HKSAR v. Dai Xiangfei

DCCC 966/2017

[2018] HKDC 834

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 966 OF 2017

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REASONS FOR SENTENCE

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Background

1.The defendant was convicted, on her own plea, of one charge of theft, contrary to section 9 of Theft Ordinance, of a credit card (1st charge) and two charges of obtaining property by deception, contrary to section 17(1) of the Theft Ordinance (2nd and 3rd charges); and a further charge of theft, contrary to section 9 of Theft Ordinance, of a wallet (4th charge).

Summary of facts

2.According to the agreed summary of facts, the defendant picked up the victim’s credit card left on the counter of a shopping mall in Tsim Sha Tsui (first charge). 

3.Ten minutes later, in the same shopping mall, she used the said credit card to buy a bottle of lotion worth HK$1,000 (second charge) and another four minutes later, she used the said credit card to purchase a box of perfume worth HK$730(third charge).  She had also earlier taken up a “Gucci” wallet from the same shopping mall and left the mall without payment (fourth charge).

4.When notified of the purchase by the credit card company, the victim sought assistance from police and the defendant was later found and intercepted in the said shopping mall.  The bottle of lotion, box of perfume and the “Gucci” wallet were all recovered.  Two receipts showing details of the said purchases made with the victim’s credit card were also seized from the defendant.

Mitigation

5.The defendant came to Hong Kong as a visitor on 22 August 2017 and was allowed to stay until 29 August 2017. 

6.It is mitigated on the defendant’s behalf that the defendant was born and resided in the Mainland.  Her father is a civil servant in the Mainland and her mother is also working.

7.She is aged 25, a student in Shanghai Academy for Movie Art.  She had worked as a trainee in Disneyland in Shanghai and some other companies to earn money to subsidise her studies.

8.On 22 August 2017 she came to Hong Kong with her mother to celebrate her mother’s birthday. 

9.It was said that she is a person of previous good character and the present offences were committed out of character and out of momentary greed. She also vowed not to re-offend and was willing to compensate.  It was said that she was not fully aware of the serious consequence of the crime at the time.

10.Mitigation letters were presented to court, including those from the defendant herself.  The defendant says she is deeply remorseful as to what she has done and hope to be released earlier so as to join her family and complete her studies in the Mainland.  She also asks for a chance from this court.

11.Letters from the defendant’s father, her former schoolteacher, a fellow resident in her family residence locality and the Hong Kong Christian Kun Sun Association Limited were presented to this court.  These letters say in essence that the acts committed by the defendant is really one that is out of character and that the defendant had been a person with good heart and did assist those in need in the past.  They ask this court to deal with the defendant leniently.

12.Defence counsel also clarified and said that the defendant now withdrew what she had said in her letter to the court earlier, i.e. that she forgot to pay for the wallet.

13.It is said that she committed the offence out of momentary greed when she saw the credit card lying idle on the counter in the shop.

14.It is said that, though the defendant was a visitor to Hong Kong and that she committed the offence right after she arrived in Hong Kong, she did not come here to commit the offences.

15.Defence counsel said the defendant had four bank cards on her at the time of arrest and that these cards can be used for payments.

16.He asked for a full one-third sentencing discount in view of the defendant’s guilty plea for all the charges and, in any event, sentencing discount of no less than a quarter in respect of the first to the third charges. 

17.Defence counsel asked also that sentences of all charges be made concurrent.

Discussion

18.According to the court record, the defendant first indicated her guilty plea to all charges on 16 November 2017.

19.On 6 March 2018, when she was legally represented and appeared in court for plea, she pleaded guilty only to the fourth charge but pleaded not guilty to the first to the third charges, as a result of which trial dates were fixed for the remaining three charges to 10 and 11 May 2018.

20.Later, the defendant in person wrote to court and said that she wished to plead guilty to all charges.  She said there was misunderstanding between herself and her former solicitors and that the solicitors had caused the adjournment of the trial without her instructions.

21.A letter from the defendant’s new firm of solicitors dated 30 April 2018 was sent to court, which confirmed the defendant’s guilty plea to the remaining three charges as well as the agreement to the summary of facts.

22.As far as the sentencing discount for the first to third charges were concerned, though the guilty plea of the defendant is not as timely as they could be, I am willing to afford 25 per cent sentencing discount to the defendant.

23.As for the sentencing discount on the fourth charge, the usual one-third sentencing discount will be given.

24.This court noted the clear record of the defendant, the mitigation advanced, including the fact that no actual loss was suffered by the victims and the value of goods involved for the Charges 2, 3 and 4 was not substantial.

25.Coming to the sentencing starting point of the individual charge against the background as aforesaid, for the fourth charge, it is agreed that the wallet was picked up by the defendant before she came to pick up the credit card.  It is the standard shoplifting case and the wallet involved worth HK$4,500. The appropriate sentencing starting point is one of 9 months. 

26.It was committed by the defendant in the morning on the day she arrived in Hong Kong as a visitor.  Initially the court had suspicion that she came to Hong Kong to commit the offence but was dissuaded by the defence counsel of this thought.

27.Because of her timely guilty plea, she is given full one-third sentencing discount on this charge.  Therefore she is sentenced to 6 months’ imprisonment.

28.For the first charge, this is a theft-by-finding case.  The defendant picked up the credit card left on the counter.  The sentencing starting point for this offence is 8 months and because of her guilty plea she is given a quarter sentencing discount and she is therefore sentenced to 6 months’ imprisonment.

29.For the second charge, this is a case of fraudulent use of a genuine credit card.  In the Court of Appeal case of HKSAR v Yang Xingyun, CACC 155/2016, Macrae JA in paragraph 49 of the judgment says:-

“49 ….As Litton JA (as he then was) said in R v Kwan Ying Ho [unrep., CACC 527/1992, 12 August 1993] at p 5:

‘...credit card frauds have in recent years been an insidious poison in the community. It affects a large number of citizens and erodes the credit card system and damages Hong Kong’s standing in the international community.’

50. More recently, in HKSAR v Lam See Chung Stephen [2013] 5 HKLRD 242, at 251-252], the court held that:

‘39. Those judgments which lay down a sentence of 3 years’ imprisonment or less for cases of simple credit card fraud are based on a number of sentencing principles and considerations. They are that counterfeit credit card offences require deterrent sentences; there is a need to protect the integrity of the credit card system; and the potential for loss is great and often will be far greater than the actual loss. In fact, it is precisely because of this last consideration that the actual loss will not necessarily be an important factor when it comes to sentencing a credit card offender; rather “it is this potential for losses which is the most important consideration.” [ HKSAR v Ng Swee Thiam [2000] 1 HKLRD 772, at 778.]

40. These sentencing principles 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 the three-year starting point for simple cases of counterfeit credit card fraud should not also apply to simple cases of credit card fraud where stolen genuine credit cards are used to commit the offence.’

51. The judge in the present case in fact specifically referred to HKSAR v Lam See Chung Stephen in adopting a 3-year starting point in respect of Charges 5 to 7. In our judgment, the individual sentences of 2 years’ imprisonment in respect of Charges 5 to 7 after plea cannot be faulted….”

30.Therefore, following the approach in the Yang Xingyun case, the appropriate sentencing starting point for the second charge, but taking into consideration of the mitigation done, is 2 years and 8 months, of which defendant is entitled to one-quarter discount.  Accordingly, she is sentenced to 24 months’ imprisonment.

31.For the third charge, similarly for this charge, the defendant as in the second charge is sentenced to 24 months’ imprisonment.

32.The commission of the second and third charges take place within very short period of time.  The nature of these offences are identical and the further commission of the third charge does not add to the culpability of the defendant in commission of the second charge, and therefore the sentence in the second charge and the third charge shall run concurrently.

33.The commission of the first charge offence is very much closely related to the commission of the second and third charge offence, but it is of a different nature, though also an offence of dishonesty and it adds further to the culpability of the defendant.

34.For the sentence in respect of the first charge, I will order that 3 months of the same shall run consecutively to the sentence in the second and third charges, the rest 3 months shall run concurrent with the sentence in the second and the third charge, making a sentence total of 27 months.

35.The commencement of the commission of the fourth charge started shortly before the commission of the three other offences.  It is totally unrelated to the other charges and is separate and distinct.  The commission of this offence add to the culpability of the defendant.

36.The relevant sentencing principles were laid down by the Court of Appeal in the case of HKSAR v Ngai Yiu Ching [2011] 5 HKLRD 690, where Stock VP emphasised that the real point is not whether two or more offences are committed at about the same time but whether the second or further offences do add to the culpability of the first.

37.The sentence for the first and the second and the third charge should therefore be consecutive to the sentence for the fourth charge.

38.However, considering the totality principle, in order that the court should arrive at a just and balanced sentence and not an unduly crushing punishment but at the same time ensuring the overall effect of the sentence is sufficient to have regard to the usual principles of deterrence, rehabilitation and denunciation, I consider that a total sentence of 30 months is sufficient to reflect the total culpability of the defendant.

39.I therefore order that 3 months of the sentence for the fourth charge shall run concurrent to the sentence for the other three charges, and the rest 3 months shall run consecutive to the sentence in the other charges, making a total sentence of 30 months’ imprisonment.