HKSAR v. LING KA LOK

DCCC 57/2022

[2022] HKDC 1012

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 57 OF 2022

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REASONS FOR SENTENCE

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1.  The defendant faced six charges of theft. He pleaded guilty to five charges while the 5^th charge is now ordered to leave on court file and not to be proceeded with without the leave of the court.

Summary of Facts

2.  The facts of the case showed that the defendant used five different credit cards, issued at different locations, such as Hong Kong, Japan, Mainland and the States, to make online purchases from Ball Head Sneakers Limited. 

3.  Those items are:-

(i)  in Charge 1, between 18 to 22 January 2019, involved one t-shirt, a sweater and two jeans, and a total of $1,788.

(ii)  Charge 2, between 10 to 13 March 2019, one t-shirt, one waterproofing spray kit, total is $937.

(iii)  Charge 3, between 20 to 22 March 2019, one shoe care kit and a bag, a total of $1,737.

(iv)  Charge 4, between 27 to 30 March 2019, one sneaker that costs $3,199, however, the transaction of payment could not go through. PW1 reported the case to the police.

(v)  Charge 6, on 15 April 2019, involved one sneakers, that costs $3,599. PW1 did not send the sneakers to the delivery address.

4.  In respect of Charge 2, 3, 4, the defendant used the name of Man Ho-wong, while Charge 1 and 6, he used two different names. 

5.  As to the dates on the charges, the defendant placed the order online, for example on 18 January 2019, and he picked up the parcel from SF Express on 22 January 2019.  All the purchases were made online and all the pick-up point was from the same location in Jordan, SF Express, and each time he was captured by the CCTV. 

The Arrest

6.  On 16 April 2019, at about 1.28 pm, the police arrest the defendant when he picked up the sneakers, that is Charge 5, at SF Express, Jordan.  The defendant admitted, under caution, that he purchased the sneakers by using the credit card information of his customers.  At the material time, the defendant has four SIM cards on his persons.  Three were used by him in placing the orders in the five charges. 

7.  During house search, all the items he purchased from Charge 1 to 4 were recovered.  The police further recovered a t-shirt he purchased in Charge 2 from the locker in his office. 

8.  Under caution, the defendant admitted in a video-recorded interview that he work as a cashier in a hotel.  He recorded the customers’ credit card information on a piece of paper.  He used the four credit cards’ information from the hotel customers to settle payments of the purchased items as stated in all the charges. 

9.  When he received messages from the courier to his phone, he went to SF Express to pick up his purchased items.  Those items which he had purchased were found by the police on him and during the house search and from his locker. 

Criminal Record

10.  The defendant has a clear record. 

Mitigation

11.  The defendant is now 33 years of age, single, lived with his parents prior to the present offences and his sister is married and moved away from home. 

12.  The defendant worked in a hotel since September 2009 and earned about $18,200 at the time of the offence.  It was due to greediness and stupidity that the defendant committed the present offences.  He had a saving of about $600,000.

13.  He cooperated with the police during the investigation and that saved the police time and resources. 

14.  He acted alone and did not involve any syndicate.  He is willing to pay full restitution. 

15.  The psychiatrist report said that the defendant committed the present offences due to a number of circumstances.  His father was diagnosed to suffer from cancer in early 2019 and planned for his surgery in April 2019.  He was also promoted to a senior position as a captain and he faced increasing work pressure from his job. 

16.  Apart from various letters, the defendant’s parents, sister and brother-in-law are all in court today to support him. 

Sentencing Principle

17.  I agree with the defence that the The Queen v Chan Sui To and Another[1] is not applicable to the present case.  One of the considering factors is the amount in each charge. 

18.  Of the five charges of theft, the sum involved varied from $937 to $3,599, a total of $8,061.  As to Charge 4, payment of $3,199 did not come through. PW1 did suffer a loss as the pair of sneakers as it was delivered and received by the defendant.  The defendant used four different cards, issued at different locations, from Hong Kong, Japan, Mainland and in the States. 

19.  The five offences cover a period of four months, from January 2019 to April 2019.  These charges are not as simple as HKSAR v Li Chi Yat[2]’s case, which was only one stolen credit card with two unsuccessful attempts to buy different items and one successful purchase of an iPhone of about $10,000, all occurred on the same day.

20.  The defendant committed the present offences on a calculated move, it was planned and premeditated.  He abused his position as a senior captain to come into possession of the information of the customers’ credit cards.  When the customers made payment in the hotel, he recorded their credit card details for his online purchases.  What the defendant did was to buy items without using his own money.  He therefore became greedy. 

21.  The psychiatric report told me that he was considered as a hypermaniac and suffered from adjustment disorder with mixed anxiety and depressive mood. He also suffers from specified bipolar and related disorder.  There is evidence to suggest that he suffered from the mild form of autistic spectrum disorder and mixed personality disorders.  Nonetheless, his chance of reoffending is considered to be low as he has a supportive family. 

22.  With all this information in mind, I consider that a total sentence of 20 months after discount is appropriate.  What I need to do is to determine each sentence on each charge first. 

(i)  As to Charge 1 to 3, I consider that a starting point of 12 months is appropriate, reduced to 8 months to reflect the actual one-third discount.

(ii)  As to Charge 4 and 6, the sum involved was $3,199 and $3,599 respectively. I consider that a starting point of 15 months is appropriate. It comes down to 10 months after one-third discount.

23.  I order 2 months from Charge 1, 2 and 3, and 4 months from Charge 6 to run consecutively to Charge 4.  It arrives at a total of 20 months. 

24.  Now, I come to deal with the point of delay.  Today, the prosecution provide a timeline as to the conduct of investigation of this case.  Between April to November 2019, the police have to conduct investigation from the telephone subscribers and credit card companies.  The file then became idle from December 2019 to June 2021 as there were changes of OC case.  It was only in August 2021, the police sent the file to DOJ to seek legal advice.  It then took another two months to prepare further investigation as advised by DOJ.  The defendant was therefore charged on 26 November 2021. 

25.  It is clear to me that the delay in prosecution was not through the fault of the defendant.  I am prepared to give 2 months’ discount to the defendant. 

Sentence

26.  His ultimate sentence is now 18 months.