HKSAR v. Hung Faan Pan

DCCC 869/2016

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 869 OF 2016

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Reasons for Sentence

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Charges

1.Defendant (“D”) pleads guilty to 1 charge of theft (1^st Charge), 11 charges of obtaining property by deception (2^nd – 12^th Charges) and 1 charge of attempting to do so (13^th Charge).

Facts

2.Ms Tse lived in North Point. Her mother (Madam Au) passed away in March 2012.

3.Her mother left some personal belongings in her residence, including her credit cards. The credit cards were placed in an unlocked cabinet near the main door in the residence. D and Ms Tse were in relationship since April 2014.  In June 2015, a bank statement of the Fubon Bank Credit Card ("Fubon Card") in the name of her mother with a credit limit of $28,000 was sent to her residence. It indicated that there was an outstanding bill of $23,144.5.  In June 2015, a statement of the China Construction Bank Credit Card ("CCB Card") in the name of her mother with a credit limit of $17,500 was also sent to her residence with an outstanding amount of $15,776.   

4.On 28 July 2015 PWI found the Fubon Card and the CCB Card in D's mobile phone case. The case was reported to the police. She never authorized D to use the two credit cards. She never used the cards herself (1^st Charge).

5.The Fubon Card was used on 10 occasions (2^nd – 11^th Charges).  The CCB Card was used on 2 occasions (12^th and 13^th Charges).  He had used the 2 cards between 9 and 27 June 2015 for the purchase of various commodities from shops.  There was one unsuccessful attempt to purchase on 12 June 2015, hence the charge of attempt (13^th Charge).  The amounts involved ranged from a high of $15,776 for 2 iPhones to a low of $211.2 for groceries.

6.On 28 July 2015, D was arrested for theft. Under caution, he admitted that he took away the credit cards of her mother and had used the credit cards for purchases.

7.In cautioned interviews D stated, inter alia, the following:

(a) He was her boyfriend and he lived in her residence;

(b) Since he was unemployed and in financial difficulty, D took away the credit cards of her mother in the Unit on a day in June 2015 out of greed;

(c) He made the purchases in the fraudulent transactions using the 2 cards;

(d) At the time of making purchases, he signed the signature of her mother following the signature at the back of the credit cards;

(e) He had sold the purchased phones and consumed the other items purchased. He had spent all the proceeds.

8.CCTV of the shop in the transaction in 2^nd Charge captured him enter the shop and purchase some items at the material time.

Mitigation

9.He is 28 years of age, of F. 5 education level.  He has 3 previous convictions, which are different from his present ones.  He was adjudged bankrupt in 2013.  His parents are both working.  His younger brother is a university student.

10.He was a part-time bartender before arrest.  He came to know Ms Tse, also a bartender, at work. They had lived together for more than a year before the present offences. 

11.It is submitted in mitigation that the purchases were mainly for the groceries consumed by both of them.  He has prepared and paid in 2 cashier’s orders to cover both card issuing banks for all loss.   

Sentencing considerations

12.Mr. Fu relies on 2 cases.  The first one is HKSAR v Barrion Jae Marie Luya DCCC 22/2016 where the domestic helper stole and used her employer’s credit card when it newly arrived for activation.  The credit limit of the card was $227,000.  She used the card for about 3 weeks until it was discovered upon her employer calling the bank to inquire of the progress of the credit card application. She had withdrawn 2 sums of $10,000 from the ATM and failed to withdraw another sum.  There was a purchase of $14 at a convenience store.  The learned judge referred to HKSAR v Cheung Mee Kiu [2006] 4 HKLRD 476 for the sentencing guidelines for dishonesty offences involving breach of trust.  He accepted that the money stolen was for the medical expenses of her grandmother in the Philippines.  HKSAR v Tu I Lang [2007] HKCU 859 was considered in the judgment for a small-scale unsophisticated operation.  He eventually took 21 months as the starting point as a whole. 

13.The second one is HKSAR v Lee Tat Hoi CACC 164/2014, a judgment in Chinese.  The defendant pleaded guilty to 11 charges of obtaining property by deception.  He had used his girlfriend’s credit card to purchase milk powder and fish liver oil from dispensaries on 11 occasions within 3 weeks.  The total sum was $71,843.  He made full compensation 2 weeks before sentencing.  The Court of Appeal approved an eventual sentence of 28 months for all charges together.    

Sentencing D

14.D had become a trespasser to the residential premises when he stole the 2 cards there.  His act was a composite crime of burglary and obtaining property by deception.  I take 3 years as the starting point for each charge.  His guilty plea will get him a one-third discount.  The discount by way of full compensation shall be 3 months.   The eventual sentence is 21 months for each charge, to run concurrently.