HKSAR v. WONG CHUN KAI

DCCC 728/2019

[2020] HKDC 157

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 728 OF 2019

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Reasons for Sentence

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1.  The defendant has pleaded guilty to a total of five charges and has been convicted. Essentially the charges involve the theft of two credit cards and their use to purchase a MacBook Pro, two USB adaptors, and an iPhone. These offences occurred in January and March of 2017, and they have finally come for sentence today in January 2020, some three years later.

2.  The more detailed account of these offences is the defendant was working at the time at Sunflower Travel in Mong Kok.  One of his fellow employees mother had a credit card which had been left in the wallet of the 1st prosecution witness, and the witness discovered some suspicious transactions which involved the purchase of the MacBook Pro and the USB adaptors in January of 2017.

3.  The second series of offences which, which are Charges 4 and 5, occurred in March 2017, where the second witness had left his rucksack in a locker at the travel agency.  He had found that a credit card was missing from his wallet and a suspicious transaction had been made on it for the purchase of what turned out to be an iPhone.

4.  The defendant was arrested and cautioned for these matters in June of 2017. 

5.  The defendant, under caution, immediately admitted that he was greedy and the properties obtained in the course of the thefts were found at his home.  He admitted that he worked at the travel agency and he picked up a credit card in January in the restroom of the travel agency, and gone out and used it.  He said he had done it out of greed. 

6.  He also admitted that in March of the same year, whilst working at the travel agency, he had picked up a credit card in the restroom, put it in his trousers, and then gone out to buy an iPhone with it. He said he had thrown both the credit cards away after use.  In fact, in respect of the second item, he said he had sold the iPhone in Mong Kok.

7.  The defendant has admitted within the same year - and also in the course of proceedings today that the relevant properties in Charges 1 and 4 belong to the victims and also that he had used the credit card to obtain the properties in Charge 2 and 3 and Charge 5.

8.  The defendant himself, at the time his antecedents were taken, was aged 44.  He is a person of clear record, educated to Secondary 5 level in Hong Kong, working in the travel agency as a customer service officer at the time of his arrest.  We know he was arrested in June of 2017 and has been awaiting determination of this matter since then.  He lives in Hong Kong with his wife.

9.  I obtained a report on him to update his circumstances and that also includes a determination of whether he would have been suitable for a community service order.  The conclusion of the probation officer who would be in charge of the community service scheme is that the defendant is not considered to be suitable subject for community service and it is not recommended in his case. 

10.  That conclusion is challenged today in court, or the reasons for reaching that conclusion are challenged today in court, but nevertheless that is the conclusion that I have to work with today:  the defendant would not be suitable to be placed on a community service order.

11.  It is said that the defendant had not formulated any what is called concrete rehabilitation plan, but said he would work steadily on securing a stable job.

12.  At the time the defendant was interviewed, he had left work at Sunflower Travel Service and did so in September 2019.  He had been charged in August 2019 and left work in September.  In the time between the defendant leaving work at Sunflower and being remanded in this case, he had worked as a waiter at different restaurants on a casual basis but there was no details provided for verification.

13.  In mitigation, a number of matters have been put forward before the court. 

14.  Firstly, the defendant’s clear record, which at his age of 44, is a significant factor to be considered. 

15.  The defendant, it is noted, was arrested on 2 June 2017 but not charged until 12 August 2019, that being a lapse of some two years and two months, and, in fact, the time, as I have already said, from commission of the offence in January 2017 to today’s disposal is some three years. 

16.  It is said during the period the defendant had fully rehabilitated himself, continuing his employment at Sunflower Travel until September 2019. 

17.  The defendant has also, in this case, made full restitution.  Between May and September 2018, the defendant had by five instalments made restitution to the victim of the 4th and 5th charges, Mr Chan, but full restitution has been made.  Earlier in the submissions, it was said there was some difficulty in identifying the actual person who had sustained the losses in relation to the first three charges, but I am told by both parties that those losses have been made up to the victim, which I believe is the bank.  In fact, a total monetary loss of $22,052 was incurred, which has been paid by the defendant with expedition in this case.

18.  The defendant also was remorseful.  He says now, as he said at the time of his arrest, that he committed the offences out of monetary greed.  He is remorseful and he has made full admission.  He has pleaded guilty from an early stage at the plea court when he was acting in person. 

19.  He has a supportive family, no present financial problems.  It is said the risk of him re-offending is low. 

20.  It is said this defendant would suffer additional hardship compared to other offenders.  He has lost his career in the tourism industry by his conviction.  He will not be re-employed in that industry again.  So that not only does the defendant face a criminal sanction today but also the loss of his career in the travel agency world.

21.  It is said that these considerations - namely the delay, the restitution, and the defendant’s rehabilitation since arrest - all justify the court in taking an exceptional approach to the determination of this case, in this case either ignoring the report or the conclusion of the probation officer, imposing community service or passing a custodial sentence but suspending it, having regard to the exceptional circumstances of this defendant.

22.  For these offences, a starting point for sentence must be determined in a case such as this, or the appropriate sentence must be determined.  The entire losses by the use of credit card is some $22,000 and the credit card was used on two occasions, and they were stolen beforehand from the place of work of the defendant.  The offences themselves would fall into the category of what could be described as small-scale credit card offences. 

23.  The approach of the court in those kind of cases was looked at in the case of HKSAR v Li Chi Yat.  That is CACC 189/2018, [2019] HKCA 458, where the Court of Appeal very helpfully looked at the approach the court should take in sentencing offences such as this, which it described as small-scale offences.

24.  It was observed by the court that, historically, following the case of HKSAR v Tu I Lang, which is CACC 464/2006, that the Court of Appeal, it is said, did not preclude a starting point of less than 3 years’ imprisonment for credit card fraud offences, particularly where the circumstances warranted such an approach.  The court in Li’s case examined more closely the question of when a starting point of less than 3 years’ imprisonment could be approached in a credit card offence.

25.  It was said in Li’s case that the courts recognise that small-scale credit card offences cannot be subject to the strict guidelines because they can vary significantly in a number of ways, and that a starting point of 3 years’ imprisonment or less would be appropriate.

26.  In the particular facts of that case examined by the Court of Appeal, they determined that, on the deception charges - that is the charges which related to the use of the credit card - the starting point for sentence should be 2 years’ imprisonment.

27.  In this case, I have three charges where the credit card was used.  That is the 2nd, 3rd and 5th charge.  In the 1st and 4th charges, those charges relate to the actual theft of the credit card in the travel agency.  It would appear to me, from examination of this case, and the fact the card was used on three occasions, that the appropriate starting point set out for the defendant in Li Chi Yat is the starting point I should take for the sentence, and that is 24 months’ imprisonment, on the 2nd, 3rd and 5th charges.

28.  In respect of the other charges, which are the charges relating to the theft of the card, and that would be the 1st and 4th charges, there is no general guideline.  Sentences are at large in thefts of that nature.  And, having regard to the nature of the thefts and the items stolen, I will take a starting point of 21 months’ imprisonment in respect of the 1st and 4th charges.

29.  There are no identifiable aggravating factors which would increase the starting point beyond that point. 

30.  I must now determine the effect of the mitigation put forward as to whether that can be applied to reduce the starting point of 24 months.

31.  Clearly, in respect of the delay, the defendant has had to wait some time for his sentence today.  It is said he has rehabilitated himself.  What in fact he has done, he has continued working in his normal job until it was no longer possible for him to do so and then has obtained other employment, bearing in mind his qualifications and the overhanging factor of his possible imprisonment.  But the fact is that the defendant has waited some time and I consider that that delay itself should be acknowledged in the final sentence of the court.

32.  The other factor, of course, is the defendant’s repayment of the monies, which shows clear remorse by the defendant, and this was done at a fairly early stage - in fact, before charge.

33.  When those two factors are taken into consideration, I consider that, together, they should reduce the starting point for sentence by 6 months in respect of each charge.  That would mean the starting point for sentence in respect of the 1st and 4th charges would be 15 months’ imprisonment and on the other charges - that is the 2nd, 3rd and 5th charge - would be 18 months’ imprisonment. 

34.  The defendant is entitled, of course, to a one-third discount from those starting points, so the sentences I would impose at this stage on each charge are:  on the 1st and 4th charges, 10 months’ imprisonment; on the remaining charges (the 2nd, 3rd and 5th charges) 12 months’ imprisonment.

35.  It was submitted by the defence that the factors I have set out as mitigating the starting point provided exceptional circumstances which warrant the suspension of these sentences or the imposition of the community service order. 

36.  I do not agree with that submission that the circumstances are sufficiently exceptional to warrant the suspension of any sentences.  The sentences themselves will have to be served with immediate effect.

37.  The final matter I have to determine is to what extent the sentences should be served consecutively or concurrently.  There are two batches of criminality here:  one in January and the second one in March. They are of a kind.  However, they are two separate and identifiable offences. I believe, for that reason, there should, to some extent, be a consecutive element in the sentencing.  I shall deal with that as follows.

38.  I shall order:  

(1) the first three charges to be served concurrently to each other - that is a total of 12 months;

(2) the 4th and 5th charges to be served concurrently to each other - a total of 12 months for them.

39.  But I shall finally order the 4th and 5th charges will be served -- that 3 months of those charges to be served consecutively to the 1st and 3rd charges, giving an overall total sentence for all his criminality of 15 months’ imprisonment.