HKSAR v. Cheung Chun Yip

DCCC 1000/2016

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 1000 OF 2016

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REASONS FOR SENTENCE

The defendant pleaded guilty to 4 charges of "Theft". He picked up a credit card belonging to another person on a bus and used it to make purchases at 3 retail shops. The total sum of the goods and service involved is $10,911.70

Summary of Facts

2.About 5:50 p.m. on 26 June 2016, Mr. TSUI (PW1) used his Bank of China ("BOC") Visa card ("the Card") in Causeway Bay.  He then put the Card in his trouser pocket and took a bus home in Shau Kei Wan.

3.About 10:10 p.m. on the same day, PW1 received a text message from BOC stating that the Card was used in a transaction.  PW1 did not carry out that transaction and discovered the Card missing.  He cancelled the Card around 10:30 that evening.

4.On 27 June 2016, BOC informed PW1 that 3 transactions (namely the respective transactions particularized in Charges 2 to 4) were carried out using the Card between 6:54 p.m. and 8:42 p.m. the previous day.  The Police was alerted.

5.The respective transaction receipts in connection with Charges 2 and 4 as well as the CCTV footage of PARKnSHOP and Wellcome capturing the defendant were obtained.

6.On 4 August 2016, the Police arrested the defendant and executed a search warrant at his home in Shau Kei Wan.  Documents related to Charge 2 were found.   Under caution, he admitted stealing the Card and using it out of greed.

7.In his video recorded interview, the defendant admitted that on 26 June 2016, he found the Card on the floor of a bus.  He picked it up and kept it (Charge 1).  He first used the Card to purchase food items at a PARKnSHOP (Charge 2).  He then used the Card to extend his gym membership (Charge 3).  He used the Card again to purchase food items at a Wellcome (Charge 4).

Mitigation & Sentence

8.The defendant is 39 and single. He has 1 conviction record dated 2015, which was "Theft".  He was put on probation for 12 months.  Defence solicitor Ms. CHAN informed me that the defendant is a kitchen worker of a fast food chain earning about $10,000 per month. He resides with his mother and 2 siblings.

9.In mitigation, Ms. CHAN submitted that the defendant had a high fever when he was 1.5 years old.  He then became slow in making responses and a bit mixed up in his thinking.  He had to repeat a few years in school.  Ms. CHAN also submitted that the events took place as described by the defendant in his video recorded interview. Everything started when he picked up the Card on the bus owing to his greediness.  Ms. CHAN stressed that the defendant fully cooperated with the Police after being arrested.  He and his mother have already paid into court the full amount pursuant to a compensation order. 

10.Credit card offences are serious and must be deterred.  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[1]." A clear message must be conveyed to the general public that "credit card fraud" is a serious crime and that offenders would be punished by a substantial prison term.

11.In HKSAR v Tandon William CHAING CACC 404/2012, Macrae J (as he then was) endorsed a starting point of 3 years' imprisonment for the unauthorized use of 1 credit card belonging to another person on a single occasion in order to obtain jewellery and watches which valued $56,116 in total[2].

12.In the present case, the defendant kept a lost credit card and used it on the same day 3 times to obtain food items and service with a total value of almost $11,000.

13.For Charge 1, I consider a starting point of 6 months' imprisonment appropriate for "theft by finding".  With the guilty plea, the sentence is reduced to 4 months.  I sentence the defendant to 4 months' imprisonment for this charge.

14.For Charges 2 and 4, in view of the small sums involved, I adopt 2.5 years' imprisonment as the starting point for each charge.  With the guilty pleas, the sentence is reduced to 20 months each.

15.For Charge 3, I adopt 3 year's imprisonment as the starting point.  With the guilty plea, the sentence is reduced to 2 years.

16.Bearing in mind the totality principle, I consider a global starting point of 3 years' imprisonment to be appropriate for all 4 charges.  With the guilty pleas, the overall sentence is reduced to 2 years.  I will grant a further discount of 3 months for the full compensation made before sentence, reducing the overall sentence to 21 months.  To achieve this result, I will reduce the sentences for Charges 2 to 4 to 17 months, 21 months and 17 months respectively.  I will also order the sentences for Charges 1 to 4 to run concurrently.  Thus, arriving at a total prison term of 21 months.