HKSAR v. HAU WING SUM

DCCC1120/2011

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO.1120 OF 2011

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Reasons for Sentence

1.  The defendant pleaded guilty to all but charges 6, 7, 10 and 12 of the 13 charges that he faces. The defendant admitted to the summary of facts and was duly convicted on those charges. The 4 remaining charges are ordered to be kept in court file, not to be proceeded with without the leave of the court.

Facts

2.  On 2 occasions, the defendant entered as a trespasser an office building and stole credit cards on 2 successive days. He then used the stolen credit cards to make purchases at Broadway and Fortress shops of electronic goods including 5 notebook computers, 1 mobile phone and 1 tablet computer.

3.  Closed circuit television footages were reviewed and the defendant revealed as the culprit. When he appeared at Cityplaza 3 in the afternoon of 26^th July 2011, around 3 hours after his last purchase made with one of the stolen credit cards, the defendant was identified and arrested.

Previous convictions

4.  The defendant was brought to court on 4 previous occasions involving a total of 16 charges, 13 of which are related to dishonesty offences such as burglary and theft. Of those 13, 6 convictions were for burglary.

Mitigation

5.  Before his arrest and custody, the defendant was living with his 5 year old son. As a result of his conviction back in 1995, the defendant lost his job as a Police constable and his pension. Counsel urge the court not to punish the defendant again for what he did back then.

6.  I was told that he defendant had written to the Department of Justice in December to discuss about an early plea. It is however pertinent to point out that the defendant did not make the decision to plead guilty until the first day of trial and as a result, witness expenses had to be incurred in relation to 6 prosecution witnesses.

7.  Counsel rightly pointed out that in relation to the 2 burglaries, there were no tools involved, no damage to any premises or personnel and no violence or threats applied.

8.  The defendant was last released in June 2011 from prison. He had difficulty finding a job upon release. He has limited education and cannot catch up with modern technology. He was only able to do some bit part part time work, earning about 300-400 per day, if he was able to get work at all.

9.  The defendant’s parents are in their 80s, both suffering from diabetes and high blood pressure. The defendant used to contribute $2,000-3,000 to them for medical expenses while he was working.

10.  The defendant has a devoted girlfriend helping to look after the defendant’s 5 year old son. The defendant would give $4,000-5,000 to her whenever he can. When the defendant was not working, he would bring his son to school.

11.  The defendant committed the offences out of financial necessity.

12.  2 letters of mitigation were submitted. One is written by the defendant and the other from his chaplain.

Sentencing guidelines

13.  In relation to the 2 burglary charges, it is well settled law that the proper starting point, without further mitigating or aggravating factor, for burglary of non-domestic premises is that of 2 and a half years’ imprisonment.

14.  There are no sentencing tariffs in relation to the offence of obtaining property by deception.

Sentence

15.  I find that there is nothing in the defendant’s mitigation put forward by his counsel that would allow this court to depart from the burglary sentencing guidelines. The only mitigating factor I find is the defendant’s guilty plea.

16.  On the contrary, there is an aggravating factor that this court must take into consideration.

17.  The defendant is a repeat offender. He was last convicted of burglary in May 2010. His last release from prison was on 10^th June 2011, just 1 month before the defendant decided to commit the present offences. This is a serious aggravating factor. His other previous convictions also included 13 offences relating to dishonesty.

“The starting point for sentence may need to be increased ‘to take into account the aggravating features of persistence and the failure of previous sentences to deter on the one hand, and the court’s duty to protect the public on the other’: HKSAR v Chan Pui Chi [1999] 2 HKLRD 830, 833”: Sentencing in Hong Kong, 6^th Edition, p.7.

18.  The defendant stole the credit cards, made the purchases within a 30 minutes time frame on 25^th July and then went straight to Sin Tat Plaza (Sincere Podium) in Mongkok to dispose of them. The defendant was promised $25,000 but was only given $8,000 on that day.

19.  The defendant went back to Taikoo Shing the following day, found another office and stole more credit cards, made more purchases between 12:05 to 12:41pm and then at 3:24pm. He then went straight back to Sin Tat Plaza to dispose of the goods, was given the balance of the $25,000 and also sold the new things he bought for $23,000, making the grand total of $48,000.

20.  It is obvious that the defendant had planned the commission of the offences as well as the disposal of the goods bought with the stolen credit cards and therefore committed the crimes with premeditation.

21.  Taking the defendant’s criminal record as an aggravating factor, for the 2 burglary offences, I will each adopt a starting point of 3 years’ imprisonment. I grant the defendant the full one third discount for his guilty plea and reduce the sentences to 2 years’ imprisonment.

22.  In relation to the obtaining property by deception charges, I will each adopt a starting point of 24 months’ imprisonment. I grant the defendant the full one third discount for his guilty plea and reduce the sentence to 16 months’ imprisonment.

Totality

23.  The stealing of the credit cards and then using them to purchase goods for reselling can arguably be regarded as a single criminal act.

24.  For that reason, I will order that the sentences for charges 2 to 5 be served concurrently to the sentence for the burglary in charge 1; and the sentences for charges 9, 11 and 13 be served concurrently to the sentence for the burglary in charge 8.

25.  The 2 burglaries are however totally separate offences and were committed on 2 different days on 2 different premises.

26.  For that reason, but still bearing in mind the principle of totality, I will order one and a half year of the sentence in charge 8 to be served consecutively to the sentence in charge 1, the balance to be served concurrently.

27.  The defendant is therefore sentenced to a total of 3 and a half years’ imprisonment.

Compensation order

28.  The prosecution on behalf of the issuing banks of the respective credit cards seek a compensation order against the defendant, pursuant to s.73 of the Criminal Procedure Ordinance, Cap.221.

29.  Before imposing a compensation order, the court will need to have regard to the means of the defendant, that the compensation order must not be oppressive in the sense that the defendant should not be tempted to commit further offences to provide money to satisfy the order and the compensation must be realistic.

30.  The defendant is a repeat offender. He was last sentenced to 30 months’ imprisonment for burglary in May 2010. He is going to be spending the better part of the next 3 and a half years in jail. It would be unrealistic to expect him to be able to find gainful employment upon his release so that he can repay the full amount of $73,015.

31.  I was told that the defendant sold the goods for the total sum of $48,000. Out of that sum, the defendant gave $3,000 to his family and used $10,000 to repay some of his debts. I am not sure I can trust him entirely but there is no other evidence to suggest he is not telling the truth.

32.  The defendant had $35,200 on his person when he was arrested. I will order that the defendant to compensate the banks in the total sum of $35,000, to be taken from the money that was found on the defendant. The balance of $200 to be returned to the defendant.

33.  Out of the $35,000, I order that $14,000 (40%) be repaid to HSBC, $10,500 (30%) be to SCB, $5,250 (15%) be to HSB and $5,250 (15%) be to Citibank, being an approximate of the percentage of their individual losses out of the total amount of $73,015.