HKSAR v. Chan Kai Ming

DCCC 507/2016

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 507 OF 2016

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REASONS FOR SENTENCE

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1.The Defendant has pleaded guilty to the charges that he faces, namely one count of theft, contrary to Section 9, three counts of obtaining property by deception, contrary to Section 17(1) and one count of burglary, contrary to Section 11(1)(b), all offences under the Theft Ordinance, Cap. 210

Summary of facts

2.Facts admitted by the Defendant disclosed that in early January, 2016, he and PW1 came to know each other through a mobile app. They soon became lovers. From 14 January, 2016, she usually stayed overnight with the Defendant in a hotel.

3.On 16 January, 2016, unknown to PW1, the Defendant used her HSBC VISA credit card to purchase 2 iPhones from the Apple Store at Shops 1100-3, International Finance Centre Mall, No. 8 Finance Street, Central for a total of HK$13,476.50 (Charge 2).

4.PW1 was unaware that her credit card had been used by some one else until the bank inquired with her about the transaction in Charge 2. She checked her wallet and found that her credit card was missing (Charge 1).

5.The bank issued her with a replacement credit card.

6.On 2 February, 2016, unknown to PW1, the Defendant used the replacement card to purchase 2 iPhones from the Apple Store at Hysan Place, No. 500 Hennessy Road, Causeway Bay for HK$14,376 (Charge 3).

7.On 4 February, 2016, unknown to PW1, the Defendant used the replacement card to purchase 2 iPhones from the Apple Store at Hysan Place, No. 500 Hennessy Road, Causeway Bay for HK$14,376 (Charge 4).

8.PW1 came to know on 7 February, 2016 that the replacement card had been used to purchase the 4 iPhones in Charges 3 and 4. She checked her wallet – the card was still there. She asked her bank to cancel the replacement credit card.

9.On 15 February, 2016, PW1 had to work late. The Defendant told her he wanted to have dinner with her parents in Sheung Wan on that day. However he did not show up for the dinner in Sheung Wan with PW1’s parents.  When PW1 and her parents returned to their home in Taikoo Shing, they found the flat had been burgled, but the lock on the main door of the flat remained intact.  PW1 also found that her key to the main door was missing.  CCTV footage of the building showed that the Defendant had entered the building at 6.44 p.m. and left the building at 8.03 p.m. on 15 February, 2016.   PW1 broke up with the Defendant on 16 February, 2016.

10.At around 3 a.m. on 25 March, 2016, PW1 located the Defendant in Lan Kwai Fong. She notified the police and the Defendant was arrested the same day. He was cautioned at the scene for burglary and admitted he understood the charge and he had done it.

11.In two video record of interviews under caution, the Defendant admitted stealing PW1’s credit card on 15 January, 2016 at the hotel while PW1 was taking a shower. He used it to purchase 2 iPhones on 16 January, 2016. He took the replacement credit card on 1 February, 2016 when PW1 was in the shower, and used it to purchase 2 iPhones on 2 February, 2016 and 2 iPhones on 4 February, 2016. He subsequently replaced the replacement credit card.   He had sold all the iPhones he had purchased with PW1’s credit cards.  He also admitted that he had used PW1’s key to gain access to her flat on 15 February, 2016 and had stolen the property as set out in the particulars of charge 5 – namely a Samsung mobile phone, $1,800 contained in 18 separate red packets, 4 watches, each worth about $6,000, totally $24,000 and a jade ring worth about $3,000.

12.I was satisfied beyond all reasonable doubt that the facts admitted by the Defendant supported the charges and accordingly I convicted the Defendant on the charges that he had admitted.

Previous Convictions

13.The Defendant’s criminal record dates back to 2011.  He has 20 previous convictions in 3 court appearances (4 cases), 14 previous for theft and 4 previous for obtaining property by deception.  His most recent convictions were on 5 March, 2015 when he was sentenced to the Detention Centre for 6 counts of theft and 6 counts of obtaining property by deception. 

Mitigation

14.The Antecedent Statement was read into the record by the Prosecution – no issue was taken on its contents.  The Defendant is now aged 22 years.  He has received education up to Form 3. He is single. He was born in China and moved to Hong Kong in 1997. He lives with his parents and siblings in Tin Shui Wai. He had worked as a waiter in the past. He was released from the Sha Tsui Correctional Institution in November, 2015.

15.Mr. Lo very helpfully prepared his submissions in mitigation in writing. He said the Defendant had been working as a part-time waiter between November 2015 and January 2016, earning about $10,500 a month. He submitted that the Defendant had offended purely out of greed – he was remorseful and offered his apologies to PW1 and her parents.  He was not in the position to pay any compensation as he had no savings.

16.Mr. Lo has submitted a handwritten letter from the Defendant wherein he has expressed his remorse and his regret for committing the present offences. He offers his apologies to the victim and her family.   His pleas are also indicative of his remorse.  Counsel submitted that there is no evidence that he is part of an organized gang or that there is an international element involved.  I also have before me the Background Report that I have called for, which contents have been explained to the Defendant by Counsel, and no issue has been taken on the contents.

17.The Background Report sets out the Background of the Defendant in great detail. I do not intend to rehearse the contents herein save to say that the Probation Officer who prepared the report said that due the Defendant’s parents’ preoccupation with work, the Defendant had low motivation to study under minimal parental supervision. He quit school after Form 3 in 2009.  Since then, he repeatedly defied parental advice and indulged in his carefree and idle lifestyle.  As described by the interviewing officer “worse still, he has turned to shopping luxury goods, gambling, womanizing and smoking to release his stress of boredom. Without any stable job, he has lived on credit card overdraft and loan and relied on his parents to clear his debt for a while. As the family could no longer afford to repay his recurrent debt, the accused has run away to perform cons for money among his friends especially ladies.”

Sentencing Considerations

18.Credit card offences are serious and must be deterred. Offenders should expect to be punished by a term of imprisonment.  In HKSAR  v. Chen Wing Hong, CACC 40/2005, the Court of Appeal observed that “…in this day and age the integrity of the credit card system is highly important and those who attempt to beat the system by fraudulent methods necessarily erode the confidence which people are entitled to place on this aspect of modern commercial life”. 

19.In HKSAR v. Tu I Lang, CACC 464/2006, the Court of Appeal referred to the decision of R. v. Chan Sui To [1996] 2 HKCLR 128 at  page 134 :

“8. It is true that in R. v. Chan Sui To [1996] 2 HKCLR 128 at 134, this court said in dealing with the range of sentences imposed for credit card offences in various cases cited to it :

“Allowing for the different facts and the varying degrees of culpability, it is impossible to formulate a set of principles of sentencing from those decisions. We think however that it would be helpful to the courts if they were guided by some criterion. We would therefore suggest that an accused who plays an active but not necessarily a key role in a medium size operation involving between $50,000 and $150,000, with no elaborate planning and equipment, and without an international dimension, should receive a sentence of five to six years after trial. Sentences may be adjusted upwards or downwards according to the circumstances.”

It is equally true that in a number of other cases involving the simple possession or use of a small number of credit cards, this court has approved starting point of sentences of three years’ imprisonment, where the operation involved can be fairly described as small scale.”

The Court further said:-

“10. Where the facts of the offence point to a small unsophisticated operation, involving only one or a few forged cards uncomplicated by other evidence linking the offender to a larger operation, then a starting point of three years’ imprisonment or less would be appropriate.”

20.Although the value of the goods to be purchased using the forged/genuine cards may not be large, it is the potential for loss which is the most important consideration.  (HKSAR v Ng Swee-thiam [2000] 1 HKLRD 772).

21.In HKSAR v. Lam See Chung, Stephen [2013] 5 HKLRD 242, also referred to by Defence Counsel,  a case of credit card fraud committed with no international element, involving the use of genuine rather than counterfeit credit cards, the Court of Appeal referred to and reviewed a number of previous authorities including R v. Chan Sui To, [1996] 2 HKCLR 128, HKSAR v. Ng Swee Thiam & Ors, [2000] 1 HKLRD 772, HKSAR v. Cheung Ka Wo, Johnny, [2002] 2 HKC 517 and HKSAR v. Tu I Lang, CACC 464/2006 and said those sentencing principles in consideration are equally applicable to credit card fraud in which genuine cards are used.

22.The only mitigation of weight before me really is the Defendant’s pleas of guilty, which reflect his remorse. I have borne in mind all that has been urged upon me in mitigation on behalf of the Defendant, as well as the authorities submitted and the contents of the Background Report now before me, the contents of which have been explained to the Defendant by Defence Counsel and which he agrees with.

23.In the instant case, PW1 and the Defendant were lovers at the time of the offences.  I find that there is an element of breach of trust arising from the circumstances of their relationship.  Had they not been in a relationship, the Defendant would not have had the opportunity to steal the credit card in Charge 1, or use it to purchase goods in Charge 2. He would not been in the position to take the replacement credit card and purchase the goods in Charges 3 and 4, and replace the replacement credit card after using it.  Nor would he have been able to take PW1’s key to the burgled premises and gain access to the flat and commit the offence of burglary in charge 5.

24.In this case, two credit cards were involved without any marked degree of planning or organization. There is no evidence of an international element.  In my view, the greatest mitigation of weight is the Defendant’s pleas of guilty to the charges that he faced, reflecting remorse on his part. There is little other mitigation of weight before me.

25.In my view an appropriate starting point for Charge 1 is 9 months’ imprisonment. Giving him the one-third discount to reflect his plea,   he is sentenced to 6 months’ imprisonment on charge 1.

26.In respect of Charges 2, 3 and 4, in respect of each of them, I take a starting point of 2 years and 9 months’ imprisonment, discount this by one-third to reflect his plea, and sentence him to 22 months’ imprisonment on each of charges 2, 3 and 4.

27.Charge 5 is one count of burglary of domestic premises.  Here, there was premeditation – the Defendant took the key of the premises from PW1 without her knowledge.  PW1 was working late that evening. He arranged with PW1 to have dinner with her parents in Sheung Wan – which is at the opposite end of Hong Kong Island from where their flat is located in Tai Koo Shing – he did not turn up for dinner – instead that was when he burgled their flat, knowing there would be no one there as PW1 was working late and her parents were in Sheung Wan expecting to meet him for dinner.  There is well settled sentencing guidelines for burglary of domestic premises. According to the guideline, the starting point for a single burglary of domestic premises committed by a first offender of full age where there are no aggravating or mitigating features is 3 years’ imprisonment.   It was not in issue that the premises that were burgled by the Defendant here were “domestic premises”.  Although the Defendant is not of clear record, and there is an element of breach of trust as I have mentioned, I do note that there was no damage to the premises, there was no forced entry and the level of ransacking in the premises was minimal. In my view, the appropriate starting point is 3 years’ imprisonment.  Giving him the one-third discount for his plea, he is sentenced to 2 years’ imprisonment on charge 5.

28.Although each offence is separate and distinct, I have borne in mind the totality principle of sentence.  I have also borne in mind that all the offences were committed within a very short period of time.  I consider that a total sentence of 3 1/2 years’ (42 months) imprisonment is sufficient to reflect the total criminality of the Defendant. In the circumstances, I order that the sentences on Charges 1, 2, 3 and 4 are to run concurrently,  and 4 months of the sentence on Charge 5 is to be concurrent with that of Charges 1 to 4, and 20 months’ imprisonment are to be served consecutively, making a total of 3 1/2 years’ (42 months) imprisonment.