HKSAR v. Tsang Tak Wa and Another

DCCC 501/2021

[2021] HKDC 1628

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 501 OF 2021

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REASONS FOR SENTENCE

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1.D1 is convicted on his own plea and agreement to Amended Summary of Facts to 2 charges of theft, contrary to section 9 of the Theft Ordinance, Cap 210 (Charges 1 and 7); while D2 is convicted on her own plea and agreement to Amended Summary of Facts to 7 charges of obtaining property by deception, contrary to section 17(1)  of the Theft Ordinance, Cap 210 (Charges 3 to 6, 8, 10 and 11).

2.Upon the application of the prosecution, it is ordered that Charges 2, 7, 9, 12 and 13 against D2 be left on the court file and not to be proceeded with without leave of the court.

Facts

Charge 1: Theft

3.On 14 July 2020 at around 6:33 pm, Madam Cheng (PW1)  locked her bag (which contained her wallet)  in a locker outside the female changing room of the Kowloon Bay Sports Ground (L1)  and left. 

4.When PW1 returned home that night, she found that 2 credit cards held in her name were missing from her wallet.  CCTV of L1 captured D1 opened PW1’s locker and took something from PW1’s bag and placed that thing inside the pocket of his shorts. 

5.PW1 later discovered that her 2 credit cards were used in 3 unauthorised transactions on 14 July 2020, involving a total of HK$57,093.  The total credit card limit of PW1’s 2 credit cards was HK$558,000.

Charges 3 to 6: Obtaining property by deception

6.On 24 October 2020, at around 4 pm, Madam Ding (PW2)  locked her handbag (which contained her wallet)  in locker 46 of the female changing room of the Happy Valley Recreation Ground (L2)  and left. 

7.At around 6:15 pm on the same day, she returned to the changing room and noticed that 4 credit cards held in her name were missing from her wallet.  She later discovered that 3 of her credit cards were used in unauthorised transactions.  The total card limit of the 3 credit cards was HK$931,000.  They include a Standard Chartered Bank VISA Card (Credit Card 1), a Dah Sing Bank VISA Card (Credit Card 2)  and a China Construction Bank VISA Card (Credit Card 3).

8.Investigation revealed that it was D2 who made the unauthorised transactions with PW2’s cards on 24 October 2020.

9.At around 5:41 pm in Goyard GPA, at Level 3, Pacific Place, No. 88 Queensway, Central (L3), D2 purchased 2 bags for a total of HK$30,200 by presenting Credit Card 1 to staff of L3 (Charge 3). 

10.At around 5:52 pm in the same shop, D2 purchased 2 bags for a total of HK$26,100 by presenting Credit Card 2 to a staff of L3 (Charge 4).

11.At around 6:10 pm in Chanel, in Pacific Place (L4), D2 purchased 1 bag for HK$44,200 by presenting Credit Card 3 to staff of L4 (Charge 5).

12.At around 6:51 pm in Arome Bakery, at Shop No 1, Ground Floor, No 1 Lan Fong Road, Causeway Bay (L5), D2 purchased 6 cash coupons for HK$300 by presenting Credit Card 2 to a staff of L5 (Charge 6). 

13.CCTV of L3 and L4 captured D2 making the said purchases using credit cards. 

Charge 7: Theft

14.On 24 November 2020 at around 7:30 pm, Mr Man (PW3)  went to L1.  He locked his backpack (which contained his wallet)  in locker outside the changing room and left. 

15.At around 8:22 pm, he checked and noticed that 2 credit cards held in his name were missing from his wallet, one of which was an AEON credit card (Credit Card 5).  It was used in an unauthorised transaction on the same day. 

16.CCTV of L1 captured that on 24 November 2020, D2 appeared in L1 at around 7:35 pm.  At around 7:59 pm, D1 opened locker 212 and took away PW3’s bag and left.  At around 8:01 pm, D1 returned and put PW3’s bag back into the locker.

Charge 8: Obtaining property by deception

17.Further investigation confirmed that Credit Card 5 was used in an unauthorised transaction on 24 November 2020 at around 8:22 pm in Apple Store in Festival Walk, Kowloon Tong (L6).  D2 purchased items, total value of HK$20,897, by presenting Credit Card 5 to a staff of L6.  The credit card limit of Credit Card 5 was HK$210,000.

Charges 10 to 11: Obtaining property by deception

18.On 19 January 2021 at around 7 pm, Mr Tse (PW4)  went to L2.  He locked his bag (which contained his wallet)  in the male changing room and left. 

19.At around 7:20 pm, the police in ambush spotted that D1 entered L2 after alighting from a parked vehicle outside L2.  Between 7:21 pm and 7:27 pm, police observed that D1 entered the male changing room twice.  At around 7:30 pm, he spotted D2 wandering in L2 alone.  At around 7:40 pm, D1 entered the changing room again and came out at around 7:53 pm.  After D1 left the male changing room, the police lost sight of D1 and D2. 

20.At around 8:32 pm, the police spotted D2 inside Louis Vuitton at Canton Road, Tsim Sha Tsui (L7).  At around 8:55 pm, the police spotted D2 enter Apple Store at Canton Road (L8).  When D2 left L8 at around 9:09 pm, the police intercepted her.  Upon body search, police seized, inter alia, 3 credit cards in the name of PW4, 4 LV handbags and 2 LV sales receipts.  The police arrested D2 for obtaining property by deception. 

21.At around 9:10 pm, the police intercepted D1 in Shanghai Street.  He was arrested for obtaining property by deception. 

22.PW4 confirmed the 3 credit cards held in his name were missing from his wallet and the credit cards were used in unauthorised transactions.  The total credit limit of the 3 credit cards was HK$360,000.  The 3 credit cards were 2 HSBC MasterCard (Credit Card 6 and Credit Card 8)  and an American Express credit card (Credit Card 7). 

23.Further investigation confirmed that on the same day, 19 January 2021, at around 8:37 pm in L7, D2 purchased 2 bags for HK$32,000 by presenting Credit Card 7 to a staff of L7 (Charge 10).

24.At around 8:48 pm in L7, D2 purchased 2 bags for a total of HK$28,800 by presenting Credit Card 8 to a staff of L7 (Charge 11). 

25.CCTV of L7 captured D2 making purchases in the shop, while CCTV of L8 also captured D2 trying to make payment in a shop but failed. 

Criminal record

D1

26.D1 has 2 criminal records involving convictions of 5 charges and they are all theft related.  His last conviction was on 16 April 2015 and he was last released from prison on 8 March 2016.

D2

27.D2 has 2 criminal records involving convictions of 11 charges, 9 of which related to a dishonesty, with 7 similar convictions.  Her last conviction was on 2 February 2009, and she was last released from prison on 22 October 2009. 

Mitigation

D1

28.D1 is aged 49 years old.  He is divorced and was living with his 26-year-old son in a public housing estate at time of arrest.  He was born in Hong Kong and received education up to Form 2 level. 

29.He used to work as a decoration contractor with a monthly income of HK$30,000. He was the breadwinner of the family and needed to bear the medical expenses of his mother. 

30.Defence counsel submitted that D1 has convictions of 5 charges with 1 count of theft, and his last conviction was 16 April 2015. 

D2

31.D2 is aged 50 years old.  She is divorced and was living with two adult sons, both university students.  She was born in Hong Kong and had completed her secondary school education and a diploma program in UK. 

32.D2 had held different jobs in different hotels until she got married with her ex-husband, who was a manager of a hotel.  She became a housewife after she gave birth to her first son.  She got divorced in 2005 and fell into financial difficulty.  It was submitted that it was under those circumstances, she was tempted, recruited to commit different offences.  After her release from prison, she managed to secure a stable job as a waitress. 

33.Defence counsel submitted that D1’s income dropped drastically during the social unrest period and subsequently because of the pandemic, he fell into financial difficulties and therefore committed the present offences out of greed. 

34.It was also submitted on behalf of D2 that she lost also her waitress job during the social unrest period and then she used up all her savings during the pandemic period.  It was only under those circumstances that, she was tempted, recruited in return for 5-10% of the total spending as a reward.

35.Defence counsel said there is no sentence tariff for these offences and each case depends on its own facts.  She conceded that following the case of HKSAR v Lam See Chung Stephen [2013] 5 HKLRD 242, the Court of Appeal suggested a 3-year starting point for a simple case of counterfeit credit card fraud, which also applied to fraudulent use of a stolen genuine credit card, and that in considering the sentence, the court held that the most important consideration was the potential loss which often exceeded the actual loss.

36.She also referred this court to the case of 香港特別行政區 訴 李俊偉及另一人 (DCCC484/2021).

37.Defence counsel submitted that the said credit cards were given to D2 shortly before she made the purchases and they were either returned or destroyed after the purchases were made.  She also said that the cases are small-scale credit card fraud in terms of the number of offence dates, transactions and values involved, and that D2 was arrested soon after the purchases made on 19 January 2021.  All the stolen properties on that occasion were recovered and there was no actual loss suffered by the shops.

38.Defence counsel submitted to the court also the mitigation letter written by D2’s sons.  She also urged this court to consider defendants’ guilty plea and personal background, and totality principle when sentencing the defendants. 

Discussion

39.Before sentencing, this court has carefully considered the mitigation submission, letter in mitigation, as well as the legal authorities. 

D1

Charge 1

40.D1 stole from a locked locker in a public place.  The stolen credit cards were used within a very short period on the same day in 3 unauthorised transactions.  The appropriate sentence starting point for this charge is 15 months’ imprisonment. 

41.This court notes that the previous conviction records of D1 all related to dishonesty, and that he was last released from prison on 8 March 2016.  D1 has therefore kept out of trouble for 4 years before his commission of the present offence.  On this occasion, the court is not going to enhance the sentencing starting point by reason of his previous convictions.

42.Financial stress is not a valid mitigating ground.  Therefore, the most valid mitigating ground is still defendant’s own guilty plea, for which he is entitled to a full one-third sentencing discount.  D1 is therefore sentenced to 10 months’ imprisonment for this charge. 

Charge 7

43.D1, together with D2, stole from a locked locker in a public place.  The agreed Amended Summary of Facts showed that after D1 and D2 stole the credit card, within a short period on the same day, D2 made purchases using the stolen credit card.  Purchase made totalled HK$20,897 and the credit card limit is HK$290,000.

44.D1 acted together with another in the commission of this offence.  This is an aggravating factor and the sentencing starting point of 15 months is enhanced by 3 months, to 18 months’ imprisonment. 

45.Again, by reason of D1’s guilty plea, he is entitled to a one-third sentencing discount.  He is therefore sentenced to 12 months’ imprisonment for this charge. 

46.D1 committed this Charge 7 offence more than 4 months after the Charge 1 offence.  Clearly, the commission of this offence adds to the culpability of D1.  Considering the totality principle, the court finds that 17 months’ imprisonment is a just and proportionate to D1’s culpability in the whole case.  Therefore, 5 months of the sentence in Charge 1 is to run consecutive to the sentence in Charge 7, the rest to run concurrently. 

47.D1 is therefore sentenced to a total of 17 months’ imprisonment for this case. 

D2

Charges 3 to 6

48.D2 made use of the stolen credit cards of PW2, making purchases at 3 locations, 2 at Pacific Place, Queensway, and 1 at Lan Fong Road, Causeway Bay, shortly after they were stolen.  The value of the purchases was, respectively, HK$30,200, HK$26,100, HK$44,200 and HK$300, totalling HK$100,800.  The total credit card limit for the stolen cards is HK$931,000. 

49.The appropriate sentence starting point for simple credit card fraud, using genuine credit card, is 3 years’ imprisonment. 

50.D2 has 5 similar convictions in the past.  This court noted they were dated back in year 2009.  For this reason, the court is not going to enhance the sentence starting point.  In fact, her last conviction for a similar offence was in year 2009 which related to case number KT/5563/08, where D1 in this case was also convicted for handling stolen goods.  D1 and D2 therefore knew each other since not later than the year 2008. 

51.The sentencing starting point for each of the first three charges, ie Charges 3, 4 and 5, remain at 3 years’ imprisonment, while the sentencing starting point for Charge 6 is 2 years 6 months’ imprisonment.  The actual loss in the Charge 6 was only HK$300, though the potential loss remained the same.

52.Again, financial difficulty is not a valid mitigating factor and the most relevant mitigating factor remained her guilty plea, for which she is entitled to one-third sentencing discount.  Accordingly, for each of Charge 3, 4 and 5, D2 is sentenced to 2 years’ imprisonment, and for Charge 6, D2 is sentenced to 20 months’ imprisonment. 

Charge 8

53.D2 here made purchase within a very short time after the credit cards were stolen by D1.  The amount of purchase was HK$20,897 and the potential loss for the credit cards was HK$210,000. 

54.D2 is, similarly, sentenced to 2 years’ imprisonment on her guilty plea. 

Charges 10 and 11

55.Similarly, D2 made purchases using the stolen credit cards within a very short period of time after the credit cards were stolen.  In fact, the agreed Amended Summary of Facts showed that D2 was wandering in L2 when D1 stole the credit cards from male changing room. 

56.The total credit card limits for the stolen cards found in D2 totalled HK$360,000. Purchases of HK$32,000 (Charge 10)  and HK$28,800 (Charge 11)  totalling HK$60,800 was made.  The goods from these purchases were all recovered. 

57.Similarly, a 3-year sentencing starting point is adopted for these 2 charges.  Defendant is sentenced to 2 years’ imprisonment for each charge by reason of her guilty plea.

58.Further, the goods were recovered and the court would discount the sentence by 3 months to 21 months’ imprisonment for Charge 10 and 11. 

59.Charge 3 to 6 offences were all committed on the same day, ie 24 October 2020 within a short period of time involving 4 merchants, using 3 credit cards.  Charge 8 offence was committed 1 month thereafter.  Charge 10 and 11 offences were committed 2 months after the Charge 8 offence.  The victims in these 3 incident dates were different, but the nature of offences were the same. 

60.Considering the totality principle and having regard to the circumstances of the case, this court considers just and proportionate sentence to D2’s total culpability in the case is 3 years 1 month’ imprisonment after plea. 

61.Accordingly, sentence for Charges 4, 5 and 6 to run wholly concurrent to each other, and 2 months of the sentence for these three charges to run consecutive to the sentence for Charge 3.  The rest to run concurrently. 

62.Sentence for Charges 10 and 11 to run wholly concurrent to each other, and 6 months of the same shall run consecutive to the sentence for Charges 3 to 6; 5 months of the sentence for Charge 8 to run consecutive to the sentence for all other charges.  The rest to run concurrently.

63.Therefore, the total sentence for D2 in this case is 3 years and 1 month’ imprisonment.