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DCCC 446/2021
[2022] HKDC 104
IN THE DISTRICT COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
CRIMINAL CASE NO 446 OF 2021
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| Present: |
Mr Danny Chan, counsel on fiat, for HKSAR (on 3 December 2021) |
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Mr Mak Kam Hung, Public Prosecutor, for HKSAR (on 30 December 2021) |
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Ms See Heung Woon, Sabrina, instructed by K K Lai & Co, assigned by the Director of Legal Aid, for the defendant |
| Offence: |
[1] & [4] Theft (盜竊罪) |
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[2], [3], [6] & [8] Obtaining property by deception (以欺騙手段取得財產) |
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[5] Robbery (搶劫罪) |
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[7], [9] & [10] Attempt to obtain property by deception (企圖以欺騙手段取得財產) |
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[11] Attempting to obtain property by deception (企圖以欺騙手段取得財產) |
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REASONS FOR SENTENCE
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1. The defendant was convicted of two charges of theft, contrary to section 9 of the Theft Ordinance, Cap 210 (1st and 4th charges); eight charges of attempt to/obtaining property by deception, contrary to section 17(1) of the Theft Ordinance, Cap 210 (2nd, 3rd, 6th to 11th charges); and one charge of robbery, contrary to section 10 of the Theft Ordinance, Cap 210 (5th charge) on his own plea and agreement to Summary of Facts.
Facts
1st to 3rd charges
2. PW1 is the holder of 2 credit cards, a DBS card and a Hang Seng Bank card. At around 1500 hours on 12 August 2019, PW1 had last checked that both of these cards were present. He went to Tai Po Market area later to run errands. At around 2130 hours the same day, he received a text message on his mobile phone sent from DBS Bank informing him that his DBS Bank credit card has been used in a transaction in the amount of $7,698 at Wilson Communications Limited at 2017 hours. He then checked and realised that both the above credit cards were missing.
3. He immediately made inquiries with DBS Bank and Hang Seng Bank and was informed that his DBS card was used in 2 transactions in shops in Tai Po on the same day, whereas his Hang Seng Bank card was used in 4 transactions in Tai Po that day including a transaction in the amount of $3,500 at Cheapy Laser & Video Express Services Limited in Tai Po. Cheapy Laser & Video Express Services Limited is situated diagonally opposite Wilson Communications at Shop B, Ground Floor, Mei Wing Building, 27 Kwong Fuk Lane, Tai Po.
4. CCTV footage of Wilson Communications at the material times on 12 August 2019 shows that at 2019 hours, the defendant entered Cheapy Laser and he remained there until 2029 hours, then he headed straight into Wilson Communications without stopping en route. The footage also captured the defendant making a purchase for a mobile phone inside Wilson Communications.
5. Bank statements confirmed that the transaction of $3,500 was made in Cheapy Laser at 2021 hours on 12 August 2019 with the Hang Seng bank card, whilst the transaction of $6,098 was made in Wilson Communications at 2033 hours on 12 August 2019.
6. The defendant was later arrested. He said in his cautioned statement that at around 2030 hours on 12 August 2019, he walked past Wilson Communications and saw a credit card on the ground. He picked that up and entered the shop to buy a Samsung mobile phone. After the purchase, he left the shop and discarded the credit card on the ground. He also resold the mobile phone for $5,000 later. He denied any knowledge of the other 3 transactions made with the Hang Seng Bank card.
7. Cheapy Laser suffered a loss of $3,500, whilst Wilson Communications suffered a loss of $6,098.
4th charge
8. At 0615 hours on 13 September 2020, PW2 was on her way to work. The defendant approached her from behind and pulled on the shoulder strap of her handbag. As the ground was slippery, she slipped and fell. The defendant then snatched and ran off with PW2’s handbag which contained one Xiaomi A2 smartphone, one red wallet, one blue cardholder, cash of $4,000 and PW2’s Hong Kong ID card.
9. At around 1312 hours on the same day, the defendant was intercepted by police and the Xiaomi mobile phone, displaying PW2’s wallpaper, was found on the defendant. Under caution and arrest, the defendant admitted that he committed the offence as he was unemployed and had no money.
10. PW2 suffered a loss in total of $6,500 (comprising of a handbag (valued at $200), one Xiaomi A2 smartphone (valued at $2,000), one red wallet (valued at $200), one blue cardholder (valued at $100), and cash of $4,000).
5th charge
11. At around 1000 hours on 13 September 2020, PW3 entered an empty lift with the defendant. When she exited the lift on the 1st floor, the defendant approached her from behind and held her in a chokehold. The defendant declared robbery and demanded her hand over her wristwatch. When PW3 refused, the defendant took away her handbag and escaped via a staircase.
12. The handbag (valued at $200) contained a Samsung mobile phone (valued at $2,000), cash of $2,200, one Octopus card with $400 store value, two cash coupons (valued at $210), two coupons (valued at $100), three bank issued ATM cards and two credit cards in her name, namely, a Chong Hing Bank card and a HSBC card. She suffered no injury in the robbery. She suffered a loss in total of $5,110.
13. Inquiries by PW3 with the relevant banks revealed that her Chong Hing Bank card and her HSBC card were used in 7 transactions on 13 September 2020, 5 of which were rejected. One successful transaction involving Chong Hing Bank card involved purchase of 2 mobile phones of $14,896, and one successful transaction involving HSBC card in the sum of $100.
6th to 8th charges
14. PW4 is a staff of Telecom Digital, located on Ground Floor, Ching Fat Building, No 21B Kwong Fuk Lane, Tai Po, New Territories. At around 1020 hours on 13 September 2020, the defendant entered Telecom Digital where PW4 was working and then he presented PW3’s Chong Hing Bank card to purchase 2 mobile phones for a total amount of $14,896. PW4 noticed that the card belonged to a female and the defendant told him that the Chong Hing bank card belonged to his sister. PW4 continued to process the payment but asked the defendant to present his own Hong Kong Identity Card for record purpose.
15. At 1035 hours on the same day, PW4 realised that she has miscalculated the purchase price for the mobile phones which should have been $100 more and therefore asked the defendant to pay the price difference of $100. The defendant again presented the Chong Hing Bank card for payment, but the transaction was rejected. The defendant then presented PW3’s HSBC card for payment of the $100. The transaction was successful.
16. Telecom Digital suffered a loss in total of $14,996, comprising of $14,896 for the 2 mobile phones and the miscalculated $100.
9th charge
17. At around 1106 hours on 13 September 2020, the defendant entered Yau On Pawn Shop at Shop 14, Ground Floor, Jade Plaza, On Chee Road, Tai Po, New Territories, and requested the withdrawal of $25,000 using PW3’s HSBC card. The transaction was unsuccessful, and the defendant tried to present another credit card for withdrawal. The pawn shop owner, PW5 refused and asked him to leave.
10th and 11th charges
18. At around 1148 hours on 13 September 2020 inside a clothing shop, Dress Me Up, located at Ground Floor, 24 Wai Yan Street, Tai Po, the defendant presented PW3’s HSBC card for payment of clothing in the amount of $346. The transaction was rejected and the defendant presented PW3’s Chong Hing bank card for payment. The transaction was also rejected.
Criminal record
19. The defendant has 11 previous criminal records involving convictions of 16 charges including 3 charges of common assault, 2 charges of possession of offensive weapon in a public place, others related to theft, wounding with intent and fraud.
Mitigation
20. The defendant was born in Hong Kong. He is aged 37. He has received education up to Form 7 in Hong Kong. He was unemployed at the time of arrest and prior to that he was a casual worker. He got married in year 2019. His wife and son live in the mainland.
21. Defence counsel submitted that the defendant was released from prison in June 2020 and was unable to secure a job but as he has to support his wife and son in mainland, he was under extreme financial pressure causing him to commit the present offences.
22. Defence counsel submitted that the manner of commission of the offences was not well planned and not sophisticated. No weapon was used in the robbery offence and no injury was caused to the victim. It was also said the defendant pleaded guilty at the earliest opportunity and that would save court’s time and trouble, and that he gave full confession to police when he was arrested showing his cooperation and genuine remorse.
23. Defence counsel said the defendant asked for mercy of the court so that he could take care of his family when released from prison. She also handed to court a mitigation letter from the defendant for the consideration of the court.
24. Defence counsel submitted that for the offences of theft, obtaining property by deception and robbery, there are no strict sentencing guidelines. She said also that the 11 charges were committed on 2 different dates on the spur of the moment.
25. She referred this court to authorities including Secretary for Justice v Wong Che Ping, CAAR 3/2019; 律政司司長 訴 林玉芝, CAAR 4/2018; HKSAR v Fung Wai Yip, CACC 231/2018; and HKSAR v Ku Kwok Wai [2012] 4 HKLRD 563.
26. It is said that in the present case the scale of operation and amount of stolen property were much smaller than that in the case of Fung Wai Yip and that the court should use a much lower sentencing starting point than in the Fung Wai Yip case.
27. Defence counsel also urged this court to accept that theft and obtaining property by deception offences were part and partial of the same criminal act, and asked this court to impose a concurrent sentence following the approach of the court in the Fung Wai Yip case.
28. She also urged this court to consider the totality principle in sentencing the defendant and exercise mercy.
Discussion
29. Before sentencing, this court has carefully considered the mitigation submission by defence counsel, the legal authorities referred to and the defendant’s mitigation letter. This court finds the most valid mitigating factor is the defendant’s own guilty plea. Committing crimes by reason of financial difficulty is not a valid mitigating factor.
1st charge
30. In relation to this charge, for the purpose of sentencing, the court accepts the defendant’s contention that it is a theft by finding case.
31. The sentencing starting point for the offence is 9 months’ imprisonment and because of his guilty plea, he is sentenced to 6 months’ imprisonment for this charge.
2nd charge
32. It is said in the case of Wong Che Ping that frauds against shops with a stolen card are extremely serious offences, the culpability of which should not be downplayed but instead should call for a deterrent sentence. The appropriate sentence for such offences is immediate imprisonment for a considerable length of time.
33. Actual loss suffered by Cheapy Laser is $3,500. Potential loss to the victim is $20,000.
34. This is a case of fraudulent use of a genuine credit card. In the Court of Appeal case of HKSAR v Yang Xingyun, CACC 155/2016, Macrae JA in paragraph 49 of the judgment says:-
“49 …As Litton JA (as he then was) said in R v Kwan Ying Ho (unrep., CACC 527/1992, 12 August 1993) at p 5:
‘...credit card frauds have in recent years been an insidious poison in the community. It affects a large number of citizens. It erodes the credit card system and damages Hong Kong’s standing in the international community.’
50. More recently, in HKSAR v Lam See Chung Stephen [2013] 5 HKLRD 242 (at 251-252), the Court held:
‘39. Those judgments which lay down a sentence of 3 years’ imprisonment or less for cases of simple credit card fraud are based on a number of sentencing principles and considerations. They are that counterfeit credit card offences require deterrent sentences; there is a need to protect the integrity of the credit card system; and the potential for loss is great and often will be far greater than the actual loss. In fact, it is precisely because of this last consideration that the actual loss will not necessarily be an important factor when it comes to sentencing a credit card offender; rather “it is this potential for losses which is the most important consideration.” (HKSAR v Ng Swee Thiam [2000] 1 HKLRD 772, at 778)
40. These sentencing principles and considerations are equally applicable to credit card fraud offences in which genuine credit cards are used and we can see no good reason why the three-year starting point for simple cases of counterfeit credit card fraud should not also apply to simple cases of credit card fraud where stolen genuine credit cards are used to commit the offence.’
51. The judge in the present case in fact specifically referred to HKSAR v Lam See Chung Stephen in adopting a 3-year starting point in respect of Charges 5 to 7. In our judgment, the individual sentences of 2 years’ imprisonment in respect of Charges 5 to 7 after plea cannot be faulted.…”
35. Following the approach in Yang Xingyun case the appropriate sentencing starting point for the 2nd charge, but taking into consideration of the mitigation done, is 2 years and 6 months’ imprisonment. The defendant has pleaded guilty and is therefore entitled to one-third sentencing discount. Accordingly, he is sentenced to 20 months’ imprisonment.
3rd charge
36. For the 3rd charge, actual loss suffered by Wilson is $6,098 and the potential loss to the victim is $20,000.
37. As in the 2nd charge, the defendant is sentenced to 20 months’ imprisonment for the 3rd charge.
38. The defendant committed the 4th to 11th charges offences whilst he was on bail for the 1st to 3rd charges offences.
4th charge
39. The defendant snatched the victim’s handbag by pulling on the shoulder strap of the lady victim walking alone in the early hours of the day, leading to her fall on the slippery ground. The monetary loss is $6,500, including some cash, mobile phone, wallet and cardholder.
40. Although the defendant has a similar conviction in year 2014, the court would not enhance the sentencing starting point. However, commission of the offence in the early hours of the day on a lady walking alone is an aggravating feature in sentencing.
41. The appropriate sentencing starting point in the circumstances is 24 months’ imprisonment. The same was aggravated by reason that the defendant was on bail for the other offences and the same was enhanced by 3 months to 27 months’ imprisonment. The defendant is, therefore, sentenced to 18 months’ imprisonment by reason of his guilty plea.
5th charge
42. In less than 4 hours after the commission of the 4th charge offence, the defendant held the victim from behind in a chokehold and committed the present robbery charge. The victim lost $5,110 including 2 credit cards.
43. Maximum sentence for this offence on conviction upon indictment is life imprisonment. This was an unarmed robbery as the defendant did not have any weapon and the usual sentencing option is one of immediate imprisonment.
44. The court had considered the Ku Kwok Wai case and the HKSAR v Lam Ka Hung, CACC 294/2003 cases, as well as the R v Yau Kwok Tung [1987] HKLR 782 case. This court noted the defendant has previous criminal records involving violence before commission of the present offence. The defendant acted alone in this case and luckily the victim did not suffer any physical injury.
45. Having regard to the circumstances of the case the court finds the sentencing starting point here at 3 years and 3 months’ imprisonment appropriate. The same is again enhanced by 3 months by reason that the defendant committed the present offence whilst on bail. The sentencing starting point is, therefore, enhanced to 3 years and 6 months’ imprisonment. The defendant is sentenced to 2 years and 4 months’ imprisonment by reason of his guilty plea.
6th charge
46. The defendant committed this offence using a credit card that he robbed from the victim. Actual loss to Telecom Digital is $14,896. The credit card limit of the card is $15,000 and, therefore, potential loss being $15,000.
47. Following the reasoning in the 2nd charge, the appropriate sentencing starting point is 2 years and 6 months’ imprisonment. The same is enhanced by 3 months to 2 years and 9 months’ imprisonment by reason of his committing the offence whilst on bail. The defendant is sentenced to 22 months’ imprisonment for this charge after his plea.
7th charge
48. For this failed attempt, Telecom Digital suffered no actual loss. The appropriate sentencing starting point is 18 months’ imprisonment and enhanced by 3 months by reason of his committing the same whilst on bail to 21 months’ imprisonment. He is sentenced to 14 months’ imprisonment by reason of his guilty plea.
8th charge
49. Actual loss suffered by Telecom Digital is $100. Potential loss, being the credit card limit, is $72,000. Again, the appropriate sentencing starting point is 18 months and enhanced by 3 months because of his having committed the same whilst on bail. The defendant is sentenced to 14 months’ imprisonment by reason of his guilty plea.
9th charge
50. There is no actual loss suffered by the victim under this charge. Potential loss to the victim is $72,000. The defendant sought to obtain $25,000 cash from the pawn shop.
51. The appropriate sentencing starting point is 2 years and 6 months’ imprisonment and enhanced by 3 months as the defendant committed this offence on bail. The defendant is sentenced to 22 months’ imprisonment for this failed attempt by reason of his guilty plea.
10th and 11th charges
52. The defendant seeks to obtain $346 value of goods but failed. The victim suffered no actual loss. Similar to the 8th charge, the defendant is sentenced to 14 months’ imprisonment for each of these 2 charges.
Totality
53. This court now considers the totality principle. Commission of the 1st to 3rd charges all occurred on 12 August 2019. Commission of the 4th to 11th charges all occurred on 13 September 2020, ie 13 months later. These are, therefore, 2 separate incidents.
54. The defendant having robbed the victim in the 5th charge of her credit cards used those credit cards to obtain property by deception or attempted to do so within the same day after he has robbed her of these cards.
55. The 6th to 8th charges all involved Telecom Digital and they were committed roughly at the same time when the defendant obtained the 2 mobile phones from Telecom Digital. The defendant also failed to obtain the $25,000 from Yau On Pawn Shop. As for the 10th and 11th charges, the defendant has attempted to obtain $346 of goods from Dress Me Up.
56. The actual loss to the victims in present case is $36,204 and the amount for the failed attempts was around $25,500. The potential loss is roughly in total over $100,000.
57. The nature of the 6th to 11th charges were all the same and they were committed all within the same day although involving different victims. The nature of the 2nd and 3rd charges again are identical, and the defendant made use of credit cards he found in the 1st charge in the commission of these offences.
58. Having considered the overall culpability of the defendant, the court considers that 4 years and 8 month’s imprisonment is a just and appropriate sentence. Accordingly, for the offences committed on 13 September 2020, the sentence for the 6th to 11th charges are to run wholly concurrent to each other, and 10 months of the sentence for the 6th to 11th charges to run consecutive to the sentence for the 5th charge, the rest to run concurrent.
59. 8 months of the sentence for the 4th charge is to run consecutive to the sentence for the 5th to 11th charges, the rest to run concurrent.
60. Sentence for the 1st, 2nd and 3rd charges are to run wholly concurrent to each other and 10 months of the sentence for these 3 charges to run consecutive to the sentence for the 4th to 11th charges, the rest to run concurrent.
61. The total sentence for the defendant in the present case is, therefore, 4 years and 8 months’ imprisonment.
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