HKSAR v. Li Chi Yat

DCCC 1003/2017

[2018] HKDC 729

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 1003 OF 2017

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REASONS FOR SENTENCE

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1.The defendant pleaded guilty to one count of “Theft”, contrary to section 9 of the Theft Ordinance, Cap. 210 (charge 1), one count of “Obtaining property by deception”, contrary to section 17(1) of the Theft Ordinance (charge 2) and 2 counts of “Attempting to obtain property by deception”, contrary to section 17(1) of the Theft Ordinance and section 159G of the Crimes Ordinance, Cap. 200 (charges 3 & 4).

Facts

2.At the material time, the defendant was employed by Mr Fong’s family company and Mr Fong was the authorized holder of a HSBC credit card as particularized in charge 2. 

3.On 10 May 2017, Mr Fong put his wallet containing the HSBC credit card in the company car bearing registration number GF680. Thereafter, the defendant loaded goods onto the company car and drove the car to assist Mr Fong in delivery job.  The defendant came off duty at around 3:30pm while Mr Fong continued with the delivery job.

4.At around 5:17pm, Mr Fong was alerted of a transaction with his HSBC credit card in the sum of HK$7,917 with Eleven Mobile Limited (charge 2).   He checked his wallet and found the HSBC credit card missing.  He thus requested the card to be cancelled and reported to the police.

5.Mr Fong was subsequently informed by HSBC that apart from the aforesaid transaction, two failed transactions were recorded with the HSBC credit card on 10 May 2017, namely, one transaction in the sum of HK$10,464 with Yuet Shun Technology (charge 3) and one transaction in the sum of HK$7,288 with Fortress (charge 4).

6.The defendant was subsequently arrested for the offences.  In subsequent video-recorded interviews, the defendant admitted:

(a) On 10 May 2017, he stole Mr Fong’s HSBC credit card in the course of his work (charge 1).

(b) In the afternoon on the same day, he went to Sincere House in Mong Kok and used the credit card twice. The first transaction was not successful as he was asked to produce his HKID card for verification (charge 3). For the other transaction, he succeeded in obtaining an iPhone valued about HK$7,900. He then sold the phone and spent all the proceeds (charge 2).

(c) On the same day, he went to Fortress but did not succeed in buying an iPhone with the credit card (charge 4). He thus discarded the card.

Mitigation

7.The defendant is aged 29 and single.  He lives with his family.  He previously worked as a driver.  He has now been unemployed for 2 months.  He has one previous conviction record for the offence of theft.  He was fined HK$5,000 and ordered to pay compensation in the sum of HK$1,900 on 13 June 2017.  The defendant confirmed that he committed the present offences out of greed.

Sentence

8.Credit card offences are serious and must be deterred.  Offenders would expect to be punished by a substantial term of imprisonment. 

9.In R v Chan Sui To and anor [1996] 2 HKCLR 128, the Court of Appeal laid down the various factors to be considered in sentencing this type of offence, which included the size and planning of the operation, whether there is any international dimension and the role played by the defendant.  In HKSAR v Tu I Lang, CACC 464/2006, the Court of Appeal stated that where the facts of the offence point to a small unsophisticated operation involving only one or a few forged cards uncomplicated by other evidence materially linking the offence to a larger operation, then a starting point of 3 years’ imprisonment or less would be appropriate (see para 10 of judgment). In HKSAR v Lam See Chung, Stephen, CACC 339/2012, the Court of Appeal stated that the aforesaid sentencing principles were equally applicable to credit card fraud in which genuine cards are used.

10.In this case, one genuine credit card was involved and used on 3 occasions without any marked degree of planning or organization. Further, there is lack of international element.  The total value of goods obtained is not high.  Although the defendant has one previous conviction record for offence involving dishonesty, I will not enhance the sentence by reason of his previous conviction record.  In the circumstances, I consider it appropriate to adopt 3 years as the starting point for each of charges 2-4.  Given the defendant’s guilty plea, the sentence for each of these charges is reduced to 2 years’ imprisonment.

11.For the charge of theft, I consider the appropriate starting point is 9 months’ imprisonment.  Given the defendant’s guilty plea, the sentence is reduced to 6 months’ imprisonment.

12.Apart from the defendant’s guilty plea, I do not see other mitigating factor justifying further reduction of sentence.

13.Taking into consideration the totality principle, I consider a total sentence of 2 years and 3 months is sufficient to reflect the total criminality of the defendant.  In the circumstance, I order the sentences for charges 2-4 to run concurrently, with 3 months from the sentence for charge 1 to run consecutive to charges 2-4, making a total of 2 years and 3 months’ imprisonment.  I hereby sentence the defendant to 2 years and 3 months’ imprisonment.