HKSAR v. LEUNG ON YEE, IVAN

DCCC 658/2022

[2023] HKDC 1163

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 658 OF 2022

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REASONS FOR SENTENCE

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1.  The defendant is convicted of 7 charges of theft (Charges 1-5, 7 and 8)  committed between 2 October 2021 and 3 February 2022. 5 of the theft charges involved the defendant stealing from locker in Recreation Ground, and 2 other theft charges involved the defendant using the aforesaid stolen credit card to make unauthorised purchases.

2.  As for Charges 6 and 9, the same be left on court file and not to be proceeded with without leave of the court.

Facts

Charge 1

3.  At around 8:45 pm on 2 October 2021, Mr Wong (PW1)  stored his personal belongings, namely, an iPhone 12 (worth HK$9,300), a pair of sports shoes, a white shirt, a brown pants, a black purse, in Locker 161 in the male changing room of Happy Valley Recreation Ground (“the Changing Room”)  with his own combination lock.

4.  Around 15 minutes later, PW1 returned and found that the locker opened. He found that his iPhone and cash of HK$200 were missing.

Charges 2 and 3

5.  At around 12:50 pm on 22 December 2021, Mr Kuan (PW2)  stored his personal belongings inside Locker 122 inside the Changing Room.  He then secured the Locker 122 with his combination lock.

6.  At 1:40 pm on the same day, he returned to the Changing Room and found that his combination lock on Locker 122 was missing.  When he checked inside Locker 122, he discovered that his brown wallet containing his Hong Kong ID card, Standard Chartered Bank (“SCB”)  credit card, SCB ATM card, Fire Services Department warrant card, Octopus card (with stored value of about HK$250)  and cash of about HK$300 were missing.  Further, his grey coin bag containing 2 keys (worth HK$20)  and cash of about HK$20 were also missing.

7.  At around 1:33 pm on the same day, PW2 received a SMS notification from SCB concerning a transaction made with his SCB credit card.  Subsequently, he learnt that 2 transactions in the total sum of HK$21,998 were made with his SCB credit card at Apple Store at 1:33 pm and 1:36 pm on the same day.  At all material times, he had not authorised anyone to use his SCB credit card.

Charge 4

8.  At around 9:45 pm on 10 January 2022, Mr Kang (PW3)  stored his personal belongings inside Locker 33 outside the Changing Room and secured the locker with his combination lock.

9.  Around 30 minutes later, he returned to the Changing Room and saw that Locker 33 was opened.  He also found his combination lock was missing.  He checked his personal belongings and found that his Octopus card, Hong Kong ID card, Malaysian ID card, SCB ATM card, Google Pixel 3 XL mobile phone (worth HK$1,000)  and cash of about HK$500 originally stored inside the red sling bag were missing. 

10.  CCTV captured the defendant opened the Locker 33 at 9:55 pm on 10 January 2022 and removed a red sling bag from Locker 33.  A minute later, the defendant returned the red sling bag and placed the red sling bag inside Locker 33, and he left shortly afterwards.

Charge 5

11.  Around 6:55 pm on 11 January 2022, Madam Tse (PW4)  stored her green handbag (worth HK$1,000)  inside a locker outside football field No 2, Tai Hang Tung Recreation Ground, Shek Kip Mei, and secured the locker with her combination lock. 

12.  At around 7:40 pm, PW4 returned to the locker and discovered that her combination lock was missing.  When she checked her personal belongings, she found that her handbag containing a brown wallet (worth HK$1,500)  which contained her Hong Kong ID card, Hang Seng Bank (“HSB”)  credit card, DBS Bank credit card, 2 expired credit cards, Octopus card (with stored value of HK$30), HSB ATM card, Xiaomi mobile phone (worth HK$1,000), key purse with some keys (worth HK$1,000)  and cash of about HK$1,000 were missing.

Charges 7 and 8

13.  At around 12:15 pm on 3 February 2022, Mr Tong (PW5)  stored his dark blue backpack inside Locker 161 inside the Changing Room and secured it with his black combination lock.

14.  When he returned at 3:40 pm on the same day, he saw that his combination lock was gone.  He also discovered that his iPhone 6 (worth HK$300), Octopus card, HSB credit card and cash of about HK$2,000 were missing from his backpack.

15.  At 3:22 pm on the same day, PW5’s HSB credit card was used to make an unauthorised transaction in the sum of HK$13,599 at the Apple Store.

16.  On 7 February 2022, the defendant was arrested for theft and obtaining property by deception.  Under caution, he admitted committing Charges 1-4 and Charges 7-8.

17.  In the subsequent video-recorded interviews, the defendant under caution admitted committing, inter alia, Charge 5.

Criminal Record

18.  The defendant has 14 criminal records between 7 November 2001 to 26 November 2021 involving convictions of 26 charges which included, inter alia, 20 theft/attempted-theft convictions and 4 obtaining property by deception convictions.  

Mitigation

19.  The defendant is aged 38.  He is single.  He was born in Hong Kong and received education up to Form 4.  He did not enjoy good relationship with his family except his mother.  After leaving school, he worked at various jobs.  At the time of offence, he was dismissed from his job as a food delivery worker and he was living in a bedspace apartment at a monthly rent of HK$2,000. When he was employed, he was earning about HK$300 per day on part-time basis. It was said that the defendant fell into difficulty financially after his employment was terminated. 

20.  Defence counsel conceded that committing an offence by reason of financial stress is not a valid mitigating factor, and she admitted that the most valid mitigating factor is the defendant’s own timely plea. 

21.  She handed to court a mitigation letter written by the defendant which indicated his remorse and his hope for further rehabilitation.  It was said the defendant wishes to apologise to all victims of his crimes for the financial losses, inconvenience and stress that he has caused them.

22.  Defence counsel submitted that Charges 1, 2, 4, 5 and 7 (theft from locker charges)  are theft of a simple nature in that the defendant acted alone and no syndicate was involved.

23.  It is also submitted that Charges 3 and 8 (use of stolen credit card charges)  are only small-scale credit card offences, the defendant acted alone and there was no syndicate involved.  For each of these charges, only one genuine stolen credit card was involved, although for Charge 3, the card was used twice in 2 transactions within minutes at the same location.

24.  Defence counsel accepted the defendant is a persistent offender which amounts to an aggravating feature in sentencing.  She submitted, however, that there is no eye witness to the commission of offences apart from Charge 4, and that without the defendant’s voluntary confessions to these offences, the prosecution would have difficulty in proving the charges against him.  It is on this basis that she invited the court to exercise its discretion to afford the defendant a further reduction of sentence.

25.  She also referred this court to the case of HKSAR v Li Chi Yat CACC 189/2018, a case involving a small-scale credit card offence, and also the case of HKSAR v Chu Kwok Chu CACC 371/2012, concerning additional sentencing discount referred to earlier. 

26.  It is admitted the defendant committed these offences, Charges 2-5 and 7-8, when the period of suspended sentence was still alive.

Discussion

27.  Before sentencing, this court has carefully considered the mitigation submission from defence counsel, mitigation letter from the defendant as well as the cited authorities. 

28.  Any person who commits theft shall be guilty of an offence and shall be liable on conviction upon indictment to imprisonment for 10 years.

Charges 1, 2, 4, 5 and 7

29.  Theft from the locker secured by combination lock is by nature more sophisticated than the opportunistic theft committed by the appellant in the Li Chi Yat case as it involves a certain degree of planning.  Appropriate sentencing starting point for these offences is 12 months’ imprisonment.

30.  The defendant, as conceded by defence counsel, is a persistent offender.  Accordingly, the sentencing starting point of each of these charges is enhanced by 3 months to 15 months’ imprisonment.

31.  This court has considered the mitigation submission made by defence counsel concerning additional discount by reason that the defendant has volunteered information leading to prosecution against him for charges other than Charge 4, for which he was caught on CCTV.

32.  Having considered the circumstances of the case, the court will not grant the defendant further sentencing discount by reason of his volunteering the information concerning the charges other than Charge 4.

33.  Committing these offences for monetary reason is not a valid mitigating factor.  The most valid mitigating factor in this case is, as conceded by defence counsel, the defendant’s timely plea, for which he is entitled to full one-third sentencing discount.  The defendant is therefore sentenced to 10 months’ imprisonment for each of these charges.

Charges 3 and 8

34.  These 2 charges involved the case of use of stolen genuine credit card. Actual loss to the victim of Charge 3 is HK$21,998.  Potential loss, ie credit limit of the said credit card, is HK$31,000.  Actual loss for Charge 8 is HK$13,599, and the potential loss is HK$150,000.

35.  Appropriate sentencing starting point for Charge 3 is 2 years’ imprisonment, and that for Charge 8 is 2 years and 3 months’ imprisonment. 

36.  There is no evidence before this court as to whether the defendant is also a persistent offender in using genuine stolen credit card.  For this reason, this court is not going to enhance his sentencing starting point. 

37.  Again, the defendant is afforded one-third sentencing discount by reason of his guilty plea.  He is therefore sentenced to 16 months’ imprisonment for Charge 3 and 18 months’ imprisonment for Charge 8.

Totality Principle

38.  The victim in Charge 3 is the victim in Charge 2.  Similarly, the victim in Charge 8 is the victim in Charge 7.  The nature of the 2 charges, ie Charge 2 and 3 or Charge 7 and 8, are different.  Commission of the additional charge adds to the culpability of the defendant. 

39.  Accordingly, 3 months’ imprisonment of Charge 2 is to run consecutive to the sentence of Charge 3, rest to run concurrently.  Similarly, 3 months’ imprisonment of Charge 7 is to run consecutive to the sentence of Charge 8, rest to run concurrently.

40.  The defendant committed these offences within 4 months and 2 days’ period.  5 victims were involved, the actual loss to the victims totalled HK$55,917, and the total potential loss to the victims is HK$181,000. 

41.  This court considers, having regard to the total culpability of the defendant, the total sentence of 30 months’ imprisonment after plea is appropriate and just. 

42.  Accordingly, 5 months of the sentence for Charges 2 and 3 are to run consecutive to the sentence for Charges 7 and 8, rest to run concurrently.

43.  Commission of Charges 4 and 5 is only one day apart.  For this reason, the sentence for these 2 charges are to run totally concurrent to each other.  2 months of the sentence for these 2 charges are to run consecutive to the sentence of Charges 2, 3, 7 and 8. 

44.  2 months’ imprisonment of Charge 1 is to run consecutive to the sentence of other charges, rest to run concurrently.

Suspended Sentence

45.  The defendant was put on a suspended sentence of 7 days for 12 months on 26 November 2021 (KCCC 1221/2021).  This court sees no reason why the same should not be activated as the defendant started committing the offences from Charge 2 onwards within a month after the suspended sentence was imposed.

46.  Accordingly, suspended sentence of 7 days is activated, the same to be served consecutively to the sentence in the present case.  The defendant is therefore to serve a total sentence of 30 months and 7 days’ imprisonment.