HKSAR v. LAM SEE CHUNG, STEPHEN

DCCC476/2012

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 476 OF 2012

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Reasons for Sentence

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1.  The defendant has pleaded guilty to one charge of theft, Charge 1, and three charges of obtaining property by deception, Charges 2 to 4, contrary to sections 9 and 17(1) of the Theft Ordinance, Cap. 210.

2.  The defendant is also serving a number of sentences totalling 44 months’ imprisonment.  He was sentenced to 16 months’ imprisonment in ESCC4848/2010, 2 months’ imprisonment in ESCC2126/2011, and 4 months’ imprisonment in TMCC1676/2012; a total of 22 months.  Four other cases, namely ESCC5l45/2011, ESCC1967/2012, ESCC1968/2012 and ESCC2064/2012 were dealt with together, the defendant was sentenced to a total of 26 months’ imprisonment, 22 months of which were to be served consecutively to the sentences in ESCC4848/2010, ESCC2126/2011 and TMCC1676/2012.

Facts in the present case

3.  From 23 January 2011 the defendant hired Miss Lai Hoo-kin (PW1) as a postnatal helper to take care of his wife and their new born daughter at his home.  Whilst at work, PW1 placed her handbag which contained her personal belongings including her purse and China Construction Bank credit card, which is the subject matter of Charge 1, in the baby’s room in the defendant’s home.

4.  On 10 February 2011 PW1 discovered that her purse was missing and immediately reported the loss of her credit card to the issuing bank.  Investigations revealed that PW1’s credit card had been used by a male wearing a mask to purchase a total of three Samsung Galaxy Tab P1000 mobile telephones from a shop called VIVAPHOTO in Sham Shui Po on 9 and 10 February 2011.

5.  The total value of goods purchased was $15,240. The sales slips of the three transactions were signed by the male upon payment for the mobile telephones.

6.  The defendant’s fingerprint was found on one of the sales slips dated 10 February 2011.

7.  The defendant admitted to the police under caution that he had stolen PW1’s credit card from her purse in January 2011. He used the credit card to purchase three mobile telephones from VIVAPHOTO. The three mobile telephones had been sold at $3,000 each and all the proceeds, a total of $9,000, had been spent by the defendant. 

8.  The defendant is 30 years old.  He is married with an 18-month-old child.  He used to be a computer programmer earning about $10,000 per month.  He was the sole breadwinner and also had to support his aged parents and grandmother. 

9.  The defendant has 9 previous convictions, all of which are related to dishonesty.  

10.  Counsel submitted that the defendant only had two previous convictions at the time that he committed the present offences and cannot properly be regarded as a recidivist.  Counsel explained that the defendant’s grandmother suffered a stroke in 2011.  The defendant therefore committed the present offences because he needed money to pay for his grandmother’s medical expenses.

11.  The case was then adjourned for further mitigation upon the defence request.  The defence counsel ceased to act for him after the adjournment and the defendant was represented by instructing solicitors.

12.  The defendant’s solicitor agreed that the defendant began committing offences relating to dishonesty since 2007. However, he submitted that the offences that the defendant had committed could be divided into two batches.  The first batch of offences, namely ESCC3109/2008, KCCC5988/2009, ESCC4848/2010 and ESCC2126/2011, were committed between 2007 and the end of 2008.  The second batch of offences including TMCC1676/2012, ESCC2064/2012, ESCC1967/2012, ESCC5154/2011, ESCC1968/2012 and the present case were committed in 2011. 

13.  Counsel stated that prior to 2007 the defendant was working for a company called Fitness First.  He was making money with ease and got into the habit of over spending.  By 2007 the defendant’s finances were out of control which led to the commission of the first batch of offences.  In March 2009 the defendant was sentenced to 7 months’ imprisonment in ESCC3109/2008 whereupon he decided to turn over a new leaf.

14.  He started a computer business with his wife after release from prison and his finances were back to normal.  No offences were committed between 2009 and 2011.  In early 2011 the defendant’s grandmother suffered a stroke.  The defendant has always shouldered the expenses of his grandmother.  In addition to the increased expenses of the old people’s home, the defendant also had to pay for the medical and other expenses of the grandmother.  That was the reason for the commission of the second batch of offences. 

15.  The defence argued that the defendant is not serving a sentence of 44 months.  They argued that the defendant is in fact serving an additional 5 months to those 44 months.  There appears to be some misunderstanding about the length of sentence in ESCC4848/2010.  In that case the sentence was in fact 16 months and not 18 months.  However, the defence could not explain the basis on which they alleged that the defendant is serving a 49 months’ sentence.  In any event, the defence argued that the sentence the defendant is now serving is far in excess of what is appropriate and asked the court to order the sentence in the present case to be served concurrently.

Sentence

16.  In passing sentence, I have carefully considered everything said on behalf of the defendant together with the letters submitted to court.  Simply looking at the chronology prepared by the prosecution in ESCC5154/2011, ESCC1967/2012, ESCC1968/2012 and ESCC2064/2012 submitted by counsel in the present case, I agree that it appears that the offences the defendant faced were committed in two batches.  However, I disagree that the defendant was in any way remorseful.  I entirely agree with my learned brother Mr Dufton that the defendant is best described as a professional fraudster or a con artist and that his audacity knew no bounds.

17.  The defendant was sentenced to 7 months’ imprisonment in March 2009 in ESCC3l09/2008.  He was only released from prison in December 2009.  In those circumstances he could not have committed any offences during that time.  In May 2010 the defendant was sentenced to 200 hours of community service in KCCC5988/2009.  That was clearly at least one of the reasons why no further offences were committed that year.  He committed the present offences within months of that sentence, in January 2011.

18.  Although the defendant only had two previous convictions at the time of the present offences, he had already been arrested for the offences in ESCC4848/2010 and ESCC2l26/2011.  He delayed those proceedings by failing to appear at an ID parade in ESCC2126/2011 asking for a second PTR and applying for legal representation on the first day of trial in ESCC4848/2010. 

19.  After the commission of the present offences and after he was charged in ESCC2126/2011, the defendant went on to commit part of the offences in ESCC1967.  The defendant pleaded guilty to ESCC4848/2010 on 7 June 2011 and was granted bail pending sentence.  On the very next day he went on to commit further offences in ESCC1967/2012.  He then tried to hoodwink the court by giving a dishonoured cheque in the sum of $100,000 in payment of compensation in ESCC4848/2010. 

20.  After the defendant was arrested for ESCC1967/2012, he absconded in ESCC4848/2010 and ESCC2126/2011 and failed to answer police bail for ESCC1967/2012.  He went on to commit the offences in ESCC5154/2011, further offences in ESCC1967 and the offences in TMCC1676/2012. The defence argued that the defendant had committed these offences for his family and that it is his family who will now suffer.  Unfortunately, the families are often the ones to suffer and the defendant should have thought about them before committing a whole series of offences. 

Starting point

21.  In respect of Charge 1, the defendant had stolen the credit card of his employee.  This was clearly in breach of trust.  He then used the stolen credit card to commit three offences of credit card fraud, Charges 2 to 4.

22.  Credit card offences are serious offences and must be deterred.  See HKSAR v Sun Chun Lei [2003] HKCU 365, CACC476/2002, 2 April 2003, unreported, and HKSAR v Leung Pui Shan [2008] HKCU 241, CACC317/2007, 5 February 2008, unreported.

23.  Even a small-scale credit card fraud with small losses by an offender who is not alleged to be part of a large syndicate can attract 3 years’ imprisonment, HKSAR v Cheung Ka Wo [2002] 2 HKC 517, HKSAR v Chen Wing Hong CACC40/2005.

24.  The defendant had already committed and been arrested for 16 offences relating to dishonesty in ESCC3109/2008, KCCC5988/2009, ESCC4848/2010 and ESCC2126/2011 prior to the commission of the offences in the present case.  In fact, he had been convicted in ESCC3109/2008 and KCCC5988/2009 prior to the commission of the present case.  He is properly to be regarded as a persistent offender.  The present offences were committed whilst on court bail for ESCC4848/2010 and on police bail for ESCC2126/2011.

25.  The defendant committed these offences within months of his last sentence.  He committed the last three offences in the present case within the space of two days.  All these factors are aggravating features of sentence which warrant increase in the appropriate starting point.

26.  For Charge 1, I adopt the starting point of 6 months’ imprisonment.  I give the defendant full credit for his guilty plea. The sentence is reduced to 4 months.

27.  As for Charges 2 to 4, I am satisfied that the proper starting point after trial on each charge is of 4 years’ imprisonment. After giving full credit for the defendant’s guilty plea, the sentence is reduced to 32 months.

28.  All offences are part and parcel of the same scheme, I order that all the sentences in the present case to be served concurrently.  This makes a total sentence of 32 months.

Totality of sentence

29.  The offences in the present case are wholly separate and distinct from the offences for which the defendant is now serving a sentence and consecutive sentences are appropriate.  However, the defendant is currently serving a total of 44 months’ imprisonment and I have to consider the principle of totality.

30.  I am satisfied that if the whole series of cases had been brought before a single judge in the District Court, a starting point of 7½ years’ imprisonment after trial would properly reflect the defendant’s criminality in all eight cases.  Accordingly, I order 16 months of the sentence in the present case to be served consecutively to the sentences the defendant is now serving, namely in ESCC4848/2011, ESCC2126/2011, TMCC1676/2012, ESCC5145/2011, ESCC1967/2012, ESCC1968/2012 and ESCC2064/2012.  That makes a total of 60 months.