HKSAR v. Tsui Yin Chung, Ken

DCCC 134/2017

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 134 OF 2017

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REASONS FOR SENTENCE

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1.The defendant pleaded guilty to three charges of burglary (Charges 1, 5, 13), contrary to section 11(1)(b) and (4) of the Theft Ordinance, and 11 charges of obtaining property by deception (Charges 2, 3, 4, 6 to 12, 14), contrary to section 17(1) of the Theft Ordinance.

Summary of facts

2.On three different occasions, the defendant burgled into three tutorial centres and stole various items, mainly credit cards.  He then used those stolen credit cards to make various purchases.

First occasion (Charges 1 to 4)

Charge 1

3.On 29 August 2016, at 1307 hours, the defendant entered into tutorial center located at the Ground Floor of Parklane Square in Tuen Mun and he stole PW1’s HSBC credit card.  He immediately proceeded to the nearby shopping malls to use the stolen card to make various purchases.

(i) At 1.14 pm, he bought ten cake coupons for $428.40 from Saint Honore (Charge 2).

(ii) At 1.26 pm, he bought a necklace for $22,020 from TSL (Charge 3).

(iii) At 1.46 pm, he bought an umbrella for $174.30 from Citistore (Charge 4).

4.In a record of interview, the defendant admitted under caution: -

(i) He stole the credit card from an unattended handbag at the reception desk.

(ii) He used the stolen credit card to purchase various items.

(iii) He sold the necklace for $15,000 and spent the money.

Second occasion (Charges 2 to 12)

Charge 5 (Burglary)

5.On 18 October 2016, at 10 am, the defendant entered a tuition center located in Tung Chung.  He diverted PW2 away from the reception desk by making some inquiries.  PW2’s handbag was placed on a chair behind the reception desk.  The defendant took away PW2’s wallet in which it contained her ID card, Octopus card, home visit permit, driving licence, resident card, $1 red packet, ATM card, eight credit cards, some cash coupons, HK$1,000 and RMB500.

Charges 6 to 12 (Obtaining property by deception)

6.On the same day, the defendant used PW2’s Citibank credit card to purchase three items in Tuen Mun shopping malls.

(i) At 11.49 am, at Aeon, he bought a box of model for $439.50 (Charge 6).

(ii) At 11.54 am, at TSL, he bought a necklace for $15,374 (Charge 7).

(iii) At 1.07 am, at a shop in V City, he bought a wrist watch for $34,675 (Charge 12).

7.While on the same day, he used PW2’s HSBC card to buy the following items from shops in the V City, Tuen Mun.

(i) At 12.24 pm, he bought a cake for $230 (Charge 8).

(ii) At 12.29 pm, he bought a jacket, one pair of shoes and one plastic bag for $1088.50 (Charge 9).

(iii) At 12.36 pm, he bought a box of caterpillar fungus for $8,500 (Charge 10).

(iv) At 12.49 pm, he bought one necklace for $4,076 (Charge 11).

8.In a record of interview, he admitted under caution that: -

(i) He just took out two credit cards and $1,000 from the wallet. He then discarded the wallet.

(ii) He used the two credit cards to make purchases. However, he could not recall the purchase of Charge 11.

(iii) He sold the wrist watch for $10,000 and caterpillar fungus for $3,005 and spent the money.

Third occasion (Charges 13 to 14)

Charge 13 (Burglary charge)

9.On 10 November 2016, at 10 am, the defendant entered a tuition centre in Sha Tin and stole a staff’s AE card from a suitcase in an unattended classroom. He then proceeded to a shopping mall in Tuen Mun to buy a necklace and two gold bangles for $29,802 (Charge 14).  On this occasion, the defendant was intercepted by the police after he made his payment.  The defendant admitted under caution in a record of interview: -

(i) He noticed there was no one at the reception area when he entered the tuition centre.

(ii) He stole an AE credit card from a suitcase inside a classroom and went to Tuen Mun to buy the items with the stolen credit card.

(iii) He wished to resell the purchased items and used the money to support himself and his sick mother.

Previous convictions

10.The defendant has 18 convictions; 16 convictions were related to dishonest offences, 13 charges of obtaining property by deception and 3 charges of attempt obtaining property by deception, and 41 charges of theft.  His last conviction was in April 2015.

Mitigation

11.The defendant is 43, single, lives with his family.  He worked as a chef, earned $18,000 per month and contributed $10,000 to his family.  However, he could not hold down a job for long because of his various convictions and has been sentenced to jail.  He has a sick mother who might need operation to remove a tumor in her arm.  The defendant pleaded guilty and saved a lot of witnesses, a total of 21 on the list, to come to the court to give evidence.

12.The defendant submitted two mitigating letters.  One from the defendant himself, saying that he is now remorseful.  He is very concerned of the health of his mother.  He asked for early release in order to look after her.  The other letter is from the pastor of a church in Tung Chung.  He mainly said that he has seen the defendant improve himself over the last three years.  He believed that the defendant could overcome his weakness and asked for leniency on his behalf.

13.In mitigation, Mr. Hung also referred to this court a case of HKSAR v Cheung To Ming, CACC 406/2005, and submitted that, in the present case, the defendant was only an opportunity burglar.  In all the three occasions, they were unplanned.  Therefore, he urged this court to adopt a lower starting point instead of the usual 2½ years for the burglary charges. 

Sentencing authorities on credit card fraud

14.The defence also referred to HKSAR v Lam See Chung Stephen [2013] 5 HKLRD 242, of which the judgment decided that: -

“Sentencing principle 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 three years’ starting point for simple cases of counterfeit credit card fraud should not also apply to simple case of credit card fraud which stolen genuine credit cards are used to commit the offence.”

15.In HKSAR v Lee Tak Hoi, CACC 164/2014, the Court of Appeal also applied the said case of Lam See Chung Stephen.

Sentencing on the burglary charges

16.In relation to Charge 1 burglary, that was the first occasion burglary, I bear in mind the judgment of HKSAR v Sim Ka Wing, CACC 450/2000 that: -

“The conventional starting point can be lower in the case of the opportunistic burglar, akin perhaps to the sneak thief who walks into an open office to steal whatever he can find.”

17.It was PW1’s wallet which was placed inside an unattended handbag underneath the reception desk which was just a few steps in front of the glass door.  I therefore prepare to adopt a lower starting point for the first occasion burglary.

18.As to the 5th charge, the burglary charge, the situation was different. The defendant pretended to make enquiry of something and diverted the receptionist away from the reception desk.  He could not be regarded as opportunistic.  He had one previous experience before.  His conduct was all calculated so that when the receptionist was away, the handbag, which was placed on the chair, was left unattended.  He could open her bag and take the wallet away.

19.The third occasion of burglary, he already had developed a pattern to enter the tutorial centre to steal.  Clearly, he could see from the outside that there was no one in the centre.  He went in to check what he could get. In a classroom where there was no one inside, he took an AE card from a briefcase.

20.In the present case, he mainly targeted at credit cards because they were useful to him.  Each time after he obtained those credit cards, he quickly proceeded to buy different items including expensive items such as watches and gold bangles which has high resale value.  In return, he got them in cash.  It is not a case that the defendant entered this education centre for “cup noodles” or “nothing of any real value”.  There was a consistent pattern that he stole credit cards which are valuable items.  That was greatly different from the case of Cheung To Ming. 

21.To this end, I disagree with the defence that I should consider a lower starting point for the second and the third occasions of burglary.  The usual starting point of 2½ years should be applied to Charges 5 and 13.

Sentence

22.When I pass sentence on the defendant, I bear in mind all the mitigating factors before me and that he had pleaded guilty to all the charges.  He volunteered admission to the first and the second occasions of burglary and obtaining property by deception.

23.As to the 11 charges of obtaining property by deception, on three different occasions he used the stolen credit cards to buy various items.  The overall amount was $22,622.70 for the first occasion of burglary, $64,383 for the second occasion of burglary, while the last occasion was $29,802.  The total amount was $116,807.70.  It was indeed a very substantial amount when all were added up.  However, I still need to consider the amount of each individual charge when I pass sentence on him.

24.Charge 1, burglary charge, I adopt a starting point of 24 months, allow one-third discount, reduced to 16 months.

25.Charge 2, the 10 cake coupons was $428.40, I adopt a starting point of 9 months, allow one-third discount, reduced to 6 months.

26.Charge 3, a necklace for $22,020, I adopt a starting point of 30 months, allow one-third discount, reduced to 20 months.

27.Charge 4, an umbrella of $174.30, I adopt a starting point of 9 months, allow one-third discount, reduced to 6 months.

28.I first consider the totality for Charges 1 to 4.  The defendant stole PW1’s credit card at 1.07 pm and went straight to make three purchases from 1.14 to 1.46 pm.  That was the stealing of the credit card led to the using of the credit card offences.  I therefore order Charges 2 to 4 to run concurrently, out of which 8 months ordered to be run consecutively to Charge 1, a total of 24 months.

29.Charge 5, as I said before, I adopt a starting point of 2½ years, allow one-third discount, reduced to 20.

30.Charge 6, a box of model for $439.50, I adopt a starting point of 9 months, allow one-third discount, reduced to 6 months.

31.Charge 7, one necklace for $15,374, I adopt a starting point of 30 months, allow one-third discount, reduced to 20 months.

32.Charge 12, the defendant used the same credit card to buy a wrist watch for $34,675.  I adopt a starting point of 3 years, allow one-third discount, reduced to 2 years.

33.Charge 8, it was a cake of $230, I adopt a starting point of 9 months, allow one-third discount, reduced to 6 months.

34.Charge 9, he used the stolen cards to buy a jacket, a pair of shoes and a plastic bag, a total of $1,088.50.  I adopt a starting point of 12 months, allow one-third discount, reduced to 8 months.

35.Charge 10, he went on to buy caterpillar fungus for $8,500.  The starting point is 18 months, allow one-third discount, reduced to 12 months.

36.Charge 11, a necklace of $4,076.  I adopt a starting point of 15 months, allow one-third discount, reduced to 10 months.

Totality for Charges 5 to 12

37.As I said before, it was the stealing of the credit cards and the subsequent using of two stolen credit cards.  Between 11.49 am to 1.07 pm, the defendant made purchases of about $65,000.  I order Charges 6 to 12 to run concurrently, out of which, 8 months to run consecutively to Charge 5, a total of 28 months.  I further order 12 months out of the 28 months to run consecutively to Charge 1, the remaining to run concurrently.

38.Charge 13, the third occasion of burglary, I adopt a starting point of 2½ years, reduced to 20 months because of his guilty plea.

39.Charge 14, he used the stolen credit card to buy one gold necklace and two gold bangles for $29,802.  I adopt a starting point of 2½ years; reduced by one-third, it comes to 20 months.  I order 6 months in Charge 14 to run consecutively to Charge 13, a total of 26 months.  I further order 12 months out of the 26 months to run consecutively to Charge 1.

40.For the voluntary confession in relation to Charges 1 to 12, I find that a meaningful discount should be given and that is 6 months’ discount.

41.The final sentence is 42 months.