HKSAR v. Fan Po Ki

DCCC 1167/2018

[2019] HKDC 1092

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 1167 OF 2018

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Reasons for Sentence

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1.The 23-year-old defendant pleaded guilty to three counts of theft and was convicted accordingly.

The Prosecution Case

2.At about 10:45 pm on 6 December 2016, PW1 Tse took a taxi to go to Kam Tin. After alighting from the taxi, she discovered that her wallet was lost. Inside her wallet, there were one Standard Chartered Bank Visa card (SC Visa), one HSBC Visa card (HSBC Visa) and one BOC Visa card (BOC Visa) and cash of $5,000. 

3.Upon checking with the banks, PW1 Tse found that some credit card transactions, including four payments made with SC Visa and HSBC Visa were not made by her. She then made a report to the police. 

4.These four transactions were executed between 2 am to 5:33 am on 7 December 2016. Three transactions related to Hotels.com with the amount of $2,816.46, $1,760.46 and $1,650.35. The remaining transaction was done at Wellcome with a purchase of $505. 

5.All the hotel bookings were made via the website of www.hotels.com from a device with the IP address of 219.77.16.79. The police were able to trace this IP address to the physical address of Lun Yuen Hotel in Hong Kong. Subsequent enquiry revealed that the defendant’s name and her ID card number was registered when a female checked in in the relevant hotels. 

6.The CCTV installed in the Wellcome Supermarket situated at Shanghai Street, Mongkok captured the culprit, who resembled the defendant, paid with the HSBC Visa. 

7.On 8 November 2017, the defendant was arrested. Under caution, the defendant said she found a wallet in a taxi. She then used the credit cards to book hotels online and went to Wellcome to buy a bottle of wine.

8.In subsequent video recorded interviews, the defendant admitted, inter alia, that:

(1) On or around 6 December 2016, she found a wallet in a taxi and kept it out of greed.

(2) At about 2 am on 7 December, she used her mobile phone to access the internet provided by Lun Yuen Hotel. She booked a hotel room of Regal Kowloon Hotel online for 8 to 9 December 2016 and made the payment with PW1’s SC Visa.

(3) At about 2:28 am on the same day, that is 7 December, again she used similar method and booked a hotel room of Regal Kowloon Hotel for 7 to 8 December 2016. She paid with PW1’s HSBC Visa.

(4) She confirmed that she filled in the particulars of the registration cards provided by Regal Kowloon Hotel and she signed the same when checking-in.

(5) At about 4 am on 7 December 2016, she bought a bottle of wine from Wellcome and paid with HSBC Visa.

(6) She confirmed the merchant copy of the credit card receipt and admitted that she was the one who forged the signature of the cardholder. She identified her image from the CCTV footage provided by Wellcome.

(7) She claimed that after she bought the bottle of wine, she discarded PW1’s wallet and the three credit cards.

(8) At about 5:33 am on 7 December 2016, she booked a hotel room of Attitude Granville Hotel online for 9 to 10 December 2016, and paid with PW1’s SC Visa.

(9) She claimed that she had stored the credit card information of the SC Visa in her phone and hence could still use the card, even though she had thrown away the card earlier on.

(10) She identified her signature and the particulars of the registration card provided by Attitude Granville Hotel.

Mitigation

9.In his four-page mitigation points, Mr Percy detailed the mitigating grounds on behalf of the defendant. The defendant is now 24 years of age and has the education level up to Form 3.  She is the mother of three young kids with the age ranging from two to six. The defendant’s three kids are now being taken care of by different foster families.

10.The defendant is from a deprived background and dysfunctional family. The defendant’s mother has recently served a prison sentence for drug offences, and the defendant had pleaded guilty to the offence of trafficking in a dangerous drug in the Court of First Instance recently and was sentenced to 8 years’ imprisonment (HCCC 397/2018) in May this year. It was submitted that the court in this case should:

“...consider a wholly concurrent rather than partly consecutive sentence for these three offences, with her present sentence of 8 years’ imprisonment, to reduce the stress and anxiety of all concerned and to facilitate re-uniting this family.”

11.Defence counsel also submitted two letters dated 20 November 2018 and 25 June 2019 from a social worker Ms Ng. Mr Percy also relied on the case HKSAR v Nyamdoo Zoljargal CACC 54/2016 saying that where guidelines have been issued, the exercise of comparing particular sentences passed on different facts in different circumstances and on different defendant is of limited utility. 

12.It was submitted that the defendant committed the present offences out of momentary greed and these were opportunistic offences, all committed by the defendant alone within a period of about 48 hours. This is not a case where a syndicate was involved, nor did the defendant use the stolen cards to buy high value goods. It was submitted that these offences were at the bottom of the scale of seriousness for offences of their kind. But it is accepted that the theft by finding is a distinct and separate offence from the credit card fraud offences. In the end, it is further submitted that this court should pass a sentence as leniently as possible. 

Sentence

13.The defendant is aged 24. She has not married but has three young kids. The two respective fathers of her children had either disappeared or were in prison. The defendant received education in Hong Kong up to Form 3 and was a saleslady before her arrest. The defendant had two previous convictions, all of them related to dangerous drugs. The defendant was sentenced to 8 years’ imprisonment in May this year. 

14.The present offences were committed in December 2016 and the defendant committed the offence of trafficking in a dangerous drug, which was heard in the Court of First Instance, in March 2018. I accepted that the theft by finding was opportunistic and committed by the defendant out of momentary greed. But the defendant kept on using two of the stolen cards to do online hotel booking, and used one to buy a bottle of wine. Although the 2nd and 3rd charges related to theft offences, in substance, they are credit card fraud. The defendant did not use the cards to make purchases of high value goods but used them to book hotel room online in the early hours of the day. 

15.I have sympathy for the defendant who came from a dysfunctional family but unfortunately the defendant herself created another dysfunctional family for her kids. 

16.The only mitigating ground in substance is that the defendant pleaded guilty to the charges which will allow the Court to give her a full one-third discount in sentence. 

17.The two letters from the social worker in fact addressed to the defendant, not to this Court. The social worker was kind enough to tell the defendant the current situations of the defendant’s kids and other arrangements. 

18.I have considered the previous sentencing cases including HKSAR v Wan Ka Ling CACC 318/2012, SJ v Lam Yuk Chi CAAR 4/2018 and also two appellate cases heard by a single judge: HKSAR v Nyamdoo Zoljargal CACC 54/2016 and HKSAR v Tseveen-ochir Batjargal CACC 250/2016. I have also considered the mitigations put forward forcefully by Mr Percy. I now sentence the defendant as follows:

(1) Charge 1 was theft by finding. The victim lost her wallet, three credit cards and cash of $5,000. I would adopt a starting point of 9 months, and with her plea, I reduce the sentence to 6 months.

(2) Charges 2 and 3 are credit card fraud offences. I would use a starting point of 3 years, and with her plea, I reduce the sentence to 2 years.

19.The theft-by-finding offence can be regarded as a distinct offence from the remaining charges, hence the Court is entitled to make a sentence consecutive to other sentences in these proceedings. However, I do take into account of the current 8-year imprisonment term that the defendant is serving. I have to consider the totality principle. I will treat the defendant with leniency, and order that all three sentences to be served concurrently.

20.Lastly, I have to consider whether I should make the present 2-year imprisonment term partly concurrent or consecutive to the current 8-year term that the defendant is serving. I take the view that the present offences were committed in 2016 and they are of totally different nature from the drugs offence. It would be wrong in principle to order the present sentences be served partly concurrent with the defendant’s current prison term. As such, I order that the present 2-year sentence is to be served consecutively to the defendant’s current 8-year imprisonment term.