HKSAR v. CHAN HUNG WAI

DCCC 838/2020

[2021] HKDC 1071

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 838 OF 2020

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REASONS FOR SENTENCE

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1.  The defendant pleaded guilty to the following charges: -

Charge 1 - Burglary

Charge 2 - Possession of an identity card relating to another person

Charges 3-7, 10 and 11 - Obtaining property by deception.

Charges 8 and 9 be left on the court’s file, this court orders both charges are not to be proceeded without the leave from the court.

SUMMARY OF FACTS

Charges 1 and 2

2.  The burgled office located at one of the units in an industrial building in Kwai Chung.  The defendant also lived in one of the units in the same building.

3.  On 29 March 2020, during a police operation carried out at the burgled premises, the police found the stolen items from the bags which were carried by the defendant.  

4.  In the VRI, the defendant said that: -

(1)  He committed the burglary with Ah Fie.

(2)  Ah Fie used a skeleton key to open office (1).

(3)  They ransacked the office and put the stolen items into Deliveroo bag they found in the office.

(4)  The skeleton keys and electric drill belonged to Ah Fei who had left already.

(5)  The Hong Kong identity card belonged to defendant’s friend. He picked it up 3 weeks ago, but did not have his friend’s telephone number for contact.

Charges 3 to 7, 10 and 11 (Obtaining property by deception)

5.  Office 2 was located in the same building.  The company owner put 18 credit cards into a safe which included credit card 1 and 2.

6.  On 1 March, 2020 between 1 to 6 am, office 2’s CCTV had a power outage.  On 5^th March, the company owner noticed unauthorised transactions with the credit cards.  Case was reported.

7.  The defendant admitted that he picked up credit card 2 in the building parking lot and went to Cottex to buy a bed sheet.  After that, he discarded credit card 2.

8.  The police found the Cottex bedsheet during a house search.  All the credit cards transactions took place in 7-11 convenient stores in Mongkok and Yau Ma Tei districts except Charge 5.

Charge	Date	Time	Purchased	Shop	Credit Card	Sum
3	2.3.2020	6:51 am	10 packets of cigarette	7-11 / Portland Street	1	$590
4	2.3.2020	7:01 am	22 packets of cigarette	7-11 /    Tung Choi Street	1	$1,298
5	2.3.2020	12:17 pm	Bed sheets towels	Cottex /  Kwai Chung	2	$605
6	3.3.2020	7:51 am	10 packets of cigarette	7-11 / Shanghai Street	2	$614
7	3.3.2020	10:13 am	10 packets of cigarette	7-11 / Shanghai Street	2	$540
10	3.3.2020	9:44 am	2 packets of cigarette, one bottle of drink	7-11 /   Chang Sha Street	2	$129
11	4.3.2020	1:03 am	Drink, foods and cigarette	7-11 /      Yau Ma Tei	2	$291

CRIMINAL RECORD

9.  The defendant had 27 previous court appearances with 40 convictions.  Seven related to drugs offenses, three convictions of possession of identity cost relating to another person in 1998, 2002 and 2004.  Other offenses including theft, robbery, criminal damage, managing gambling establishment, criminal intimidation, AOABH and assaulting police officer.  One count of burglary in 2017.

MITIGATION

10.  The defendant is now 48 years old.  His mother suffered from diabetics and required his care and attention.

11.  The defendant pleaded guilty at the earliest opportunity which reflects his genuine remorse.  He also provided full admission when he was arrested by the police.  The defendant is willing to provide restitution suffered by the victim.  However, the bank declined the defendant’s offer.

12.  Office 1 suffered no loss for the incident as all the items were recovered

13.  The defendant used to have a stable job with a steady income. However due to the pandemic, his income has decreased.  He committed the present offence out of poverty and greediness.  All the purchase items were for his personal use.  The total amount is HK$4,067.

SENTENCE

Burglary – Charge 1

14.  The proper starting point for sentence of non-domestic premises burglary is 30 months imprisonment after trial.  As stated in Cheng Wai Kai CACC 338 & 339/2007.  The starting point can be adjusted upwards if there are aggravating circumstances such as: -

(1)  The offence is carefully planned it and skillfully executed involving the use of heavy instruments or equipment.

(2)  The offense is committed by two or more people.

(3)  The offence targeted at substantial premises and involve substantial properties.

(4)  The offender is a professional burglar and not just an opportunist.

(5)  The offender has previous convictions, particularly previous conviction of similar nature.

(6)  The offender commits multiple offenses.

15.  In the present case, the defendant together with Ah Fie to burgle Office 1.  Large number of items were stolen including an empty safe, a watch ($3,000), gold ornaments ($30,000), 19 credits cards, 8 Octopus cards and $3,900.  There were also 4 signed blank cheques, the potential lost of the victim company from these stolen blank cheques and credit cards could be substantial.

16.  According to the admission by the defendant, the bundle of skeleton keys and electric drill belonged to Ah Fie who used the skeleton keys to open the door of office 1.  I have opportunity to look at the set of skeleton keys which has about 20 of them with different shapes and sizes, they required certain skills to use them in order to open any doors.  To use those skeleton keys to burglar into office 1, it was a planned burglary.

17.  Besides, the defendant had numerous passed criminal convictions of dishonesty offences.  Taking into account of all the above aggravating factors, I disagree with the defence by adjusting upward for 3 months, I considered an additional 6 months imprisonment is necessary to reflect the culpability of the defendant and gravity of the offense.

Possession of ID card relating to another person – Charge 2

18.  According to the case of Li Chang Li, (2004-2005)  HKCLRT 193, the usual sentences is one of 12 months after trial.  I also noticed that the defendant had three previous similar convictions in 1998, 2001 and 2004.  He should know before the present arrest, he would be charged and faced a period of imprisonment once he was intercepted by police. Nonetheless, he continued to keep the identity card for 3 weeks.  As the courts had said in many occasions said that “identity card is not a collectable item.”  Accordingly, the usual sentence of 12 months should be enhanced by an additional 3 months to serve deterrent purposes.

Obtaining property by Deception (credit card offenses)  –

Charges 3-7, 10-11

19.  As to the 7 charges of using credit cards 1 and 2 to make purchases from several 7-11 convenience stores and one occasion from Cottex to buy a set of bed sheet, the total sum for the 7 charges were $4,067.

20.  When sentencing credit card fraud cases, the Court of Appeal listed out a number of factors to be considered in HKSAR v Chan Sui To (1996)  2 HKCLR 128.

21.  In the recent authority of HKSAR v Li Chi Yat [2019] HKCA  458, the court said that it is important to emphasize that the sentencing authorities in relation to credit card fraud cases recognize that small scale credit card offenses cannot be subject 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.

22.  In the present case, the overall added amount is $4,067.  They are in a range from $129 to $1,298.  They cannot be classified as substantial amount.  The defendant used the 2 credit cards over a period of 2 days.  Most of the items were cigarette, a total of 58 packets.

Charge 3: $590

Charge 4: $1,298

Charge 5: $605

Charge 6: $614

Charge 7: $540

Charge 10: $129

Charge 11: $291

23.  The potential loss of the 2 credit cards could be substantial as the credit limits aggregated to $734,000.

24.  I consider the overall sentence for the multiple offences for $4,067 should be one of 15 months as a starting point rather than the usual 3 years starting point.  

25.  However, this court still need to determine the sentence for each charge.  To this end, I consider that starting point for Charges 3, 5, 6, 7, 10 and 11 to be 9 months, given 1/3 deduction, it comes down to 6 months. Starting point for Charge 4 to be 15 months, 1/3 discount, it arrives at 10 months.  

26.  Since the bank refused the defendant’s restitution offer, he is not entitled to any further discount.  All of the sentences for 3 to 7, 10 and 11 to be served concurrently which arrives at a total of 10 months.

CONCLUSION

27.  Charge 1: - Burglary, starting point is 30 months, adjusted 6 months upwards to reflect the aggregating factors.  A total of 36 months, it reduces to 24 months after 1/3 discount.

28.  Charge 2: - 15 months reduced to 10 months by 1/3 discount, 3 months to serve consecutively to Charge 1.

29.  Charge 3-7, 10 and 11: - 5 months from Charges 3 to 7 and 10 to 11 to serve consecutively to Charge 1.

30.  The total sentence is 32 months.  The defendant is to serve a term of 2 years 8 months.