HKSAR v. KONG HEI MAN

DCCC 1073/2014

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 1073 OF 2014

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Reasons for Sentence

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1.  Defendant, on the last occasion you pleaded guilty, and I adjourned for a community service order report. I will in a moment expand why I called for such a report.

2.  You pleaded guilty to four out of five charges. The 1st charge was a theft charge that took place on 16 March 2014. It was the theft of the victim’s credit card.  The explanation from you was that you found a wallet in a toilet at work, and you at that moment stupidly stole a credit card from that wallet.  The credit card only had a Chinese name on it and you did not immediately know it was a colleague because you only know the victim by an English name.

3.  Charge 2 is a fraud charge where you on the same day left work and proceeded to Telford Plaza and successfully purchased from Chow Tai Fook Jewellery a piece of jewellery worth $33,700‑odd.  Despite the transaction being successful, you immediately returned the necklace.  On the same day you entered a second jewellery shop and tried to buy another piece of jewellery, but failed.  This charge was an attempting to obtain property by deception charge.

4.  Charge 5 was an obtaining property by deception charge.  The following day in your lunch hour you entered another jewellery shop, this time in Tsim Sha Tsui, and successfully obtained two bracelets worth $11,300.  This time you left with the bracelets.

5.  The total loss in this case is $11,358.30.

6.  The explanation you gave the police is that you then sold those bracelets for $9,500.  After that you threw away the card and all the receipts involved.  There is an explanation as to why you needed that money.  You had a large debt.  This large debt was over $200,000.  You incurred this debt because your mother is a habitual gambler.  She incurred this debt and you covered it.  However, you did not tell your husband that you were helping your mother in this way.  All along you paid the monthly repayments yourself without his knowledge.

7.  In March last year, the same month as these offences, you came unstuck.  You fell short of the loan repayment by about $10,000.  This is why you committed these offences.  You only needed about $10,000, which is why, when you were successful in buying the necklace for over $33,000, you were overcome with guilt, and returned it immediately.  After you were successful, you realised that the victim may have to repay this amount, and that was another factor for you returning the necklace.

8.  I have been told in mitigation that you are 33 years old, of clear record; a university graduate; and have a very good job with FedEx earning $25,000 a month; you are married, and have a 2-year-old son.  You are a filial daughter and a loving mother and wife.

9.  Your mother’s problem has been following you for years.  I was told on the last occasion that you recall when you were at school, your mother once gambled away your school fees.  I asked for further details, and today have been given a document signed by your father and your brother, marked as MFI‑1.  It is entitled “Background”.  It gives a chronology of your mother’s gambling problems and debts incurred.

10.  It has been submitted on your behalf that you committed these offences not for yourself, not because you are greedy and want to have luxury goods or jewellery; you did this for your mother.  You were stupid enough to commit offences as serious as these, but desperation can lead to desperate measures.

11.  I do accept the explanation put forward on your behalf.  I also take into account that you have pleaded guilty, previously had no criminal convictions, there will be full restitution, and in addition, I have taken into account letters written on your behalf from family members and others who are upstanding members of this community.  They all say that although you committed these offences; they are committed out of character.

12.  Normally with these offences a term of imprisonment is entirely appropriate, and unavoidable.  Credit card fraud is prevalent, and must be deterred.  A community service order is not normally an option or appropriate.

13.  However, in light of the mitigation and explanation put forward, I am going to deviate from the normal sentence of imprisonment.  To consider whether a community service order should be considered, I have taken into account, as I have said, your show of remorse by your plea.  You come from a good educational background, you have family support, and have full‑time employment.  The loss suffered is not significant; it is over $11,000.  Moreover, you are unlikely to reoffend, I am sure.  Your reasons for committing these offences stem from your desire to fix your mother’s problem.

14.  This background document sets out your mother’s threat to commit suicide, and in fact an attempted suicide.  It is not surprising, therefore, that you would do whatever you can do to help your mother, despite your mother’s problems being self‑inflicted.  That is what families do.

15.  I am going to depart from the normal sentencing practice, and not send you to prison today.

16.  I called for a community service order report. The probation officer says in her report that you are a suitable candidate for community service.  To make restitution, you are willing to take up unpaid work under such an order.

17.  Defendant, please stand up.  For Charges 1, 2, 3 and 5, I impose for each charge a community service order of 200 hours for each charge, all charges to be served concurrently.  That is a total of 200 hours’ community service.

18.  I have to warn you that if you do not complete these 200 hours to the satisfaction of the probation officer, then the court does have the power to dismiss this order and sentence you again, and obviously, if that happens, it will be a term of imprisonment.  Do you understand that?  Yes.

19.  There is also a compensation order to be made to be deducted from bail.  The amount is $11,358.30 to be paid to the Bank of East Asia Limited.