HKSAR v. BIKRAMJIT SINGH AND ANOTHER

DCCC 630/2018

[2019] HKDC 378

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 630 OF 2018

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REASONS FOR SENTENCE

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Introduction

1.  D1 pleaded guilty to and was convicted of Charges 2 to 7, 9 to 11, 14 and 15 of theft, contrary to section 9 of the Theft Ordinance, Cap.210. The other co-defendant in all the aforesaid charges is D2 who pleaded guilty to and was convicted of Charges 2 to 15 of theft in this case, contrary to section 9 of the Theft Ordinance, Cap.210. D2 pleaded not guilty to Charge 1. Upon the prosecution’s application and D2’s consent, Charge 1 was left in the court file and not be proceeded with unless with the leave of the court.

Facts

2.  The facts admitted by D1 and D2 revealed that Ms Lam (“PW1”) last used her American Express credit card (the “Credit Card”) in Central at about 11 pm on 24 February 2018. The next day, PW1 received notification from American Express that the Credit Card had been used for a number of occasions (later confirmed to be unauthorized transactions). PW1 made a lost credit card report and cancelled the Credit Card. At the plea and sentence hearing today, the prosecuting counsel informed me that the limit of the Credit Card was HK$1 million.

3.  D2 was subsequently found using the Credit Card to make a number of purchases on 25 February 2018 which are the subject matters of Charges 2 to 15 below.

Charge 2 – against both D1 and D2

4.  At about 8:15 am on 25 February 2018, D2, together with D1, went to a supermarket called “Market Place by Jasons” at No.4 Tin Hau Temple Road, Causeway Bay and purchased two bottles of Cognac and a plastic bag totally worth HK$3,500.50 by presenting the Credit Card to the cashier and signing on the receipt. D1 was standing beside D2 when D2 presented the Credit Card for payment. D1 carried the purchased goods and left the supermarket with D2.

Charge 3 – against both D1 and D2

5.  At about 8:56 am on 25 February 2018, D2, together with D1, went to another “Market Place by Jasons” at No.33 Canton Road, Tsim Sha Tsui and purchased three bottles of Cognac and a plastic bag totally worth HK$5,250.50 by presenting the Credit Card to the cashier and signing on the receipt. D1 was standing beside D2 when D2 presented the Credit Card for payment. D1 carried the purchased goods and left the supermarket with D2.

Charge 4 – against both D1 and D2

6.  At about 9:17 am on 25 February 2018, D2, together with D1, went to another “Market Place by Jasons” at No.18 Hoi Ting Road, Tai Kok Tsui and purchased three bottles of Cognac totally worth HK$5,250 by presenting the Credit Card to the cashier and signing on the receipt. D1 was standing beside D2 when D2 presented the Credit Card for payment. D1 carried the purchased goods and left the supermarket with D2.

Charge 5 – against both D1 and D2

7.  At about 9:47 am on 25 February 2018, D2, together with D1, went to another “Market Place by Jasons” at No.11 Hoi Fai Road, Tai Kok Tsui and made a purchase of goods totally worth HK$5,251 by presenting the Credit Card to the cashier and signing on the receipt. D1 was standing beside D2 when D2 presented the Credit Card for payment. D1 carried the purchased goods and left the supermarket with D2.

Charge 6 – against both D1 and D2

8.  At about 11:48 am on 25 February 2018, D2, together with D1, went to a wine shop called “Jofer Wines and Spirits International Company Limited” at No.46 Kimberley Road, Tsim Sha Tsui (the “Wine Shop”) and made a purchase of goods totally worth HK$16,500 by presenting the Credit Card to the cashier and signing on the receipt. D1 was standing beside D2 when D2 presented the Credit Card for payment. D1 carried the purchased goods and left the Wine Shop with D2.

Charge 7 – against both D1 and D2

9.  At about 1:03 pm on 25 February 2018, D2, together with D1, went to the Wine Shop again and made a purchase of goods totally worth HK$8,250 by presenting the Credit Card to the cashier and signing on the receipt. D1 was standing beside D2 when D2 presented the Credit Card for payment. D1 carried the purchased goods and left the Wine Shop with D2.

Charge 8 – against D2 only

10.  At about 1:38 pm on 25 February 2018, D2 went to a jewellery shop called “Wah Shing Gold Company” at Nos.96-96C Pei Ho Street, Sham Shui Po and purchased a gold necklace worth HK$16,000 by presenting the Credit Card to the staff of the jewellery shop and signing on the receipt.

Charge 9 – against both D1 and D2

11.  At about 2:32 pm on 25 February 2018, D2, together with D1, returned to the Wine Shop again and made a purchase of goods totally worth HK$16,500 by presenting the Credit Card to the cashier and signing on the receipt. D1 was standing beside D2 when D2 presented the Credit Card for payment. D1 carried the purchased goods and left the Wine Shop with D2.

Charge 10 – against both D1 and D2

12.  At about 4:46 pm on 25 February 2018, D2, together with D1, went to a wine shop called “King’s Wine Cellar” at No.18 Hoi Ting Road, Tai Kok Tsui and purchased two bottles of Cognac totally worth HK$3,240 by presenting the Credit Card to the cashier and signing on the receipt. D1 was standing beside D2 when D2 presented the Credit Card for payment. D1 carried the purchased goods and left King’s Wine Cellar with D2.

Charge 11 – against both D1 and D2

13.  At about 4:56 pm on 25 February 2018, D2, together with D1, returned to “Market Place by Jasons” at No.18 Hoi Ting Road, Tai Kok Tsui and purchased three bottles of Cognac totally worth HK$5,250 by presenting the Credit Card to the cashier and signing on the receipt. D1 was standing beside D2 when D2 presented the Credit Card for payment. D1 carried the purchased goods and left the supermarket with D2.

Charge 12 – against D2 only

14.  At about 6:56 pm on 25 February 2018, D2 went to a shop called “Toronto Sports” at Nos.8-8A Nelson Street, Mong Kok and purchased two jackets, a pair of shoes, some clothes and a plastic bag totally worth HK$5,105 by presenting the Credit Card to the cashier and signing on the receipt.

Charge 13 – against D2 only

15.  At about 7:15 pm on 25 February 2018, D2 went to another “Toronto Sports” at No.76A Fa Yuen Street, Mong Kok and purchased a pair of shoes and some clothes totally worth HK$3,319 by presenting the Credit Card to the cashier and signing on the receipt.

Charge 14 – against both D1 and D2

16.  At about 7:46 pm on 25 February 2018, D2, together with D1, went to the “Apple Store” at Hyson Place, No.500 Hennessy Road, Causeway Bay and used the Credit Card to purchase an iPhone worth HK$9,888.

Charge 15 – against both D1 and D2

17.  At about 7:52 pm on 25 February 2018, D2, together with D1, purchased another iPhone from the “Apple Store” at Hyson Place, No.500 Hennessy Road, Causeway Bay by using the Credit Card.

18.  CCTV in the “Apple Store” captured D1 and D2 walking around “Apple Store” between 7:41 pm and 7:49 pm on 25 February 2018.

19.  At all material times, D2 dishonestly made various purchases with the Credit Card as referred to in Charges 2 to 15. D2 did so jointly with D1 on occasions referred to in Charges 2 to 7, 9 to 11, 14 and 15.

Previous Records

20.  D1 has a previous conviction of theft in December 2017. He was fined HK$1,000.

21.  D2 has two unrelated previous convictions, one of breach of condition of stay and the other possession of dangerous drugs.

22.  I will disregard D1 and D2’s previous convictions in imposing sentence.

Mitigation

23.  Counsel for D1 adopted his written mitigation submissions dated 13 March 2019. I do not wish to repeat the mitigation here. Suffice to say that the only valid mitigating factor is D1’s timely indication of his guilty pleas which entitled him one-third discount in sentence.

24.  The same situation applies in the case of D2. The only valid mitigating factor is D2’s timely indication of his guilty pleas which entitled him one-third discount in sentence. Other background information relating to D2 does not constitute valid mitigation justifying reduction in sentence.

Sentence

Charges 2 to 15

25.  Charges 2 to 15 were committed within 12 hours on the same day on 25 February 2018. The total amount involved for Charges 2 to 7, 9 to 11, 14 and 15 involving both D1 and D2 was HK$88,768, whereas the total amount involved for Charges 8, 12 and 13 involving D2 only was HK$24,424.

26.  The usual starting point in a small unsophisticated operation involving only one or a few credit cards was 3 years’ imprisonment or less: R v Chan Sui To[1], HKSAR v Lam See Chung, Stephen[2], HKSAR v Atienza Richard Montenegro[3], HKSAR v Wong Wan Shan[4] and HKSAR v Ben Salem Hassen[5].

27.  In the present case, 2 persons, i.e. D1 and D2, were involved in the use of the Credit Card in making various purchases in Charges 2 to 7, 9 to 11, 14 and 15. For Charges 8, 12 and 13, only D2 was involved. The scale of operation was small.

28.  On the other hand, the total amount involved in the case of D1 was HK$88,768 and the total amount involved in the case of D2 was HK$113,192. Those amounts were not small. Further, Charges 2 to 15 were committed within less than 12 hours from 8:15 am to 7:52 pm on 25 February 2018.

29.  For each of Charges 2 to 15, I adopt a starting point of 3 years’ imprisonment.

30.  In light of their guilty pleas, I give one-third discount to each of the 14 charges. As such, the sentence for each of Charges 2 to 15 is 2 years. Apart from their guilty pleas, I do not think there are other valid mitigating factors justifying further reduction in sentence.

31.  D1 was involved in 11 charges involving a total amount of HK$88,768 whereas D2 was involved in 14 charges involving a total amount of HK$113,192. I will impose an overall sentence of 2 years and 3 months’ imprisonment for D1, and an overall sentence of 2 years and 4 months’ imprisonment for D2. To achieve this, I order that for D1, one month’s imprisonment in each of Charges 2 to 4 is to run consecutively to the 2 years’ imprisonment in Charge 15, and all other sentences are to run concurrently. The resulting sentence for D1 is 2 years and 3 months’ imprisonment. For D2, I order that one month’s imprisonment in each of Charges 2 to 5 is to run consecutively to the 2 years’ imprisonment in Charge 15, and all other sentences are to run concurrently. The resulting sentence for D2 is 2 years and 4 months’ imprisonment.