HKSAR v. SIU KING HO ANDY

DCCC 1007/2014

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL ACTION NO 1007 OF 2014

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REASONS FOR SENTENCE
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1. This case concerns theft of five credit cards and subsequent dishonest use of them by the defendant. The credit cards stolen belong to the son of the defendant’s then-girlfriend. The defendant faces 11 counts of theft and 5 of obtaining property by deception.

2. The theft of five credit cards and some letters containing the passwords of the credit cards forms the subject matter of Charge 1.  The defendant stole the credit cards and the letters from an unlocked drawer of the victim’s bedroom.  The defendant stole the above items when the victim had gone on holiday and was not in Hong Kong.

3. The particulars of offence plead that the defendant stole the above items between 5 October 2012 and 30 May 2013.

4. The amended summary of facts show that the victim on 5 October 2012 placed his credit cards and letters containing the passwords for the cards in a drawer in his room in his residence.  He left Hong Kong on 6 October 2012 and the defendant made the last unauthorised purchase on 30 May 2013 (Charge 16).

5. Given the fact that the defendant made the first unauthorised withdrawal on 4 February 2013, he must have stolen the credit cards and letters on or before 4 February 2013, but not after.

6. After the defendant had stolen the five credit cards, he used the cards to make unauthorised withdrawals of cash advances.  These withdrawals of cash advances, 13 in total, form the subject matters of 10 theft charges (Charges 2, 3, 6, 7, 8, 11, 12, 13, 14 and 15).  The amounts of cash advances for the 10 theft charges ranged from HK$500 (Charge 14) to HK$15,000 (Charge 2).  The total amount withdrawn by the defendant was $54,800.  The 10 theft charges were committed on various days between 4 February 2013 (Charge 2) and 20 May 2013 (Charge 15).

7. The five counts of obtaining property by deception concerned unauthorised purchases of items of jewellery at three jewellery shops on five occasions (Charges 4, 5, 9, 10 and 16).  The amounts of these five transactions ranged from HK$5,200 (Charge 4) to HK$19,000 (Charge 16).  The total amount involved was HK$51,428.  The purchases were made on various days between 7 February 2013 (Charge 4) and 30 May 2013 (Charge 16). 

8. The total involved for Charges 2 to 16 was HK$106,228.

9. The ex-girlfriend of the defendant noted the unauthorised transactions in July 2013.  The case was reported to the police.

10. The defendant called the ex-girlfriend sometime in August 2013 and told her that he had used the victim’s credit cards to buy things and withdraw money.  He promised her that he would return the money, but she had not heard from the defendant since then.

11. The defendant was arrested on 23 July 2014.  Initially he remained silent under caution, but he subsequently admitted the offences in two cautioned interviews. 

12. The defendant admitted, inter alia, that:-

(1) he had stolen the five credit cards;

(2) he used to reside with his ex-girlfriend and the latter’s son at the residence in question;

(3) the defendant was in financial difficulties and he seized the opportunity when the son of his ex-girlfriend went to Australia. He went into the son’s bedroom and took the five bedrooms and the letters with the passwords from an unlocked drawer;

(4) around the period between February and May 2013, he had used the five credit cards to buy things such as jewellery and obtained cash advances;

(5) he had sold the jewellery and spent all of the cash advances and money from the sale;

(6) he had thrown away all the credit cards and the letters.

13. The defendant, now 41 years old, had a hitherto clear record.

14. Mr Mohnani told me in mitigation that the defendant received education up to Form 5.  He is single and he resides with his mother, who suffers from depression.

15. Mr Mohnani also submitted three mitigation letters written by the defendant, his present girlfriend and his then-employer respectively.

16. Mr Mohnani told me in mitigation that the defendant is willing to make full compensation to the victim for the loss.

17. There is an issue as to whether the defendant has made full compensation.  The prosecution contends that the defendant should be responsible for the interest repayment made by the victim for one of the credit cards stolen.

18. For the purpose of sentencing, I accept the defendant has made full restitution for the crimes he committed.  Today, Mr Mohnani has shown me receipts showing that the defendant had made restitution over the sum of HK$106,000.

19. The theft of the credit cards and the subsequent dishonest use of the cards in the shopping spree and withdrawals by cash advances each involved a breach of the trust that the defendant’s ex-girlfriend and the son of the ex-girlfriend had placed on the defendant as fellow lodgers.

20. The breach of trust element aggravated the seriousness of each of the offences. 

21. Each offence calls for an immediate custodial sentence. 

22. In sentencing the defendant, I have borne in mind the sum of the money involved.

23. In HKSAR v Ng Swee Thiam & Ors [2000] 1 HKLRD 772, the Court of Appeal commented at page 778 that the amount proved to have been lost by then fraudulent use of credit cards “pale[s] into insignificance when consideration is given to the potential for losses in the future”.

24. In the instant case, the facts reveal that the defendant had thrown away all the credit cards after the fraudulent use, which had incurred a total loss of HK$106,228.

25. In sentencing the defendant, I have borne in mind the tariffs set down in HKSAR v Cheung Mee Kiu, CACC 99/2006, and the fact that the present case involved repeated fraudulent use of credit cards stolen by the defendant from his fellow lodger.

26. For Charge 14, which involved a cash advance of HK$500, a starting point of 12 months’ imprisonment is appropriate.

27. For Charges 1 to 13 and Charges 15 and 16, a starting point of 18 months is appropriate for each offence.

28. The defendant is entitled to one-third reduction for his clear record and guilty pleas.

29. He is also entitled to additional reduction for the restitution he made.

30. I shall allow an additional reduction of 1 month for Charge 14.  For the remaining charges, I shall allow an additional reduction of 2 months for each offence.

31. For the reasons given:-

(1) on Charge 1 to 13, I sentence the defendant to 10 months’ imprisonment for each offence;

(2) on Charge 14, I sentence the defendant to 7 months’ imprisonment;

(3) on Charges 15 and 16, I sentence the defendant to 10 months’ imprisonment.

32. Bearing totality in mind, a total term of 20 months’ imprisonment shall adequately reflect the overall criminality of all 16 offences.

33. To achieve that end, I order the terms of imprisonment for Charges 2 to 16 shall run concurrently with each other, but 10 months of them shall run consecutively to the sentence for Charge 1.

34. The defendant has to serve a total term of 20 months’ imprisonment.