HKSAR v. Luk Kit Chun

DCCC 470/2019

[2019] HKDC 1721

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 470 OF 2019

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Reasons for Sentence

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Charges

1.D pleads guilty to a charge of theft (Charge 1) and 4 charges of obtaining property by deception (Charges 2 – 4 and 6).

Facts

2.Upon checking his CITIBANK Visa Card statement on 16 April 2016, HUI (PW1) became aware of unauthorized transactions not made by him.  He found his credit card missing from his wallet.  He made a report to the police.

3.It transpired, from the Defendant’s admissions upon arrest, that she had picked up his credit card in Mong Kok and used it for payment in 4 purchase transactions in Ho Man Tin pertaining to the 5 charges as follows:

(1) on 28 March 2016, $1,810 for a purse and a key bag (Charge 2);

(2) on 29 March 2016, $480 for a pair of shoes (Charge 3);

(3) on 30 March 2016, $2,490 for a gas stove, two cash vouchers and one spare part (Charge 4);

(4) on 30 March 2016, $10,980 for an air-conditioner, and left her mobile phone number and residence address for the installation (Charge 6).

4.The total sum for (1) – (4) above was $15,760. 

5.On 8 February 2017, she was arrested.  In the subsequent inquiry under caution, she admitted all the offences.  She did not know the cardholder of the credit card.

Mitigation

6.She is 48 years of age, of secondary school education level.  She has a clear record.  She is a convenience store counter salesperson.  She is a divorcee.  She lives with her father and her two daughters.

Sentencing considerations

7.The Defendant’s counsel, Ms. Wong, in mitigation refers to the case of SJ v Lam Yuk Chi Louisdeana 林玉芝 [2019] HKCA 686, a judgment in Chinese.   On the same day after the defendant had picked up a credit card (Charge 1), she used it to make purchases at 4 shops (Charges 2 – 5), valued at $14,283 in total.  She was aged 58 and had a clear record.  She had been suffering from serious physical and psychological problems.  She also made full compensation to the victim.  She was detained for 3 weeks before sentence.  After a one-third discount for her pleas of guilty, she was sentenced to 20 months suspended for 2 years. 

8.The sentencing judge referred to HKSAR v Lam See Chung Stephen [2013] 5 HKLRD 242 for the observation that simple credit card fraud would warrant a starting point of 3 years or below.  The prosecution on appeal did not dispute such an observation.

9.The Court of Appeal accepted her personal circumstances as an effective mitigating factor but regarded a suspended sentence inappropriate.  Remarking that the revised sentence ought to be lighter as it was a review by the prosecution, the Court of Appeal imposed an overall sentence of 15 months.

10.Ms. Wong requests me to consider a sentence of no more than 15 months.

11.I regard the observation in Lam See Chung Stephen applicable here.  I do not regard Lam Yuk Chi Louisdeana directly comparable as the lower sentence there was due to a host of adverse personal circumstances which are absent in our case.

12.The Defendant has just made concrete arrangements for full compensation in the sum of $15,760 to the credit card issuing bank.

Sentencing the Defendant

13.I take a starting point of 30 months for Charges 2 – 4 and 6 each.  There is a one-third discount for the plea of guilty and 1 month’s discount for the full compensation made. The sentence is 19 months each. 

14.I take a starting point of 9 months for the theft in Charge 1.  After a one-third discount for the plea of guilty, the sentence is 6 months.

15.By way of totality, I make the following order:

(1) Charge 2, 19 months to be served;

(2) Charges 1, 3, 4, and 6, 1 month of each to be consecutive to other charges;

(3) The total sentence is 23 months.