HKSAR v. Lo Herbert

DCCC 284 & 290/2016
(consolidated)

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 284 & 290 OF 2016 (consolidated)

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Reasons for Sentence

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1.The defendant pleaded guilty to two charges of burglary (charge 1 and 3) (contrary to section 11(1)(b) and (4) of the Theft Ordinance) and one charge of obtaining property by deception (charge 2) (contrary to section 17(1) of the Theft Ordinance).

Summary of facts

2.PW1 Ms Chan is a salesperson of 'Living PLAZA by AEON', a shop at Pacific Plaza in Sai Wan ("Shop 1").

3.At around 2pm on 2 January 2016, Ms Chan locked her handbag in her locker at the staff room of the shop and went to work. At around 5pm, she returned to the staff room to find hers and two other lockers pried open. Ms Chan found $230 cash, a credit card and an Octopus card missing from her wallet in her handbag (Charge 1).

4.A fingerprint was lifted from the door of one of the pried open lockers which was later found to match that of the defendant.

5.Ms Chan's stolen credit card was later found to have been used to purchase two iPhones at 3:31pm on the same day at a shop in Central for a total of $15,776. Closed circuit television footage captured the defendant as the person who made that transaction (Charge 2).

6.About a month later at around 8:45pm on 6 February, PW2 Ms Yung, a salesperson of 'Japan Home Centre', entered the loft of the shop where the staff lockers were and saw the defendant prying at a padlock of one of the staff lockers. Ms Yung did not recognize the defendant as one of their staff and so she left the loft to tell her colleague about this stranger. The defendant was intercepted while walking towards the shop's exit.

7.Upon checking, the padlocks of two of the empty staff lockers in the loft were damaged.

8.The defendant was arrested by the police officers attending the scene, and said that he acted out of momentary greed.

9.The defendant made the following admissions in two subsequent video recorded interviews.

10.On 2 January, the defendant entered the staff room of Living PLAZA by AEON and used a pair of scissors to pry open the staff lockers. He stole PW1's cash, Octopus card and credit card and used the stolen credit card to pay for two iPhones. He had sold the phones and spent all the money.

11.On 6 February, while shopping in Japan Home Centre in Mong Kok, the defendant noticed that the door to the loft was unlocked. He took a pair of pliers from inside the shop and went inside. The defendant used the pliers to cut the padlocks on two of the staff lockers, which were both empty. He then left the pliers on a shelf inside the shop and tried to leave, but was intercepted. The defendant claimed he committed the offences because his business was losing money.

Previous convictions

12.The defendant has 3 convictions, 2 being for theft and one for trafficking in dangerous drugs. The theft convictions were in 2003 and 2006, when he was first sentenced to probation and then to detention at the Training Centre. His last conviction was the trafficking in dangerous drugs offence in 2007 when he was also sentenced to detention at the Training Centre.

Mitigation

13.The defendant is 28, single, living with his parents and younger sister. He received up to Form 3 education. He worked in various jobs and was a telephone salesperson before he started his own business about 1 year ago, selling clothes and other garments at shops with short term or temporary leases.

14.The defendant’s business was unsuccessful and folded soon after his arrest. He lost his earlier savings of about $300,000 because of the failed business.

15.The defendant’s father is a taxi driver, his mother a housewife. His sister is 19 and is a casual worker with no fixed income. The family is partly dependent on the defendant financially.

16.The defendant is remorseful and sorry that he had disappointed his family.

17.Mr Tsu pointed out that the premises he entered were non-residential premises. There was no confrontation of any kind in relation to the burglary in charge 1. When the defendant was confronted by the shop manager after he committed the burglary in charge 3, he did not resist and waited for the Police to arrive to arrest him.

18.The defendant made frank admissions to the earlier burglary. The tools used were obtained from the burgled premises and not brought along by the defendant. There is no evidence to suggest that the burglaries were planned or premeditated.

19.The defendant is however unable to make any restitution because of his financial situation.

20.The defendant has two previous convictions for theft. Mr Tsu submits that they happened a long time ago when the defendant was just 15 and 18 respectively, and the court should not punish him again for those previous convictions.

21.Lastly, Mr Tsu urges the court to allow as much of the sentences to be served concurrently on the principle of totality.

Sentencing guideline

22.The guidelines sentence for burglaries of non-residential premises where a defendant has pleaded not guilty is two and a half years’ imprisonment.

Sentencing authorities on credit card fraud

23.In the case of HKSAR v Lam See Chung Stephen, CACC 339/2012 the Court of Appeal considered whether there should be a difference in sentencing approach for fraudulent use of genuine credit cards and counterfeit ones, and decided that there should not be:

“39. Those judgments which lay down a sentence of 3 years’ imprisonment or less for cases of simple credit card fraud are based on a number of sentencing principles and considerations. They are that counterfeit credit card offences require deterrent sentences; there is a need to protect the integrity of the credit card system; and the potential for loss is great and often will be far greater than the actual loss. In fact, it is precisely because of this last consideration that the actual loss will not necessarily be an important factor when it comes to sentencing a credit card offender; rather “it is this potential for losses which is the most important consideration.”

40. These sentencing principles and considerations are equally applicable to credit card fraud offences in which genuine credit cards are used and we can see no good reason why the three year starting point for simple cases of counterfeit credit card fraud should not also apply to simple cases of credit card fraud where stolen genuine credit cards are used to commit the offence.”

24.Ms. Lai for the prosecution referred the court to the case of HKSAR v Lee Tat Hoi, CACC 164/2014, where the Court of Appeal applied the said case of Lam See Chung Stephen. In gist, it is not disputed by the prosecution that the starting point for the obtaining property by deception charge in our present case should be 3 years or less.

Sentence

25.The maximum sentence for burglary and obtaining property by deception is respectively 14 and 10 years’ imprisonment.

No Aggravating factors

26.As Mr Tsu pointed out in his submissions, there had been no confrontation in the first burglary and even when the defendant was confronted after his commission of the burglary in charge 3 he did not attempt to flee or resist. He just waited for the Police to arrive to have him arrested.

27.The tools used by the defendant to pry open the lockers were simple tools lying around in the premises that he had entered. There is no suggestion of any sophisticated planning in the defendant’s commission of the burglary offences. A fingerprint was able to be lifted from one of the locker doors, suggesting that the defendant was not wearing gloves, again showing a lack of planning or premeditation.

28.In relation to the using of the credit card, there is no evidence to suggest that the defendant had tried to mask his face to conceal his identity, thus allowing himself to be identified from the closed circuit television footage as the person who used the credit card.

29.The previous convictions of the defendant are quite some time ago. The latest conviction was for trafficking in dangerous drugs and was some 9 and a half years ago, when he was 19 years old. I do not take his previous convictions as an aggravating factor.

30.There are therefore no aggravating factors in the commission of the 3 charges.

Mitigating factors

31.The fact that the defendant had a failed business or that he was the financial support of the family are not mitigating factors for the commission of the present offences.

32.Although the defendant did admit frankly to the Police his commission of charges 1 and 2, given the fingerprint found and the closed circuit television footage, the Police would have been able to catch up with the defendant even without his confession. I find that this is not a strong enough mitigating factor to warrant a further discount other than the usual one-third based on his guilty plea.

33.There are no other mitigating factors.

Charge 1

34.In relation to charge 1, I adopt a starting point of 2 and a half years’ imprisonment, grant the defendant the full one-third discount for his guilty plea, and sentence him to 20 months’ imprisonment.

Charge 2

35.In relation to charge 2, I adopt a starting point of 2 and a half years’ imprisonment, grant the defendant the full one-third discount for his guilty plea, and sentence him to 20 months’ imprisonment.

Charge 3

36.In relation to charge 3, I adopt a starting point of 2 and a half years’ imprisonment, grant the defendant the full one-third discount for his guilty plea and sentence him to 20 months’ imprisonment.

Totality

37.Charge 1 and 2 are linked offences. The commission of the burglary led to the stealing of the credit card which led to the using of the credit card. It must have been one of the expectations of the defendant when he proceeded to open the lockers to steal that he may find valuables such as credit cards. It was a decision made by the defendant to use the credit card after stealing it and there is no taking away from the seriousness of this decision.

38.I will order 8 months of the sentence in charge 2 to be served consecutively to the sentence in charge 1, the balance concurrently, making a total of 28 months’ imprisonment for the two charges.

39.In relation to charge 3, this offence was committed just about a month from the commission of the first two offences. The burglary was of a different premises but a pattern seemed to have started to emerge, that is to say, the defendant was targeting staff lockers at retail stores.

40.For charge 3, I  order that 6 months of the sentence to be served consecutively to the sentences for charges 1 and 2, the balance concurrently, making a total of 34 months’ imprisonment for the 3 charges.