HKSAR v. LIU CHUI-SHAN AND ANOTHER

DCCC629/2011

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 629 OF 2011

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Reasons for Sentence

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1.  The defendants are before the court for a total of 11 charges. The 1st defendant faces only six of those charges, namely Charges 3 to 8 in respect of which he is jointly charged with the 2nd defendant. The 2nd defendant faces all 11 charges.

2.  The first 2 charges are charges of handling stolen property.  The property in each case is a bankcard and the first handling offence was committed on 24 July.  The card involved is a Shanghai Commercial Bank Visa Card and that is in the name of a Mr Lam Lim-chung. 

3.  The second handling offence also concerns a bankcard, a Citibank Visa Card in the name of Chan Tik-ka, the Hong Kong Identity Card of the cardholder and an Octopus card.  The two credit cards were used to purchase property by deception and they are Charges 6 to 11. 

4.  Charges 3 to 5 relate to the use of the stolen Hong Kong Identity Card in the name of Chan Tik-ka to use the Citibank Visa Card in her name.

5.  On 25 July 2008 Chan Tik-ka was a passenger on a lights good vehicle and she left her handbag on the passenger seat.  She later returned to find the bag missing together with its contents which included her Hong Kong ID Card, the Octopus card and the Citibank Visa Card.  The card and the identity card were used by both defendants to obtain three mobile phones on 29 July and 5 August. Each of the mobile phones was worth $5,648 and they were each obtained from shop premises in Sheung Shui but in different shopping plazas. 

6.  The circumstances in which the 1st charge of handling a Shanghai Commercial Bank Visa Card were that the person who was intended to receive that card from the bank never in fact received it, and it was later discovered that that card was used to commit three offences of obtaining by deception, Charge 9 to 11.  All the offences were committed on 24 July at various outlets in Sheung Shui and the total amount of property obtained which was clothing and shoes was just over $3,000. 

7.  The 1st defendant was arrested at her residence on 7 August 2008 and she admitted being involved in the use of the card belonging to Chan Tik-ka and also the use of the identity card to make purchases of iPhones together with the 2nd defendant.  She claimed that her reward for involvement in these matters was $500 for each purchase. 

8.  On the morning of 8 August, the day after the 1st defendant was arrested, the police raided the residence of the 2nd defendant with a search warrant.  When his premises were searched, some of the goods he had purchased and some of the sales memos relating to transactions were recovered in his bedroom.  The police also went to a wooden hut which the defendant used and there they recovered some further goods which he had purchased and, in addition, one of the cards was found hanging in a plastic bag on the wall of the hut. 

9.  When arrested in respect of these matters the defendant admitted using the card belonging to Chan Tik-ka on three occasions to purchase iPhones.  He claimed that a male named Ah Shing whom he had met in an amusement games centre had given him the card on the afternoon of 29 July.  D2 said that after he purchased the iPhone he gave them to Ah Shing.

10.  As regards the other card, he said also that was given to him by Ah Shing on the morning of 24 July and he used the card later that day to purchase clothing.  He said that he was paid for agreeing to purchase these items. 

11.  It was some delay before the defendants eventually appeared before the court.  The prosecution told the court that reason for the delay was that when the defendants were arrested on 7 and 8 August respectively, the police were also making inquiries into other similar offences in relation to the 2nd defendant, that those inquiries took a considerable time because they involved transactions which occurred in Macau. It obviously took time for the police to put the case together and also arrange various identification parades and it was not until December 2010 that the matter eventually came to the Department of Justice for legal advice.  The court accepts that there was no unreasonable delay on the part of the prosecution authorities.  These are complicated matters to investigate. However, it is a fact that these defendants have had these matters hanging over their heads for some considerable time and that they had admitted their involvement in the offences when they were initially arrested. 

12.  Both defendants have been before the court on a number of occasions.  In the case of the 1st defendant there are 27 previous court appearances.  Four of them are for theft and two for conspiracy to defraud.  Significant on her record, however, is that the last two court appearances were subsequent to her arrest in connection with these matters.  The defendant for conspiracy to defraud offences was sent to prison for 16 months in total and in May 2009 she was sentenced to 21 months for trafficking in dangerous drugs and it was ordered that 6 months of that sentence run concurrent to the sentence for the conspiracy to defraud.  That meant that the total period of imprisonment she was to serve for all those offences was a period of 31 months and I understand she was released in September 2010.  I have no doubt that if these matters had come before the court at that time some of the sentence would have been ordered to be served concurrently.

13.  The 2nd defendant has 32 previous convictions, 25 of which are for dishonesty.  Again, in his case there is a court appearance subsequent to his arrest in February 2009 for theft.  He was ordered to go to prison for 4 months. 

14.  The 1st defendant is aged 37, was born in Hong Kong and educated to Form 3 level.  She is unemployed.  She is a drug addict and is a divorcee with a daughter who lives with her ex-husband.  As counsel rightly pointed out, this is the first time she has been convicted of offences involving credit card fraud and I am told that this is the first time she has ever been involved in such a matter.  I was told that she was needed for these offences because the card to be used and the ID card belonged to a lady so her role was to pose as that lady and she did receive a reward of $1,500. 

15.  As regards the 2nd defendant, I am told that he is aged 32, born in Hong Kong, educated to Form 2 level.  He is single. He lives with his father who is retired and was working as a delivery worker at some time and contributed to the family funds.  He did this because of financial hardship and was again paid only $1,500 for his involvement.  I have been shown a number of cases that deal with offences of the kind we are dealing with today.  As offences of this kind go these are small scale offences.  They were not sophisticated.  There were no international dimensions. 

16.  As regards the Charge in relation to the 2nd defendant, for the first 2 charges of handling I have taken a starting point of 3 years’ imprisonment and reduced those to 2 years to reflect the guilty plea.  On the identity card offence, Charge 3 to 5,  a starting point of 9 months and reduce those to 6 months.  For Charges 6 to 11 I would take a starting point of 3½ years and reduce that to 2 years and 4 months to reflect the guilty pleas.  There has been considerable delay in this case, and D2 has also appeared in court subsequent to his arrest for this matter.  He also admitted his guilt in respect of those offences at an early stage.  I emphasise again I do not blame the prosecution.  It is just a fact of what has happened in this case. 

17.  I have decided therefore to impose concurrent sentences of 2 years for Charges 1 and 2, 6 to 11 and on Charges 3 to 5, 6 months’ imprisonment again concurrent. 

18.  As regards the 1st defendant she faces Charges 3 to 8.  Again, I have looked at the sentences I would have imposed had there not been the delay factor in this case.  For Charges 3 to 5 the sentence would have been 6 months after plea and a reduction from a starting point of 9 months, and for Charges 6 to 8 I would have taken a starting point of 3 years and reduce that to 2 years to reflect the guilty plea.  In her case the delay is particularly significant because there were no outstanding investigations concerning her and she admitted the offences to the police as soon as she was arrested.  She was also subsequently sentenced to a significant period of imprisonment, 31 months in 2009.  I am sure that some of this sentence would have been ordered to run concurrently had it been imposed as that time. 

19.  For Charges 3 to 5 the sentence is 6 months’ imprisonment  for Charges 6 to 8, 14 months imprisonment and I order that the sentences should run concurrently.