HKSAR v. LI YIP KIN, KEN

DCCC 564/2013

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO.564 OF 2013

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Reasons for Sentence

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1. The defendant pleaded guilty to one charge of burglary (charge 1), one charge of theft (charge 2), two charges of obtaining property by deception (charges 4,5), one charge of possession of dangerous drugs and one charge of possession of Part I poison. Charge 3 was ordered to be kept on file, not to be proceeded with without the leave of court.

Summary of Facts

Charge 1

2. PW1 resided at Room 5, 5th floor, no.60 Bute Street, Mongkok. He left home at about 6:50am on 19th March 2013 and returned at about 7pm that evening to find a number of his belongings that were in his home had gone missing. The belongings are as particularized under charge 1.

Charge 2

3. One of the missing items was a Bank of China credit card. Computer and closed circuit television records later obtained showed that the card had been used by the defendant and an unknown person to make 5 cash withdrawals the same day between 3:15 and 3:25pm at an ATM machine at the ground floor of no.591 Nathan Road. A total of $20,000 had been withdrawn.

Charge 4

4. At about 4:50pm, having stolen the cash earlier, the defendant used the same credit card to purchase a mobile phone from a telecom company for $3,193 by falsely representing that he was the genuine holder of the credit card and that he was authorized and entitled to use it to pay for the phone. The transaction was successful and the phone was handed over to the defendant who then left the shop.

Charge 5

5. Less than one hour later at about 5:30pm, the defendant used the same credit card to purchase a pendant which was worth $2,600 at a jewellery store by making the same false representation as in charge 4. The transaction was again successful and the pendant was handed over to the defendant who then left the store.

Arrest of the defendant and charges 6 and 7

6. The defendant was intercepted by the police at 7:20pm on the ground floor of the Kowloon Central Post Office on Nathan Road. Police searched the bag that the defendant was carrying and found all the items, except the 6 rings, particularized under charge 1, the mobile phone in charge 4, the pendant in charge 5 and one tablet computer inside. They also found cash of $24,651.70 inside the defendant's left front jacket pocket, and 2 plastic bags containing cannabis, 2 hand-rolled cigarettes and 1 plastic bag containing 10 tablets inside his right shoe. The defendant was then arrested and cautioned.

7. Under caution, the defendant confessed that he had burgled into PW1's home with a skeleton key at about 10am, stayed there for about 10 minutes and stole the items in charge 1. The defendant said he then used one of the credit cards he had taken from PW1's home to make  5 cash withdrawals of a total of $20,000 from an ATM machine. The defendant then proceeded to purchase the mobile phone and the pendant using the same credit card.

8. In relation to the cannabis and the 2 hand-rolled cigarettes with traces of cannabis found inside his shoe, the defendant admitted that he bought them at $150 for his own consumption. He also admitted that the 10 tablets contained Zopiclone and he had bought them from a dispensary in Mongkok without a prescription for his own use. Government Chemist later examined the contents of the 2 plastic bags, the 2 cigarettes and the 10 tablets and confirmed their narcotic contents as particularized under charges 6 and 7.

Previous convictions

9. The defendant has 1 previous conviction for possession of dangerous drugs in May 2003, one for possession of Part I poison in October 2003, 2 for burglary in 2007 and 1 for burglary in 2010, and 9 for theft between February 2007 and September 2012. He was last sentenced for a criminal offence, the theft, on 28^th September 2012 to 5 months’ imprisonment. In other words, he committed the present offences not long after his latest release from prison. I find that the defendant is a repeated offender and that this is an aggravating factor.

Mitigation

10. The defendant is 33 year old, single. He was working as a driver at the time of his arrest earning about $10,000 per month. His expenses included $3,000 to 4,000 for rental, $1,000 for various charges and travel expenses. He contributed about $2,000 every month to his parents who are about 60 years old.

11. Mr. Chong submitted on behalf of the defendant that as a result of taking some Zopiclone before the commission of the burglary, theft and credit card offences, the drug had affected his ability to control himself. The defendant however fully realized what he was doing and is not disputing his guilt. The part I poison was bought for helping with his sleep.

12. The defendant is willing to forfeit the $24,651.70, being the money found on him when arrested, to compensate the victims.

Sentencing cases

Burglary

13. The starting point for an offence of burglary of a domestic premises is that of 3 years' imprisonment: R v Wong Man Cr. App. 372 of 1992 and R v Chan Yui-man Cr App 36 of 1988. It is not disputed by the defendant that he had burgled a domestic premises.

Credit card frauds

14. Mr. Chong for the defendant also accepted that the usual sentence for use of one or two stolen credit cards to make purchases in the region of a few thousand dollars would attract a starting point of 3 years’ imprisonment, subject to other mitigating or aggravating factors.

The dangerous drug and the Part I poison

15. Mr. Cheung for the prosecution very fairly accepted that had the defendant been facing only charges 6 and 7, he would have been dealt with in the magistracies. In relation to the possession of the cannabis, he would likely to have been fined.

16. Mr. Cheung referred the court to the case of HKSAR v Yeung Kwan Hung, CACC 217/2010 where the Court of Appeal considered that a starting point of 3 months’ imprisonment was appropriate for the possession of 10 tablets of Zopiclone. There the appellant was apprehended when he was pulling at the handles of vehicles to see if there was anything that he could steal and the Zopiclone tablets were found as a result of the subsequent body search.

17. It must however be noted that in adopting the 3 months’ imprisonment starting point, the Court of Appeal had taken into consideration that the appellant had a confirmed psychiatric problem and the Zopiclone might indeed have been needed by him to deal with his insomnia problem.

18. In our present case, there is no evidence of psychiatric illness, although Mr. Chong did mention that the defendant had bought the Zopiclone to help with the defendant’s insomnia.

Sentence

Charge 1: Burglary

19. This is the defendant’s fourth conviction for burglary, the latest being in 2010. As I had pointed out above, the defendant is a repeated offender and had committed the present offences not long after he was last released from prison having served his sentence for theft.

20. For this aggravating factor, I will adopt a starting point of 3 years and 3 months’ imprisonment for his burglary of a domestic premises. I will give him the full one third discount for his guilty plea, resulting in a sentence of 2 years and 2 months’ imprisonment.

Charge 2: Theft

21. The defendant used the credit card that was stolen to steal the $20,000 through an ATM machine. It is not clear how he managed to figure out the PIN to make the withdrawal. There was a total of 5 withdrawals.

22. The defendant was not acting alone when he made the withdrawals. Furthermore, this is the defendant’s tenth conviction for theft, with the latest being on 28^th September 2012. As mentioned before, the defendant committed the present offence not long after his latest release from jail. I find these aggravating factors.

23. There is one mitigating factor in that the defendant is willing and able to compensate the victims.

24. Balancing all the factors, I find that a proper starting point is that of 21 months’ imprisonment, discounted to that of 14 months' imprisonment upon the defendant’s guilty plea.

25. I will impose an order for compensation in the amount of $24,651.70 against the defendant. Of this amount, $10,000 to be paid to PW1 and the balance to the Bank of China. This money is to be taken from the money found on the defendant when he was arrested. The defendant has no objection to this.

Charges 4,5: Obtaining property by deception through the use of credit card

26. The usual sentence for use of a single stolen credit card for the purchase of goods worth a few thousand dollars would be a starting point of 3 years' imprisonment. These are the defendant’s first obtaining property by deception convictions, although not his first convictions related to dishonesty. The only aggravating factor is him being a repeated offender with relation to dishonesty offences.

27. I find that a proper starting point for both charge 4 and 5 is that of 3 years and 3 months’ imprisonment. The defendant is sentenced to 2 years and 2 months’ imprisonment on each of charge 4 and 5.

28. The defendant used the same credit card to make the 2 purchases within a short period of time. Had he bought both items from the same shop, I would have adopted the same starting point. I will therefore order that the sentences in charge 4 and 5 be served concurrently.

Charge 6: Possession of cannabis

29. This is the defendant’s first conviction for possession of a dangerous drug since 2003. The drug involved is herbal cannabis and the amount involved is small. Given that the defendant will be receiving a sentence for his possession of the part I poison, I find that a short term imprisonment for this charge, to be made concurrent to the sentence for the Part I poison to be appropriate.

30. I adopt a starting point of 9 weeks’ imprisonment, discounting it to 6 weeks’ imprisonment upon the defendant’s guilty plea.

Charge 7: Possession of the Part I poison

31. Having reference to the above mentioned case of HKSAR v Yeung Kwan Hung, I will adopt a starting point of 3 months’ imprisonment, reducing it to 2 months’ imprisonment upon the defendant’s guilty plea.

32. As indicated above, I will order this sentence to be served concurrently to the sentence in charge 6.

Totality

33. Not only did the defendant burgled PW1’s home, he used what he had taken to steal from PW1’s bank account and then used the credit card to make purchases. Although the theft and the usage of the credit card was not an inevitable consequence of the burglary, it cannot be said that they are unexpected and in fact can be said to be connected to the burglary.

34. Considering the principle of totality and the connection between charges 1, 2, 4 and 5, I order that the sentences in charges 2, 4 and 5 be served concurrently. I order that 14 months of that sentence be served consecutively to the sentence in charge 1, the balance concurrently.

35. Charges 6 and 7 are offences wholly unrelated to the other charges. I order the concurrent sentence for charges 6 and 7 be served consecutively to the sentences in the other charges.

36. The defendant is therefore sentenced to a total of 42 months’ imprisonment.