390.50. The defendant attempted to use the card on a further two occasions to obtain goods to the value of $6,390.00.

3.   Similarly in the early hours of the morning of the 14th April this year a credit card belonging to Chiu Hoi-man, Nick was stolen. Later the same day the defendant successfully used the credit card on seven occasions to obtain goods from various shops to the value of $6,661.70. The defendant also attempted to use the card on one other occasion to obtain goods to the value of $3,122.00.

4.   The defendant was arrested when he returned to one of the shops to collect vouchers he had earlier purchased using the first stolen credit card. The shop having by then become aware of the use of the stolen card asked the defendant to wait. A call was then made to the police but the defendant left the shop. He was however located nearby and arrested. Under caution the defendant admitted using both the stolen credit cards.

5.   I have carefully considered everything said by Mr Lam on behalf of the defendant together with the letters submitted by the defendant and his wife. The only ground of mitigation is the defendant’s plea of guilty. The defendant has a record of dishonesty including a sentence of 4 years imprisonment for robbery in 1997. His last conviction was in 2007 for offences of theft when he was sentenced to a total of 20 months imprisonment. He was discharged from prison in September last year and in just over 6 months is offending again. In my view the defendant is a persistent offender in offences of dishonesty. Previous sentences have clearly had no deterrent effect upon him (see HKSAR v CHAN Pui-chi [1999] 2 HKLRD 830).

6.   In passing sentence I take into account the factors which a sentencing judge will need to consider in credit card frauds as set out by the Court of Appeal in R v CHAN Siu-to [1996] 2 HKCLR 128, including the size of the operation; the planning that had gone into perpetrating the fraud 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.

7.   Mr Lam refers the court to the decision of the Court of Appeal in HKSAR v TU I Lang CACC 464/2006 where the court said at paragraph 10, “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, then a starting point of three years’ imprisonment or less would be appropriate.”

8.   Each case is however to be decided on its own facts and circumstances. The defendant says that he picked up both cards from the street. Both the cards were used within hours after they were stolen whereby the only inference to draw is that the defendant was closely connected to the theft of the cards. I reject the mitigation the defendant picked up the cards. The defendant has chosen not to give evidence as to how he came into possession of the two cards.

9.   Mr Lam also submits the amounts involved are not large. Whilst the amounts involved in each charge are relatively small the amount is only one factor to be considered. The potential loss on the first card was $54,000 and on the second card $10,000.

10.   I am satisfied that the proper starting point after trial on each charge is 1 year and 9 months imprisonment. Taking into account the multiplicity of offences, involving two cards on two different days, the closeness to the original theft and the defendant’s persistent offending I am satisfied an overall starting point of 3 years and 6 months is appropriate.

11.   Giving the defendant full credit for his pleas of guilty he is sentenced as follows:

Charges 1 - 8 - 1 year and 2 months imprisonment concurrent on each charge; and

Charges 9 - 16 - 1 year and 2 months imprisonment concurrent on each charge but consecutive to charges 1- 8.

I am satisfied a total sentence of 2 years and 4 months imprisonment properly reflects the defendant’s criminality on the sixteen charges.