HKSAR v. SO WAI KI, RICKY

DCCC 746/2023

[2024] HKDC 1710

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 746 OF 2023

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REASONS FOR SENTENCE

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1.  Mr So pleaded guilty before me to two charges on a Charge Sheet as follows.

2.  Charge 1 is Using a false instrument, contrary to section 73 of the Crimes Ordinance, Cap 200.  Particulars are that he, on 18 February 2023, in Hong Kong, used an instrument, namely a cheque numbered 001436 with account number 015-228-40-4001188 held with The Bank of East Asia, Limited, which was, and which he knew or believed to be, false, with the intention of inducing the staff member of the said The Bank of East Asia, Limited, to accept it as genuine, and by reason of so accepting it to do or not to do some act to the said staff member’s own or any other person’s prejudice.

3.  Charge 2 is Possession of a false instrument, contrary to section 75(1)  of the Crimes Ordinance, Cap 200.  Particulars are that he, on 18 February 2023, in Hong Kong, had in his custody or under his control instrument which was, and which he knew or believed to be, false, namely a cheque numbered 001471 with account number 015-228-40-4001188 held with The Bank of East Asia, Limited, with the intention that he or another would use it to induce somebody to accept it as genuine, and by reason of so accepting it to do or not to do some act to his own or any other person’s prejudice.

Facts admitted by Mr So

4.  On 18 February 2023, at about 9:20 am, at a Bank of East Asia, Limited, branch counter, Mr So presented a cheque numbered 001436 drawn in favour of “SO WAI KI” in the sum of $500,000 on the account numbered 015-228-40-4001188 held in the name of Hair Angle with The Bank of East Asia, Limited (“Cheque 1”); he asked the teller to cash it.  Mr So was asked for his HKID card for record purpose.  Mr So produced his HKID card to the teller.  As the numeric figures of the amount on the cheque do not match with the written words, the teller sought assistance from a colleague.

5.  The colleague took the opportunity to call PW1, one of the partners of Hair Angle, a salon, to make enquiry as to whether PW1 had issued Cheque 1.  It was confirmed that PW1 had not so issued.  Meanwhile, Mr So left the bank without taking back his HKID card.

6.  Shortly after PW1 was called by the bank, he came to know that the salon had been burgled.  He discovered that two cheque books were missing from the drawer of the cashier.

7.  Later the same day, at about 5:45 pm, Mr So was intercepted for enquiry.  Upon search, a cheque numbered 001471 drawn on the same account in favour of “So Wai Ki” (in Chinese)  in the sum of $300,000 (“Cheque 2”)  was found in the pocket of his pants.

8.  Mr So was arrested and cautioned.  In the subsequent cautioned VRI, Mr So stated:-

(a)  Lam Chai gave him the two cheques earlier in the day;

(b)  Lam Chai wrote his (Mr So’s)  name on the cheque(s);

(c)  Lam Chai suggested to cash the two cheques;

(d)  They agreed to share the money cashed equally between themselves;

(e)  He tried to cash one of the cheques but in vain; he kept the other cheque in his pants’ pocket;

(f)  He left the bank because he had waited too long for the bank staff to cash the cheque; he was afraid the bank staff might find the cheque problematic; and

(g)  He was the man whose image was captured by the bank CCTV.

9.  Mr So now admits that at the material time, he knew or believed that Cheque 1 was false and he used it with the intention of inducing the staff member of The Bank of East Asia, Limited, to accept it as genuine, and by reason of so accepting it to do or not to do some act to the said staff member’s own or any other person’s prejudice.

10.  Mr So now also admits that at the material time, he knew or believed that Cheque 2 was false and he had it in his custody or under his control with the intention that he or another would use it to induce somebody to accept it as genuine, and by reason of so accepting it to do or not to do some act to his own or any other person’s prejudice.

Criminal record

11.  Mr So has 44 previous convictions, 30 of which were related to offences of dishonesty.  He was last sentenced on 4 April 2023 to 4 months’ imprisonment for a theft from vehicle.

Antecedents

12.  Mr So is aged 46 (44 at the time of the offences), graduated from primary school, was working as a transportation worker at the time of arrest. He was last discharged from prison on 12 May 2023.

Mitigation

13.  Mr Albert Cheung of counsel assigned by the Director of Legal Aid mitigated on behalf of Mr So.  The following is a summary of the mitigation submissions.

14.  The biggest mitigation is the pleas of guilty.

15.  At the time of arrest, Mr So was working as a transportation worker earning $15,000 per month.

16.  Mr So’s elderly parents are in poor health and, though living apart from Mr So, rely on him financially.

17.  Mr So committed the present offences out of foolishness.

18.  Mr So was cooperative with the authorities and pleaded guilty early.  No one suffered loss in the present case.

19.  Mr So understands the seriousness of the offences and has learnt his lesson and asks the court to be as lenient as possible so he can return to work and look after his elderly parents.

20.  Mr Cheung submitted the cases of HKSAR v Sher Jamal Hyder, CACC 215/2022, and HKSAR v Wong Yuk Wah, Wallace [2023] HKDC 1388.

21.  Mr Cheung reminded the court of the unsophisticated nature of the offences; in particular, Mr So was not smart and used his own HKID card in the commission of the offence subject of Charge 1.

22.  Mr Cheung acknowledged the aggravating factors of Mr So’s bad criminal record and the commission of the present offences whilst on police bail for a case with police reference number Y/22033021.

23.  Upon enquiry by the court, Mr Cheung suggested a starting point of no more than 3 years’ imprisonment for each offence and that the sentences be served concurrently because the offences were part of the same scheme.

24.  Upon enquiry by the court, Mr Cheung submitted that despite the fact that under caution, Mr So admitted that another person Lam Chai was involved, Mr So should not be dealt with as a member of joint enterprise because he has not been charged as such.

Sentence

25.  I have examined the photographs of the two cheques provided by the prosecution without objection from the defence.  They have since been returned.

26.  The maximum penalty for both offences is 14 years’ imprisonment.

27.  There is no tariff sentence for either of the two offences.  However, as a matter of principle, the using offence should attract a higher sentence than the possession offence.

28.  The facts of Charge 1 are akin to attempted theft of a chose in action. The facts of Charge 2 are akin to handling a stolen property.  As such, the previous convictions of Mr So for theft and other dishonesty-related offences are all relevant to the present sentencing exercise.  There were 30 such previous similar convictions.

29.  I bear in mind the dual aggravating factors of Mr So’s awful criminal record and of his commission of the present offences whilst on police bail.

30.  I take into account the potential loss under Charge 1 was $500,000 while that under Charge 2 was $300,000.

31.  But I also take into account the unsophisticated nature of the offences and that no loss has been suffered by the victim except the loss of the two stolen cheques because once they become a subject of forgery they become exhibits and will in due course be forfeited.

32.  I accept the submission that Mr So should not be dealt with as a member of joint enterprise because he has not been charged as such.

33.  All things considered, for Charge 1, I adopt a starting point of 24 months’ imprisonment and for Charge 2, I adopt a starting point of 18 months’ imprisonment.

34.  Because of the dual aggravating factors, I add a period of 6 months to each starting point.

35.  Mr So pleaded guilty in good time and for that he shall be entitled to the full 1/3 sentencing discount.  There are no other mitigating factors of weight to justify another sentence reduction.

36.  I accept for the reason submitted that the two sentences should be served concurrently.

(Mr So, please stand)

37.  On Charge 1, the sentence is 20 months’ imprisonment.

38.  On Charge 2, the sentence is 16 months’ imprisonment.

39.  I order that the sentences be served concurrently.