HKSAR v. LAU CHUN NING JOHNNY

DCCC 767/2020

[2022] HKDC 101

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 767 OF 2020

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REASONS FOR SENTENCE

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1.  The defendant is convicted on his own plea and agreement to the Summary of Facts to three charges of theft, contrary to section 9 of the Theft Ordinance, Cap 210 (1^st, 4^th and 8^th charges)  and three charges of obtaining property by deception, contrary to section 17(1)  of the Theft Ordinance, Cap 210 (7^th, 9^th and 11^th charges).

2.  Upon the application of the prosecution, it is ordered that 2^nd, 3^rd, 5^th, 6^th and 10^th charges be left on the court file and not to be proceeded with without leave of the court. 

Facts

3.  Defendant and the victim, PW1, both serving as traffic police, were allocated adjacent lockers in Sheung Shui Police Station.  PW1 placed his wallet (containing credit cards)  inside a backpack and put the backpack in the locker whilst on duty.  PW1 did use his Hang Seng VISA card (card A)  with credit limit of $280,000 on 11 February 2019, after which he put the same in his wallet.  He found the same missing on 16 February 2019. 

4.  In March 2019, PW1 realised 2 unauthorised transactions using card A were made on 17 February 2019 at 1533 hours purchasing $6 goods from McDonald’s restaurant in Mong Kok and similarly the same day at 1638 hours purchasing $6 goods from McDonald’s restaurant in Sha Tin. 

5.  At the material time of 1^st charge, the defendant stole card A from PW1. 

6.  On 22 February 2019, PW1 was issued a replacement card with the same $280,000 credit limit (card B).  He placed the same in his wallet. 

7.  On 25 February 2019, PW1 found card B (originally in his wallet)  had been replaced with card A and there were a number of unauthorised transactions making use of card B.  He terminated card B on 4 March 2019. 

8.  PW1 was on duty from 2145 hours on 5 March 2019 to 0730 hours on 6 March 2019.  He placed his wallet (containing card A)  into the locker on 5 March 2019 and got changed for work. 

9.  When PW1 was about to get changed off-duty on 6 March 2019, he checked his wallet (which was placed inside the locker)  and found card A being replaced with card B. 

10.  At the material time of 4^th charge, the defendant stole card B from PW1. 

11.  Bank records reveal the following 7 unauthorised transactions using card B:-

(a)  On 26 February 2019, purchasing goods worth $6 from McDonald’s restaurant in Tai Po and in Sha Tin. On the same day, purchasing an iPhone worth $9,899 from Apple Store in Sha Tin.

(b)  On 28 February 2019, purchasing goods worth $11 from McDonald’s restaurant in Mong Kok, followed by purchasing an iPhone worth $9,899 from Apple Store in Tsim Sha Tsui.

(c)  On 2 March 2019, purchasing $6 goods from McDonald’s restaurant in Tai Po, followed by purchasing an iPhone worth $9,899 from Apple Store in Sha Tin.

12.  CCTV captured defendant making the purchases in relation to 5^th to 11^th charges. 

13.  Upon arrest of the defendant, under caution, he said inter alia in the video-recorded interview that upon promotion to rank of police sergeant on 18 January 2019, he was assigned another locker on the 2^nd floor of the police station while locker of PW1 remained on the 4^th floor of the police station. 

14.  Representative of Apple Store confirmed that their staff members would not allow the transactions if they knew the person who presented the credit card was not the genuine holder/entitled and authorised to use the credit card. 

15.  At the material time of 8^th charge, defendant obtained the goods from McDonald’s restaurant by fraudulently using card B.  At the material times of 7^th, 9^th and 11^th charges, defendant dishonestly obtained an iPhone (for each offence)  from relevant Apple Stores by falsely representing that he was the genuine holder of card B and was authorised and entitled to use the said credit card for payment, with the intention of permanently depriving the relevant Apple Store by deception. 

Criminal Record

16.  Defendant has a clear record.

Mitigation

17.  Defence counsel submitted that though defendant stole 2 credit cards from the victim, both account relates to the same account and therefore has the same credit limit.  She said that card B had been returned to the victim and card A had been disposed of by the defendant.  It is also submitted that defendant returned the valid card B to the victim in return for the ineffective card A because defendant felt guilty for what he did and decided he must not do so again.  Defence counsel said therefore potential for further loss is non-existent even if defendant was not arrested.  She submitted the credit limit of the card is immaterial in the sentencing of the defendant. 

18.  Defence counsel also submitted that the theft under the 1^st charge was opportunistic in nature, and that for the 4^th charge, defendant used the preset password in opening the locker of the victim when defendant stole the card B from the victim and replaced it with card A and vice versa later. 

19.  Defence counsel urged this court to consider sentencing the defendant taking an unusual sentencing course in view of the exceptional circumstances of the case.  It is submitted that defendant knew the victim way back when they were in secondary school and defendant committed these offences just a month after his hard-earned promotion against his long-term good friend. 

20.  She pointed out the various peculiar features in the way that defendant committed the offences in this case and said that it was more than absurd, irrational and nonsensical for a police sergeant to do something like this. 

21.  Defence counsel said at the time of the offence, defendant was under pressure to get married.  He was also recommended by the selection board to a position of sergeant in January 2019.  She said that the annual report forms for the past 10 years as well as the commendation letters show that the defendant had high ratings in all assessments and appraisal reports, and that he was described as a mature officer with good leadership abilities and a dedicated policeman.  

22.  Defence counsel said because of the commission of these offences, he lost his job and was left with shame and remorse.  She also referred this court to the mitigation letters from the defendant, his family members, his former colleagues and long-term friends. 

23.  The victim in this case has forgiven the defendant and pleaded leniency for the defendant. 

24.  It is also submitted the defendant’s wife was a flight attendant who was also arrested by ICAC and was charged with offences of conspiracy for an agent to accept advantage.  It is said that if the wife is convicted, a custodial sentence is warranted and therefore defendant is very much concerned of the welfare of their 16-month old infant son as his mother is unable to look after the child. 

25.  Defence counsel urged this court to accept what Dr Yip, the private psychiatrist said in the 2 reports prepared after consultation. 

26.  She also submitted that full restitution has been made.  She also referred this court to the various authorities: HKSAR v Leung Pui Shan, CACC 317/2007; HKSAR v Yeung Kwun Kuen, CACC 475 & 476/2012; HKSAR v Dhaliwal Jaspreet Kaur [2019] 5 HKLRD 428; HKSAR v Ma Ke Zong, HCMA 534/2013; 香港特別行政區 訴 李卓軒, ESCC 2438/2020; 香港特別行政區 訴 王臻, HCMA 467/2010. 

27.  Defence counsel further submitted that defendant is never a greedy person and is always eager to take on responsibility.  It is said that since the arrest, defendant had deep reflection on himself and had insight as to how he should act in the future and that he is prepared to face the legal consequence in this case. 

28.  She urged this court to consider suspended sentence in view of the exceptional circumstances of the case. 

29.  She also asked that all sentences for the obtaining property by deception charges be made concurrent to each other and that sentence for the theft charges also be made concurrent.  She also asked this court to consider the totality principle in this case and treat the defendant with leniency. 

Discussion

30.  Before sentencing, this court has carefully considered all submissions by defence counsel, the mitigation letters, commendation letters, police annual report forms, the psychiatric reports of the defendant prepared by the private psychiatrist, Dr Yip, and the legal authorities referred to this court.  This court has also called for a psychological report and a psychiatric report on the defendant and considered these reports before sentencing. 

31.  Firstly, coming to the mitigation letters before the court.  These letters all praise the defendant for being a filial son and a loving husband, a responsible, hardworking, helpful and loving person.  They also said that the commission of these offences by the defendant were due to defendant’s inability to cope with the stress from work and from supporting the family financially. 

32.  Then coming to the medical reports, the report from the clinical psychologist, Jim Cheung and the psychiatric report from Dr Dorothy Tang. Defendant first sought psychiatric services from Dr Yip in March 2019 after he was arrested for the offences in this case.  Defendant told Dr Yip that after he was arrested, he felt huge shock and shame, low mood anxiety, loss of volition, social withdrawal, decreased energy, poor sleep, decreased concentration and negative thought.  It was at this stage that Dr Yip diagnosed defendant suffering from adjustment disorder. 

33.  Dr Yip then referred defendant to public hospital for follow-up and he was reported to have received 2 sessions for psychological services but defendant discontinued because he thought that was no longer required and he stopped the follow-up in June 2019.  He again sought psychiatric services in June 2021 due to mood deterioration in view of the upcoming court hearing and his wife’s case with the ICAC. 

34.  Dr Yip again saw the defendant on 21 June 2021 and diagnosed him of having a moderate depressive episode.  He prepared a supplemental psychological report on the defendant. 

35.  In both of these reports, Dr Yip said commission of the offences by the defendant in this case was largely due to the mental decomposition in the defendant who had poor stress coping strategy when he got promoted to be a sergeant.  Defendant himself admitted to Dr Yip that he took the credit card of the colleague to buy things to free up money to alleviate stress.  Obviously he was referring to financial stress. 

36.  According to the defendant’s wife, although the defendant had weight loss and was irritable at home, he was able to work and socialise with friends. 

37.  Defendant himself told Dr Tang, the psychiatrist that the purpose he used card B to buy food was to check if the card B was working.  Later, he bought few iPhones and resold them for money. 

38.  He also admitted to Mr Cheung, the psychologist, of using the stolen credit cards to buy food items which cost less than $50 in total and also 3 iPhones which cost about $30,000.  He told Mr Cheung that he did not consider the consequences of his acts when he was committing the offences. 

39.  Mr Cheung opines that the defendant is quite egocentric at times and focus on his own personal needs at the expense of others.   Mr Cheung finds the defendant under situational adjustment issues around the time of the index offences.  He says that the excitement associated with stealing and its corresponding stress-relieving property contributed to part of the motive.  There is also an additional intention for opportunistic monetary gain when he stole the credit card to buy and resell several iPhones. 

40.  Mr Cheung concluded that the defendant had limited insight and emotional awareness as to how to cope with his own stress and negative emotions effectively.  He said that the index offences could be attributed partly to his maladjusted coping of stress and partly towards opportunistic monetary gain. It was said that the risk of him reoffending is low. 

41.  Whilst this court is willing to accept that at the time of the commission of the offences, the defendant was partly under the influence of mental stress or the maladjusted way of handling his mental stress from his promotion and financial stress, part of the motive was obviously due to the greed for monetary gain relieving his financial stress.  This court is not willing to accept defendant’s contention that he only committed the offence on impulse or that as a law enforcement officer, he did not realise the consequences of his own acts. 

42.  This court accepts that defendant has a clear record and the commission of these offences are something out of character, that he was a hardworking and responsible father, husband and police officer in the past and that the chance of reoffending is low. 

43.  This court noted that when the defendant returned card B to the victim in exchange for card A, card B was already invalidated as the victim had reported loss by that time.  Card B, the one that is returned, is therefore unusable at the time already.  Had the defendant been feeling guilty as to what he has done, he should simply destroy the invalid card B and not return the invalid card B and/or take the card A or any card further from the victim.  There is also no evidence to show that at the time defendant was aware that card that he took in return for card B was in fact the same card A that he stole from the victim under the 1^st charge. 

44.  The defendant in the Yeung Kwun Kuen case was a 21-year-old bar waiter of a clear record.  He was suffering from obsessive compulsive disorder and had been receiving psychiatric treatment before the commission of the offences.  He stopped medication when his grandmother died, before the commission of the offences. 

45.  The defendant in the Leung Pui Shan case was aged 19 at the time and was a person of good character at the time of the offence.  The court in that case accepted that the commission of the offence was initially motivated by the thought to regain the affection of her boyfriend, whilst in our case here defendant is a mature 34-year-old police sergeant at the time of the offence who did not have history of mental issues prior to the time of the offence. 

1^st charge

46.  According to the agreed Summary of Facts, defendant stole card A which was originally placed in the wallet of PW1 which was placed inside his backpack.  Even accepting defendant’s present contention that defendant stole card A whilst the backpack was placed on the bench in the changing room, the culpability of the defendant was obviously more serious than a theft-by-finding case.  It involved defendant having to retrieve the wallet from the backpack and later took out the credit card from the wallet and placing the wallet in the backpack afterwards.  These acts would delay the victim’s discovery of the loss of the credit card. 

47.  The appropriate sentencing starting point for this charge is 12 months’ imprisonment.  The culpability of the defendant however is mitigated by reason of his maladjusted stress issue and for this reason this court is adjusting the sentencing starting point downwards to 10 months’ imprisonment. 

48.  Defendant has pleaded guilty and is therefore entitled to one-third sentencing discount.  He is therefore sentenced to 6 months and 20 days’ imprisonment for this charge. 

4^th charge

49.  Defendant committed this offence not less than 6 days after he committed the 1^st charge offence.  He replaced card B with the card A after he stole card B.  Again, this replacement would delay the apprehension by the victim of the loss of card B.  The modus of commission of this offence is more sophisticated than the 1^st charge offence.  It involved defendant taking the rucksack from the locker using the preset lock combination code. There is a certain degree of planning and commission of this offence is not opportunistic. 

50.  The appropriate sentencing starting point for this charge is 12 months’ imprisonment, the same is similarly reduced to 10 months’ imprisonment by reason of his stress maladjusted issue.  He is entitled to one-third sentencing discount by reason of his guilty plea and therefore is again sentenced to 6 months and 20 days’ imprisonment for this charge. 

8^th charge

51.  The value of goods is $11.  The defendant committed this offence no less than 3 days after the 4^th charge offence.  The credit card limit is $280,000. The defendant used the credit card he stole from the victim in the commission of this offence which makes the nature of this theft more serious.  He committed this offence to check if credit card B worked. 

52.  Appropriate sentencing starting point is again 12 months and similarly he is sentenced to 6 months and 20 days’ imprisonment for this charge. 

7^th charge

53.  In the case of HKSAR v Lam See Chung Stephen [2013] 5 HKLRD 242, it is said that 3 years’ imprisonment or less sentencing starting point for a simple case of counterfeit credit card fraud also apply to fraudulent use of stolen genuine credit cards. In this case there is no aggravating feature as in the indicated fraud.  The amount of actual loss is $9,899 but the potential loss being the credit card limit is $280,000. 

54.  In this case, the defendant was a police sergeant.  There was no mention of the rank of the victim who was serving with the defendant in the same traffic squad.  The locker of the victim remained on the 2^nd floor while the locker of the defendant after promotion is on the 4^th floor. As such, there is no clear evidence of abuse of position which no doubt will amount to an aggravating feature in sentencing. 

55.  The appropriate sentencing starting point here is 2 years and 6 months’ imprisonment.  The same is discounted to 2 years 1 month’ imprisonment by a reason of defendant’s stress maladjusted issue at the time of the offence.  Defendant has also fully repaid the actual loss to the victim and is entitled to sentencing discount of 1 month and 20 days’ imprisonment.  Therefore defendant is sentenced to 15 months’ imprisonment for this charge after his guilty plea. 

9^th charge

56.  Defendant committed a similar offence to the 7^th charge 2 days later, using the same credit card B involving another iPhone of similar value, $9,899.  Defendant is similarly sentenced to 15 months’ imprisonment for this charge. 

11^th charge

57.  Defendant committed this offence using the same card B 2 days later after the commission of the 9^th charge offence, buying another iPhone worth $9,899.  Defendant is similarly sentenced to 15 months’ imprisonment for this charge. 

58.  In summary, defendant stole card A on or before 16 February 2019 (1^st charge), and stole card B on or before 25 February 2019 (4^th charge)  followed by using card B in purchasing iPhones on 3 dates, 26 February (7^th charge), 28 February (9^th charge)  and 2 March (11^th charge).  Defendant also tested on 28 February if card B was working before he bought the iPhone by buying $11 worth of goods at McDonald’s restaurant (8^th charge).  The commission of these offences occur over a period of no less than 2 weeks.  

59.  This court now considers the totality principle.  Having regard to the overall culpability of the defendant and after considering also the stress maladjusted issue, the actual loss suffered by the victim is only around $30,000 and the potential loss is $280,000, the just and proportionate total sentence after plea for the defendant is 22 months’ imprisonment. 

60.  Accordingly, sentences for the 8^th, 9^th and 11^th charges are to run wholly concurrent to each other, 1 month of which to run consecutive to the sentence for the 7^th charge.  3 months in each of the sentence in the 1^st and 4^th charge is to run consecutive to the sentence for the 7^th, 8^th, 9^th and 11^th charges, the rest to run concurrent. 

61.  The defendant in this case is therefore sentence to a total of 22 months’ imprisonment.