HKSAR v. Wan Chiu Ying

DCCC 605/2020

[2021] HKDC 363

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 605 OF 2020

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Reasons for Sentence

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1.The defendant has pleaded guilty to four offences: one offence of theft and three offences of obtaining property by deception. The charges arise out of the theft of a credit card and other items by the defendant and their subsequent use on three separate occasions to purchase packets of cigarettes totally valued at $1,800.

2.A more detailed exposition of those facts is that the victim went shopping on 23 March 2020 to the wet market in Sham Chun Street in Mong Kok, which is a crowded market and was crowded at the time, the time being about 1700 hours in the afternoon.  At that time while she was there, items were stolen from her.  She had a smartphone which was stolen, an Octopus card and a MasterCard credit card, which had been contained in the iPhone case.  The victim had visited the market at about 1700 hours and at about 1730 hours on the same day she had found those items to be missing.

3.The next three offences occurred during that time. At 1716, 1720 and 1723, the credit card which had been stolen was used on three occasions.  On each occasion, $600 worth of cigarettes was purchased with the credit card, those being the facts of the 2nd, 3rd and 4th charges.

4.On 9 June, the defendant was arrested.  She had in fact been caught on the CCTV of the shops where she had used the credit card to purchase the cigarettes.

5.On arrest, she was cautioned.  She said at that time she had stolen four items of Charge 1 by pickpocketing in a market at Mong Kok.  She had stolen the smartphone - that is the iPhone - at a small stall and she had thrown away the Octopus card.  She had kept the credit card and then bought three cartons of cigarettes.  She had eventually thrown away the credit card and consumed all the cigarettes.

6.She later went on to give a more detailed cautioned statement dealing with these items, but effectively she said the same thing.

7.Those facts are admitted and they constitute facts upon which a conviction could be entered on all four charges.

8.The defendant was 60 years old at the time of the compilation of her antecedent statement.  She was described as having no fixed place of abode at the time of her arrest. 

9.She has a criminal record dating back to 1984, a total of 38 separate appearances in court.  She has a number of offences of possession of a dangerous drug and also trafficking in a dangerous drug.  She has also been involved in theft offences, particularly shoplifting offences, and other more serious theft offences, for example, on 22 January 2013, a sentence of 15 months’ imprisonment for theft.  Again, on 20 April 2018, a sentence of 10 months’ imprisonment for theft.

10.Most recently, she was convicted on 23 July 2020 for possession of a dangerous drug, for which she was sentenced to 6 months’ imprisonment.  It is the case that all these offences would have been committed whilst she was on bail for that offence.  That of course is an aggravating factor in sentencing.

11.Madam Wan also has some medical problems which were disclosed on her admission into custody most recently.  She was admitted into hospital in June of 2020 with chest pains.  She apparently has scoliosis and osteophytes of the spine, a painful condition but she is under medication. She will require ongoing treatment at the orthopaedic department of the hospital to manage musculoskeletal problems in future and she will be exempted from heavy duties.

12.Mitigation says the defendant is 60.  She was born in Mainland China, came to Hong Kong in 1980.  She has not received any formal education.  She is a divorcee, ex-husband died in 2015.  She has a daughter in the United States who she has no contact with.  She had been unemployed at the time of arrest but had been working as a cleaner until June of 2019.  After that, she was living on savings.  Mitigation has also referred to the musculoskeletal problem for which she undergoes medical treatment.

13.It is conceded the defendant is not of clear record and has a large number of criminal offences.

14.She has pleaded guilty at an earliest possible time.  She has indicated her guilt to this offence on first being challenged and she is, I am told, remorseful.  I am also asked to consider that the use of the credit card involved what can be described as a small-scale offence.  Only one credit card was used.  It was a genuine credit card.  All the offences committed within the same day.  The value of the goods that were stolen was low.  Cigarettes used for consumption at the time that they were obtained.

15.The approach to sentence can be found in a number of cases.  On the 1st charge, the court must regard this as a form of pickpocketing.  The defendant admitted to pickpocketing the item when she was challenged by the police and the pickpocketing occurring in a crowded area and she also has previous convictions for a similar kind of offence. 

16.General approach to sentence on Charge 1 can be seen in the case of HKSAR v Ngo Van Huy.  That is CACC 107/2004, where a normal starting point for pickpocketing offences, which ranged between 12 to 15 months’ imprisonment, that can be subject to certain aggravating factors.

17.In this case, there would be three aggravating factors.  Firstly, the offence was committed whilst on bail.  Secondly, the defendant has previous convictions of a similar nature.  And, thirdly, the location where the offence committed was a crowded location.  Those three aggravating factors must be taken into account when calculating the sentence.

18.I will take a starting point on the 1st charge, or a notational starting point on the 1st charge, of 12 months’ imprisonment. There are three aggravating factors.  That would lead to a further 9 months of imprisonment to be added to that.  So the starting point on the 1st charge would be one of 21 months’ imprisonment. 

19.The defendant has pleaded guilty to that offence.  She is entitled to a one-third discount.  So, on the 1st charge, there is a final sentence of 14 months’ imprisonment.

20.Having regard to the 2nd, 3rd and 4th charges, there is authority in the case of HKSAR v Li Chi Yat - that is CACC 189/2018 - in regard to the starting point that can be adopted small, low-scale credit card offences.  The normal starting point for a low-level, small credit card offence would be 36 months’ imprisonment.  However, in the case I have referred to, Li Chi Yat, the Court of Appeal said that the sentencing court can depart from that starting point of 3 years’ imprisonment where a lesser sentence would be more appropriate, having regard to the scale of the offence. 

21.In this case, the scale of the offences, as I have indicated, simply cigarettes for consumption were taken, at a value of some $1,800.

22.I do bear in mind also that these offences were committed whilst on bail. 

23.My notional starting point for this offence would be one of 24 months’ imprisonment.  That will be increased to 27 months’ imprisonment having regard to the fact the offences were committed while the defendant was on bail.

24.The defendant is entitled to one-third discount in respect of that sentence.  So, on each of the 2nd, 3rd and 4th charges, there will be a sentence of 18 months’ imprisonment.

25.I must now have regard to the overall totality of sentence.  These offences naturally are separate.  They can be served consecutively.  To serve them consecutively would lead to too lengthy a sentence for the defendant.

26.I bear in mind the 2nd, 3rd and 4th offences were all committed with the same credit card on the same day in very short proximity to one another.  I will order that the sentences of the 2nd, 3rd and 4th charges be served concurrently to one another.  That means, of the 2nd, 3rd and 4th charges, there will be a sentence of 18 months’ imprisonment.

27.However, some element of those sentences must be served consecutively to the 1st charge to arrive at the correct overall sentence.  I will order that 10 months of the 2nd, 3rd and 4th charges be served consecutively to the 1st charge, leading to a total overall final sentence of 24 months’ imprisonment.