HKSAR v. TSUI BE CHAI

DCCC 491/2022

[2024] HKDC 1115

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 491 OF 2022

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REASONS FOR SENTENCE

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1.  Mr Tsui pleaded guilty before me to 6 charges on a Charge Sheet as follows.

2.  Charge 1 is Theft, contrary to section 9 of the Theft Ordinance, Cap 210.  Particulars are that he, on 14 January 2021, in Hong Kong, stole one card holder containing one Hong Kong Identity Card, one credit card and one Octopus card, property belonging to Yeung Kwan.

3.  Charge 2 is also Theft.  Particulars are that he, on the same day, in Hong Kong, stole choses in action, namely debts in the total sum of $68.4 Hong Kong currency, owed by Octopus Cards Limited to Yeung Kwan in an Octopus card numbered 57419654, property belonging to the said Yeung Kwan.

4.  Charge 3 is Obtaining property by deception, contrary to section 17(1)  of the Theft Ordinance, Cap 210.  Particulars are that he, on the same day, at Circle K Convenience Store, Ground Floor, No 38 Hennessy Road, Wan Chai, in Hong Kong, dishonestly obtained from the staff member of Circle K Convenience Stores (HK)  Limited (“the said company”)  one can of beer (“the said goods”), with the intention of permanently depriving the said company thereof by deception, namely, by falsely representing that he was the genuine holder of one Citibank (Hong Kong)  Limited MasterCard numbered 5520-0400-0288-0900 issued in the name of Yeung Kwan (“the said MasterCard”)  and was authorized and entitled to use the said MasterCard to make payment for the said goods.

5.  Charge 4 is Attempted to obtain property by deception, contrary to section 17(1)  of the Theft Ordinance, Cap 210, and section 159G of the Crimes Ordinance, Cap 200.  Particulars are that he, on the same day, at “Chin Fai Gold & Jewell Wanchai HKG”, Ground Floor, No 148 Johnston Road, Wan Chai, in Hong Kong, attempted to dishonestly obtain from the staff member of Chin Fai Gold & Jewellery (Wan Chai)  Company Limited (“the said company”)  one gold chain (“the said goods”), with the intention of permanently depriving the said company thereof by deception, namely, by falsely representing that he was the genuine holder of one Citibank (Hong Kong)  Limited MasterCard numbered 5520-0400-0288-0900 issued in the name of Yeung Kwan (“the said MasterCard”)  and was authorized and entitled to use the said MasterCard to make payment for the said goods.

6.  Charge 5 is Using an identity card relating to another person, contrary to section 7A(1A)  of the Registration of Persons Ordinance, Cap 177. Particulars are that he, on the same day, at “Chin Fai Gold & Jewell Wanchai HKG”, Ground Floor, No 148 Johnston Road, Wan Chai, in Hong Kong, without lawful authority or reasonable excuse, used one Hong Kong Identity Card which related to another person, namely Yeung Kwan.

7.  Charge 6 is Failing to surrender to custody without reasonable excuse, contrary to section 9L(1)  and (3)  of the Criminal Procedure Ordinance, Cap 221.  Particulars are that he, on 23 August 2022, in Hong Kong, being a person admitted to bail, without reasonable cause, failed to surrender to custody as had been appointed by a court.

Facts admitted by Mr Tsui

8.  On 14 January 2021, at about 3:21 pm, Ms Yeung Kwan (PW1)  received an SMS message from Citibank asking her to confirm a transaction of her credit card ending in “0900” at “Chin Fai Gold & Jewell Wanchai HKG” for $12,180. Since she had not used her credit card that day, PW1 went to look for it and found that her card holder (value: $800)  (“Card Holder”)  was missing.

9.  PW1 last saw the Card Holder at 12 noon on 14 January 2021, when she left No 108 Gloucester Road with it for lunch.  The Card Holder contained the following items:-

(a)  PW1’s HKID card (“ID Card”);

(b)  One Citibank Master Credit Card of PW1 with card no 5520-0400-0288-0900 (“Credit Card”);

(c)  One Octopus card of PW1 with Automatic Add Value Service numbered 57419654 (“Octopus Card”); and

(d)  Cash of $500.

10.  Immediately PW1 contacted Citibank to block the Credit Card and she was informed that the Credit Card had two transactions that day:

(a)  A successful transaction at 15:07:12 at CIRCLE K for $13; and

(b)  An unsuccessful transaction at 15:20:24 at CHIN FAI GOLD for $12,180.

11.  PW1 then called “Chin Fai Gold & Jewell Wanchai HKG” and she was told by a male staff member of Chin Fai Gold & Jewellery (Wan Chai)  Company Limited which was situated at Ground Floor No 148 Johnston Road, Wan Chai, that someone had tried to purchase gold with the Credit Card and had given the Credit Card and the ID Card to the staff at the time of attempted purchase. PW1 was told that the transaction was unsuccessful and had been cancelled.  The male staff member also said that he took the Credit Card and the ID card to the Citibank branch at No 141 Johnston Road, Wan Chai.

12.  At about 5:30 pm on the same day, PW1 went to collect the Credit Card and the ID Card from Citibank and reported the case to the police.  She had also cancelled the Automatic Add Value Service of the Octopus Card, which was last topped up for $250 at about 7:20 am that day.

13.  Upon investigation, it was found that the Octopus Card had three successful transactions on 14 January 2021 not made by PW1:-

(a)  At 12:40:02 at 7-Eleven Linux POS for $15.50;

(b)  At 14:26:57 at Circle K for $13; and

(c)  At 17:58:06 at Wellcome (“Wellcome”)  for $39.90.

14.  CCTVs of “Chin Fai Gold & Jewell Wanchai HKG” and Wellcome captured the transactions made with the Credit Card and Octopus Card respectively.

15.  On 22 January 2021, Mr Tsui was arrested by police.  Under caution, he said:-

(a)  Upon seeing a wallet, he picked it up out of greed to see if there was anything valuable inside;

(b)  Seeing there was a credit card inside the wallet, he went to OK convenience store to try using it to buy drinks; and

(c)  Since the credit card could be used successfully, he went to gold store to purchase gold intending to encash the same.

16.  In a cautioned VRI conducted in the small hours of the next day, Mr Tsui stated the following:-

(a)  At about 12:30 pm on 14 January 2021, he found the Card Holder lying on the street opposite Hopewell Centre and picked it up;

(b)  The Card Holder was pink and contained the ID Card, the Credit Card as well as the Octopus Card;

(c)  After taking the cards out, he threw the Card Holder into the drain on Queen’s Road West near Ship Street at about 6 pm the same day;

(d)  He used the Octopus Card to make the following purchases:

(i)  One can of beer from the 7-Eleven on Johnston Road near Fenwick Street for $15.50;

(ii)  One can of beer from the Circle K on Fenwick Street for $13; and

(iii)  One chicken from the Wellcome on Hennessy Road opposite Wan Chai Fire Station for $39.90;

(e)  In order to test if the Credit Card was still working, he further purchased a can of beer with the Credit Card for $13 from the Circle K in Fenwick Street;

(f)  Upon confirmation that the Credit Card had not been cancelled, he went to Chin Fai Gold & Jewellery to see if he could purchase a gold chain with it; if so, he could sell the gold chain for money;

(g)  When the staff asked him to sign on the credit card slip, he initially signed in his own name; however, he did not feel right so he purportedly signed PW1’s name;

(h)  The staff asked to see HKID card for verification; since he did not have PW1’s ID Card with him, he went home to fetch it; on return, he passed the Credit Card and PW1’s ID Card to the staff; and

(i)  The staff member said he had called the police so he (Mr Tsui)  left with nothing purchased.

17.  “Chin Fai Gold & Jewell Wanchai HKG” and Chin Fai Gold & Jewellery (Wan Chai)  Company Limited are one and the same entity.

18.  Mr Tsui, whilst on court bail, failed to appear in the District Court on 23 August 2022 as appointed by the court for mention without reasonable cause. The District Court issued an arrest warrant against him.  Mr Tsui was re-arrested on 17 November 2023 during a police operation.

Criminal record

19.  Mr Tsui has one dissimilar previous conviction recorded in September 1998.

Antecedents

20.  Mr Tsui is aged almost 69 (65 at the time of the main offences), educated to primary school level.

Mitigation

21.  Mr Terry Wong of counsel assigned by the Director of Legal Aid mitigated on behalf of Mr Tsui.  The following is a summary of the mitigation submissions.

22.  Mr Tsui is 69 years old living alone in a cubicle room owned by an old friend who collects from Mr Tsui a monthly rent of $5,000.  After Mr Tsui has finished primary 6, he worked as a sewing worker for many years until 2013 when he suffered from calcification of hip bone.  He applied for CSSA and obtained around $7,000 inclusive of rent per month up till now.  He has lost contact with family members.

23.  In the present incident, Mr Tsui committed a series of offences in one day.  He picked up the card holder on the road and his greed overcame his sense.  He wanted to get money by using the Octopus card, the credit card and the identity card.  He has a guilty conscience.  He decides to admit guilt to all 6 charges without even instructing his legal team to bargain with the prosecution.

24.  Mr Tsui was foolish not to have learnt how to sign as the credit card holder does.  The use of a female identity card was done impetuously without prior planning and must fail, for how could an old man impersonate a woman?

25.  Mr Tsui jumped bail because he was afraid of going to jail such that he might die in prison (because of old age).

26.  Charge 1 is really theft by finding.  Normally the jail term is shorter.  Mr Wong asked for a starting point of 6 months’ imprisonment.

27.  Charge 2 involved the use of a stolen Octopus card to buy $68.40 of low-valued goods.  Mr Wong again asked for a starting point of 6 months’ imprisonment.

28.  Charge 3 involved the use of a stolen genuine credit card to obtain a can of beer.  As a credit card is used, no matter if it is fake or genuine, HKSAR v Lam See Chung, Stephen, CACC 339/2012, 3^rd September 2013, [2013] 5 HKLRD 242, para 42, can be used as a reference.  Normally, 3 years’ imprisonment may be adopted as the starting point.

29.  Charge 4 involved the use of a stolen genuine credit card to attempt to buy a gold chain with value $12,180.  Again, 3 years’ imprisonment may be adopted as the starting point.

30.  Charge 5 involved the use of a genuine HKID card.  HKSAR v Fan King Lam, CACC 220/2010, 30 September 2011, paras 19-20 may be used as a reference.  A starting point of 12 months’ imprisonment may be adopted.

31.  Charge 6 involved Mr Tsui failing to surrender to custody without reasonable cause.  The period during which Mr Tsui was at large lasted from 23 August 2022 to 17 November 2023, ie almost 1 year and 3 months.  A starting point of 3 months’ imprisonment may be adopted.

32.  Mr Wong asked that the sentencing discount of 1/3 be applied to all of the charges.

33.  Mr Wong further reminded the court to apply the totality principle.

34.  Mr Tsui is 69 years old.  He has been out of trouble for 25 years.  In order not to crush him, and allow him the opportunity to leave prison before he dies, a lenient sentence is requested.  In particular, the offences subject of Charges 1 to 5 all happened within a short period of time when Mr Tsui was overcome by greed without thinking of the serious consequences.  The court is asked to adopt a merciful approach and to consider sentencing Mr Tsui to a total of 34 months’ imprisonment.

Sentence

35.  Mr Tsui has stayed out of trouble for almost 26 years.  I shall treat him as a person with a clear record.

36.  For Charge 1 of Theft by finding, I will adopt a starting point of 6 months’ imprisonment.

37.  For Charge 2 of Theft of stored value of $68.40 in an Octopus card in order to purchase items at Circle K[1], I will adopt a starting point of 6 months’ imprisonment.

38.  For Charge 3 of Obtaining property (ie one can of beer)  by deception through the use of a genuine credit card of another, I shall adopt a starting point of 3 years’ imprisonment as invited by Mr Wong.

39.  Similarly, for Charge 4 of Attempted to obtain property (ie one gold chain)  by deception through the use of the same genuine credit card, I shall again adopt a starting point of 3 years’ imprisonment as invited by Mr Wong.

40.  For Charge 5 of Using another person’s ID card, the usual sentence for simple possession without use is 12 months’ imprisonment after plea; however, if the ID card has actually been produced or used to conceal one’s real identity, the sentence after plea is 15 months’ imprisonment: HKSAR v Li Chang Li, HCMA 935A/2004.  On the facts of the present case, Mr Tsui used the ID Card to impersonate another person.  Even on a plea of guilty, the correct sentence should be 15 months’ imprisonment.

41.  For Charge 6 of Failing to surrender to custody, I note that Mr Tsui had been at large for almost 1 year and 3 months; he did not surrender himself but was re-arrested during a police operation.  I shall adopt a starting point of 6 months’ imprisonment.

42.  For the reason that Mr Tsui has absconded from court process, it cannot be said he pleaded guilty to Charges 1 to 5 at the first opportunity.  However, I note that although the period of absconding was long, no substantive hearing dates had been fixed before he absconded.  Hence, the waste of court resources was minimal and the inconvenience caused to potential witnesses was measured. Consequently, I feel able to exercise my discretion to still give him the usual 1/3 sentencing discount upon plea[2].

43.  Mr Tsui pleaded guilty to Charge 6 at the first opportunity; he shall be entitled to the customary 1/3 sentencing discount.

44.  For his effectively clear record and old age, I shall grant Mr Tsui an additional one month’s discount from his sentences after plea on Charges 1 to 5 only.  There are no other mitigating factors of weight to justify any further reduction in sentence.

45.  It is correct that the offences subject of Charges 1 to 5 were committed on the same day.  The real question was whether those offences were somehow connected.  It may be argued that Octopus card was equivalent to cash, and so, Charge 2 was simply an extension of Charge 1; otherwise why commit the offence subject of Charge 1 (theft by finding).

46.  However, Charges 3 and 4 were much more than an extension of Charge 1 and involved a challenge to the credit card system that is at the heart of international consumer credit arrangements.  There needn’t have been a commission of the credit card offences (and the associated misuse of another person’s ID card)  after the theft by finding.  As such, I am of the view that although the sentences under Charges 1 & 2 may be made to run concurrently between themselves, the sentences under Charges 3 to 5 (as a group)  ought in principle to run consecutively to those under Charges 1 & 2.

47.  As regards the sentences within Charges 3 to 5, the associated offences were connected in that they were part of the same plot to obtain more valuable property by use of another person’s genuine credit card.  However, I must not ignore the fact that the use of another person’s ID card aggravates the circumstances of the plot.  I am satisfied that the sentences on Charges 3 and 4 may be allowed to run concurrently with one another; but that part of the sentence on Charge 5 will have to run consecutively to the sentences on Charges 3 and 4.

48.  In principle, the sentence on Charge 6 needs to run consecutively to the rest.

49.  Before passing the final sentence, I will have in mind the principle of totality.

(Mr Tsui, please stand)

50.  On Charge 1, the sentence is 3 months’ imprisonment.

51.  On Charge 2, the sentence is 3 months’ imprisonment.

52.  On Charge 3, the sentence is one year 11 months ie 23 months’ imprisonment.

53.  On Charge 4, the sentence is one year 11 months ie 23 months’ imprisonment.

54.  On Charge 5, the sentence is 14 months’ imprisonment.

55.  On Charge 6, the sentence is 4 months’ imprisonment.

56.  I order that the sentences on Charges 1 & 2 are to run concurrently with one another.  This is the Group A sentences.

57.  I order that the sentences on Charges 3 & 4 are to run concurrently with one another.  This is the Group B sentences.

58.  I order that the Group A sentences, the Group B sentences, the sentence on Charge 6, and 3 months only of the sentence on Charge 5 are to run consecutively to each other.  The aggregate sentence is therefore 33 months’ imprisonment.

59.  I note that this aggregate sentence is still lower than the one suggested by Mr Wong on behalf of Mr Tsui.