HKSAR v. Chan Chi Kong

DCCC 371/2020

[2020] HKDC 1252

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 371OF 2020

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REASONS FOR SENTENCE

1.The defendant pleads guilty to one charge of attempted fraud, contrary to section 16A of the Theft Ordinance[1] and section 159G of the Crimes Ordinance[2], (charge 1); one charge of handling stolen goods, contrary to section 24 of the Theft Ordinance (charge 2) and one charge of failing to surrender to custody without reasonable cause, contrary to section 9L (1) and (3) of the Criminal Procedure Ordinance (charge 3)[3].

2.Full particulars of the offences are set out in the summary of facts admitted by the defendant today. 

3.In summary on 6 July 2018 Mr Lam reported to the police that on 5 July 2018 he lost his wallet containing his Hong Kong identity card, senior citizen card, Home Visit Permit, Police Sports and Recreation Club membership card and three credit cards.  The credit limit of one of the credit cards was $8,000 and the credit limit of the other two credit cards was the same, namely $18,000.

4.At about 10:30 a.m. on 10 July 2018 the defendant went to the Hang Seng Bank branch in Good Hope Building, Nos. 612-618 Nathan Road in Mongkok.  The defendant attempted to withdraw $15,000 using one of Mr Lam’s credit cards together with Mr Lam’s identity card.

5.The appearance of the defendant being different from that of Mr Lam as shown on his identity card, the bank staff asked the defendant for his own identity card. The defendant produced his own identity card and the other two credit cards belonging to Mr Lam.

6.The defendant’s information not matching that on any of the credit cards, the bank staff called Mr Lam who said he had not authorised anyone to use his credit cards.  A report was then made to the police and the defendant arrested.

7.Upon body search the police found Mr Lam’s senior citizen card, Home Visit Permit and Police Sports and Recreation Club membership card.

8.Under caution and in a subsequent recorded interview the defendant admitted, inter alia, that the day before he had been in a 7-Eleven Convenience Store when a friend/fat Chinese male gave him a re-sealable plastic bag containing Mr Lam’s three credit cards, Hong Kong identity card, senior citizen card, Home Visit Permit and Police Sports and Recreation Club membership card and asked him to use the credit cards to withdraw $15,000.

Failing to surrender to custody without reasonable cause

9.The defendant was given bail by the police.  The defendant was first required to attend West Kowloon Magistrates’ Courts on 10 May 2019.  A warrant of arrest was issued when the defendant failed to attend court on 10 May 2019.

10.The defendant was re-arrested on 12 March 2020 and brought to court the next day when his bail money was estreated.  The defendant told the court he forgot to attend court on 10 May 2019. 

Mitigation

11.In passing sentence, I have carefully considered the oral and written submissions of Mr Leung, including that the defendant is 52, single and a construction site worker[4].  I take into account the tragic death of the defendant’s father in 2019[5].

12.I take into account the defendant’s medical history as particularised in the medical report from the Kwong Wah Hospital and in mitigation by Mr Leung[6].

13.I take into account that the defendant was last before the court in 1989, over thirty years ago when he was sentenced to probation for six offences of theft. 

Sentence

14.In passing sentence, I take into account the factors which a sentencing judge will need to consider in credit card frauds as set out by the Court of Appeal in R v Chan Sui To, including the size of the operation; the planning that had gone into perpetrating the fraud; whether there is an international dimension; and whether the accused played a major role.  The factors were not intended however to be exhaustive but provide valuable assistance to the court.  The courts have repeatedly stressed that deterrent sentences are to be imposed[7]. 

15.In HKSAR v Tu I Lang the Court of Appeal held that where the facts of the offence point to a small unsophisticated operation, involving one or a few forged cards uncomplicated by other evidence materially linking the offender to a larger operation, a starting point of 3 years or less would be appropriate[8].  

16.In HKSAR v Li Chi Yat the defendant pleaded guilty to one charge of theft, one charge of obtaining property by deception and two charges of attempting to obtain property by deception[9]. The defendant stole a credit card belonging to his colleague and then used the credit card three times to buy goods, once successfully to obtain a mobile telephone in the sum of $7,917 and twice unsuccessfully to obtain goods in the sums of $10,464 and $7,288.  The credit limit on the credit card was $20,000. 

17.Taking into account that the defendant acted alone in opportunistically stealing a single genuine credit card, the potential loss was $20,000 and that there was no planning or elaborate operation, the Court of Appeal held that the case was at the low end of the scale of criminality.  In the circumstances the court was of the view the appropriate starting point on each of the deception charges should be 2 years’ imprisonment. 

18.Mr Leung says that although the defendant felt suspicious he decided not to ask further questions when asked by his friend to do a favour in return for a reward of $3,000[10]. 

19.Taking into account all the circumstances including this was a single use of the card; there was no planning or elaborate operation as evidenced by the fact the defendant produced his own identity card and that the potential loss of the cards was $8,000 or $18,000, I am satisfied this is a case also at the low end of the scale of criminality and adopt a starting point of 2 years’ imprisonment on each charge.  

Timely plea of guilty

20.The defendant failed to surrender to court on 10 May 2019 and was re-arrested on 12 March this year, just over ten months later[11].

21.Mr Leung informs the court that the defendant wished to use the time to earn more money for his mother before he was sent to prison[12].  I note this explanation is different to what the defendant told the court after he was re-arrested that he forgot to attend. 

Discount

22.The usual range of discount afforded to a defendant who has absconded is about 20% to 25%[13].  In HKSAR v Chow Tak-fuk Stock JA observed:[14]

“Whilst the courts must always encourage persons to surrender, so that some credit for that fact will normally be given, those who might be minded to flee should not be led to believe that if ultimately they return they will be in no worse position than had they not fled in the first place.”

23.Taking into account the defendant was re-arrested after ten months,I am satisfied the appropriate discount is one of 6 months’ imprisonment which reduces the sentence on charges 1 and 2 to 1 year and 6 months’ imprisonment.

Failing to surrender

24.The sentence for failing to surrender to court partly depends upon how long after failing to surrender a defendant is re-arrested and brought to court. Generally, the longer the period the longer the sentence.   

25.The period of absconding being just over ten months cannot be described as short. The defendant did not surrender but was re-arrested. Taking into account the defendant’s bail money has already been estreated, I am satisfied a starting point of 6 months’ imprisonment is appropriate.  Giving the defendant full credit for his plea of guilty reduces the sentence to 4 months’ imprisonment.

Totality

26.I am satisfied in the circumstances of this case concurrent sentences are appropriate for the charges of attempted fraud and handling stolen goods.  Failing to surrender to court is, however, a wholly distinct and separate offence. 

27.In HKSAR v Ko Chun Hung the Court of Appeal, in rejecting the submission that the appellant had been punished twice for absconding, stated that by absconding the appellant had committed a fresh offence and had to be punished separately[15]. 

28.A consecutive sentence is therefore appropriate subject to consideration of totality of sentence[16].

29.I am satisfied a wholly consecutive sentence is appropriate making a total sentence of 1 year and 10 months’ imprisonment, which I am satisfied properly reflects the defendant’s overall criminal culpability on the three charges and takes into account the defendant’s personal circumstances and the seriousness of the offences[17].

Sentence

30.The defendant is convicted and sentenced as follows:

Charge 1 – 1 year and 6 months’ imprisonment;

Charge 2 – 1 year and 6 months’ imprisonment concurrent to charge 1;

Charge 3 – 4 months’ imprisonment consecutive to charges 1 & 2.

The total sentence to be served by the defendant is 1 year and 10 months’ imprisonment.