HKSAR v. Liu Chi Ho and Another

DCCC 1156/2018

[2019] HKDC 1034

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 1156 OF 2018

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Reasons for Sentence

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1.The defendants have pleaded guilty to a number of charges arising out of an incident that occurred in December of 2017. Both the defendants are residents of a centre, Lok Ka Nursing Rehabilitation Centre, and they both face a number of challenges in respect of their mental health, that is why they are at that centre, the matter arose out of the fact that they surrendered themselves, and provided the information by which this prosecution moved forward.

2.On 16 January, they turned themselves in, I think is the expression here; called the police.  What transpired to be found was that the 1st defendant had found the credit card belonging to the 1st prosecution witness, that is the person who was the president of the nursing rehabilitation centre, and the two of them then went to use the credit card, on 21 December 2017.  They first used the credit card to attempt to make a payment of $19,000-odd at Broadway Photo Supply Limited, and that is the second charge. That transaction was in fact voided.  Shortly later on the same day, they used the credit card to make a payment of $18,000-odd at Yum Yum Telecom, they did that together.

3.The full details of those facts could be found in the facts which the defendants have admitted.  I do not propose to refer any further to them.

4.As far as the defendants themselves are concerned, the 1st defendant is aged 40 and has one previous conviction relating to possession of Part I poison.  He is suffering from psychiatric illnesses and, as a result, since the age of 28, he has only been able to do casual work. He has been living in private residential care since 2013 and I am told that the position for care at the residential care home will be available for the defendant.  He is described in the report I obtained as a man with a long history of substance abuse.  He needs multi-disciplinary mental health professionals in a long-stay care home.  As far as other matters relevant to sentence are concerned, he has also offered to make a payment of $3,000 by way of compensation.

5.The 2nd defendant is a lady of 37 years old. She has a conviction of conspiracy of defraud some 11 years old now, back in 2008.  This lady also has had problems with mental health issues.  She is said to have been diagnosed with paranoid schizophrenia and was hospitalised for that problem.  She has been living in a private home and subsisting on CSSA. She has children but at present moment they are cared for by her ex-cohabitant. She says that she is remorseful and has learnt a lesson by this offence.

6.Essentially, both defendants ask me to treat them as leniently as possible, given the nature of the offences they have committed.

7.The cases involve credit card fraud, they can be described as a minor form of that particular offence.  The relevant starting point for sentence in respect of credit card-type frauds has been extensively examined by the appellate level in Hong Kong, in the line of cases starting with Chan Sui To [1996] 2 HKCLR 128, down to HKSAR v Tu I Lang, CACC 464/2006, and in that case the court said 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 defendant to a larger operation, then a starting point of 3 years imprisonment or less would seem to be appropriate.”

(Clarification of starting point)

8.This case is concerned with the formulation of the words “or less”, because this is one of the most unsophisticated credit card frauds one can imagine.

9.More recently, in the case of HKSAR v Li Chi Yat - that is CACC 189/2018 - the courts have looked at cases that would fall below the Tu I Lang threshold, and in a case with some similarities to this case, it was said the starting point for sentence of 2 years’ imprisonment would be appropriate. 

10.This is a simple case involving theft by finding of the card and then it is used on two occasions but there is only one occasion where it is actually successful; it is done by two people who obviously succumb to the temptation of having a credit card, but two people who are otherwise challenged in many ways.  I believe that, in all the circumstances of this case, the court can take a reasonably lenient approach.

11.The other offence involved in this case is D1’s offence of theft.  There is no guideline sentence for that.  Again, it is a less serious form of theft, being theft by finding.

12.Having regard to these factors, I will set out the starting points for sentence I am going to adopt in relation to these offences and then I shall determine the appropriate discount from that sentence, having regard to the fact that the defendants are acknowledged to have surrendered themselves and provided information by which they could be located and prosecuted.

13.For the 1st defendant, on the first charge, I believe a starting point for sentence of 2 months’ imprisonment is appropriate.

14.On the remaining credit card charges (Charges 2 and 3), I will adopt a starting point of 2 years’ imprisonment for both defendants on those charges.

15.What is the appropriate discount?  I have also been referred to cases where that issue has been examined by the court, where the assistance rendered to the prosecution is considered by the Court of Appeal, and that is HKSAR v Lo Sze Tung Stephanie, CACC 190/2017. 

16.My understanding of the formulation is that this particular form of assistance given by the defendants in this case would put this case into a 40- to 50-per-cent discount range. 

17.I will adopt a 50-per-cent discount for both defendants.  That will lead to the following sentences of imprisonment:

(1)  on Charge 1, 1st defendant, 1 month’s imprisonment;

(2)  on the remaining Charges 2 and 3, for both defendants the sentence will be one of 12 months’ imprisonment.

18.I note both defendants are prepared to make compensation orders.  The court will accept those.  Given the difficulties of their lives, that shows considerable remorse by them.

19.I take the offences as being one, a total form of offending, and what I am going to order for both defendants as far as overall totality is concerned, that all sentences to be served concurrently.

20.That will be total sentence of imprisonment for both defendants of 12 months’ imprisonment; also a compensation order of $3,000 to Tong Chung-po by both defendants.