HKSAR v. Lo Wan

DCCC 1109/2024

[2025] HKDC 63

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 1109 OF 2024

________________________

________________________

________________________

REASONS FOR SENTENCE

________________________

1.Mr Lo pleaded guilty before me to one charge (Charge 1)  of Theft, contrary to section 9 of the Theft Ordinance, Cap 210; and three charges (Charges 2 to 4)  of Obtaining property by deception, contrary to section 17(1)  of the Theft Ordinance, Cap 210.

2.Particulars of Charge 1 are that he, on 21 February 2024, in Hong Kong, stole one Dah Sing Bank MasterCard numbered 5407-9518-0488-8008 in the name of Lee Yuk Fung, property belonging to Lee Yuk Fung.

3.Particulars of Charges 2 to 4 are that he, on 21 February 2024, at [A], in Hong Kong, dishonestly obtained from the staff of [B] Limited (“the said company”)  [C] Hong Kong currency (“the said goods”), with the intention of permanently depriving the said company thereof by deception, namely, by falsely representing that he was authorized and entitled to use one Dah Sing Bank MasterCard numbered 5407-9518-0488-8008 in the name of Lee Yuk Fung to make payment for the said goods.

4.For Charge 2, [A] is “Wellcome”, Shop Nos 4-5, Ground Floor, Mongkok Building, Nos 93-95 Mongkok Road, Mong Kok, Kowloon; [B] is The Diary Farm Company,; [C] is cash coupons at the total value of $3,000.

5.For Charge 3, [A] is “ManFook Jewellery”, Ground Floor, No 180 Sai Yeung Choi Street South, Mong Kok, Kowloon; [B] is Man Fook Jewellery Holdings; [C] is one gold wrist chain at the value of $4,052.

6.For Charge 4, [A] is Shop 4-5, Ground Floor, Nos 18-20A Mongkok Road, Mong Kok, Kowloon; [B] is Musang King (Top Class)  Company; [C] is durians at the total value of $1,660.

Facts admitted by Mr Lo

7.On 21 February 2024, at about 1922 hours, Lee Yuk Fung (“PW1”)  received a text message from Dah Sing Bank notifying PW1 the unauthorized transactions of his Dah Sing Bank MasterCard with card no 5407-9518-0488-8008 (“Credit Card”).  On 23 February 2024, at around 1200 hours, PW1 discovered the Credit Card went missing.

8.The following three unauthorized transactions by use of the Credit Card were uncovered:-

(a)  On 21 February 2024 at about 1625 hours at Wellcome of Mongkok Building, Mong Kok Road, for purchase of 30 pieces of $100 cash coupons at $3,000;

(b)  On 21 February 2024 at about 1917 hours at ManFook Jewellery of Sai Yeung Choi Street South for purchase of a gold wrist chain at $4,052; and

(c)  On 21 February 2024 at 1922 hours at Musang King (Top Class)  Company Limited for amount of $1,660.

9.CCTV system installed in the above Wellcome shop captured the following images of the Mr Lo on 21 February 2024:-

(a)  At about 1621 hours, he entered the shop;

(b)  At about 1625 hours, he made payment of the cash coupons using the Credit Card at the cashier; and

(c)  At about 1626 hours, he left the shop.

10.On 13 March 2024, at about 1944 hours, Mr Lo was arrested for “Obtaining property by deception”.  Under caution, Mr Lo admitted he used the Credit Card to purchase cash coupons at Wellcome in Mong Kok Road; he then went to ManFook Jewellery to buy gold and thereafter, he also went to a nearby durian shop to buy durian for consumption.

11.On 14 March 2024, Mr Lo admitted in a cautioned record of interview the following:-

(a)  He picked up the Credit Card in Tung Chau Street Park, Sham Shui Po, on 21 February 2024 at about 1530 hours;

(b)  He used the Credit Card to purchase $3,000 worth of cash coupons at Wellcome of Mongkok Building at about 1630 hours and he had used up all the cash coupons;

(c)  He also went to ManFook Jewellery of Sai Yeung Choi Street South to buy a gold wrist chain with the Credit Card at about 1915 hours; he gave the gold wrist chain to his friend Ah Keung;

(d)  He went to nearby durian shop Musang King in Mong Kok Road to buy durian with the Credit Card and he had eaten all of the durian; and

(e)  He did not know PW1.

12.The Credit Card had a credit limit of $80,000.

Criminal record

13.Mr Lo has 13 previous convictions 7 of which related to dishonesty-related offences under the Theft Ordinance, Cap 210.

Antecedents

14.Mr Lo is aged 32 (31 at the time of the offences), educated to secondary school level, unemployed.  He was last discharged from prison on 14 April 2023.  Before being remanded in custody, Mr Lo was living with his mother and younger brother in public housing in Ho Man Tin.

Mitigation

15.Mr Chu Wai Kei of counsel assigned by the Director of Legal Aid mitigated on behalf of Mr Lo.  The following is a summary of the mitigation submissions.

16.None of the stolen property was recovered.  The total money’s worth of the property comes to $8,712.

17.Mr Lo is separated.  He resided with his mother (50)  and younger brother.  Mr Lo was unemployed since June 2023.

18.Mr Lo has a number of previous dishonesty-related convictions and he asks the court not to increase his sentence too much due to that fact.

19.Mr Chu referred to a Court of Appeal sentencing case namely HKSAR v Li Chi Yat, CACC 189/2018, where the appellant stole a credit card (Charge 1)  and (i)  attempted to purchase an item in the sum of $10,464; (ii)  successfully purchased a mobile phone in the sum of $7,917; and (iii)  attempted to purchase an item in the sum of $7,288 (para 3 of the Reasons for Judgment)  (Charges 2-4).  The Court of Appeal noted:

“21. … small-scale credit card offences cannot be subjected to strict guidelines because they can vary significantly in a number of ways and that a starting point of 3 years’ imprisonment or less would be appropriate.

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.”

20.In Li Chi Yat, the Court of Appeal adopted a starting point of 2 years’ imprisonment (16 months after guilty plea)  on each of Charges 2, 3 and 4, and ordered the sentences to run concurrently with one another.  The Court of Appeal also considered it appropriate that the 6 months’ imprisonment after plea for the theft charge should run partially consecutive to the extent of 3 months to the concurrent sentences of 16 months aforesaid, resulting in a sentence of 19 months’ imprisonment (para 28 of the Reasons for Judgment).

21.Mr Chu submitted that Li Chi Yat is comparable to the present case and invites the court to adopt similar starting points.  Further, Mr Chu asks the court to take into account the totality principle when some of the sentences could be made to run concurrently.

22.Lastly, Mr Chu asks for leniency where possible on behalf of Mr Lo.

23.Upon invitation by the court, Mr Chu submitted that the difference in credit limit between this case ($80,000)  and Li Chi Yat ($20,000)  is not that great; that Mr Lo in any event threw away the Credit Card in a rubbish bin in Sai Yeung Choi Street South after the last offence because he thought “that was enough”.

Sentence

24.The facts of this case bears a striking resemblance to the facts of Li Chi Yat, cited and strongly relied on by Mr Chu.

25.The difference, also striking, between Mr Lo and the appellant Li Chi Yat, is well noted: that Mr Lo is a repeated offender of Theft Ordinance dishonesty-related offences.  This is an aggravating factor that I cannot ignore.

26.As regards the difference in credit limit of the stolen card between the two cases, that is relevant of course to the potential for losses.  However, I note that there is no evidence of even an attempted use after the third transaction; this, coupled with the additional mitigation that Mr Lo threw away the Credit Card after the last offence meant that the potential for losses was in a way limited.

27.All things considered, I feel able to adopt an initial starting point of 9 months’ imprisonment for Charge 1.  Because of the aggravating factor aforesaid, I increase it by 3 months to reach a final starting point of 12 months’ imprisonment.

28.For each of Charges 2 to 4, again I feel able to adopt an initial starting point of 2 years’ imprisonment.  For the aggravating factor aforesaid, I increase it by 3 months to reach a final starting point of 2 years 3 months’ imprisonment.

29.Mr Lo pleaded guilty in time so he shall be entitled to the customary 1/3 sentencing discount.  There are no other mitigating factors of weight that could reduce the sentences further.

30.The credit card offences occurred on the same day and in close proximity to one other in space and time.  I feel able to order the associated sentences to run concurrently with one another.

31.The theft of the credit card is a separate and distinct offence from the subsequent “use” offences.  In principle, they should attract consecutive sentences.  However, I will consider the totality principle as applied to Mr Lo before passing the final sentence.  When applying the totality principle, I will steer clear of possible undue harshness that might otherwise be caused by double-use of the said aggravating factor.

(Mr Lo, please stand)

32.For Charge 1, the sentence is 8 months’ imprisonment.

33.For Charge 2, the sentence is 18 months’ imprisonment.

34.For Charge 3, the sentence is 18 months’ imprisonment.

35.For Charge 4, the sentence is 18 months’ imprisonment.

36.I order that the sentences of Charges 2, 3, and 4 are to run concurrently among themselves.

37.I further order that 3 months of the sentence on Charge 1 are to run consecutively to the concurrent sentences of Charges 2, 3 and 4, resulting in an aggregate sentence of 21 months’ imprisonment.