HKSAR v. D SOUZA MARK PHILLIP GARCIA

DCCC 188/2021

[2022] HKDC 215

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 188 OF 2021

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REASONS FOR SENTENCE

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

(i)  Charge 1: Burglary[1];

(ii)  Charge 2: Handling stolen goods[2];

(iii)  Charge 3: Obtaining property by deception[3]; and

(iv)  Charge 4: Obtaining property by deception[4].

ADMITTED FACTS

Charge 1

2.  Mr Cheng Wing Fai (“Mr Cheng”)  is a staff member of Chotto Maki Restaurant in Wanchai.  On 7 May 2020, Mr Cheng checked the Restaurant and ensured that all doors and windows were locked before leaving at around 2130 hours.

3.  On the next day (8 May 2020)  at around 0830, Mr Cheng returned to the Restaurant and discovered that the rear folding door at the back of the Restaurant and the iron gate securing the outer area of the building were open, with signs of ransacking in the Restaurant.  The black money compartment of an electronic cash register, which contained around HK$9,200 and one iPod (valued at HK$1,200)  were missing. 

4.  CCTV footage revealed that from 02:49:16 to 02:51:24 hours on 8^th May, the defendant, carrying a black cross-body bag, and another unknown male entered the Restaurant from the rear exit.  The defendant crawled into the area behind the counter of the Restaurant and briefly searched the area before leaving without taking anything.  The unknown man then immediately crawled into the same area behind the counter and ransacked the counter, taking away a black money compartment of the electronic cash register and leaving the Restaurant with the defendant.  The defendant was then seen holding a large filled bag walking away with the unknown male.

Charges 2-4

5.  Mr Hanut Singh (Mr Singh)  resides with his girlfriend in Central.  On 8 June 2020, Mr Singh left the premises at 0900 hours, having locked all windows and doors.  He left his ANZ Visa card inside the premises.

6.  On the same day at 1848 hours, Mr Singh received a message from the ANZ bank that the ANZ Visa Card has been blocked due to unusual transactions.  Mr Singh then checked via online banking and discovered two payments were not made by him:-

(i)  A sum of HK$3,058.00 in “Wellcome321 North Point HK”; and

(ii)  A sum of HK$628.00 in “7-Eleven, HK (0666)  North Point”.

7.  Mr Singh then requested ANZ bank to cancel his ANZ Visa Card. Later on the same day, Mr Singh returned to the Premises and discovered that the Premises had been ransacked.  The ANZ Visa Card, amongst other things, were found missing. 

8.  CCTV footages of Wellcome North Point showed the defendant entered the shop and making the purchases from 18:08:09 and 18:10:21 hours on 8 June 2020.  He used the ANZ Visa Card to purchase one bottle of “Yamazaki 700ML” for HK$3,058.00.  CCTV footages of 7-Eleven North Point showed the defendant entered the shop from 18:38:10 and 18:39:54 hours on 8 June 2020 and used the ANZ Visa card to purchase a bottle of “Hennessy VSOP QT” for HK$628.00.

CAUTIONED INTERVIEWS

9.  The defendant was stopped and arrested on 8 August 2020.  During video-recorded interviews, the defendant admitted that he had gained entry into the Restaurant on the night of 8 May 2020 with a Pakistani man, “Kaief”.  He identified himself in the CCTV footage and that when Kaief took the Stolen Properties he had carried them away from the scene in a bag for Kaief.  He also admitted that Kaief had paid him HK$500 for his role in the burglary.

10.  The defendant also admitted using the ANZ Visa Card in the name of Hanut Singh to make the purchase at Wellcome North Point and 7-Eleven North Point and identified himself as being the person shown in the screen caps taken from the CCTV footage of Wellcome North Point and 7-Eleven North Point.  The defendant received the ANZ Visa Card from Kaief.

CRIMINAL RECORD

11.  The defendant has 2 conviction records.  His first conviction is one of “Gambling in a Gambling Establishment” in 2019.  He was last sentenced to 2 weeks’ imprisonment for theft conviction on 31 August 2020, after the date of the present offences.

MITIGATION

12.  With respect to the burglary charge, there is an absence of any tools, weapons or indeed any degree of sophistication.  Although the criminality is in the “breaking and entering to commit an offence”, the fact that there was no planning, it was low value items stolen, and defendant was shown coming out of the Restaurant with nothing, puts it at the lowest end of scale.

13.  The credit card offences involved small sums of $3,058.00 in a supermarket and $628.00 at a 7-Eleven shop.  The credit card offences did not target high value items, for example watches, jewellery, etc.  There is no evidence that the defendant attempted to test the card before purchasing high value items.  There was a complete and total lack of any sophistication in any of these offences.

14.  The defendant is aged 23.  His mother has another family in Macau.  Father is in Hong Kong.  The defendant was brought up in Philippines, mainly being looked after by his relatives, before coming to Hong Kong in 2015.  The defendant was working as a bartender but his work was decimated by the Covid pandemic. 

DISCOUNT

15.  The defendant pleaded guilty to charge 1 on the 1^st day of trial.  Defence only indicated to the prosecution of the defendant’s plea 2–3 working days before first day of trial.  As a result, one witness attended court.  However, given the difficulties in arranging interviews with the covid restrictions in the 5^th wave, I will still give a 25% discount for his plea.

16.  The defendant pleaded guilty to Charges 2–4 in a timely manner, 1/3 discount will be given.

SENTENCE

17.  I have carefully considered all the mitigations and authorities submitted, including HKSAR v Li Chi Yat[5] and HKSAR v To Pui Ting[6].

Charge 1

18.  The Court of Appeal had set down clear guidelines in sentencing cases of burglary.  For burglary of commercial premises, the appropriate starting point for burglary committed by a first offender of full age where there were no aggravating or mitigating features is 2.5 years’ imprisonment[7].

19.  The defendant committed Charge 1 with an unknown person, which is an aggravating features in sentencing[8]. However, as submitted by the defence, the defendant’s role was rather passive. He did not pick up any item when inside the shop and was led by Kaief.  I will not further enhance the starting point. 

20.  I adopt a starting point of 30 months, reduce it to 22 months and 2 weeks given his plea of guilty.  There is nothing in the mitigation that warrant any further reduction in sentence of charge 1.

Charges 2–4

21.  As set out by the Court of Appeal in R v Chan Sui To[9], in cases involving credit card frauds, the sentencing judge will need to consider factors including the size of the operation; the planning that had gone into perpetrating the fraud; whether there is an international dimension; and whether the accused played a major role.  The factors were not intended however to be exhaustive but provide valuable assistance to the court.  The courts have repeatedly stressed that deterrent sentences are to be imposed.

22.  In the case of HKSAR v Li Chi Yat[10], the appellant worked as a dispatcher for a transportation company.  One of the owners left his wallet in a vehicle that the appellant later used to do a delivery job.  The appellant stole the owner’s credit card which he used in an attempt to purchase certain items without success, and successfully purchased a mobile phone in the sum of $7,917.  The Court of Appeal said that small-scale credit card offences cannot be subject to the 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.  The Court of Appeal considered a starting point of 2 years appropriate on each of the deception charges in that case.  The Court of Appeal also considered the sentencing judge was correct in adopting a starting point of 9 months’ imprisonment for the offence of theft of credit card.

23.  For Charge 2, the credit card was given to the defendant by his friend “Kaief”.  The defendant did not steal the credit card.  However, the defendant would have known the stolen goods is a credit card, which is of importance to the victim, and might be used for further illegal activities. Therefore, I adopt a starting point of 6 months’ imprisonment, reducing that to 4 months’ imprisonment for the defendant’s plea of guilty. 

24.  For Charges 3 and 4, the two transactions were made one after the other.  Defence submitted that the defendant only used the credit card twice, instead of multiple times for high value items.  However, the credit card was stopped soon after the two illegal transactions.  The lack of further transaction would not reflect a lower end of criminality. 

25.  I do accept there is no international element involved.  The value of the properties is not high.  Prosecution cannot provide any information on the credit limit of ANZ Visa Card.  I do consider this is a small unsophisticated operation, and lack of any aggravating factor that would elevate the criminality. 

26.  For Charge 3, given the value of the goods purchased, I will adopt a starting point of 24 months’ imprisonment, and reduce that to 16 months’ imprisonment for the defendant’s pleas of guilty. 

27.  For Charge 4, given the value of the goods purchased, I will adopt a starting point of 18 months’ imprisonment, and reduce that to 12 months’ imprisonment for the defendant’s pleas of guilty. 

28.  There is nothing in the mitigation that warrant any further reduction in sentences of Charges 2-4. 

TOTALITY

29.  Charges 2-4 arose from the same credit card and they are part and parcel of the same transaction.  The sentences of Charges 2–4 to be run concurrently. 

30.  Charge 1 and Charges 2-4 are totally separate outings and of different nature, one being burglary and the others being credit card fraud. Subject to the totality principle, a wholly consecutive sentence is appropriate.  Considering the totality principle, I am of the view a total of 32 months’ imprisonment, after discount of his plea, reflect the overall criminality of the defendant in the 4 charges.  Therefore, I will order 6 months and 2 weeks’ imprisonment of Charge 1 to run concurrently with terms of imprisonment in Charges 2-4.   

SENTENCE

31.  (i)      Charge 1:    22 months and 2 weeks’ imprisonment, 6 months and 2 weeks’ imprisonment concurrent with Charges 2-4.

(ii)  Charge 2: 4 months’ imprisonment, wholly concurrent with Charges 3 and 4.

(iii)  Charge 3: 16 months’ imprisonment, wholly concurrent with Charges 2 and 4.

(iv)  Charge 4: 12 months’ imprisonment, wholly concurrent with Charges 2 and 3.

Total: 32 months’ imprisonment.