HKSAR v. Ng So Hung

DCCC 281/2024

[2025] HKDC 967

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 281 OF 2024

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REASONS FOR SENTENCE

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1.The Defendant pleaded guilty to 2 charges of offences:-

Charge 1: theft[1]

Charge 2: obtaining property by deception[2]

Summary of facts

2.The 2 charges took place on the 4^th day ofApril 2023.

(i) 9:45 a.m.

At around 9:45 am, PW1 went to the Bank to settle the credit card bill by using the ATM machine with his own credit card.

(ii) 10:23 a.m.

At around 10:23 am, PW1 received a test message from the Bank to request authorization of a $36,700 purchase from “TAI SANG JEWELLERY COMPANY”. PW1 went to the Bank to make enquiry and subsequently called the police.

(iii) 10:15 a.m.

PW1 then went to the jewellery company and found out that 2 males had used a credit card to buy a piece of jewellery at about 10:15 am for about $30,000

3.The CCTV in the shop captured the incident.

4.Two days later, the Defendant was arrested.  He said in the record of interview that:-

(a) when he inserted the ATM card into the ATM machine, he found a credit card inside the card slot.

(b) He took the credit card and went to the jewellery shop with “Ah Wai” who was in need of money.

(c) “Ah Wai” used the credit card to buy a gold necklace.

(d) He had not seen “Ah Wai” since then.

Criminal record

5.Since 1979 to 2023, the Defendant has 7 criminal convictions, 3 of them are gambling in a gambling establishment. None of them related to the present offences.

Mitigation

6.The Defendant is 62 years old, a retired hair dresser, currently receiving CSSA of about $4,000/month. He lives with his girlfriend who suffers from depression. In her letter to the Court, she said that she needs the Defendant to look after her.

7.However, the Defendant suffers from a stroke 3 months ago and now requires a crutch to support him in walking.

8.The Defendant took the credit card when PW1 left it in the ATM machine as he queued up behind PW1. He committed the present offence with “Ah Wai” who is the son of his girlfriend.

Sentence

9.The maximum sentence for charge 1 is 14 years, while charge 2 is 10 years.

10.The defence refers to a number of cases including HKSAR v Li Chi Yat[3], which involved-

(a) One theft charge of a credit card;

(b) One charge of obtaining property by deception (successfully bought a mobile phone for $7,917); and

(c) Two charges of attempt to obtain property by deception. (unsuccessful purchase of two items of $10,464 and $7,288)

11.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 …”

Charge 1

12.In Charge 1, the Defendant said that he picked up the credit card by chance from the ATM machine without informing the Bank.  It was not premediated or acted in concert with others.  A case of opportunistic theft from the ATM machine.

13.In such circumstances, it warrants a starting point of 9 months.  After ¹/₃ discount, it comes down to 6 months.

Charge 2

14.As to Charges 2, from the evidence before me, it is a small scale operation of a credit card fraud involving one credit card.

15.The Defendant committed the second offence with “Ah Wai”, which is an aggravating factor.  I consider that a 3 months upward adjustment of the starting point is necessary to impose a deterrent effect.

16.The value of the golden necklace worth $36,700.

17.As such, I take 2 years as the starting point, enhance the sentence by 3 months for the aggravating factor, the sentence arrives at 2 years and 3 months. After ¹/₃ discount, it comes down to 18 months.

Totality

18.I order 3 months from Charge 1 to run consecutively to Charge 2, the final sentence is 21[4] months’ imprisonment.

19.As there is no special circumstances to warrant any further deduction of sentence, I order the Defendant to serve a period of 21 months’ imprisonment.