HKSAR v. Lai Yin Tat Dicky

DCCC 799/2019

[2020] HKDC 344

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 799 OF 2019

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Reasons for Sentence

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1.The defendant has pleaded guilty to a total of eight charges: charges of theft and handling stolen goods, attempted theft and possession of identity cards relating to other people.

2.The essential facts can be gained from the facts agreed and, in terms of sentencing, we can see the first three charges are related.  The first prosecution witness appears to have left his card in an ATM machine in the evening and some time the next morning it was taken by the defendant from the machine.  This was an ATM card which was also a credit card.  The defendant then used the credit card in a number of transactions - that is the 2nd charge - recouping a total of some $1,784.50 for the purchase of drinks, cigarettes and an online game.

3.The defendant was arrested in January and at the time of his arrest two Hong Kong identity cards in the name of other people were recovered from him.  The credit card, which was a Bank of China credit card, used in the ATM, was not recovered.

4.The defendant appears to have been released on police bail at that time. 

5.He then committed another series of offences in February.  This involved a gentleman who fell asleep in public in North Point whilst he was drunk.  When he awoke, he found that his briefcase had gone missing and various items were taken, which included two credit cards, a Bank of China MasterCard and a VISA card, and car keys to a vehicle. 

6.The defendant admitted later that he came into possession of those items and pleaded guilty to handling those stolen goods.

7.The defendant also admits that he used the credit cards in a number of transactions and these form the basis of Charges 5, 6 and 8.  In Charge 5, there was food to a total of $396-odd; in Charge 6, some sports shoes valued at $1,348-odd; and in Charge 8 a number of attempted transactions at an Apple Store for some $50,995.  Those were attempted transactions, not a completed transaction.

8.The 9th charge relates to the car keys that the defendant said he came into possession of.  The defendant told police he was able to locate the vehicle the car keys related to and he eventually sold the keys and the vehicle to another person or a friend for some HK$2,000, gave the keys to him.  The defendant did say he had ridden in the vehicle with that person. 

9.As I have noted, when those offences were committed, the defendant had already been released on police bail for the first three offences.

10.Turning to the defendant’s antecedents, he is now aged, I believe, 27.  He is married and has a daughter aged 6.  His mitigating factors -- he has some previous convictions but none are relevant to this matter; they are non-similar.

11.In mitigation, he refers to his early plea, his full confession to the offences, and, in relation to totality, wishes the court to take into account the offences themselves were related, fall into three main blocks:  the initial three charges, the next series of charges involving the handling stolen goods and the use of the credit card, and finally the selling of the car through his possession of the car keys, although that does in a way relate to the earlier offences as those items were stolen from the witness.

12.The approach to sentencing, there is of course no operative tariff for these forms of theft or handling stolen goods. Sentences are at large.  There is no operative tariff.

13.Possession of identity cards relating to other persons would normally lead to a substantial sentence of imprisonment.

14.However, the thefts and attempted thefts in Charges 1 and 2 and 5, 6 and 8 involve the use of these cards as credit cards, which is an alternative use along with their use as ATM cards.  The basic principle for sentencing where offences are committed or frauds are committed by use of credit cards, even for a small operation, is that sentences of imprisonment will be imposed. 

15.In the case of HKSAR v Lam Stephen [2013] (5) HKLRD 242, the Court of Appeal has indicated a starting point for sentence of 3 years’ imprisonment would be appropriate for what will be described as a small operation.

16.But the courts have more recently indicated that, where the offences are less serious, for example, there is a single or a small number of uses of a credit card by an opportunistic individual involving smaller sums of money, the courts can reflect the inherent seriousness of the offence and reduce that starting point for sentence.

17.More recently, in the case of HKSAR v Li Chi Yat, that is, CACC 189/2018, starting points for sentence for credit card related offences, were determined at 2 years’ imprisonment as opposed to 3 years’ imprisonment, so it would appear, for these smaller opportunistic types of offences, that the starting point for sentence the court can adopt can be more at large.

18.The final consideration in relation to these matters is that the defendant’s actions involve at least three separate series of forms of offending here, relating to the initial credit card thefts, credit card offences, the later handling stolen good and credit card offences, and finally the sale of the motor vehicle.

19.Taking all these matters into account and the fact that the defendant’s criminal record does not involve similar offences, I have determined that the sentences of imprisonment should be as follows.  I will indicate the sentences after deduction of the defendant’s one-third discount.  To determine the starting point, of course, one would need to back-calculate from that figure, but in order to save time I will simply go with the figures after the deduction of one-third.

20.In respect of:

(1) Charge 1, there will be a sentence of 8 months’ imprisonment;

(2) Charge 2, involving the use of the credit card, there will be a sentence of 14 months’ imprisonment;

(3) on Charge 3, possession of identity cards, there will be a sentence of 12 months’ imprisonment;

(4) on Charge 4, handling stolen goods, a sentence of 10 months’ imprisonment;

(5) Charge 5, a sentence of 12 months’ imprisonment;

(6) Charge 6, a sentence of 12 months’ imprisonment;

(7) and on Charge 8 - that involves the attempt to obtain goods of up to $50,000 - there will be a sentence of 20 months’ imprisonment;

(8) on Charge 9, the theft of the vehicle, there will be a sentence of 14 months’ imprisonment.

21.I must determine the overall correct sentence having regard to totality.  I will order the sentences to be served as follows:

(1) sentences 1 through to 3 will be served concurrently to each other;

(2) sentences 4 through to 8 will be served concurrent to each other;

(3) I am going to order that sentences 1, 2 and 3 will be served 6 months consecutively to the sentences on Charges 4, 5, 6 and 8, and 3 months of the sentence of Charge 9 will be consecutively served to the other charges (that is 1, 2, 3 and 4 through to 8).

22.That gives a total sentence of 29 months’ imprisonment.  That will be the order.