HKSAR v. Wong Ngai Pan
Read the full judgment text of DCCC 647/2015 on BabelCite. This District Court judgment.
1. There are two defendants in this case. Upon D1 pleading guilty to and being convicted of charges 1, 2, 3, 4, 5 and 7, the remaining charges against D1 and D2 were ordered to be kept on file, not to be proceeded with without the leave of court. This Reasons for Sentence therefore deals only with D1 and the charges he pleaded guilty to.
Cited by 4 cases · Cites 1 case
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DCCC 647/2015 IN THE DISTRICT COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION CRIMINAL CASE NO. 647 OF 2015 -----------------------------------
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---------------------------- Reasons for Sentence ---------------------------- 1.There are two defendants in this case. Upon D1 pleading guilty to and being convicted of charges 1, 2, 3, 4, 5 and 7, the remaining charges against D1 and D2 were ordered to be kept on file, not to be proceeded with without the leave of court. This Reasons for Sentence therefore deals only with D1 and the charges he pleaded guilty to. Outline of facts Charges 1, 2 and 3 2.On 23 August 2014, D1 together with another person used a credit card to buy 5 smartphones and one mobile phone worth a total of $29,000 from Yat Shun Telecom in Mongkok. After payment was made with the credit card, D1 said he changed his mind and no longer wanted the mobile phone he paid for. The salesperson did not know how to cancel a credit card transaction and so he refunded $2,000 in cash to D1 for the returned phone (charge 2: theft[1]). 3.The credit card that D1 used was issued to one Madam Zhou Mei-ying. D1 was not authorized nor was he entitled to use the credit card (charge 1: obtaining property by deception[2]). The card was reported lost by an unknown person on 18 August 2014. A new card was issued and mailed to Madam Zhou’s address the following day. Receipt of the new card was confirmed by way of a phone call on 23 August 2014, which was the date of the commission of the offences in charges 1 and 2. 4.On 27 August 2014, D1 was stopped by a Police officer after being spotted acting suspiciously while coming out from a rear alley near Hip Wo Street in Kwun Tong. Upon search, a letter from the Bank of China (“BOC”) with a credit card enclosed and addressed to Madam Zhou at her address was found on D1 (charge 3: theft). Subsequent enquiries by the police revealed that at about 11:32 a.m. the same day D1 went to the lift lobby of where Madam ZHOU lived and stole the said BOC letter from the mail box of her address. 5.According to the BOC, an unknown person called the bank on 18 August 2014 to report the loss of Madam ZHOU’s original BOC credit card. The bank issued the new credit card and mailed it to her address on 25th August 2014. Charges 4, 5 and 7 6.Mr. LAU Chun-yu (“LAU”) was a taxi driver. In the evening of 28th January 2015 he parked his taxi in a carpark in Lok Fu Plaza in Wong Tai Sin area for meal. Upon return, he found the rear door window of his taxi smashed and his taxi was ransacked. Lost properties included a wallet containing his HKID Card, a Hang Seng Bank (“HSB”) “Enjoy!” credit card, a Citibank credit card, cash HK$400, a mobile phone and other personal identification documents. After the incident, LAU reported the loss of his personal identification documents. He also informed the relevant banks of the loss of the credit cards and requested for replacement cards. 7.A replacement card was sent by HSB to Mr. Lau by registered post to his home address. Lau received the written notification and visited the post office in the morning of 28 February 2015 to collect the card but was told by staff there that the card had not yet arrived. 8.Two days later on 2 March, Lau received a call from someone claiming to be a staff of the post office, asking for the reference number on the notification. Lau believed that person and gave him the number. 9.D1 visited the post office about an hour after the said phone call took place. D1 produced the lost HK ID card of Lau and claimed that he had lost the collection Notification (charge 4: using an identity card relating to another person[3]). Since D1 was able to provide the reference number of the Notification, the post office staff believed D1 to be Lau and handed over the registered mail with the replacement credit card inside to D1. 10.At around 12:36pm the same day, D1 together with two other people went to Kuen Kee Watch Company in Sham Shui Po and used the said replacement credit card to purchase a Rolex watch for $68,000. D1 signed on the payment slip as the card owner (charge 5: obtaining property by deception). 11.4 days later on 6 March 2015, D1 approached a staff of the ICBC branch at Chung On Building in Tsuen Wan to open a bank account in the name of Mr. Lau. D1 claimed to be a taxi driver and produced the lost HKID of Lau and a CSL mobile phone statement in Lau’s name in support. An account was duly opened. 12.2 days later on 8 March, Mr. Lau received a letter from ICBC regarding phone banking and internet banking applications. Lau notified the bank that he had made no such applications and staff of the bank were put on alert. 13.On 26 March, D1 visited the same ICBC branch to collect the ATM card for the new account. D1 again produced the lost HKID of Lau (charge 7: using an identity card relating to another person). The Police was immediately alerted. 14.Upon uniformed Police officers’ arrival, D1 fled, but was stopped by a plainclothes Police officer on duty nearby after a short chase. 15.D1 was later interviewed under caution. D1 admitted that he did not know either Madam Zhou or Mr. Lau. D1 was eventually charged. Previous convictions 16.The defendant has 4 previous convictions relating to dishonesty. His first convictions were for theft and criminal damage when he was 13 and a half years old. He was sentenced to probation for the offence of assault with intent to rob 8 months later when he just turned 14. His next conviction was for theft when he was sentenced to the Rehabilitation Centre. He was then 16 years and 10 months old. 17.There was one conviction for the possession of dangerous drugs in 2009 and then one for causing wasteful employment of Police in 2010. He was fined on both occasions. 18.For one charge of possession of offensive weapon, one charge of assaulting and one charge of resisting a Police officer, the defendant received a concurrent 2 months’ imprisonment sentence on 23 July 2013, which was ordered to be suspended for 18 months. The suspended sentence would have expired on 22 January 2015. 19.Charges 1, 2, and 3 (hereinafter referred to as “the first set of offences”) were committed in August 2014. The defendant was therefore in breach of the suspended sentence. Mitigation 20.The defendant is 25 years old, married, with a 4 year old daughter. The defendant lives with his mother, sister, wife and daughter in Tsing Yi. 21.The defendant worked as a casual kitchen worker prior to his arrest for the first set of offences, earning about $8,000 per month. 22.The defendant’s father passed away in 2014 and the defendant took up the responsibility of looking after his mother. The defendant’s wife does not work and he is the sole bread winner of the household. The financial pressure drove him to the commission of the present offences. 23.The defendant’s mother wrote to the court about how the defendant has been keeping the family together and taking up the responsibility of providing for everyone, pleading for leniency on his behalf. Sentence tariff/guidelines 24.Mr. Chui for the defendant referred to the case of The Queen v Chan Sui To [1996] 2 HKCLR 128 in relation to the factors that this court has to take into consideration when sentencing the defendant on the obtaining property by deception charges, since the deception practiced was the unauthorized usage of credit cards of others. 25.Mr. Chui submits that for the size of the operation, the planning and amount of stolen property involved, a proper starting point for charges 1 and 5 should be no more than 3 years’ imprisonment. 26.In relation to the using of identity card, Mr. Chui submits that the starting point should be no more than 6 months’ imprisonment. Sentence 27.The maximum sentence for using an identity card relating to another person on conviction on indictment is a fine at level 6 and imprisonment for 10 years. 28.The maximum sentence for theft on conviction upon indictment is that of imprisonment for 10 years. 29.The maximum sentence for obtaining property by deception on conviction upon indictment is that of imprisonment for 10 years. Charge 1: obtaining property by deception: $29,000 worth of phones 30.The value of the phones obtained is not trivial. I find that the circumstances in relation to the credit card used for the purchase being reported lost just days before the replacement card was used by the defendant to make the purchase not a coincidence. Either the defendant himself or someone had somehow gotten hold of the information of the true card holder and the credit card and then reported the card lost in order to initiate the card replacement procedure. The same people then anticipated the arrival of the replacement card, intercepted it, phoned in to activate it and then the defendant used it to make the purchase at the shop. 31.Although there is no direct evidence to prove the extent of the operation, it can be inferred that there must have been considerable planning and organizing in the perpetration of this deception. 32.There is however no evidence at all of any international elements. 33.I find the fact that the defendant was found to be in possession of a different credit card from a different bank and a letter from that bank addressed to Madam Zhou as evidence to allow me to infer that the defendant was very involved in the operation, both in relation to charge 1 and charge 3. It would be too much of a coincidence for the defendant not to be so involved. 34.Given the active role of the defendant in the operation, the relatively small size of the operation, the lack of any international elements, I find that a proper starting point is that of 3 years’ imprisonment. 35.Since the defendant pleaded guilty to the charge, he is given the usual one third discount. The sentence for charge 1 after plea is therefore 2 years’ imprisonment. Charge 2: theft of $2,000 36.I find that it would not have been possible that the defendant could have anticipated that the staff of the shop did not know how to cancel a credit card transaction. The theft was committed incidental to the obtaining by deception in charge 1. 37.I will adopt a starting point of 6 months’ imprisonment, discounted to 4 months’ imprisonment for the defendant’s guilty plea. I order this sentence to be served concurrently to the sentence in charge 1. Charge 3: theft of letter and a different credit card 38.This offence was committed 4 days after the commission of the offence in charge 1. The defendant was apprehended whilst in possession of a credit card that was earlier reported lost by an unknown person. I find that it is an irresistible inference that the defendant’s intention behind the theft of the credit card and the letter was to repeat what he had done with Madam Zhou’s other credit card a few days ago. 39.Be that as it may, this is a charge for the simple theft of the credit card and the letter and not the usage of the credit card and the defendant must be sentenced on this basis alone. 40.For the theft of the credit card and the letter, I adopt a starting point of 6 months’ imprisonment, discounting it to 4 months’ imprisonment for the defendant’s guilty plea. 41.Given that this theft cannot be said to be part and parcel of the offence in charge 1, nor can it be said to be of the same transaction, I find that it should be served wholly consecutively to the sentence in charge 1 and 2. The total sentence for charges 1, 2 and 3 is therefore that of 2 years and 4 months’ imprisonment after plea. Charge 4: using identity card 42.The identity card that the defendant presented at the post office in order to collect the registered mail containing the replacement credit card sent by Hang Seng Bank was stolen from Mr. Lau’s parked taxi. 43.There is no evidence to prove that the defendant was the person who committed the theft of Lau’s wallet with his identity card inside. 44.The purpose of the defendant’s usage of the identity card was to obtain the replacement credit card. I find that it is an irresistible inference that the defendant intended to use the credit card so obtained to commit further criminal offences. 45.I find that a proper starting point, given the purpose of the usage, is that of 9 months’ imprisonment. 46.This offence was committed while the defendant was released on bail pending investigation in relation to the earlier offences in charges 1, 2 and 3. I find that this is an aggravating factor. For this, I will increase the sentence by 3 months to that of 12 months’ imprisonment. 47.The sentence for charge 4 after plea is therefore that of 8 months’ imprisonment. Charge 5: obtaining property by deception 48.The same day after the defendant had used the said identity card to collect the replacement credit card meant for Lau, the defendant used the credit card to make a purchase for a $68,000 Rolex watch. 49.The methodology adopted in the commission of this offence is similar to that of charge 1. I find that it is an irresistible inference that the defendant, either through himself or with the help of others, had stolen the wallet of the taxi driver, posed as staff of the post office to trick Mr. Lau to disclose his Notification number, used the stolen identity card to collect the replacement credit card, and then made the purchase of the watch. 50.While there is no direct evidence as to the size of the operation, there is definite evidence of some serious planning and organization going into the commission of the offence. 51.I find that a proper starting point is that of 3 years’ imprisonment. I find that the fact that this offence was committed while the defendant was on bail for the offences in charges 1 to 3 an aggravating factor, and I increase the sentence by 3 months. 52.The sentence for charge 5 after plea is therefore that of 2 years and 2 months’ imprisonment. Charge 7: using the identity card of another 53.4 days after the commission of the offence in charge 5, the defendant went to ICBC to open a bank account in the name of the taxi driver Mr. Lau, using the stolen identity card in support of the application. 54.There is no evidence to prove why the defendant opened the ICBC account, or why he had to pretend to be someone else to open the account. I find however that the only irresistible inference is that the account will be used for illegitimate purposes, either by the defendant himself or others. 55.Given the said facts and observations, I adopt a starting point of 9 months’ imprisonment on this charge. This offence was committed while the defendant was on bail for charges 1 to 3. I find this an aggravating factor and increase the sentence by 3 months to that of 12 months as a result. 56.The sentence after plea in relation to charge 7 is therefore that of 8 months’ imprisonment. Concurrent or consecutive in relation to charges 4, 5 and 7 57.The using of the identity card in charge 4 was for the sole purpose of collecting the credit card. Its commission was essential for the implementation of the subsequent act of obtaining by deception in charge 5. The two are directly connected. I find however that the sentences should not be made wholly concurrent because to do so would understate the defendant’s culpability in his commission of the offence in charge 4. 58.I find that 2 months of the sentence in charge 4 should be made consecutive to the sentence in charge 5, making the overall sentence for charges 4 and 5 that of 2 years and 4 months’ imprisonment. 59.As for charge 7, although the victim involved was still Mr. Lau the taxi driver, the usage of the stolen identity card was for a wholly different purpose unrelated to the commission of the offences in charges 4 and 5. Bearing in mind the principle of totality, I will order 4 months of the sentence in charge 7 to be served consecutively to the sentences in charge 4 and 5. 60.The overall sentence for charges 4, 5 and 7 is therefore that of 2 years 8 months’ imprisonment. Totality in relation to all charges 61.The first set of offences were committed in August 2014 relating to Madam Zhou. The second set of offences were committed around 7 months later in March 2015, relating to a different and unconnected person, Mr. Lau. 62.Save for the involvement of the defendant, there is nothing connecting the two sets of offences. Furthermore, the second set of offences were committed while the defendant was still being investigated for the first set of offences. 63.Nevertheless, considering totality, I will order that 1 year and 8 months of the sentence in the second set of offences to be served consecutively to the sentence in the first set of offences, that is to say, the overall sentence is that of 4 years’ imprisonment after plea for the 6 offences. The suspended sentence 64.The relevant provision dealing with the activation of a suspended sentence is found in s.109C of the Criminal Procedure Ordinance, Cap.221:
65.Mr. Chui for the defendant was not able put forward any circumstances which would render the activation of the suspended sentence unjust. On the mitigation put forward on behalf of the defendant, I see no such circumstances in existence. 66.It is my opinion that it would not be unjust to make an order under paragraph (a) of s.109C, and the term of the suspended sentence is ordered to take effect unaltered. 67.Pursuant to s.109C(2), I am of the opinion that there are no special circumstances that this suspended sentence should take effect immediately, that is to say, the 2 months’ imprisonment shall commence on the expiration of the 4 years’ imprisonment imposed in the present case. 68.In other words, the total overall sentence in the present case, including the activated sentence, is that of 4 years and 2 months’ imprisonment.
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