HKSAR v. Cheung Clinton Joseph

DCCC 773 & 930/2018 (Consolidated)

[2019] HKDC 405

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 773 AND 930 OF 2018

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REASONS FOR SENTENCE

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INTRODUCTION

1.The defendant is convicted upon his own guilty plea of 10 charges of theft (Charges 1-6, 8, 13, 23 & 25), 16 charges of obtaining property by deception (Charges 7, 9-12, 14-19, 24 and 26-29), one charge of possession of a dangerous drug (Charge 20) and 2 charges of evasion of liability by deception (Charges 21 and 22).

FACTS

Charges 1-5, 8-12 & 18-20

2.The facts admitted by the defendant revealed that at around 1:03 pm on 5 May 2017, the defendant approached a guest service officer of a hotel called “Madera Hong Kong” in Jordan, Kowloon (the “Hotel”), and presented his HKID card for checking-in.  Since the defendant’s name was listed on a notice distributed by the Travel Industry Council of Hong Kong, the Hotel made a report to the Police.

3.When the guest service officer was handling the defendant’s check-in procedures, the defendant requested to go out for a while, and left a “Fendi” handbag (“E1”) at the reception of the Hotel for temporary storage.

4.At around 3:46 pm on the same day, police officers intercepted the defendant at 1 Cheong Lok Street, Jordan, Kowloon for enquiry.

5.Upon search of the defendant, the following items were, among others, found in a “Givenchy” handbag (“E2”) carried by the defendant:-

(a) A wallet containing 6 credit cards belonging to other persons; and

(b) A metal box which contained 1 plastic bag containing 0.12 grammes of a crystalline solid containing 0.12 grammes of methamphetamine hydrochloride (“E3”).

6.The defendant was then arrested.  Under caution, the defendant stated, inter alia, that he stole the 6 credit cards seized when his friends were not paying attention, and he used them to buy goods.  He also admitted that E3 belonged to him for his self-consumption.

7.At around 4:02 pm on the same day, the defendant was escorted to the Hotel, and E1 was taken back from the Hotel.  Upon search, 2 credit cards belonging to other persons were, among others, found in E1.  In addition, one iPhone 7 plus (“E4”) and HK$2,422 cash were also seized from the defendant. The defendant was further arrested.  Under caution, the defendant stated, inter alia, that the 2 credit cards seized were stolen from his friends for him to buy goods, when his friends were not paying attention.

8.In particular, the aforesaid 8 credit cards seized from the defendant were:-

(a) 1 Hang Seng Bank Visa Card and 1 HSBC Visa Card both issued in the name of Cheng Wai Ching as particularized in Charge 2 (“E5” & “E6” respectively);

(b) 1 Standard Chartered Bank Mastercard issued in the name of Wong Wing Hang as particularized in Charge 3 (“E7”);

(c) 1 Citibank Mastercard issued in the name of Fung King Yan as particularized in Charge 4 (“E8”);

(d) 1 Dah Sing Bank Visa Card and 1 Bank of China Visa Card both issued in the name of Ho Chung Hei as particularized in Charge 5 (“E9” & “E10” respectively); and

(e) 1 DBS Visa Card and 1 American Express Card issued in the name of Cheung Ka Lun and Ka Lung Cheung respectively as particularized in Charge 8 (“E11” & “E12” respectively).

9.In the defendant’s video-recorded interviews conducted on 5 to 6 May 2017, under caution, the defendant stated, inter alia, that:-

(a) Re Charge 1:

He got acquainted with Chan Yik Yue Ryan via a social networking platform, and he stole a Citibank Visa Card issued in the name of Chan Yik Yue Ryan as particularized in Charge 1 when Chan Yik Yue Ryan was not paying attention.

(b) Re Charge 2:

He got acquainted with Cheng Wai Ching via a social networking platform, and he stole E5 & E6 on the same occasion when Cheng Wai Ching was not paying attention.

(c) Re Charge 3:

He got acquainted with Wong Wing Hang via a social networking platform, and he stole E7 when Wong Wing Hang was taking a bath.

(d) Re Charge 4:

He got acquainted with Fung King Yan via a social networking platform, and he stole E8 when Fung King Yan was not paying attention.

(e) Re Charge 5:

He got acquainted with Ho Chung Hei via a social networking platform, and he stole E9 & E10 on the same occasion when Ho Chung Hei was not paying attention.

(f) Re Charge 8:

He got acquainted with Cheung Ka Lun via a social networking platform, and he stole E11 & E12 on the same occasion when Cheung Ka Lun was not paying attention.

(g) Re Charges 9-10:

i. When the police mentioned about the credit card payment for an iPhone 7 plus, amounting to HK$7,388, made with a Bank of China Visa Card (4863-3012-6234-0011) on 13 January 2017 at “Apple Store” (ie a shop of “Apple Asia Limited”) situated at Shop No 1103, International Finance Centre Mall, No 1 Harbour View Street, Central, Hong Kong (“Transaction 1”), the defendant admitted that he used the said stolen credit card to make the payment; and

ii. When the police mentioned about the credit card payment for an iPhone 7 plus and a shopping bag, amounting to HK$7,388.5, made with the said stolen credit card shortly after the above on the same day and at the same place (“Transaction 2”), the defendant also admitted that he used the said stolen credit card to make the payment.

(h) Re Charge 11:

When the police mentioned about the credit card payment for a “Samsung” C9 Pro mobile phone and 2 pieces of phone accessories, amounting to HK$3,798, made with the Citibank Visa Card particularized in Charge 1 made on 11 February 2017 at “Fortress” (ie a shop of “A.S. Watson Retail (HK) Limited”) situated at Shop A, Ground Floor to 2nd Floor, Pun Tak Building, Nos 478 – 484 Lockhart Road, Wan Chai, Hong Kong (“Transaction 3”), the defendant admitted that he used a stolen credit card to buy a “Samsung” C9 Pro from the shop by forging the signature of Chan Yik Yue Ryan when he made payment.

(i) Re Charge 12:

When the police mentioned about a credit card payment for two iPhone 7 plus, amounting to HK$14,776, made with a DBS Visa Card (5408-0476-7639-7001) issued in the name of Chan Man Kiu, on 26 February 2017 at “Apple Store” (ie a shop of “Apple Asia Limited”) situated at Shop No G01, Hysan Place, No. 500 Hennessy Road, Causeway Bay, Hong Kong (“Transaction 4”), the defendant confirmed that he used the said stolen credit card to make the payment.

(j) Re Charge 19:

When E2 was shown to the defendant, he confirmed that on 4 May 2017, he used E11 to buy E2 for about HK$6,000 at “Room 1409 of Commercial Building” (ie “M22 Limited”, situated at Room Nos 1408 – 1409, 14^th Floor, Rise Commercial Building, Nos. 5 – 11 Granville Circuit, Tsim Sha Tsui, Kowloon, Hong Kong) (“Transaction 5”).

(k) Re Charge 18:

When El was shown to the defendant, he confirmed that he used a stolen credit card to buy El at a specialty store of “Fendi” in Tsim Sha Tsui (“Transaction 6”).

(l) Re Charge 20:

The defendant knew E3 was a dangerous drug, and he bought it for about HK$500.

10.Regarding Transaction 6, the relevant bank records revealed that an unauthorized credit payment for a “Fendi” handbag, amounting to HK$9,600.5, was made with an American Express Card (3771-152359-22003) issued in the name of Chan Tsz Him on 28 April 2017 at “TWIST” (ie a shop of “Polyinvestment Corporation Limited”) situated at Shop Nos. B02-B03, Basement, The Sun Arcade, No 28 Canton Road, Tsim Sha Tsui, Kowloon, Hong Kong.

Charges 6-7

11.On 23 December 2016, Liu Yang (“PW1”) first met the defendant in Lan Kwai Fong.

12.At around 4:00 pm on the next day, PW1 left his Citibank Visa Card as particularized in Charge 6 (“Card 1”) beside a computer in his residence.  About 45 minutes later, the defendant visited PW1 at his residence.  Meanwhile, PW1 had gone to the washroom once, leaving the defendant unattended.  Shortly after that, the defendant left PW1’s residence.

13.Subsequently, PW1 was informed by an SMS message from the relevant bank that someone used Card 1 to make a payment amounting to HK$10,300.  Upon checking, PW1 found that Card 1 was missing.

14.The relevant bank records revealed that a credit card payment, amounting to HK$10,300, was made on 24 December 2016 with Card 1 at “Balenciaga”, Shop Nos. 204 – 205, The Landmark, No. 15 Queens Road Central, Central, Hong Kong (“Transaction 7”).

15.In the defendant’s video-recorded interview conducted on 6 May 2017, under caution, the defendant stated, inter alia, that:-

(a) He had used a stolen credit card to buy goods in “Balenciaga”; and

(b) When the captures of the CCTV footage of “Balenciaga” on 24 December 2016 were shown to him, he positively identified himself as the suspect captured by the CCTV, and he bought a bag from the shop.

Charges 13-17

16.At around 12:00 midnight on 21 April 2017, Lee Chi Wa  (“PW2”) took out, and last saw his Bank of China Visa Card as particularized in Charge 13 (“Card 2”) in a convenience shop.

17.At around 8:00 pm on the same day, PW2 began to receive messages from the relevant bank that 4 transactions had been made with Card 2.  As the said transactions were not made by him, he reported loss of his credit card to the relevant bank, and then reported this case to the police.

18.The aforesaid four transactions were all made on 21 April 2017 with Card 2, and the details of the transactions were as follows:-

(a) a credit card payment, amounting to HK$7,432 made at “DG Lifestyle Store”, Shop No. 917, 9th Floor, Times Square, No. 1 Matheson Street, Causeway Bay, Hong Kong, for an iPhone and a screen protector (“Transaction 8”);

(b) a credit card payment, amounting to HK$7,088 made at “DG Lifestyle Store”, Shop No. 917, 9th Floor, Times Square, No. 1 Matheson Street, Causeway Bay, Hong Kong, for an iPhone (“Transaction 9”);

(c) a credit card payment, amounting to HK$690 made at “Wan Kee Sports Company Limited”, Shop Nos. 510 – 515, 5th Floor, Hysan Place, No. 500 Hennessy Road, Causeway Bay, Hong Kong, for a pair of shoes (“Transaction 10”); and

(d) a credit card payment, amounting to HK$l,734 made at “AHK Retail Ltd.”, 1st Floor, Lee Theatre Plaza, No. 99 Percival street, Causeway Bay, Hong Kong, for 3 pieces of clothing (“Transaction 11”).

19.In the defendant’s video-recorded interview conducted on 27 March 2018, under caution, the defendant stated, inter alia, that:-

(a) He knew PW2, the cardholder of Card 2;

(b) On 21 April 2017, he used Card 2 to buy:

(i) E4 for HK$7,432 from “DG Lifestyle Store”;

(ii) an iPhone 7 plus for HK$7,088 from “DG Lifestyle Store”;

(iii) a pair of shoes for HK$690 from “Wan Kee”;

(iv) some clothes for HK$1,734 from “AHK”.

(c) He took away Card 2 from PW2’s wallet when PW2 was not paying attention; and

(d) He disposed of Card 2 after using it to buy goods.

Charge 21

20.On 18 August 2017, So Wai Ming Esmond put his ‘LV’ watch and ‘LV’ bag (“Ppty 1 & Ppty 2”) for sale for HK$20,000 and HK$42,000 via a mobile application ‘Carousell’. On 20 August 2017, a person (“Buyer”) showed interest in making a deal with PW23, and they arranged to meet on the same day.

21.At about 7:00 pm on 20 August 2017 at the lobby of Four Seasons Place, 8 Finance Place, Central, PW23 met the defendant purporting to be the secretary of the Buyer who came to make the deal on behalf of the Buyer.  After the defendant had checked Ppty 1 and Ppty 2, PW23 received a phone call from the Buyer, who claimed to have transferred HK$62,000 to PW23’s bank account with Hongkong and Shanghai Banking Corporation Limited (“HSBC”).  PW23 checked via phone banking that there was no such transfer.  PW23 insisted he had to receive payment before releasing the goods.  Subsequently, the defendant gave a cheque no. 300367 of HK$62,000 drawn on the HSBC account as particularized in Charge 21 (“Cheque 1”) to PW23. The Buyer called and told PW23 that if PW23 did not receive the bank transfer by 21 August 2017, he could then deposit Cheque 1.  Then, the defendant told PW23 to wait at the department store “Lane Crawford” as he had to go to the nearby office.  PW23 kept Ppty 2 whilst the defendant took Ppty 1 and left.  Afterwards, the defendant did not return.

22.On 21 August 2017, PW23 deposited Cheque 1 into his HSBC account.  On the next day, he was informed by the bank that the cheque was bounced.  The case was reported.

23.The police checked and found that the defendant’s HSBC cheque account had already been closed in late July 2017.

24.In the defendant’s video-recorded interviews conducted between 26 March 2018 and 27 March 2018, the defendant said under caution that:-

(a) The defendant had purchased one ‘LV’ watch of about HK$20,000 and one ‘LV’ bag of about HK$40,000 from a male via a mobile application. They met at Four Seasons Place in mid-August 2017 for the hand over; and

(b) The defendant had made pretence of 2 characters. He disguised as the buyer purporting to be a staff of senior level of ‘Lane Crawford’ and also as the Buyer’s secretary to ‘cheat’ the seller. He had no cash and thus issued a cheque of HK$62,000 to the seller. He knew there was insufficient balance in the bank account to make the cheque payment. He had discarded the cheque book.

Charge 22

25.At about 11:30 am on 9 September 2017, Yu Tsun Kit (“PW24”) came to know a person named ‘Sean’ via a mobile application ‘Grindr’. PW24 met ‘Sean’ (ie the defendant) for dinner on 13 September 2017.  Afterwards, they had met on a few occasions for meal and chat.

26.At about 3:00 pm on 18 September 2017, PW24 met the defendant at a restaurant at Paterson Street, Causeway Bay for a meal.  Meanwhile, the defendant received a phone call and claimed that his grandfather had been admitted to hospital.  The defendant asked to borrow HK$35,000 from PW24 for a purported medical fee.  Later in the same afternoon, PW24 withdrew cash of HK$20,000 from his Hang Seng Bank (“HSB”) account and gave the money to the defendant.

27.At about 5:00 pm on 19 September 2017, whilst having a meal in Causeway Bay, the defendant asked PW24 for another HK$15,000.  PW24 withdrew the said sum from his HSB account.  In return, the defendant gave PW24 two cheques (no. 300370 & no. 300371 – Cheque 2 & Cheque 3), each in the sum of HK$35,000 drawn on the defendant’s HSBC cheque account.  The defendant told PW24 that one cheque was for repayment and the other was for PW24’s temporary keeping of money for the defendant.  PW24 deposited the 2 cheques on the same day.  Few days later, PW24 was informed by the bank that the 2 cheques had been bounced because the account had already been closed.  Afterwards, PW24 was unable to reach the defendant.  The case was reported.

28.In the defendant’s video-recorded interviews conducted between 26 March 2018 and 27 March 2018, the defendant said under caution that:-

(a) In August/September 2017, the defendant met PW24 via a mobile application ‘Grindr’ and he claimed to be ‘Sean’. They then communicated via either ‘Line’ or ‘WhatsApp’. The defendant had met PW24 for meals in Causeway Bay;

(b) The defendant asked to borrow money from PW24 under the pretence that there was problem with his grandfather. PW24 lent money to the defendant twice in total of HK$35,000. The defendant used the money obtained for his daily expenses; and

(c) The defendant had issued 2 cheques to PW24 whilst knowing that there was no money in the bank account. The defendant had already changed his phone and discarded the cheque book.

Charges 23-24

29.In early September 2017, Har Wai On (“PW25”) came to know a person nicknamed ‘boring’ via a mobile application ‘Grindr’.  PW25 met ‘boring’ (ie the defendant) who claimed to be ‘Sean’ on several occasions in the same month.

30.At about 3:00 am on 1 October 2017, PW25 used his BEA credit card as particularized in Charge 23 for paying bills and then put it back to his wallet.  PW25 later met the defendant around 5:00 am and they went to the defendant’s residence at Newtown Mansion, No. 6 Cleveland Street, Causeway Bay, Hong Kong.  PW25 placed his wallet on a table and went to sleep.  He left the defendant’s residence around 6:00 pm on the same day.  Later at about 7:00 pm, PW25 was informed by the bank that there was a transaction of HK$8,188 made with ‘Fortress’ using his BEA credit card for purchase of an iPhone on the same day.  PW25 never made such transaction and thus found his BEA credit card missing.  The case was reported.

31.In the defendant’s video-recorded interviews conducted between 26 March 2018 and 27 March 2018, the defendant said under caution that in September 2017, he came to know PW25 via a mobile application 'Grindr' and then they communicated via ‘WhatsApp’.  They had met for 5-6 times.  On 1 October 2017, the defendant had asked PW25 to go to his residence in Causeway Bay.  During their meeting, the defendant stole PW25’s BEA credit card as he had no money.  The defendant used PW25’s credit card to purchase an ‘iPhone 8 Plus’ and forged PW25’s signature.

Charges 25-29

32.In early October 2017, Ho Chi Kai (“PW26”) came to know a person nicknamed ‘boring’ via a mobile application ‘Grindr’ and they later communicated via ‘WhatsApp’.  PW26 had met ‘boring’ (ie the defendant) for a few times in the same month.

33.At about 7:00 pm on 12 February 2018, the defendant messaged PW26 and they met in Wanchai in the same evening.  The defendant brought PW26 to a flat in Friendly Mansion, Nos. 345-351 Hennessy Road, Wan Chai, Hong Kong.  PW26 was told that the defendant lived at the flat on a temporary basis as his home was under renovation.  During the chat, the defendant received a phone call and claimed that a female friend (“F”), who was the owner, was returning to the flat.  The defendant told PW26 to hide under the blanket on the upper bunk bed because he could not let F know that he had brought another person to the flat. PW26 complied and he placed his rucksack containing his wallet on the lower bunk bed.  Whilst PW26 was hiding, he heard some sound appearing to be between a female and the defendant.  After F had left, PW26 got out of the bed, took his belongings and left the premises.

34.At about 9:26 pm on the same day, PW26 was informed by the bank that 2 transactions were made earlier in the same evening with his BEA credit card as particularized in Charge 25.  Upon checking his wallet, PW26 discovered that both his BEA credit card and his HSBC credit card both particularized in Charge 25 had gone missing.  Instead, 2 credit cards not belonging to him had been placed in his wallet.  PW26 further checked that 2 transactions had been made using his HSBC credit card in that evening.  Afterwards, PW26 tried to contact the defendant who became out of reach.  The case was reported.

35.The 4 transactions were:-

(a) PW26’s HSBC credit card:

i. One purchase transaction of HK$3,740 with ‘Atelier Cologne’ at 9:23 pm on 12 February 2018 for 2 bottles of perfume.

ii. One purchase transaction of HK$14,601 with ‘Burberry’ at 9:37 pm on 12 February 2018 for one card holder and one handbag.

(b) PW26’s BEA credit card:

i. One purchase transaction of HK$9,888 with ‘Apple Store’ at 8:35 pm on 12 February 2018 for one iPhone.

ii. One purchase transaction of HK$9,689 with ‘Suning’ at 8:58 pm on 12 February 2018 for one iPhone.

36.In the defendant’s video-recorded interviews conducted between 26 March 2018 and 27 March 2018, the defendant said under caution that:-

(a) The defendant came to know PW26 via a mobile application ‘Grindr’. They had met each other in Causeway Bay on different occasions;

(b) On 12 February 2018, the defendant brought PW26 to his residence in Friendship Mansion, Wanchai. The defendant and his ex-neighbour named ‘Ah Kim’ stole PW26’s credit cards. At the material time, the defendant told PW26 to cover himself with a blanket. Meanwhile, ‘Ah Kim’ kept making conversation with the defendant and searched PW26’s wallet. 2 credit cards were stolen. ‘Ah Kim’ later gave the credit cards to the defendant at Hysan Place;

(c) The defendant used PW26's BEA credit card to purchase an ‘iPhone X’ at the ‘Apple Store’ in Hysan Place. He resold the phone for HK$8,500 to some unknown shop and gave part of the money to ‘Ah Kim’;

(d) The defendant also used PW26’s BEA credit card to purchase an ‘iPhone’ at ‘Suning’; and

(e) The defendant used PW26’s HSBC credit card to purchase 2 bottles of cologne for self-use. He used the same credit card to purchase one card holder and one handbag from ‘Burberry’.

PREVIOUS RECORD

37.The defendant had 17 previous convictions resulting from three court cases. Out of those 17 previous convictions, 8 were theft and 9 were obtaining property by deception.  They were all dishonesty related offences.

MITIGATION

38.The defendant is now 25.  He was born in the Philippines and lived there until he was 4 when his mother, sister and grandparents were killed in a gun-shot incident.  He then moved to Hong Kong to live with his father.  He was brought up by his father and step-mother who have been taking good care of him. The defendant used to work as a hair stylist.  He left the job after having a dispute with his employer, and started to associate with friends of undesirable characters who lured him into taking drugs.  He then started to commit those dishonesty related offences.  Since his remand resulting from the present case, he had profoundly reflected on his life and the mistakes he had committed.  He felt remorseful.  Two mitigation letters, one from the defendant and one from his father, were submitted to this court.

SENTENCE

39.The 10 charges of theft were all theft of credit cards belonging persons the defendant newly acquainted with.  The defendant preyed on those new acquaintances and stole their credit cards.  He then used those credit cards to purchase goods of relatively substantive values which resulted in the 16 charges of obtaining property by deception.

40.There is no tariff for theft of credit cards.  The sentence of each case depends on its own facts.  In the present case, I consider a starting point of 2 years’ imprisonment for each of the theft charges appropriate: HKSAR v Shum Chung Wai[1].

41.As for the 16 charges of obtaining property by deception, I have considered the Court of Appeal’s decisions in R v Chan Sui To[2], HKSAR v Lam See Chung, Stephen[3] and HKSAR v Wong Wan Shan[4] and consider a starting point of 3 years’ imprisonment for each of those charges appropriate.

42.For the possession of a dangerous drug charge, ie Charge 20, I have considered the Court of Appeal decision in HKSAR v Mok Cho Tik[5]and consider a starting point of 6 months’ imprisonment appropriate.

43.For the 2 charges of evasion of liability by deception, in light of the values involved I consider a starting point of 15 months’ imprisonment appropriate for each of those charges.

44.The defendant had 17 previous convictions, all of them were dishonesty related.  He was released from prison in October 2016 and started to commit the offences in the present cases soon afterwards.  He is a persistent offender. Because of that, I will enhance the sentence for each of the 16 charges of obtaining property by deception by 6 months, thus leading to a starting point of 3 years and 6 months’ imprisonment for those charges.  I will enhance the sentence for each of the 10 charges of theft by 4 months, thus leading to a starting point of 2 years and 4 months’ imprisonment for each of the theft charges.  I will enhance the sentence for each of the 2 charges of evasion of liability by deception by 2½ months, thus leading to a starting point of 17½ months’ imprisonment for each of the two charges.  As the defendant has no previous conviction relating to dangerous drugs, there is no enhancement on Charge 20.

45.The defendant pleaded guilty to the charges at the stage where he is entitled to a full one-third discount.  I give him one-third discount accordingly.  The resulting sentence for:-

(i) each of Charges 1-6, 8, 13, 23 & 25 is 18 and 2/3 months’ imprisonment. I will round it off to 18 months and 2 weeks’ imprisonment;

(ii) each of Charges 7, 9-12, 14-19, 24 and 26-29 is 2 years and 4 months’ imprisonment;

(iii) each of Charges 21 & 22 is 11 and 2/3 months’ imprisonment. I will round it off to 11 months and 2 weeks’ imprisonment; and

(iv) Charge 20 is 4 months’ imprisonment.

46.Ms Chan advised me that 19 credit cards from 13 cardholders were involved in the present case and the total loss was approximately HK$177,000.

47.Charge 11 arose as a result of the theft in Charge 1.  Charge 7 arose as a result of the theft in Charge 6.  Charge 19 arose as a result of Charge 8. Charges 14, 15, 16 and 17 arose as a result of Charge 13.  Charge 24 arose as a result of Charge 23.  Charges 26, 27, 28 and 29 arose as a result of Charge 25.  Charges 9 and 10 involved the use of the same credit card issued in the name of Choi Siu Ching.

48.I consider an overall sentence of 3 years and 6 months’ imprisonment appropriate in this case.  I therefore order that 2 months in each of Charges 7, 11, 14, 19, 22, 24 and 27 to run consecutively with the 2 years and 4 months’ imprisonment in Charge 12.  All other sentences are to run concurrently.  The total sentence is therefore 3 years and 6 months’ imprisonment.