HKSAR v. CHOI HIU HUNG

DCCC 414/2021

[2022] HKDC 321

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 414 OF 2021

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REASONS FOR SENTENCE

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1.  The defendant pleaded guilty to 13 charges with charge 14 left on the court ‘s file. This court ordered charge 14 not to be proceeded with without the leave of the court.

2.  The 13 charges are as follows:-

Charge number	Charges	Date of Offences	Stolen property	Location
1	Burglary	27.7.2020	Laptop computer  (value at $8,000)	A restaurant
2	Burglary	8.8.2020	$3,000 cash	A restaurant
3	Theft	13.8.2020	$2,500 cash	A restaurant
4	Theft	17.8.2020	Mobile phone (value at $5,000) $5,000 cash Total value: $10,000	An automobile repair and maintenance shop
5	Burglary	19.8.2020	$6,000 cash Budda amulets, ornaments, a CCTV hard disk, a MacBook Total value: $59,000	A shop
6	Theft	21.8.2020	4 tablet computers and 1 iPad Total value: $13,200	A wedding related services shop
7	Theft	29.8.2020	1 laptop computer Total value: $5,000	A shop
8	Theft	1.9.2020	1 wallet contained cash of $7,000, 2 cash coupons, HKID card, Mainland Travel Permit for HK & Macau Resident, driving license, 3 credit cards and 3 ATM cards Total value: $10,525	A restaurant
9	Obtaining property by deception	1.9.2020	3 boxes of pills 80 cash coupons Total value: $12,119	Manning’s
10	Obtaining property by deception	1.9.2020	4 bottles of wine Total value: $7,329	Wellcome
11	Obtaining property by deception	1.9.2020	5 bottles of perfume Total value: $3,181.20	Sa Sa
12	Theft	1.9.2020	1 packet of cigarette $60	A 7-Eleven convenience store
13	Theft	7.9.2020	Car key	A shop

3.  In a nutshell, the defendant entered those premises to steal in the following circumstances: -

(a)  Prized open the door of a restaurant and the wooden door of a shop (Charges 1 and 5 respectively);

(b)  When the staff of a café left the roller shutter half open at 4:30 am (Charge 2);

(c)  When the restaurant owner closed the door at 7pm and went to work in the kitchen (Charge 3);

(d)  When the person in charge of the automobile shop went to work in the cockloft of the shop (Charge 4);

(e)  When the person in charge placed all the 5 items at the cashier counter and continued to work without paying attention to those items (Charge 6);

(f)  When PW7 left the shop without locking the door (Charge 7);

(g)  When PW8, a waiter of a restaurant, placed her bag on a table and walked away to work (Charge 8).

4.  Inside the bag of PW8 contained 3 credit cards, the defendant used the stolen credit cards to commit the offences of Charges 9 to 12 to make various purchases from various shops.

5.  Among the 3 credit cards, 2  of the credit cards limits were $209,000 and $10,000 respectively.

6.  As to Charge 13, PW15 parked her car in front of the shop and placed the car key at the reception counter at around 9 am.  CCTV captured the defendant entered the shop at 3:58 pm and took away the car key.  The defendant talked to PW15 for a few seconds before leaving the shop.

7.  The car was not stolen.

8.  The defendant was arrested on 23 September,2020 for charge three.  Under caution, the defendant said that “ his daughter is physically a handicapped and he committed the offences to raise her.  His hands were injured and could not work in the construction industry to make a living.  The stolen money was spent mainly on food.”

9.  All the incidents were captured by CCTV except Charge 11 (at a “Sa Sa” shop). In the restaurant of Charge 1, the defendant used a piece of paper to cover the CCTV camera.  The defendant also turned the CCTV camera towards the ceiling outside the shop in Charge 5. 

Criminal record

10.  The defendant has a long list of criminal records with 24 times of court appearances resulting in 38 criminal convictions.  14 counts of theft, other offences are attempted theft, robbery, obtaining property by deceptions, using identity cards related to others, criminal intimidation, claiming to be a member of a triad society, blackmail, possession of dangerous drugs and Part I poison and gambling in a gambling establishment.

11.  Altogether there were 27 offences which involved elements of dishonesty.

Suspended sentence of TM 1475/2017

12.  His last conviction was on 8 November, 2017 for one count of theft, he was sentenced to 5 months’ imprisonment suspended for a period of 3 years.  That means the expiry date for the suspension period is on 7 November, 2020.

13.  The present offences were all committed from 27^th July, 2020 to 7^th September 2020.

14.  In another word, he committed the present offences during the operational period of the suspended sentence. 

Mitigation

15.  He is now 45 years of age, married with a 12 years old handicapped daughter.  She is wheel chaired bound with negative IQ.  His wife is responsible for looking after her.

16.  His wife had previously suffered from cancer and he was in debt for borrowing money ($200,000)  to treat his wife.

17.  The defendant suffered an industrial accident while worked in a construction site in 2015.  He is now left with 36% of mobility with his left hand and wrist.  He received an employee compensation of about $820,000, but all were lost in a partnership business.

18.  The defence said that the defendant is a regular blood donor, usually 4 times a year since 2013. There is a letter without date from the Red Cross to confirm that he has been awarded for being a good citizen as a regular blood donator on 20 occasions from 2013 to 2019.

19.  Since the defendant has been in remand, the defence attempted to contact the wife of the defendant to provide update records of his blood donation, but these records cannot be found.  The instructing solicitor did not write to Red Cross to provide such record since the last adjournment.

20.  Ms. Moosdeen for the defence also submitted altogether 12 authorities to advance her mitigation on behalf of the defendant. Suffice to say that I have read them all and do not propose to recite them.

Sentence

21.  When I pass sentences on the defendant, I bear in mind all the mitigating factors advanced on his behalf.

22.  The defendant committed altogether 13 charges of offences.  They were burglary, theft and obtaining property by deception. All are offences involved element of dishonesty.

23.  As to burglary charges, it is well settled that for non-domestic burglary, a starting point is one of 30 months.

24.  The defence accepted that the defendant has an appalling criminal record, he also committed multiple offences, they are aggravating factors as stated in HKSAR v Cheng Wai Kai (2008)  HKCU 932.

Charges 1 and 5 (Burglary)

25.  In both occasions, the door of the restaurant (Charge 1)  and the shop in a factory building (Charge 5)  were prized opened.

26.  The proper and the only inference is that the defendant prized open the doors to gain entry into the two locations in Charges 1 and 5.

27.  To prize open a door, he needed tools to do it.  That means it was all premeditated as he planned to burgle the restaurant and the shop.

28.  The defendant also used a piece of paper to cover the CCTV of the restaurant (Charge 1).  He also turned the CCTV outside the shop towards the ceiling (Charge 5).

29.  Clearly, the purpose was to prevent the CCTV from recording any further activities of the defendant in both locations.

30.  What he did not know was that there were other CCTVs in the same building being installed around.  His entry and exit to/from the building in Charge 5 were all recorded.

31.  None of the stolen properties were recovered. The value in Charge 1 ($8,000)  is not a large sum, but in Charge 5 ($59,000), it is not a small sum.

32.  In both occasions, the defendant acted alone and there was no one inside the premises to expose to any risk of confrontation with the defendant. 

33.  As previously said, I will adjust the sentence upward because of the aggravating factors.

34.  I adopt a starting point of 30 months, adjust upward for another 3 months, it arrives at 33 months, reduce to 19.8 months’ imprisonment after 40% discount.

Charge 2 (Burglary)

35.  The restaurant staff left the roller shutter opened at 4:30 am, that provided an opportunity for the defendant to enter the premises to steal $3,000 at the cashier counter.

36.  I adopt a starting point of 24 months, enhance by another 3 months, it arrives at 27 months and reduce it to 16.2 months’ imprisonment after 40% discount.

Charges 3, 4 ,6 and 7, 8, and 13 (6 theft charges)

37.  Between 13^th August, 2020 to 7^th September, 2020, the defendant entered the 6 locations when the staff or the person in charge left the shops/restaurants unattended or did not pay attention to the defendant when he entered the premises, the defendant simply took away the valuable items and left the shops.

Charge 3:	took away $2,500 from the cashier counter when the restaurant was closed for business at 7:00 p.m..
Charge 4:	took away a mobile phone ($5,000)  and $5,000 cash from the cashier counter when the car mechanic worked in the cockloft of the shop. The total value is $10,000.
Charge 6:	took away 4 tablet computers and one iPad (total value: $13,200)  when the staff was not paying attention to him.
Charge 7:	took away a laptop computer (total value is $5000)  when PW7 left the shop without closing the door.
Charge 8:	took away PW8’s handbag when she left it on a table of the restaurant and continued to work. Total value of the stolen property was about $10,525. The defendant then went on to commit Charges 9 to 11 as the handbag contained three credit cards. The defendant used the credit cards to make purchase of different items from different shops.
Charge 13:	PW15 parked her car in front of the shop, left the car key at the reception counter. The defendant stole the car key when he talked to PW15 for a few seconds.
	A total of $41,225 for Charges 3, 4, 6, 7 & 8. There is no information regarding the cost of a car key.

38.  The defendant took away mobile phones, computers, iPad and laptops which obviously have high resale value and these are items easy to be disposed of.

39.  The defendant should have known that these items often contain business and or personal information, documents, data, pictures and etc.  The defendant is simply ruthless and did not care, his stealing to all these items must have caused a great deal of inconvenience, anger and anxiety to the victims.

40.  He also took away cash from the shops/restaurants.  As we all know that all kind of businesses suffered during the outbreak of the pandemic.  Most businesses struggled to pay rents, staff and business outgoings.

41.  He was successful to walk into those shops/restaurants and to steal various items one time after the other within a period of about 3¹/₂ weeks.

42.  As to all these theft charges, he entered the shops/restaurants, not as a customer, he entered to steal.

43.  He also has 14 convictions of theft charges.  Sentences need to be enhanced as the past sentence has no deterrent effect on him.

44.  With all the information in mind, I adopt a starting point of 18 months, enhance by another 3 months, it arrives at 21 months, reduce to 12.6 months after 40% discount for each charge.

Charges 9 to 11 (obtaining property by deception)

45.  These are the group of offences that the defendant stole the handbag from PW8 in charge 8 and used PW8’s credit cards to make various purchases from different shops on the 1^st September, 2020 :-

Charge 9:	Manning’s (at 12:13pm )  : 3 boxes of pills and 80 cash coupons. Total value is $12,119.
Charge 10:	Wellcome supermarket (at 12:23 pm): 4 bottles of wine. Total value is $7,329.
Charge 11:	Sa Sa (at 12:28pm)  : 5 bottles of perfume. Total value is $3,181.20.

46.  As said in the case of HKSAR v Li Chi Yat CACC 189/2018 that:-

“small scale credit card offences cannot be subjected to strict guidelines because they can vary significantly in a number of ways and that a starting point of 3 years’ imprisonment or less would be appropriate.” (Paragraph 21)

“we should point out, however, that credit card fraud offences require deterrent sentences in order to protect the integrity of the credit card system and to punish the offender for the loss and inconvenience to the credit card company and the cardholder, as the case may be.” (Paragraph 22).

47.  In the present case, the defendant acted alone, there was no planning or elaborate operation or any aggravating factor to elevate the criminality of the acts of the defendant to a higher level.  This was a case at the lower end of the scale of credit card fraud.  He was an opportunistic theft by stealing the handbag which contained the credit cards.

48.  The potential loss of one of the credit cards can be huge as the credit limit was $209,000.

49.  With this information in mind, I consider that a 2 years starting point is appropriate for these credit card fraud charges, adjust upward for 3 months, reduce to 16.2 months’ imprisonment after 40% discount.

Charge 12 Theft (a packet of cigarette $60)

50.  The defendant went to a 7-Eleven convenience store to purchase a packet of cigarette for $60 by using the stolen credit card via payWave.

51.  In view of a small sum of $60 in this charge, I adopt a starting point of 9 months, enhance by a further 3 months, it arrives at 12 months, reduce to 7.2 months after 40% discount.

Principle of totality

52.  I now come to deal with the principle of totality.  Given the number of the 13 charges he pleaded guilty to, the criminality and culpability of all the offences, I consider that a sentence of 5 years 6 months after trial is appropriate to reflect the criminality and culpability.

53.  Taking all the mitigations into account, I reduce the sentence to 39.6 months after 40% discount.

54.  I order the following charges to run consecutively to Charge one :-

a. 3.2 months from Charge 2,

b. 3.6 months from Charge 5,

c. 1 month from Charge 3, 4, 6, 7, 8, 12, and 13,

d. while Charges 9 to 11 to run concurrently with each other, out of the total of 16.2 months, 6 months to run consecutively to Charge 1.

55.  The following table shows a summary of the sentences:-

Charge	Offence	Sentence after discount	Sentence to run consecutively to charge 1
1	Burglary	19.8 months
2	Burglary	16.2 months	3.2 months
3	Theft	12.6 months	1 month
4	Theft	12.6 months	1 month
5	Burglary	19.8 months	3.6 month
6	Theft	12.6 months	1 month
7	Theft	12.6 months	1 month
8	Theft	12.6 months	1 month
9	Obtaining property by deception	16.2 months for each charge respectively, to run concurrently With each other.	6 months
10	Obtaining property by deception
11	Obtaining property by deception
12	Theft	7.2 months	1 month
13	Theft	12.6 months	1 month
			Total :- 39.6 months

56.  I take a generous approach to reduce one-month sentence from the total sentence of 39.6 month for the defendant ‘s regular donation to the Red Cross. That arrives at 38.6 months.

57.  As the defendant committed the present offences during the operational period of the suspended sentence of TM 1475/2017, this court has power to activate the suspended sentence by reason of the breach of the suspended sentence.

58.  As Huggins JA said in Li Kim Wai v R (1980)  HKLR 833 that “activation should occur save in rare and exceptional circumstances.”

59.  I do not see any reason not to activate the suspended sentence, as family, personal and financial hardship cannot be regarded as “rare and exceptional circumstances.”  To this extend, I therefore order to activate the 5 months suspended sentence to run consecutively to the present sentences.

60.  It arrives at 43.6 months’ imprisonment.  (38.6 months + 5 months). That means the defendant has to serve a sentence of 43 months and 18 days.