HKSAR v. Chung Hon Wah

DCCC 123/2016

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 123 OF 2016

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REASONS FOR SENTENCE

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Charge

1.Defendant pleads guilty to Charges 1 to 3.  Charge 4 is left on file. 

Connected with DCCC 470/2016

2.In Charges 1 to 3, there are three named accomplices.  They are D1 to D3 in DCCC 470/2016.  Those D1 to D3 are Mak Wing Lung, Law Wai Tak and Lam Chi Yin.  I will call them Mak, Law and Lam respectively.  Charges 1 to 3 in that other case correspond to Charges 1 to 3 in the present case which defendant pleads guilty.

3.Defendant indicated in court that he would plead guilty as early as in March 2016.  According to the chronology of events prepared by defence counsel, defendant had even earlier revealed to police that he would give evidence against his accomplices.  That was as early as late 2015.  Police took non-prejudicial statements from defendant in April 2016.  Prosecution confirmed that defendant had given statement against his three accomplices and the information provided by defendant was very useful.  There is no quarrel that if not for defendant's information, the other three accomplices could hardly be brought to justice.

4.In May 2016, defendant formally pleaded guilty in District Court.  However, his three accomplices (Mak, Law and Lam) still pleaded not guilty.  Their case had to be adjourned for preparation of trial.  Defendant had been drafted in as a prosecution witness to testify against the other three.  The trial of the other three was set down for hearing in November 2016.  It is just before that trial started the three chose to plead guilty.  Thus, defendant was not required to testify against his accomplices.  Those three accomplices (Mak, Law and Lam) were sentenced in DCCC 470/2016 on 8 December 2016 as follows:-

(a) Mak was sentenced to 2 years' imprisonment on each of Charge 1 and Charge 3, both terms to run concurrently;

(b) Law also got a 2-year term on each of Charge 1 and Charge 3, both terms to run concurrently;

(c) Lam was sentenced to 2 years' imprisonment on each of Charge 3 and Charge 4 plus 8 months on Charge 5; the first two terms are to run concurrently but consecutively with the third term.

Facts

Four as a Gang

5.Defendant acted in concert with Mak, Law and Lam to perpetrate credit card frauds. 

Charge 1

6.On 29 September 2015, in late afternoon, defendant went into Chow Sang Sang Jewellery Shop in Tsuen Wan.  He attempted to buy a necklace worth $15,500 by paying with a genuine credit card belonging to one Madam Tam. That credit card was stolen from Madam Tam shortly earlier by defendant's accomplice.  At one point, Mak entered the jewellery shop to urge defendant to leave because police were coming.  Thus, the purchase of the necklace became unsuccessful.

7.Police soon intercepted the gang's car and arrested the four.  They found in the car a brand-new suitcase and slippers plus sports shoes. 

Charge 3

8.The sports shoes and slippers were bought by defendant for the gang for about $1,600 with a forged credit card.  In DCCC 470/2016, this card is called card 5 because it is the fifth card particularised in Charge 4 of that case and also in the present case.

Charge 2

9.The suitcase found in the car was actually one of the four bought by defendant for the gang for $27,000 odd a few days earlier, ie 24 September 2015, with a forged credit card.  This card was a different one from that used in the commission of Charge 3.

Admission

10.Defendant admitted to police his involvement in Charges 1 to 3.  He told police that someone called Ah Kit lured him into buying some forged credit cards for $5,000.  On the date of arrest, Lam gave him two forged credit cards to make purchase.  Later, Lam gave him another card (that is Madam Tam's card) to make purchase in Chow Sang Sang Jewellery Shop.  Defendant knew that was a stolen card.  Defendant also told police that a few days earlier, ie 24 September 2015, Lam gave him a forged credit card to buy the four suitcases in Charge 2.

Record

11.Defendant is almost 29 now.  He had two previous convictions.  The one in 2009 was possession of dangerous drugs.  He was given a suspended sentence then.  His next conviction was in 2016 for possession of dangerous drugs again and also for assisting in operation of a gambling establishment.  The convictions were entered in March 2016 but they were committed in August 2015, ie before the present offences.  In March 2016, he was given a total of 6 months' imprisonment which he has duly served.

Mitigation

12.Defence counsel says defendant had been very co-operative with the police.  He had at the earliest opportunity indicated his willingness and determination to assist prosecution.  As said, defendant had given very useful information against his accomplices and if not for that, those three accomplices could not be able to be brought to justice. 

13.Defence counsel urges the court to give defendant up to 50 per cent discount for his plea and all he had done for prosecution.  She cites the case of Yan Im Kun CACC 680/1996, Chan Sau Hing & Another CACC 211/2001, Tse Yiu Ming CACC 336/2006, Cheng Chong Shing CACC 100/2003 and the case of Z FACC 9/2006.

14.Counsel says at the moment defendant, while on bail, is living with his mother and looking after his young son.  Defendant has shown a new determination to get rehabilitated.  He wants to turn a new leaf in life. Counsel submits several mitigation letters written by defendant himself, his mother and a priest.

Sentence

15.For the other three members of the gang of four in DCCC 470/2016, I had adopted 3 years' imprisonment as a starting point in each of their case in Charges 1 to 3 in that case.  Defence counsel concedes that is the appropriate starting point for defendant in Charges 1 to 3 in the present case.  That is the starting point I shall adopt for the three charges which defendant pleads guilty.  

16.Counsel has urged me to adopt a final discount of up to 50 per cent for defendant's plea and his offering of assistance to prosecution.  But, normally, 50 per cent discount is reserved for supergrass witnesses.  Defendant is a very useful witness but not of the supergrass type.  There is also no evidence that he had been or would be subjected to real threat of life because of his turn against his accomplices (though any worry or fear of that kind is inevitable for defendant).

17.Now, those three accomplices pleaded guilty at the last minute.  Thus, defendant was not required to give evidence against them.  However, in the circumstances, I still consider it is appropriate to give defendant a 45 per cent discount for his plea and all he had done for prosecution.  That after rounding down to complete figure would bring the sentence for each of defendant's Charges 1 to 3 to a sentence of 19 months' imprisonment.

18.Defendant could have been sentenced in May this year but prosecution needed time to prepare evidence from defendant to give evidence against his accomplices.  Thus, defendant can only be sentenced now in late December.  For that, defendant has been in limbo with stress for about seven months.  I think he is entitled to a further discount of 1 month in each charge.  Thus, the final sentence for each of Charges 1 to 3 would be reduced to 18 months' imprisonment.  The three terms are to run concurrently.