HKSAR v. CHOI PING CHIU

DCCC 526/2020

[2021] HKDC 494

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 526 OF 2020

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REASONS FOR SENTENCE

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1.  The defendant was convicted on his own plea and agreement to Summary of Facts to a charge of obtaining property by deception, contrary to section 17(1) of the Theft Ordinance, Cap 210 (2^nd charge); a charge of theft, contrary to section 9 of the Theft Ordinance, Cap 210 (3^rd charge) and a charge of possession of offensive weapons in a public place, contrary to section 33(1) and (2) of the Public Order Ordinance, Cap 245 (4^th charge). Upon the application of the prosecution, it is ordered that the 1^st charge and 5^th charge against the defendant be put on court file and not to be proceeded with without leave of the court.

Facts

2.  In this case, the defendant was intercepted by police carrying two knives and a recently stolen wallet containing victim’s Hong Kong ID card and a smartphone. 

3.  Subsequent to the arrest of the defendant, defendant was identified to have committed a credit card deception, he was captured on the relevant shop’s CCTV.

3^rd and 4^th Charge

4.  On 21 February 2020 after the defendant was seen with his girlfriend acting furtively in a pawnshop, he was invited outside by the police subsequent to which he was arrested. 

5.  Upon search, police seized two knives, each with handle wrapped by a tissue paper held between the defendant’s left armpit, and a wallet containing another person’s Hong Kong ID card in the name of Mr Au Hon Fong in a bag carried by the defendant.

6.  Later in the police station, the police also found amongst his other personal properties, 7 mobile phones, amongst which was a Samsung Galaxy 2 smartphone which belonged to Mr Au.

7.  Under caution at the scene, the defendant told the police that the knives were for his own defence as he was being pursued by his creditors.

8.  Police soon got in touch with the Hong Kong ID card holder, Mr Au, who reported to police how his personal properties were being stolen in the morning while he was drunk.

9.  According to him, on 21 February 2020, at about 0650 hours, he was drunk after a long night of drinking.  He sat on the rear staircase at Sun Hing Building, 607 Nathan Road, Mong Kok.  He then felt a man approached him and sat beside him for less than a minute.  He recalled that this man dressed in apparel which resembled that of the defendant at the time of his arrest. 

10.  He said after the man was gone, he noticed his wallet was gone.  He also noticed the bag that he was carrying had been cut open and his smartphone, value at about $3,000 inside was being stolen.  His wallet contained $700, his Hong Kong ID card, a photo, a security staff card, two ATM cards and a HSBC credit card.  Later, the wallet, Hong Kong ID card and the smartphone were seized on the defendant.

2^nd Charge

11.  Upon the defendant’s arrest, he was identified to have committed a credit card deception in December 2018. 

12.  The credit card belonged to Ms Liang Jia-xin. Ms Liang applied for credit card at the DBS Bank.  The bank had issued her the credit card but she had never received it.  The credit card had a credit limit of $22,000. 

13.  By 22 December 2018, she was notified by the bank that the credit card had been activated and been used unauthorised. CCTV captured defendant making the unauthorised transaction.  Further investigation revealed that on 22 December 2018, at 2024 hours, at “Citylink” electronics shop, the defendant purchased an iPhone for $10,710 from a staff at the shop by presenting the credit card.

14.  On 21 February 2020, the defendant stole Mr Au’s wallet (along with its contents) and smartphone at the staircase (3^rd charge), and that when he was intercepted by police, he was carrying offensive weapons, ie, two knives, at a public place with intent to cause injuries with them (4^th charge).

15.  On 22 December 2018, the defendant defrauded the said shop of their goods by the unauthorised use of the credit card (2^nd charge).

Criminal Record

16.  The defendant has 33 previous records involving convictions of 67 charges, of which 39 of them relate to dishonesty, 2 of which were similar to 2^nd charge and 32 of them are similar to the 3^rd charge.  He was last sentenced to 9 months’ imprisonment for theft conviction on 3 July 2019 and was discharged on 9 November 2019.

Mitigation

17.  The defendant is aged 43.  He is single.  He was born in Hong Kong and had completed Form 3 education. 

18.  Defence counsel submitted that the defendant, at the time of arrest, ran a second-hand telephone business with average monthly income of HK$15,000.  It was also submitted that he had worked in the past as a hair stylist and a restaurant waiter. 

19.  Both of the defendant’s parents are aged 78 and are retired.

20.  It was submitted that the victim’s brother in the 2^nd charge activated victim’s new credit card using her personal particulars and handed the same to the defendant for his use as the victim’s brother owed the defendant $5,000.  It was agreed between the victim’s brother and the defendant that should they be successful in using the credit card, they would sell the product obtained and distribute the cash received equally with the defendant.

21.  On 22 December 2018, an iPhone was successfully purchased using the relevant credit card and it was resold at $10,000.  The defendant got $5,000 and another $5,000 was, in principle, a reward for the victim’s brother, but as he owed the defendant $5,000, the same was repaid to the defendant.

22.  Defence counsel invited the court to accept that the defendant was not the mastermind of the 2^nd charge.  He submitted that had it not been the proposal and assistance of victim’s brother, the defendant would never have the victim’s personal information which was required to activate the credit card.  And had the defendant not in a hurry to get the money back from the victim’s brother, the defendant would not have agreed to commit the relevant offence.

23.  As for the 3^rd charge, it was said that when the defendant saw the victim drunk and sat on the rear staircase, out of momentary greed, he stole the victim’s wallet and smartphone.  The victim’s wallet, ID card and smartphone were recovered at the time of the defendant’s arrest. The victim’s credit card and the bank card had never been used.  They were actually being abandoned in a rubbish bin before the arrest of the defendant. It was submitted that the defendant was merely acting as an opportunist and that it was not a well-planned operation.

24.  For the 4^th charge, it was submitted by defence counsel that the defendant was in possession of the knives for the purpose of preventing the debtors from using violence to force him to repay his debt.  It was said that the defendant had borrowed money from lenders with triad background.  Since he has not been able to repay the loan on time and he has been constantly harassed and intimated by those debtors and therefore he kept those knives when he went out for self-defence purpose.

25.  Defence counsel invited the court to accept the defendant’s guilty plea, which indicated genuine remorse.

26.  For the 2^nd charge, there is no evidence that the defendant was part of a syndicate with international element involved.  He invited the court to accept that the offence was not sophisticated, only one credit card was involved and the value of the property concerned was only $10,710.

27.  In relation to the 3^rd charge, it is said that the defendant had already repaid $700 in full compensation to the victim.  It was said further that the victim’s smartphone and identity card were recovered when the defendant was arrested.

28.  Defence counsel also urged this court not to aggravate the sentencing starting point by reason that the defendant had numerous previous record for dishonesty and to accept that he was only at the verge of being a recidivist. 

29.  He also invited this court to take into account the totality principle in sentencing the defendant. 

30.  He also handed to court a mitigation letter written by the defendant, where the defendant said he committed the offence out of momentary greed, it was not pre-planned and he was remorseful.  He urged this court for a lenient sentence so that he could return, upon his release, to care for his elderly mother.

Discussion

2^nd Charge

31.  On conviction upon indictment of this charge, a person is liable to imprisonment for 10 years. 

32.  The Court of Appeal in the case of HKSAR v Tandon William Chaing CACC 404/2012, approved sentencing starting point of 3 years’ imprisonment adopted in the case of HKSAR v Kwan Po Keung [2012] 2 HKLRD 12, for the unauthorised use of a credit card belonging to another on a single occasion to obtain jewellery and watches to a total value of $56,116.

33.  In passing sentences on this charge, it was said that the court must take into consideration the factors relevant to sentencing for credit card fraud as laid out by the Court of Appeal in the case of R v Chan Sui To [1996] 2 HKLRD 128.  These factors are not exhaustive but they have given assistance to the court.  Again, in the case of HKSAR v Tu I Lang CACC 464/2006, it is said by the Court of Appeal that where the facts of the offence point to a small unsophisticated operation, involving one or a few forged credit cards uncomplicated by other evidence materially linking to the offender to a larger operation, then a starting point of 3 years’ imprisonment or less would be appropriate.

34.  In this case, the amount involved is $10,710 and the credit limit for the card in question is $22,000.  This is one of the factors to be considered by the court. 

35.  The commission of the offence was, to a certain extent, a premeditated one as the defendant had beforehand agreed with the victim’s brother how they would divide the proceeds of crime if the defendant was successful in using the credit card of the victim. Two persons were involved in this scheme. 

36.  Considering all the circumstances of the case, this court finds that 3 years’ imprisonment is an appropriate sentencing starting point for this charge involving simple case of credit card fraud where stolen genuine credit cards are used to commit the offence.  The case relied on is HKSAR v Lam See Chung, Stephen [2013] 5 HKLRD 242.

37.  The defendant has one previous conviction in year 2002.  This court, however, is not going to enhance the sentencing starting point by reason of such record. 

38.  After considering the guilty plea, which is the most valid mitigating factor in this case, the sentence in respect of the 2^nd charge is reduced by one-third to 24 months’ imprisonment.

3^rd Charge

39.  Any person on conviction upon indictment of this charge is liable to imprisonment for 10 years.

40.  According to the agreed facts, the wallet of the victim was stolen from him, the bag carried by the victim was also cut open and the smartphone inside stolen from him.  These were done by the defendant, who clearly took advantage of the drunken state of the victim at the time.

41.  Whilst this court accepts that the commission of this offence was not premeditated, the modus operandi adopted by the defendant, for example, the cutting of the bag, resemble closely to that of pickpocketing.  The court noted that although the smartphone was recovered and that the bank card had not been used.  The defendant had also repaid the loss of $700 as compensation to the victim.  The appropriate sentencing starting point for this charge is 15 months’ imprisonment.  The defendant, however, is a persistent offender for theft charges as he had 32 similar convictions. Sentencing starting point is therefore aggravated by 6 months to 21 months’ imprisonment.

42.  This court has also carefully considered his mitigation on his behalf, including his own letter in mitigation, and again finds the most valid mitigating ground is that of his guilty plea, for which he is entitled to one-third sentencing discount.

43.  He is therefore sentenced to 14 months’ imprisonment for this charge.

4^th Charge

44.  Maximum sentence for a person over the age of 25 convicted of this charge upon indictment is 3 years’ imprisonment. 

45.  The defendant here possessed two knives.  This court had the opportunity of the sight of the knives.  Each knife is 31 cm in length and the blade is of 20 cm in length.  The cutting surface of these two knives are rugged.  They are definitely lethal weapons and do not resemble weapons just for self-defence. 

46.  Appropriate sentencing starting point is 12 months’ imprisonment.  Again, the defendant is afforded one-third sentencing discount by reason of his guilty plea.  He is therefore sentenced to 8 months’ imprisonment for this charge.

47.  The nature of the 2^nd, 3^rd and 4^th offences are different, although the 2^nd and 3^rd offence are theft-related.  The 3^rd and 4^th charges offence are committed within 5 hours on the same day but the nature of these offences are different and the commission of the offence are not related.  There is no evidence to show that the knives were used in the 3^rd charge offence.

48.  Commission of the 2^nd charge offence took place 14 months earlier than the 3^rd and the 4^th offence. 

49.  Considering the totality principle and the overall culpability of the defendant in the whole case, this court consider that a total sentence of 40 months’ imprisonment after plea is just and proportionate.  Accordingly, 10 months’ imprisonment for the sentence for the 3^rd charge and 6 months’ imprisonment for the sentence in the 4^th charge are to run consecutive to the sentence in the 2^nd charge.  The rest of the sentence for the 3^rd and the 4^th charge are to run concurrent to the sentence in the 2^nd charge.

50.  The defendant is therefore sentenced to a total of 40 months’ imprisonment in this case.