HKSAR v. Kwai Wai Tak

DCCC 650/2024

[2025] HKDC 808

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 650 OF 2024

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REASONS FOR SENTENCE

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1.The Defendant pleaded guilty to 5 charges of offences:-

Charge 1: theft of a credit card

Charge 2: obtaining property by deception – one iPhone $9,199 – at 5:25 pm

Charge 3: obtaining property by deception – one packet of cigarette - $78 – at 5:46 pm

Charge 4: attempt to obtain property by deception – goods value as at $51,800

Charge 5: obtaining property by deception – goods value as at $13

Charge 1 took place between 21 January to 30 January 2024, while Charges 2 to 5 took place on 30 January 2024.

2.The Defendant used the stolen card to commit the following offences:-

Charge	Offence	Time	Location	Property value	Value
2		5:25 pm	Nathan Road	one iPhone	$9,199

3.As such, PW1 (the card holder)  received a message from the Bank to notify her of such transaction.  PW1 checked her wallet and found the card was missing.  She called the Bank to stop the card.  The last time she saw the card was on 21 January 2024.

Charge	Offence	Time	Location	Property value	Value
3		5:46 pm	7-11 Mody Road	one packet of cigarette	$78
4		6:21 pm	Granville Road		$51,800 (unsuccessful purchase)
5		6:27 pm	Granville Road		$13

The arrest

4.At about 6:48 pm on the same day, the police found the Defendant acting furtively and he was stopped for a search and recovered the stolen credit card together with iPhone, cigarettes with 2 receipts.  The Defendant was then arrested.

5.Under caution, he said that he found the credit card in Fa Yuen Street market in Mongkok and used the card to make purchases of the iPhone and cigarettes found on him.

Criminal record

6.Since 2008 to 2023, the Defendant has 9 occasions of court appearances resulting of 10 convictions, they are mostly possession of dangerous drugs (6 convictions), 2 counts for acting as MOTS, one count of robbery in 2016 and one count of fraud in 2023.

Mitigation

7.The Defendant is 33 years old, lived with his widowed mother (62)  and sister (31)  in a public housing estate, his father passed away in 2008.  The Defendant worked as a transportation worker before the arrest, earning $18,000 per month. He is now remorseful for his misdeed.

Sentence

8.The maximum sentence for Charge 1 is 14 years, while 10 years for the rest of the Charges.

9.The defence refer to a number of cases including HKSAR v Li Chi Yat CACC 189/2018 which involved:-

(a)  one theft charge of a credit card;

(b)  one charges of obtaining property by using the stolen cards; and

(c)  two charges of attempt to obtain property by deception by using the stolen credit card.

10.In the judgement of this appeal case, the Court said that:-

“this was a case of credit card fraud at the low end of the scale of criminality …. the appellant acting alone … There was no planning or elaborate operation or any aggravating factors that would elevate the criminality to a higher level of seriousness …” (para 22)

11.With this sentencing principle in mind, I now proceed to determine the sentence of each charge.

12.As to Charge 1, there was no evidence to contradict what the Defendant said under caution – he picked up the credit card in a street market and proceeded to commit the offences in Charges 2 to 5.

13.In such circumstances, it warrants a starting point of 9 months.

14.As to Charges 2 to 5, from the evidence before me, it is a small scale operation of a credit card fraud involving one credit card.  Only the Defendant himself acting alone without involving a syndicate.  However, there is no information as to the credit limit of the stolen card.

15.In each attempt of using the stolen credit card, only one was unsuccessful (Charge 4 $51,800), the rest of transactions were successful and the amount was as little as $13 (Charge 5)  and $78 (Charge 3)  to a bigger sum of about $9,000 (iPhone in Charge 2).

16.Since the value of the properties also has a bearing on sentence, I take 2 years as the starting for Charge 2, I take 15 months as the starting point for Charges 3 and 5.

17.However, Charge 4 is the most serious one as it involved a sum of about $51,800.  I take 2 years 6 months as the starting point.

Aggravating factors

18.The defence accepted that there is aggravating factor in the present case as the Defendant has a number of convictions and he committed the offence one year after his release from prison.

19.As such, it warrants an enhancement of 3 months to each charge.

20.The following table shows the sentence of each charge:-

Charge	Starting point	Aggravating factor	Total	After 1/3 discount
1	9 months	3 months	12 months	8
2	2 years	3 months	27 months	18
3	15 months	3 months	18 months	12
4	30 months	3 months	33 months	22
5	15 months	3 months	18 months	12

Totality

21.These 4 offences (Charges 2 to 5)  took place within a space of one hour and the locations were all within a close proximity to each other in TST area.  As such, I consider that it is appropriate to order Charges 2 to 5 to run concurrently.  A total of 22 months.

22.As Charge 1 is a separate and distinct offence, I consider that to order 3 months to run consecutively to Charges 2 to 5 is appropriate to reflect the Defendant’s culpabilty.

23.The total sentence arrives at 25 (22 + 3)  months imprisonment.