HKSAR v. To Pui Ting

DCCC 485/2019

[2020] HKDC 491

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 485 OF 2019

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Reasons for Sentence

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1.The defendant faces a total of six charges. They relate to the theft of two credit cards and their subsequent use.

2.The defendant worked at the Asia World-Expo MTR as a cleaner together with the victim.  The first three charges relate to, firstly, the defendant’s theft of the first prosecution witness’s credit card. She did that on 1 December 2018.  It was stolen from a backpack at work. Following  that, the card was used twice.  Firstly, it was at a 7-Eleven Convenience Store to buy what is described as a bottle of drink and then later at a company known as Broadway in Tuen Mun Plaza to purchase a smartphone that was valued at $6,998.50.

3.The second occasion of theft, which is the 4th charge, occurred again on 18 January 2019 at the same staff room where the Bank of China Visa Card was stolen from the victim.  That card was used on 19 January at the 7-Eleven Convenience Store to purchase a bottle of drink and then later on 19 January to buy two smartphones, and those phones were valued at $6,698 and $4,498.

4.The defendant has admitted all these offences under caution.

5.She is a young lady aged 29.  She had no, as I understand it, previous convictions.  There have been some subsequent involvements in crime after this offence involving shoplifting for which she has been placed on probation.  The defendant is a person of secondary school education who was employed as a cleaner.  She lives with her partner and her partner’s mother.

6.I have, because this was a first offence and the defendant is young, I obtained a background report on the defendant, and the defendant in her report gave an opportunity to show remorse.  She says she has gained insight and would like to live a law-abiding life on her release.  It is to be hoped she can achieve a rehabilitation eventually.

7.As far as the approach to sentencing is concerned, the offence of theft - there is no particular guideline as to sentencing - however these offences involved, certainly the 2nd, 3rd and 5th and 6th offences involved the presentation of a credit card in order to obtain goods and there are guideline sentences in respect of offences where that method of crime is operational.  It is considered to add a higher level of criminality to the offence to use another person’s credit card, whether forged or genuine, but it is still necessary to maintain a realistic approach to sentencing.  In the 2nd and 5th offences, only a minor item was obtained which is a drink, but in the 3rd and 6th offences of course a total of three mobile phones were obtained and I have already set out the values.

8.Historically, a sentence of 3 years’ imprisonment was considered to be the starting point for sentence for what was called a low-level small-scale credit card offence.  It has also been the case that such small-scale credit card offences cannot necessarily be subject to strict guidelines because they can vary significantly in a number of ways in which they are perpetrated, and it is said that in those cases a starting point of 3 years’ imprisonment or less would be appropriate and that the authority for that is HKSAR v Li Chi Yat which is CACC 189/2018.  In the case of Li Chi Yat, a starting point of 2 years’ imprisonment was considered to be appropriate in respect of the deception charges where a credit card had been used.  That would appear to be a case that is on point with today’s case.

9.I shall approach the sentencing as follows with the following starting points and reductions by one-third to represent the defendant’s pleas of guilty.

10.On the 1st charge of theft, I will take a starting point of 12 months’ imprisonment and reduce that to 8 months’ imprisonment for the defendant’s plea of guilty.

11.On the 2nd charge of obtaining by deception, here a credit card was used but it is a very minor offence involving the purchase of a bottle of drink of very low value, I take a starting point of 12 months’ imprisonment, reduce that to 8 months’ imprisonment for the plea of guilty.

12.The 3rd offence represents a more substantial offence involving the obtaining of a mobile phone and I consider in that situation the starting point of 24 months’ imprisonment as appropriate, reduce it to 16 months’ imprisonment for the defendant’s plea of guilty.

13.On the 4th charge, the offence of theft, I take a starting point of 12 months’ imprisonment leading to a sentence of 8 months’ imprisonment after deduction for a plea of guilty.

14.On the obtaining by deception charge, Charge 5, where the bottle of drink was obtained, again a starting point of 12 months’ imprisonment reduced to 8 months’ imprisonment for the defendant’s plea of guilty.

15.On the 6th charge, representing the use of the credit card to obtain two mobile phones, I will still have an operating starting point of 24 months’ imprisonment and reduce it to 16 months’ imprisonment for the plea of guilty.

16.The offices represent two separate outgoings, criminal outings, one in December and the later one in January, and they must to a certain extent reflect that by being served to a certain extent consecutively.

17.What I shall order is that the 1st to 3rd sentences be served concurrently to each other and the 4th through to 6th offences be served concurrently to each other, but 3 months of the 4th to 6th offices be served consecutively to the 1st to 3rd offences, giving an overall total sentence of imprisonment for these offences of 19 months’ imprisonment.