HKSAR v. Chung Kai Lun

DCCC 423/2023

[2024] HKDC 471

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 423 OF 2023

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REASONS FOR SENTENCE

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1.The defendant faced two charges, he pleaded guilty to Charge 2, Charge 1 is now left on Court’s file and orders not to be proceeded with without the leave the Court.

Charge 1: the theft of a Hong Kong ID card and one credit card belong to a Mr Lam.

Charge 2: obtaining property by deception by using the stolen card in Charge 1 to buy one Rolex watch.

Summary of facts

2.At about 1956 hrs on 29 January 2023, Mr Lam was informed by the Bank that there was a transaction in a shop in Mongkok for a sum of $301,716.

3.Mr Lam checked his wallet and found his ID card and credit card have gone missing. The case was reported.

4.The CCTV of the shop showed that the defendant had used Mr Lam’s card to buy a Rolex watch.

5.The defendant was arrested on 20 of February 2023. Under caution, he admitted that he took someone’s ID card and credit card, he used the stolen credit card to made purchase of the Rolex watch and the watch has been sold.

6.The cards and the Rolex watch were all uncovered.

Criminal records

7.The defendant has eight court appearances for a total of 13 criminal records.

8.There were five records of trafficking in dangerous drugs, and three convictions of theft. Others were possession of offensive weapon, being a triad member and AOABH.

9.When he committed the present offence, he was just released from prison for about a year.

Background/Mitigation

10.The defendant is now 43 years old and educated up to secondary school level.

11.He lives with his mother and a 5½-year-old son. Since separation from his partner, he has no contact with her.

12.At the time of committing the presence offence, he was a renovation worker. Mr Lee in his letter said that he will continue to re-employ the defendant after he is released from prison.

13.The defendant have received spiritual counseling during this period of remand. Father Wotherspoon has written a letter to inform me that the defendant has taken part in his anti-drug campaign by writing 3 detail and humble letters regarding his lonely childhood because his parents were fisherman and often away to the sea for months.

14.As I pointed out to counsel that the letters before me are of different hand writings. In fact the 14 pages of letters to Father Wotherspoon’s campaign were written by someone else as defendant’s hand was injured.

15.Today he wishes to be released in 3 months’ time so that he can attend his son’s kindergarten graduation ceremony in this early summer.

Sentence

16.The maximum sentence for Charge 2 is one of 10 years’ imprisonment.

17.The Defence cited a number of authorities, suffice to say that the fraudulent use of stolen credit cards usually attract a deterrent sentence of immediate imprisonment.

18.As said in the judgment of HKSAR v Li Chi Yat CACC 189/2018: -

“22. … We should point out, however, that credit card fraud offences require deterrent sentences in order to protect the integrity of the credit card system and to punish the offender for the loss and inconvenience to the credit card company and the cardholder, as the case may be.”

19.The Defence also cited the relevant factors for sentencing considerations. They were set out in the case of Chan Sui To and others [1996] 2 HKCLR 128 at 131F. In that judgment the Court said that the range of sentences imposed for credit card offences in various cases: -

“30. Allowing for the different facts and the varying degrees of culpability, it is impossible to formulate a set of principles of sentencing from those decisions. We think however it would be helpful to the courts if they were guided by some criterion. We would therefore suggest that an accused who plays an active but not necessarily a key role in a medium size operation involving between $50,000 and $150,000, with no elaborate planning and equipment, and without an international dimension, should receive a sentence of five to six years after trial. Sentences may be adjusted upwards or downwards according to circumstances.”

20.Clearly, the value of stolen property is one of the major sentencing considerations.

21.In the present case, the Defence accepts that: -

(a)  The credit limit was “moderately high” as it was $457,000;

(b)  PW1 was notified of the transaction immediately when the stolen credit card transaction took place in Mongkok while he himself was in Tai Kok Tsui. Therefore it allowed the Bank to suspend any further transactions by using this credit card;

(c)  The defendant was acting alone;

(d)  It was a single genuine credit card used on one occasion, and the amount involved was about $300,000. The Defence accepted that it was a large sum;

(e)  There was no suggestion of any sophisticated planning or elaborated operation on the use of the credit card;

(f)  The Rolex watch valued at $301,716. We all know that Rolex watch was a popular high end luxury brand, it has a resale value in the secondhand market. It also depends on the model of the watch, sometimes it can command a higher re-sale value than the actual value of the watch.

22.There are aggravating factors:-

(a)  The defendant has a number of criminal records since 1999 that include three convictions of theft;

(b)  He committed the offence only after one year of release from prison.

23.With all this information in mind, I consider that a starting point of 4 years is appropriate, I enhanced a sentence for another 3 months for the aggravating factors. That arrive at 4 years and 3 months. Given 1/3 discount to his guilty plea, it comes down to 2 years and 10 months.

Further deduction?

24.As to the mitigation letter from Father Wotherspoon, the Defence asked for further few months deduction and cited the case of HKSAR v Kilima Abubakar Abbas [2018] 5 HKLRD 88. Since this case, there are other cases regarding Father Wotherspoon’s mitigation letter. Such as HKSAR v Castillo Caicedo Teresa [2022] HKCA 82, the court said in paragraph 60 of the judgment that it is discretionary in power.

25.I refused to exercise such discretion. I have heard submissions from the Defence. The defendant was convicted of a charge of obtaining property by deception and Father Wotherspoon’s campaign is anti-drug activities.

26.I have read the letters, the content of which is very much about the pain of losing freedom and he is missing his chance to look after his 5½-year-old son. This is something that every prisoner will suffer. The defendant should have known at the time of committing this offence that he would have to face a long period of imprisonment.

27.He has a long history of committing offences since 1999 including the period when his son was only a toddler (born in 2018), he was imprisoned from 2020 to 2022. It was not something hard to know.

28.To this end, I order the defendant to serve a sentence of 2 years 10 months.