HKSAR v. Wong Chun Yin and Another

DCCC 828/2020

[2021] HKDC 707

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 828 OF 2020

________________________

________________________

________________________

REASONS FOR SENTENCE

________________________

1.D1 pleads guilty to one charge of handling stolen goods, contrary to section 24 of the Theft Ordinance[1] (charge 1); one charge of obtaining property by deception, contrary to section 17 of the Theft Ordinance (charge 3) and one charge of attempting to obtain property by deception, contrary to section 17 of the Theft Ordinance and section 159G of the Crimes Ordinance[2] (charge 4).

2.D2 pleads guilty to one charge of handling stolen goods, contrary to section 24 of the Theft Ordinance (charge 2).

3.Full particulars of the offences are set out in the summary of facts admitted by the defendants today. 

4.In summary the offences arise out of a burglary which occurred between 0830 hours and 1900 hours on 20 April 2020.  At 0830 hours Mr Ho, who lived in a flat in Sham Shui Po, left home for work.  When Mr Ho returned home at 1900 hours he found the back door to the kitchen was open and the window prized open. 

5.The following items valued at about $18,310 were stolen in the burglary:

(i)  a rucksack containing a mouth guard, a boxing membership card, some coins and keys;

(ii)  five credit cards in Mr Ho’s name;

(iii)  Mr Ho’s Home Visit Permit and HKSAR passport;

(iv)  $200 cash;

(v)  One iPad;

(vi)  two LG Smartphones;

(vii)  four watches;

(viii)  one Sony Bluetooth headset;

(ix)  one box of surgical masks;

(x)  six pairs of underpants;

(xi)  eight AAA batteries; and

(xii)  one pair of silver cufflinks

Arrest

6.At about 1724 hours the same day the police were on duty inside the Apple Store at No. 100 Canton Road in Tsim Sha Tsui when they saw D1 and D2 enter the store.  When D1 approached a shop staff D2 left the store. 

7.At 1729 hours D1 used one of the credit cards stolen in the burglary to buy two iPhones costing $24,998 (charge 3).  At 1743 hours D1 used another credit card stolen in the burglary to buy an iPad, iPad keyboard and Apple pencil costing $12,660. The transaction however failed (charge 4).

8.After D1 left the store he was intercepted by PC 19566.  Upon search PC 19566 found inside D1’s handbag the two stolen credit cards D1 used in the Apple Store; the other three credit cards stolen in the burglary together with Mr Ho’s Home Visit Permit (charge 1).  PC 19566 also seized the two iPhones D1 purchased in the Apple Store together with the receipt.

9.Under caution and in records of interview D1 claimed, inter alia, that he was asked by an unknown South Asian male (D2) if he wanted to make quick money; D2 said he had credit cards which did not belong to him and asked D1 to use them in the Apple Store; he would be given 10% reward for using the credit cards and that D2 gave him all the credit cards and the Home Visit Permit. 

10.At 1759 hours the same day PC 25628 intercepted D2 outside China Ferry Terminal, No. 33 Canton Road.  D2 was carrying the rucksack stolen in the burglary inside which was the stolen keys; iPad; the two LG Smartphones; three of the watches; the Sony Bluetooth headset; the box of surgical masks; the six pairs of underpants; the eight AAA batteries and the pair of silver cufflinks.  D2 claimed he picked up the items in Sham Shui Po[3].

Mitigation

D1

11.In passing sentence, I have carefully considered the oral and written submissions of Mr Lai on behalf of D1, including that the defendant who is 44, worked as a decoration worker prior to his arrest[4].

12.I have read D1’s mitigation letter in which he explains he lost his job during the pandemic and committed the offences out of economic need. 

13.Although D1 has a long criminal record, I note that his only conviction for an offence of dishonesty, apart from loitering in 2001, was in 1995.    

D2

14.In passing sentence, I have carefully considered the oral and written submissions of Mr Donald, including that the defendant, who is 43 married to a Hong Kong resident and has a son aged 5, came to Hong Kong from Pakistan in 2001[5]. 

15.Mr Donald explains that the defendant committed the offence because he was in desperate need of money for medical treatment for his father who had been diagnosed with cancer.  Sadly the father passed away in May 2020[6]. 

16.I take into account that the defendant is blind in his right eye as a result of an infection and that he also suffers from asthma. 

17.I have also read the mitigation letter written by the defendant’s mother-in-law. 

Handling stolen goods

18.There are no guidelines for handling stolen goods.  In passing sentence, I take into account the aggravating and mitigating factors identified in R v Bernard Webbe[7]as applied in HKSAR v Xiao Wei[8]and HKSAR v Cheng Chi Wai[9], including the closeness of the handler to the primary offence and that the goods were the proceeds of a domestic burglary.

Credit card fraud

19.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[10]. The factors were not intended however to be exhaustive but provide valuable assistance to the court. 

20.The court in R v Chan Sui To stated that the potential for loss is also to be considered.  Mr Kwan informs the court that the police did not ascertain the credit limit on the stolen credit cards.  The court is therefore unable to assess the potential loss.

21.No distinction is to be drawn between using a stolen credit card and a forged credit card[11]. Using a stolen credit card, just like using a forged credit card, undermines the integrity of the credit card system.  As was said in HKSAR v Wong Wan Shan[12], a case concerning stolen credit cards:

“This court has said, on many occasions, that credit card frauds are an insidious poison in the community; one which affects a large number of citizens and erodes the credit card system, and also damages Hong Kong's standing in the international community. This court has also said that those who engage in it can expect to be dealt with severely by the courts.”

22.The courts have repeatedly stressed that deterrent sentences are to be imposed. 

23.I have considered the cases referred to court by Mr Lai[13].  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[14].  

D1

Handling stolen goods

24.Whilst D1 may not have known exactly how the credit cards were obtained, as indicated in court I do not accept D1’s assertion to the police that he was approached by an unknown South Asian male and asked to use the credit cards to make quick money[15]. Mr Lai informs the court that D1 does not wish to give evidence about how he came into possession of the credit cards. 

25.Taking into account the handling took place shortly after the burglary with the specific intent to use the stolen credit cards; that there were five credit cards and a travel document which could be used as an identity document to support ownership of the credit cards, I am satisfied a starting point of 2 years’ imprisonment is appropriate.  

26.Giving D1 full credit for his pleas of guilty reduces the sentence on charge 1 to 1 year and 4 months’ imprisonment.

27.I am satisfied a starting point of 3 years’ imprisonment is appropriate for obtaining goods to the value of $24,998 (charge 3) and for attempting to obtain goods to the value of $12,660 with a different stolen credit card (charge 4).

28.Giving D1 full credit for his pleas of guilty reduces the sentence on each charge to 2 years’ imprisonment.

Totality

29.Although the charges are closely connected total sentence must reflect that the defendant handled five stolen credit cards, two of which he used.  No doubt had he not been intercepted by the police he would have continued to use the stolen credit cards.

30.I am satisfied a total sentence of 2 years and 4 months’ imprisonment properly reflects D1’s overall criminal culpability on the three charges and takes into account his personal circumstances and the seriousness of the offences[16].  

Sentence

31.D1 is convicted and sentenced as follows:

Charges 3 & 4 – 2 years’ imprisonment on each charge concurrent; and

Charge 1 – 1 year and 4 months’ imprisonment with 4 months consecutive to charges 3 & 4 and 12 months concurrent.

The total sentence to be served by D1 is 2 years and 4 months’ imprisonment.

D2

32.I have considered the cases referred to court by Mr Donald[17]. I note both cases of handling concerned the theft of a mobile phone and not property stolen in a domestic burglary. 

33.As indicated in court I do not accept D2’s assertion to the police he picked up the items in Sham Shui Po.  Mr Donald informs the court that D2 does not wish to give evidence about how he came into possession of the stolen goods.  D2 is not however to be sentenced as if he was the burglar.  

34.Taking into account that the property handled was valued at over $16,000, including an iPad, three watches, two smartphones and one Sony Bluetooth headset and came from a domestic burglary committed earlier the same day, I am satisfied a starting point of 2 years’ imprisonment is appropriate. 

35.The defendant has appeared in court on 7 occasions accumulating a total of 9 convictions, including theft and burglary.  The defendant last appeared in court on 7 March 2019 when he was sentenced in DCCC 758/2019 to 12 months’ imprisonment for burglary.  The defendant was released from prison on 17 August 2019[18].  I have just sentenced the defendant in DCCC 562/2020 to 2 years and 4 months’ imprisonment for burglary committed in January 2020, just less than 3 months prior to the present offence.  I am satisfied the defendant is a persistent offender.

36.The offence was also committed whilst D2 was on bail for a burglary offence but not the burglary in DCCC 562/2020 as referred to by Mr Donald[19].  Mr Kwan informs the court that D2 was arrested for burglary on 2 April 2020 and placed on police bail[20].  The prosecution however did not proceed with the case. 

37.The defendant is a Form 8 recognizance holder.  The commission of offences by refugees or torture claimants is capable of aggravating sentence where the offence affects the community at large and has a significant impact on Hong Kong’s reputation for order and security. 

38.In HKSAR v Raman Kumar, relied on by Mr Donald, the Court of Appeal was of the view it was reasonably arguable that the circumstances of the commission of handling a mobile phone stolen while the owner was talking to a friend as they sat on a bench in a rest garden, did not affect the community at large and have a significant impact on Hong Kong’s reputation for order and security[21]. 

39.The facts of that case are however very different.  I am satisfied like burglary, offences of handling goods stolen in a burglary, in particular a domestic burglary, does affect the community at large and has a significant impact on Hong Kong’s reputation for order and security.  

40.I am satisfied a total enhancement of 6 months’ imprisonment to 2 years and 6 months’ imprisonment is appropriate for the aggravating factors and is not disproportionate to the culpability of the defendant[22].  Giving D2 full credit for his plea of guilty he is convicted and sentenced to 1 year and 8 months’ imprisonment.

Totality

41.The offence is separate and distinct from the burglary in DCCC 562/2020.  A consecutive sentence is appropriate. 

42.In HKSAR v Raman Kumar the Court of Appeal was of the view that it was not reasonably arguable that a total sentence of 33 months for burglary of domestic premises and handling a stolen mobile phone was manifestly excessive[23].  In my view the present case is more serious, in particular the offence of handling stolen goods. 

43.I am satisfied that a total sentence of 3 years’ imprisonment properly reflects the defendant’s overall criminal culpability on the two charges and takes into account the defendant’s personal circumstances and the seriousness of the offences[24]. I order 8 months to be served consecutive to the sentence imposed in DCCC 562/2020 and 12 months concurrent.