HKSAR v. CHUI MAN KI, KENNIX

DCCC 88/2013

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 88 OF 2013

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Reasons for Sentence

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1.  The defendant has pleaded guilty to four charges that she faces. The 1st charge is theft of two credit cards from a fellow patient’s bedside table in the Prince of Wales Hospital on 16 June 2011. The defendant then after committing Charge 1 left the hospital and committed Charges 2 to 4, obtaining property by deception. She committed these offences by using the victim’s two credit cards and bought items worth in total $23,502.

2.  The defendant was arrested some months later and identified by the shop staff. 

3.  The defendant does not have a clear record.  She has four previous convictions either relating to theft or possession of dangerous drugs.  She has been given chances before in the form of fines or probation orders.  Her last chance was a suspended sentence for two theft offences in Shatin Magistracy on 6 August 2010.  For those offences the defendant was sentenced to 2 months’ imprisonment, suspended for 2 years, the two sentences to be served concurrently.

4.  Within one year the defendant has committed similar offences, these offences.

5.  The defendant is 29 years old, single and living with her family.  The defendant’s family and boyfriend are here in court to support her today.

6.  From the details before me, the defendant was a good student, but when she entered the workforce she was tempted by peers to try dangerous drugs.  She became addicted to ketamine.  This addiction has caused her to suffer horrific consequences.  Her consequences are in fact the worst I have seen in all my time dealing with ketamine addicts.  This drug has affected her kidney and urinary system.  It has caused irreparable damage.

7.  I have before me a reference letter from the Prince of Wales Hospital dated April 2013.  I have been told that in 2011 because of the damage to her urinary system she had an operation.  The operation consisted of using her small bowel wall to enlarge her bladder capacity.  As a result, she needs regular urinary catheterization to wash out her bladder to prevent infections.

8.  I have been told that in April 2012 she had an infection that was so bad, it almost led to organ failure and a coma.  She only just recovered from that infection.   As a result, however, she has now suffered damage to her nervous system and it affects her left side and her walking.  She is now receiving treatment from several departments including urology, neurology and psychiatry.  In short, the defendant is in very poor health. 

9.  Defence counsel has submitted many mitigation letters written on the defendant’s behalf.  They are letters from the defendant, her parents, her sibling, her boyfriend and a Christian organization.  I have read all the letters.  They all ask the court for leniency.  All show great concern for the defendant and she should be very grateful to her family and boyfriend. 

10.  As a result of mitigation heard on the last occasion, I adjourned for a medical report and background report.  The medical report confirms all her health issues, but it also confirms that they can handle the defendant’s health condition and requirements.

11.  I will not repeat the details of the background report.  Again it supports defence counsel’s mitigation.  The defendant does in the report to the probation officer repeat her deep remorse and vows to stay away from drugs and thieving. 

12.  Credit card offences are serious offences that will attract custodial sentences.  There are factors that I need to consider and they have been set out by the Court of Appeal in The Queen v Chan Siu To [1996] 2 HKCLR 128.  These include considering the size of the operation, whether or not there was an international element, whether the defendant played a major role or not and whether there was any sophisticated planning behind the offences. 

13.  Credit card offences affect the international reputation of Hong Kong as a modern global financial centre, and deterrent sentences are therefore imposed. 

14.  I have considered the authority of HKSAR v Tu I Lang CACC464/2006 as well as HKSAR v Wong Chin Hang CACC409/2008. In these authorities the Court of Appeal say where facts show that a small unsophisticated operation involving a few cards only, the court can consider an appropriate starting point of 3 years or less.  Each case will be decided on its own facts and circumstances.  The overall criminality of the offences is relevant. 

15.  In this case the credit cards the defendant used were not forged credit cards, but the defendant stole the victim’s cards and passed herself off as the victim.  She induced the shop staff to believe she was the victim and had full authority to use these cards to make purchases. 

16.  In determining an appropriate starting point, I have considered the following facts relevant.  One, that the cards were not forged and there is no international element.  This is a small-scale operation if one could even call it an operation.  The items were stolen from a hospital bedside and that is a serious factor.  Any patient who is in a hospital situation should not have to worry whether their valuables will be stolen or tampered with.  I do take into account however that the defendant acted alone and the theft of the cards was opportunistic.  As soon as she stole them, she used them.  The amount of the loss suffered was not a large amount and full restitution will be made.  Her plea and her genuine remorse is obviously relevant.  Lastly, her poor health is relevant. 

17.  Having considered all these facts, for Charge 1, I will take a starting point of 18 months’ imprisonment.  For the defendant’s plea, she is entitled to a discount of 6 months.  Charge 1, the sentence will be 1-year imprisonment.

18.  For the offences of Charges 2 to 4, I would have taken a starting point of 3 years, but I will reduce it to take into account in particular the fact that there has been full restitution.  The cards were two and not fake cards.  The whole scheme was opportunistic.  The total loss was not a great amount.  And, lastly, the defendant’s poor health.  One could say her poor health is self-inflicted, however, having seen the reports, it is deserving of some mercy. 

19.  I will reduce that starting point by one year. I will take a starting point of 2 years for Charges 2 to 4.  As the defendant has pleaded guilty, she is entitled to a discount of one-third, that is 8 months. 

20.  Accordingly, for Charge 1, the defendant is sentenced to 1-year imprisonment.  Charges 2 to 4, the defendant is sentenced to 1 year and 4 months’ imprisonment.  I would order that all four charges be served concurrently, that is 1 year and 4 months. 

21.  Defendant is in breach of a suspended sentence. I see no reason not to activate it.  I will activate the 2 months of ST3601/2010.  These 2 months will be ordered to be served consecutively to today’s 1 year and 4 months, that is a total of 1 year and 6 months.

22.  There is a compensation order of $11,632 to be made to BOC Credit Card International Limited and $11,870 to Hang Seng Bank Limited, a total of $23,502 payable today into court.  Do you understand that sentence?

DEFENDANT: Yes.