HKSAR v. Yau Ka Leung

DCCC 849/2021

[2022]HKDC 563

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 849 OF 2021

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REASONS FOR SENTENCE

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1.Long before today’s hearing, it has been made known to the court that there had been agreement between the parties that on condition that the defendant (hereinafter “Mr Yau”)  pleaded guilty to Charges 1 & 3, the prosecution would ask that Charge 2 be left on court file.

2.However, it later became known that there was a further condition imposed on Mr Yau: he had to admit what essentially were the facts in support of Charge 2.  The reason for that was, apparently, those facts were part of the fuller circumstances under which the offence subject of Charge 1 was committed.

3.Before the hearing date, by way of correspondence, I invited the parties to be prepared to make legal submissions in relation to Archbold Hong Kong 2022 para 4-69 and the authority of R v So Hung Lee [1986] HKLR 1049 mentioned therein.  The point was whether the court has a discretion to leave a charge on court file when all the essential evidence in support of that charge has been placed before the court.  Today, prosecution largely adopted the written submissions they filed a few days previously which stated in essence that the named authority could somehow be distinguished from the present case.  Defence adopted the prosecution’s submissions.

4.After hearing legal submissions from both parties, I ruled as follows:-

“Where a defendant admits to all the essential evidence in support of a live charge, the court has to convict him/her of that charge, there being no discretion in the matter.”

5.The short reason for this ruling is that the court feels itself bound by the authority of So Hung Lee (supra) which, with respect, accords with common sense.

6.After the ruling and some passage of time during which defence took further instructions from Mr Yau, pleas were taken from the latter.

7.Before me Mr Yau pleaded guilty to all three charges, namely, Charge 1 of Obtaining property by deception, contrary to section 17(1)  of the Theft Ordinance, Cap 210; Charge 2 of Using a false instrument, contrary to section 73 of the Crimes Ordinance, Cap 200; and Charge 3 of Handling stolen goods, contrary to section 24 of the Theft Ordinance, Cap 210.

8.Particulars of Charge 1 are that he, on 10 April 2021, at “Times Watch”, Shop No 107A, 1^st Floor, Causeway Bay Plaza 1, No 489 Hennessy Road, Causeway Bay, in Hong Kong, dishonestly obtained from Joyspeed Limited (“the said company”)  one watch (“the said goods”), with the intention of permanently depriving the said company thereof by deception, namely, by falsely representing that he was the genuine holder of one American Express credit card numbered 3771-135224-23009 issued in the name of Herbert Kwan (“the said credit card”)  and was authorized to use the said credit card to make payment for the said goods.

9.Particulars of Charge 2 are that he, on the same date, at the same place, used an instrument, namely an Acknowledgement of Application for a Hong Kong Permanent Identity Card in the name of Kwan Wing Fung Herbert, which was, and which he knew or believed to be false, with the intention of inducing Lee Yiu Fai to accept it as genuine and, by reason of so accepting it, to do or not to do some act to his own or any other person’s prejudice.

10.Particulars of Charge 3 are that he, on the same date, near the junction of Lee Garden Road and Kai Chiu Road, Causeway Bay, in Hong Kong, dishonestly undertook or assisted in the retention, removal, disposal or realization of certain stolen goods, namely one HSBC debit card numbered 5253-0852-7561-9603, property belonging to Kwan Herbert Wing Fung, by or for the benefit of another, or dishonestly arranged to do so, knowing or believing the same to be stolen goods.

Facts admitted by Mr Yau

11.Herbert Kwan (PW1)  was the rightful holder of an AE credit card and an HSBC debit card.  The maximum credit limit of the credit card was $400,000.  He last saw his two cards at about 10:30 am on 10 April 2021.

12.At about 2:30 pm on the same day, Mr Yau entered a watch shop in Causeway Bay.  He indicated to the shopkeeper PW2 that he intended to pay for a Rolex watch (valued at $303,771)  by the said credit card.  The name on the card was Herbert Kwan.  PW2 asked for Mr Yau’s ID card.  Mr Yau said he only had an Acknowledgement of Application for a HK Permanent Identity Card (“the acknowledgement”)  because he had lost his ID card.  At the request of PW2, Mr Yau took off his face mask.  Having satisfied himself that face matched the person in the photo on the acknowledgement, PW2 accepted the payment by credit card.  Mr Yau took the watch and left.

13.About half an hour after Mr Yau left, PW1 received a message from AE that his credit card might have been involved in a fraudulent transaction. PW1 checked his wallet and found both his credit card and his debit card missing.

14.Police was alerted to a possible offence.

15.At about 4 pm the same day, a police constable (PW3)  stopped Mr Yau at a junction in Causeway Bay for investigation.  Upon request, Mr Yau produced his own ID card to PW3.  On a body search, PW3 found 3 items in a leather bag carried by Mr Yau, namely PW1’s credit card and debit card and the acknowledgement in the name of PW1.  PW3 checked with control centre and found that the ID card number on the acknowledgement was non-existent in the information system of the Immigration Department.

16.PW3 arrested Mr Yau for Using and Possessing a false instrument and for Obtaining property by deception.

17.Government chemist examined the acknowledgement and found it was forged.

18.PW2 positively identified Mr Yau in a later ID Parade.

Criminal record

19.Mr Yau has 6 previous convictions none similar the last of which was dealt with by way of a Training Centre order made in 2006.

Antecedents

20.Mr Yau is aged 36 (35 at the time of the offences), educated to F4 level, unemployed.  Mr Yau is married and was living with his parents and his wife in Hong Kong.

Mitigation

21.Mr David Chu of counsel assigned by the Director of Legal Aid mitigated on behalf of Mr Yau.  The following is a summary of the mitigation submissions.

22.Mr Yau got married in 2017.  His wife came from the Mainland to settle in Hong Kong the same year.  They have a pair of twin daughters (16)  now living in the Mainland.

23.Mr Yau is the sole bread winner of the whole family consisting also of his parents.  His elder sister is married and has migrated to Japan. Mr Yau used to work as a construction worker earning around $20,000 per month since 2016.  However, since the onset of the Covid pandemic, he could only work on part-time basis and his income dropped to $7,000 a month in early 2021. Meanwhile, his mother’s anxiety disorder cost him around $2,000 to $3,000 per month in prescriptions.  The pandemic drove Mr Yau to continuing deficit since mid-2020 and eventually exhausted all his savings in early 2021.

24.Mr Yau’s previous conviction records dated back to 17 years ago and beyond and were not similar.

25.Mr Yau committed the present offences due to the suggestion of a bad peer.

26.The strongest mitigation is Mr Yau’s guilty plea at the earliest opportunity earning for himself the full one third discount.

27.Mr Chu referred to R v Chan Sui To and anor [1996] 2 HKCLR 128 and submitted that the Court of Appeal there laid down various factors to be considered in sentencing a defendant for this type of offence, which included the size and planning of the operation, whether there is any international dimension and the role played by the defendant.

28.Mr Chu submitted that in the present case, although the amount of the transaction is large ($303,771), it may not be as large as when Chan Sui To was decided; that Mr Yau’s role could not be regarded as ignorable; that the only credit card involved was genuine and there was only one dishonest transaction effected; that all the offences occurred on the same day.  Mr Chu continued to submit there was only some simple and unsophisticated planning and there was no international element; that Mr Yau acted alone and there were no accomplices.

29.Mr Chu submitted that the instrument under Charge 2 was intended only for one single use.

30.Mr Chu urged the court to treat Charge 2 as part and parcel of Charge 1 and to consider the “one transaction” rule (on the basis of HKSAR v Ngai Yiu Ching [2011] 5 HKLRD 690)  and/or the totality principle and to order the sentences on all 3 charges to run concurrently with each other.

31.Mr Chu urged the court to extend mercy and to be as lenient as possible taking into account Mr Yau’s pleas and the totality principle and to adopt a starting point not exceeding 5 years overall so that the aggregate sentence will not crush Mr Yau and that he could return to his family as soon as possible.  In this connection, Mr Yau’s mother and his wife are in court to give their support.

32.Mr Chu submitted 3 mitigation letters on behalf of Mr Yau written in Chinese (with English translation).  They were written respectively by Mr Yau himself, his ex-employer, and a headmaster of a primary school who had previously worked with Mr Yau on a volunteer project.  The contents are generally that Mr Yau has reflected on his past deeds and is remorseful and wants to turn over a new leaf; that he is an essential economic pillar in the family; that his mother needs others to care for her; that he has participated in voluntary work in the past; that a job is waiting for Mr Yau on his release; that a chance should be given to Mr Yau to reform himself; that a lenient sentence is asked for.

33.Lastly Mr Chu submitted a certificate of appreciation of voluntary work undertaken by Mr Yau (with English translation)  and two medical appointment slips of Mr Yau’s mother.

Sentence

34.I have had regard to the authorities cited by Mr Chu.

35.The maximum sentence for an offence of Obtaining property by deception is 10 years’ imprisonment.  There is no sentencing guideline as such though for a credit card fraud with no aggravating factors, a starting point of 3 years’ imprisonment is not unusual.

36.The maximum sentence for an offence of Using a false instrument is 14 years’ imprisonment.  There is no sentencing guideline.

37.The maximum sentence for an offence of Handling stolen goods is 14 years’ imprisonment.  There is no sentencing guideline.

38.For Charge 1, bearing in mind the credit limit of the credit card ($400,000)  and the actual amount of the one unauthorized transaction, I shall adopt a starting point of 3 years and 3 months.  In taking this starting point, and in order not to double-count, I have not factored in the use of the false acknowledgement of application for the HKID card.

39.For Charge 2, I take into account the fact that the subject false instrument purported itself to be an identity document in lieu of a HKID card and the use to which it was put ie in order to make effective the “credit card fraud” subject of Charge 1.  I bear in mind (but do not strictly follow because this is not an immigration case)  the suggested sentence for an offence of Possession (including its use)  of a forged identity card (see HKSAR v Li Chang Li, HCMA 935/2004).  The result is I shall adopt a notional sentence of 12 months after plea.  In other words, the starting point that I shall adopt for Charge 2 is 18 months’ imprisonment.

40.For Charge 3, given there is a lack of evidence as to the intended use of the debit card, I shall adopt a lower starting point in respect of this charge.  The starting point that I shall adopt is 12 months’ imprisonment.

41.Mr Yau pleaded guilty to Charges 1 to 3.  Because of the fact that he presented himself as being ready and willing all along to admit to the facts that supported Charge 2, I shall regard him as having made a timely plea to Charge 2 as well.  For all that, he shall enjoy a sentencing discount of 1/3 in relation to all of the charges.  Other than that, I cannot discern any other mitigating factors of weight to justify any further reduction in sentence.

42.I do not regard the offence subject of Charge 3 as being part of the “one transaction” unless of course Mr Yau admitted that he was going to use the debit card in much the same way as he had used the credit card (in which case Charge 3 might attract a higher starting point).  In principle and subject only to totality, Charge 3 ought to call for a consecutive sentence.

43.The conduct of the Charge 2 offence is in reality part of the larger context of the “credit card fraud” perpetrated by Mr Yau.  So it can be said that the conduct of Charge 1 and Charge 2 together made the “credit card fraud” of the type engaged by Mr Yau successful.  Seen in this light, I am prepared to make part of the sentences on these two charges concurrent.

44.I also take into account the principle of totality when I consider the final sentence on all 3 charges.

45.I impose the following sentences.

(Mr Yau, please stand)

46.For Charge 1, Mr Yau shall go to prison for 26 months.

47.For Charge 2, Mr Yau shall go to prison for 12 months.

48.For Charge 3, Mr Yau shall go to prison for 8 months.

49.I order that 4 months of the sentence on Charge 2 to run consecutively to the sentence on Charge 1.  Furthermore, I order that 6 months of the sentence on Charge 3 to run consecutively to the sentences on Charges 1 and 2, making an aggregate sentence of 36 months’ imprisonment.