HKSAR v. CHIANG KAM WING AND ANOTHER

DCCC 214/2021

[2021] HKDC 1563

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 214 OF 2021

________________________

________________________

________________________

REASONS FOR SENTENCE

________________________

1.  D1 and D2 appeared before me facing a Charge Sheet comprising 3 charges as follows.

2.  Charge 1 (against D1 only)  is Theft, contrary to section 9 of the Theft Ordinance, Cap 210.  Particulars are that D1, on a day unknown between 23 August 2020 and 27 August 2020, both dates inclusive, in Hong Kong, stole 3 bank cards, property belonging to Ho Lai Kun.

3.  Charge 2 (against both defendants)  is Possession of identity cards relating to other persons, contrary to section 7A(1A)  of the Registration of Persons Ordinance, Cap 177.  Particulars are that they, on 27 August 2020, at Room 548, Whole Sunshine International Hotel, 5^th Floor, Block A, Chungking Mansions, Nos 36-44 Nathan Road, Tsim Sha Tsui, Kowloon, in Hong Kong, without lawful authority or reasonable excuse, had in their possession 10 Hong Kong Identity Cards relating to 10 different named persons.

4.  Charge 3 (against both defendants)  is Handling stolen goods, contrary to section 24 of the Theft Ordinance, Cap 210.  Particulars are that they, on or about 27 August 2020, in Hong Kong, dishonestly received certain stolen goods, namely 18 credit cards, 3 bank cards, 3 cheque books, 7 Home Visit Permits, one Exit-entry Permit for Travelling to and from Hong Kong and Macau, 3 driving licences, one staff card, one medical card, two passports and one Certificate of Registration of Electrical Worker, property belonging to others, knowing or believing the same to be stolen goods.

5.  D1 pleaded guilty to all 3 charges.  D2 pleaded guilty to Charges 2 and 3.

Facts admitted by D1 and D2

6.  On 27 August 2020, at about 1:07 pm, near the Whole Sunshine International Hotel, Chungking Mansions, TST, police intercepted D1 for enquiry.

7.  Upon body search, a CHB bankcard in the name of Ho Lai Kun (E18)  was found in D1’s trouser pocket.  D1 was arrested for theft.  Under caution, D1 stated that he picked up the credit card a few days before, but he could not recall the location.

8.  Around 1:22 pm the same day, D1 was brought back to Room 548 of the hotel for investigation.  D2 opened the door of the room from the inside.  She was alone and was a registered guest of the room.

9.  Police found some personal identifications on a desk in the room, not in the name of D1 or D2.  Under caution, D1 said that he used the identity cards and credit cards to transfer money.

10.  From the surface and the drawers of the desk, the police found the two other bank cards under Charge 1 and all the items under Charges 2 and 3 except the 3 cheque books under Charge 3.  For the 3 cheque books, they were recovered on a chair inside the hotel room.

11.  D1 was arrested again.  Under caution, D1 stated that all the identity cards and credit cards found were stolen by him, for the purpose of money transfer, and other persons were not involved.

12.  Upon deeper body search of D1, a “Samsung” mobile phone (Phone 1)  was seized.

13.  A “Huawei” mobile phone (Phone 2)  and a “Mi” mobile phone (Phone 3)  (later known as mobile phones used by D2)  were found from the top of a bedside cabinet in the hotel room.

14.  D2 was arrested.  Under caution, D2 stated that she had rented the hotel room for 3 days; that she lived in it with her boyfriend known as “Ah Wing”.

15.  The police were able to confirm with the respective owners that some of the recovered property were either lost or stolen.

16.  In particular, Ho Lai Kun (victim of Charge 1)  confirmed that on 23 August 2020, he found his wallet and contents (including the 3 bank cards under Charge 1)  missing from his rucksack.

17.  Police examined Phones 1-3 and discovered:-

(a)  Some photos of HKID cards were found in Phone 1, including the photos of some of the HKID cards recovered;

(b)  Some photos of HKID cards were found in Phone 2, including the photo of one of the HKID cards recovered (that of Leung Kai);

(c)  A video clip which captured the HKID card of Leung Kai was found in Phone 2; and

(d)  Some photos of HKID cards were found in Phone 3, including the photos of some of the HKID cards recovered.

Cautioned interviews

18.  In D1’s cautioned VRI conducted on 28 August 2020, D1 stated:-

(a)  He picked up the bank card of Ho Kai Lun (ie E18)  three to four days previously;

(b)  He had lived in Room 548 together with D2 for about 3 days; he paid for the room by cash;

(c)  He was not acquainted with some of the persons whose identity documents were recovered by the police; and

(d)  Phone 1 belonged to him.

19.  In D2’s cautioned VRI conducted on 28 August 2020, D2 stated:-

(a)  About 3 to 4 days previously, she booked the hotel room via “Agoda”; she kept the only key to the room;

(b)  She had been acquainted with D1 since 2019; D1 was her boyfriend and she cohabited with him;

(c)  The HKID cards, credit cards and cheque books recovered from the room were brought there by D1;

(d)  Phone 2 belonged to D1 and was lent to her; and

(e)  Phone 3 belonged to her.

20.  D1 now admits he stole the 3 bank cards under Charge 1.

21.  D1 and D2 now admit they were in joint possession of the 10 identity cards listed in Charge 2.

22.  D1 and D2 now admit they jointly received the items listed in Charge 3, knowing or believing they were stolen goods.

Criminal records

23.  D1 has 6 previous convictions 5 of which are theft-related for which he had been sentenced in May 2016 to 4 years and 9 months’ prison term.

24.  D2 has 8 previous convictions 2 of which (recorded in 2001-2002)  were for Theft Ordinance offences.

Antecedents

25.  D1 is aged 41 (40 at the time of the offences), educated to F5 level, unemployed, and was living with girlfriend.

26.  D2 is aged 39 (38 at the time of the offences), educated to F5 level, unemployed, was living with her boyfriend.

Mitigation

D1

27.  Mr Samson Hung of counsel assigned by the Director of Legal Aid mitigated on behalf of D1.  The following is a summary of the mitigation submissions.

28.  D1 separated from his wife in 2016 and started cohabiting with D2 in about 2019.  Out of this relationship, D1 gave birth to a son while in remanded custody.  Currently, the one year old son is living in a foster home.

29.  Prior to his remand, D1 has worked as a cook for 2 years on a casual basis earning about $10,000 a month.

30.  Mr Hung submits that Charge 1 was a theft by finding relying on the one statement under caution that one of the 3 bank cards subject of the charge was picked up.  Despite indication from the court that it would have some difficulty accepting this submission in light of all the evidence, Mr Hung advised the court that D1 will not be giving evidence.

31.  Mr Hung also submits that at least 7 of the HKID cards under Charge 2 could have been the subject of Charge 3 because there are 7 common victims between Charges 2 and 3.  With the concession of the prosecution that the other 3 HKID cards under Charge 2 were stolen property, Mr Hung submits that they could also have been the subject of Charge 3.  In this light, Mr Hung asked for partly concurrent sentences in relation to those 2 charges.

32.  Mr Hung asked the court to give D1 his 1/3 discount and to consider the totality principle and to order part of the sentences to run concurrently with one another.

D2

33.  Mr Enzo Chow of counsel assigned by the Director of Legal Aid mitigated on behalf of D2.  The following is a summary of the mitigation submissions.

34.  D2 has two previous marriages and is a widow.  She has previously worked as a saleslady, waitress and receptionist.  D2 has two sons (16 and 7)  out of previous marriages.  They are being taken care of by their respective grandmothers.

35.  D2 has lately given birth to a third son while in remanded custody. This baby child has just turned one year old.  He is in the care of foster parents.

36.  At the time of the offences, D2 was being taken care of by D1 who paid for all her expenses.  D1 asked her to rent the hotel room as their residence. D2’s involvement was only in renting of the room and keeping the stolen items.

37.  In relation to Charge 2, Mr Chow submits that, in the absence of exceptional circumstances, the appropriate sentence after plea for possession of one identity card relating to another should be 12 months’ imprisonment irrespective of whether the offender was lawfully staying in Hong Kong, and should be 15 months’ imprisonment where the identity card has been displayed or used for seeking illegal employment or extending the period of stay in Hong Kong: HKSAR v Li Chang Li, HCMA 935A/2004.  In HKSAR v Ng Ah Shan, CACC 138/2017, the starting point of 24 months for possession of 9 identity cards relating to others was not disturbed on appeal against sentence.  Mr Chow asked this court to adopt a similar starting point.

38.  In relation to Charge 3, by referring to a number of authorities, Mr Chow submits that an appropriate starting point for handling credit cards may be 3 years’ imprisonment.

39.  Mr Chow submits that Charges 2 and 3 arose from the same incident and that the nature of the two charges are very similar.  Mr Chow went further by saying that the criminal acts under the two charges might have been covered by one single charge.  Mr Chow asked that the sentences on Charges 2 and 3 be made substantially if not wholly concurrent.  Mr Chow also reminded the court to consider the totality principle.

40.  Mr Chow asked the court to take into account the special relationship between D1 and D2 and that D2 committed the offences because of an emotional factor.

41.  Mr Chow submitted two mitigation letters written in Chinese respectively by D2 and D2’s mother.  The contents are generally that D2 committed the offences for economic reasons and out of stupidity and is remorseful and promises not to re-offend and she hopes for a lenient sentence in order to re-unite with her family earlier.

Sentences

42.  I do not accept the offence subject of Charge 1 is theft by finding.

43.  For Charge 1 against D1, I note the subject matters of the charge are not credit cards but bank cards.  I therefore adopt a lower starting point of 18 months’ imprisonment.  D1 is a repeated offender and for that the starting point will be enhanced by 3 months to 21 months.

44.  For Charge 2 against D1 and D2, I adopt an initial starting point 24 months’ imprisonment.  For the aggravating factor of acting in concert, the starting point is increased to 27 months.  From the totality of the evidence against him including not least his own admission, D1 is the mastermind of the pact.  For that his starting point will be further enhanced to 30 months.

45.  For Charge 3 against D1 and D2, because of the large amount of not only credit cards but also other identity-related travel documents such as Home Visit Permits and Passports, I adopt an initial starting point of 3 years 9 months’ imprisonment.  For the aggravating factor of joint enterprise, the starting point is increased to 4 years.  From the totality of evidence against him, D1 is the mastermind of the pact.  For that and for his repeated offender status, his starting point will be further enhanced to 4 years 3 months.

46.  The prosecution could have placed the criminal activities under Charge 2 and Charge 3 into one single charge of handling but they chose not to.  They are quite entitled to do that.  One obvious reason why they did so may be because one could do a lot more with an ill-gotten HKID card than with the other stolen property recovered in this case; hence an extra layer of criminality must be reflected by a separate charge.

47.  Both defendants pleaded guilty in good time and they will be given their 1/3 discount in sentence.  There are no other valid mitigating factors.

48.  Charge 1 stands completely separate from the rest and subject only to totality, its sentence should run wholly consecutively to the other sentences imposed on D1.

49.  For Charges 2 and 3, as said, prosecution laid separate charges to reflect the extra layer of criminality and so some degree of consecutiveness in the sentences is to be expected.  This is despite the fact that the offences may be said to have been committed at about the same time (note the different descriptions of the date and place of offence in the two particulars of offences).

50.  I will impose the following individual sentences.

(Defendants, please stand)

51.  For Charge 1 against D1, the sentence is 14 months’ imprisonment.

52.  For Charge 2 against D1 and D2, the sentence for D1 is 20 months’ imprisonment; the sentence for D2 is 18 months’ imprisonment.

53.  For Charge 3 against D1 and D2, the sentence for D1 is 34 months’ imprisonment; the sentence for D2 is 32 months’ imprisonment.

54.  Taking into account totality, for D1, I order 3 months of the sentence on Charge 1, and 5 months of the sentence on Charge 2, are to run consecutively between themselves, and then to run consecutively to the sentence on Charge 3, making an aggregate sentence of 42 months’ imprisonment.

55.  As for D2, I order that 3 months of the sentence on Charge 2 is to run consecutively to the sentence on Charge 3, making an aggregate sentence of 35 months’ imprisonment.