HKSAR v. KWOK CHUN PING

DCCC 339/2012

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 339 OF 2012

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REASONS FOR SENTENCE

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1. The defendant has pleaded guilty before me to a total of 10 charges, namely, one charge of “Burglary” (Charge 2), five charges of “Obtaining property by deception” (Charges 5-9), three charges of “Theft” (Charges1,3 & 10) and a remaining charge of “Attempted Theft” (Charge 4).

The Facts

2. The charges were committed by the defendant within one month between 10 January 2012 and 7 February 2012.  The defendant is obviously a “black sheep of the family” and two of the main victims of the present charges are indeed his younger brother (“PW1”) and elder sister (“PW2”).

Charge 2

3. The premises that was burgled by the defendant was in fact the residential flat occupied by both PW1 and PW2.  The defendant used to reside with PW1 and PW2 but he moved out from the flat three months ago as he was seriously indebted and was on bad terms with the family members.  The locks of the main door of the flat were changed after the defendant moved out.  After the burglary took place on 12 January 2012, PW1 woke up in the flat only to find that the ventilation window of the flat was dismantled and his mobile phone (valued at HK$5,600) was missing.

Charge 1 & 4

4. Earlier on 10 January 2012, PW2 had applied a new cheque book from her bank HSBC but it was still not posted to her on 13 January so she cancelled it with the bank.  On 17 January 2012, a cheque drawn from the cancelled cheque book in the sum of HK$15,000 and purportedly signed by her was deposited into the defendant’s bank account and was subsequently bounced.

Charges 5-9

5. The deception charges took place between 19 January and 22 January 2012. The charges were in relation to five credit card frauds committed by the defendant with a total value of HK$21,052 of goods deceived from five different retail outlets in Cheung Sha Wan and Shamshuipo area in Kowloon.  It was not discovered until 1 February 2012 when PW1, who is the genuine holder of the credit card concerned, received his bank statement from the issuing bank that he found out the five fraudulent transactions made with his credit card without his authority.  The credit card in question was all along kept inside a drawer inside his flat but it was also missing after the burglary.

Charge 3

6. The remaining two charges of theft were in relation to two different employers of the defendant involving breach of trust.  The first case took place on 15 January 2012 when the defendant has just started working in his second day as a delivery worker for a frozen meat company.  After he had delivered the raw meat to a customer and was paid HK$2,810, he failed to return the same to the shop and disappeared.

Charge 10

7. The second case took place on February 7 2012 when the defendant was employed by a vegetable stall in the Wholesale Food Market and started to work there as a worker in the morning.  Just a few hours later, he entered the office and took away a mobile phone (valued at HK $4,400) belonging to the female staff who employed him on the day before and left the stall.

8. On 15 February 2012, the manager of the frozen meat company in Charge 3 came across the defendant on the street.  He caught hold of the defendant until the arrival of the police.  The defendant was arrested and he admitted all the offences during subsequent investigations and said he had sold all the properties stolen or obtained from using PW1’s credit card and spent the proceeds on food.

Criminal Records and Mitigations

9. The defendant is 31 years old and is still single.  He was educated up to form 3 level.  He has 2 criminal records of “Possession of Dangerous Drugs” back in 2000 for which he was sentenced to the DATC.  For the past 10 years after he was discharged from the DATC, he worked as a construction site worker on a casual basis.  Mr Tang, the solicitor appearing for the defendant, told the court that the defendant had owed a total of $100,000 from various banks and financial institutions but the debts incurred by the defendant had nothing to do with drugs or gambling habits but rather for his living expenses.  A letter of mitigation written by the defendant was submitted for my consideration but I am not going to go into its details.  Suffice it to say that the defendant has expressed its remorse and asked the court to give him a chance.  He also said that his family members have already forgiven him and he promised to work hard in the future in order to repay them.

10. Mr Tang also pointed out that the defendant was very co-operative after he was arrested and he did not even attempt to enter into any plea bargain with the prosecution and accepted his criminal responsibilities in full.

Sentencing Considerations

11. In sentencing the defendant, I adopt the sentencing approach as suggested in HKSAR v WONG Lo Tak [1998] 2 HKLRD 527 which involved a series of similar offences, Patrick Chan CJHC (as he then was) gave the following comment:-

“7. We take the view that if a defendant had committed a series of similar offences at different times, in different places and under different circumstances, the judge should adopt a flexible approach in determining the sentence. Normally, he should first consider the most serious or the more serious incident of these similar offences, and then the number of offences the defendant had committed and the degree of their seriousness. Having considered the most serious cases in this type of offences, the maximum penalty, the sentencing guideline and the normal sentence imposed in similar cases, the judge should proceed to decide as the starting point for sentencing the defendant for those similar offences. The next step is to consider the defendant's mitigating factors, such as the plea of guilty, any restitution and his clear record etc. in order to arrive at an appropriate reduction. Finally, the totality principle should be considered to determine the total sentence which the defendant deserved. Once the total sentence has been determined, this sentence should be imposed on the defendant for each of the offences committed, but the sentence should run concurrently. We are of the view that this approach is more reliable and is capable of reflecting the gravity of the similar offences the defendant had committed.”

12. Here, I separate the 10 charges into 4 groups of offences (A)-(D):-

(i) Group (A) is the Burglary offence (Charge 2). Although the defendant used to reside together with PW1 and PW2 in the premises, since he had already moved out, he should still be regarded as a trespasser for the purpose of the offence. I judge that there is no special reason why I should not follow the normal tariff for burglary of domestic premises which is 3 years’ imprisonment albeit he was a close relative of the victims of the burglary and he once lived with them in the same premises. The sentence is reduced to 2 years’ imprisonment to reflect his guilty plea.

(ii) Group (B) is the “Obtaining property by deception” offences in relation to credit card frauds (Charges 5-9). It has been held that by the Court of Appeal that in order to maintain the integrity of the credit card system and public confidence in the system, severe deterrent sentences need to be imposed (R v Kwai Ying Ho (unrep, Crim App No 527 of 1992, [1993] HKLY 354) and HKSAR v Cheung Ka Wo Johnny [2002] 2 HKC 517). However, in HKSAR v TU I-lang CACC 464/2006, the Court of Appeal also held that where the facts of the offence point to a small, unsophisticated operation, involving only a few forged credit cards and uncomplicated by evidence which linked the defendant to a larger operation, a starting point of 3 years' imprisonment or less was already appropriate. Here, there are a total of 5 charges but the facts of the case revealed only a small-scale operation which involved only one genuine credit card which the defendant had stolen from PW1, his younger brother, and with no international dimension or other aggravating factors. The total value of the goods involved was only about $20,000. An appropriate starting point for each charge should therefore be 3 years' imprisonment which would be reduced to 2 years' imprisonment to reflect the plea (also see R v Chan Sui To & Another [1996] 2 HKCLR 128, HKSAR v Watt Siu Hung (unrep, CACC No 93 of 2001, [2001] HKEC 844), HKSAR v Cheung Ka Wo Johnny [2002] 2 HKC 517, HKSAR v Lau Pui Hang (unrep, CACC No 393 of 2003, [2004] HKEC 257). The sentences on all the 5 charges are to run concurrently.

(iii) Group (C) is the theft of the cheque book of PW2, the defendant’s elder sister (Charge 1) and also the attempted theft by the defendant to forge his elder sister’s signature and deposited a cheque of $15,000 into his own bank account (Charge 4). The two charges were therefore closely related and targeted at the same victim. I shall adopt 6 months as a starting point for the defendant’s stealing of the cheque book from the mailbox and 12 months for his attempt to steal the money from PW2’s bank account. Both sentences would be reduced to 4 months and 8 months’ imprisonment respectively on account of his plea and the sentences are to run concurrently, making a total of 8 months’ imprisonment.

(iv) The final Group (D) deals with the theft of properties by the defendant from his employer and his colleague at work (Charge 3 & 10). In both cases, the thefts took place shortly after the defendant was employed and started working for his employer. I have no doubt that they were not opportunist crimes and the defendant did not have any genuine intention to work and earn his living decently. As such, there was some premeditation and he was just conveniently making use of the opportunity of his post and the trust reposed to him as an employee to find ways to commit stealing during the employment. In both charges, although the sum involved was by no means large (only cash of $2,810 and a mobile phone valued at $4,400), that is not the only significant factor and because of the breach of trust involved, I consider that a starting point of 9 months’ imprisonment and 12 months’ imprisonment is appropriate for Charge 3 and Charge 10 respectively. Similarly, both sentences would be reduced to 6 months and 8 months respectively. They were separate offences with two different victims but because of the totality principle, I would order that only 3 months of Charge 10 to run consecutively to Charge 3 and the remaining 5 months to run concurrently. The total sentence in this group is therefore 9 months’ imprisonment.

13. Because of the different criminalities involved with these groups of offences and also the totality principle, I will further adjust the sentences in order to arrive at an overall sentence for the defendant in the following terms:-

(i) 6 months of the sentence on Group (A) to run consecutively to the total sentences on Group (B) and the remaining terms to run concurrently, making a sub-total of 30 months’ imprisonment for Charges 2,5-9;

(ii) 4 months of the sentences on Group (D) to run consecutively to the total sentences on Group (C) and the remaining terms to run concurrently; making a sub-total of 12 months’ imprisonment for Charges 1,3,4 & 10;

(iii) the sub-total of the sentences on Charges 2,5-9 to run wholly consecutively to the sub-total of the sentences on Charges 1,3,4 & 10;

(iv) the overall sentence is therefore 42 months’ imprisonment.