HKSAR v. TUNG CHI KIN, JACKY

DCCC 317/2015

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 317 OF 2015

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Reasons for Sentence

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1.  Defendant has pleaded guilty to twelve charges. The first is theft of a credit card, contrary to section 9 of the Theft Ordinance, Cap 210. Charge 2 through to 13 are obtaining property by deception charges, contrary to section 17(1) of the same ordinance.

2.  The facts are that the defendant found this credit card, he did not know the credit cardholder.  He was greedy and tried to use it firstly in a Circle-K Convenience Store successfully buying a drink worth $7.50.  Thereafter because he was successful, he used it in another 11 transactions over a period of six days.  He bought items such as drinks, cigarettes, diesel and computer games disks.  Not one item was of significantly high value.  The total amount spent was $10,035.33.

3.  After the last transaction, the defendant felt guilty and threw the credit card away.

4.  As for the loss suffered by the financial institute, the defendant has repaid that bank long before plea was taken. 

5.  The defendant is 38 years old, recently divorced with three sons, the youngest being 5, the eldest being 9.  When his divorce became final, he moved back in with his parents giving his wife and the children the matrimonial home to live in. 

6.  The defendant is a man of clear record.

7.  Where his family situation is concerned, I have been told that the divorce petition was served on him by his wife in March 2014.  Not long after that, he found this credit card.  In some emotional turmoil and not himself, it has been explained that he had a momentary lapse of judgment and committed these offences.  Until then, the defendant has been an honest, law-abiding, hardworking man.

8.  I have had a letter from an ex-colleague who worked with the defendant at the Four Seasons Hotel who said that the defendant once found $100,000 cash and handed it in to the hotel management.  This ex-colleague and friend said the defendant’s actions in these offences is out of character. 

9.  I have also received a letter from the defendant’s father who has been in court on each occasion which says he is a good son and a good father and the offences are completely out of character. 

10.  Mr Lau, on behalf of the defendant, asked the court on the last occasion to consider several factors.  The fact that the defendant has pleaded guilty, had a previous clear record, restitution was made in full long before plea and the fact he found the card which means it was not a premeditated theft.  In addition, Mr Lau asked the court to consider that perhaps his family circumstances and pending divorce at that material time could explain his behaviour. 

11.  I did after hearing mitigation agree to call for a community service order report but also took into account the authority of HKSAR v Chow Chak Man [1999] 2 HKC 659.  The Court of Appeal endorses the English authority of The Queen v Brown [1981] 3 Cr App R 294 and agrees that an accused who was tailor-made for a community service order would be, like the defendant here, with a clear record.  He would also come from a stable family background.  He would have a good work record and stable employment.  In addition, he would show genuine remorse and there would be evidence that the defendant was not at risk of reoffending.

12.  Here in this case the defendant has pleaded guilty with a previous clear record.  I accept that he has family, his immediate family to support him; he now lives with them.  He also has responsibility to care for three children under the age of 11.  The defendant has worked since he has left school, in particular, in hotels until 2012.  In that year he set up his own recycling business and now employs two employees and earns about $20,000 per month.  To start this business, he did take out a business loan and he is paying that off each month and currently has no financial problems.  This shows he has a good work record and employment history.

13.  I am sure the defendant is genuinely remorseful and I am also sure having heard mitigation and read the probation officer’s report that he will not reoffend.  He now must realise how much he would lose if he did reoffend. 

14.  The defendant should be well aware that community service order is a chance to make amends for his mistake.  It makes him accountable to himself, the victim and society.

15.  Community service order is not a lenient sentence, it is still punitive.  But it would allow the defendant to continue to provide for his family and rehabilitate constructively.  

16.  Other factors I find relevant are that it was not a premeditated theft.  He found the card and stupidly used it.  And although he did use it on 12 occasions, he only spent just over $10,000.  It was also used over a short period of time, six days before guilt set in and he threw it away.

17.  When the defendant was caught, he received a phone call from the police and went to the police station himself, there he fully cooperated with the police and realised that obtaining property using another person’s credit card is a serious offence and I should consider a term of imprisonment.  But I am of the view that with this defendant, a community service order would be an effective alternative to a term of imprisonment. 

18.  Defendant, please stand up.

19.  Sentencing is not an exact science but a balancing act of all relevant factors individual to each case as well as the defendant involved.  After careful consideration, I am of the view that I can order a community service order. 

20.  For each charge, there are 13 charges, I sentence the defendant to 200 hours of community service order.  All charges will be served concurrently.  Therefore, it is a total amount of 200 hours of community service. 

21.  The probation officer will arrange the community service order to be completed.  You will be given details of where to go and on what date and time.  But I have to warn you that if you breach the community service order, meaning if you do not complete it or the probation officer is not satisfied with the work that she arranges, he or she arranges, the probation officer can refer the case back to this court.  The court has the power to re-sentence. And if I have to do that, it will be a term of imprisonment.  Do you understand that?

DEFENDANT: Understand.

22.  And you are willing to do the community service?

DEFENDANT: Yes.