HKSAR v. Kwan Po Keung

DCCC 1373/2010

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 1373 OF 2010

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Reasons for Sentence

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Introduction

1.The Defendant is convicted upon his own plea of the 2^nd Charge of obtaining property by deception, the 3^rd Charge of burglary and the 4^th Charge of handling stolen goods.

2.The Particulars of Offence regarding the 2^nd Charge read:

“KWAN Po-keung, on the 11^th day of February, 1998, at Duty Free Shop, No.5 Hankow Road, Tsimshatsui, Kowloon, in Hong Kong, dishonestly obtained from WONG Wai-lan of DFS Hong Kong Limited (“the said Limited”) one ring and two watches (“the said goods”), with the intention of permanently depriving the said Limited thereof by deception, namely, by presenting one American Express card numbered 3763-8033-1782-005 in the name of PANG TAK SHING (“the card”) to make payment for the said goods and by falsely representing to the said WONG Wai-lan of the said Limited that:

(a) he was the genuine holder of the card; and

(b) he was entitled and authorized to use the card to make payment for the said goods.”

3.The Particulars of Offence regarding the 3^rd Charge read:

“KWAN Po-keung, on the 18^th day of February, 1998, in Hong Kong, having entered as a trespasser part of a building known as Room 1504, 15^th Floor, Kodak House II, No.321 Java Road, North Point, stole therein one mobile phone and cash of $10,410 Hong Kong currency.”

4.The Particulars of Offence regarding the 4^th Charge read:

“KWAN Po-keung, on the 18^th day of February, 1998, in Hong Kong, dishonestly received certain stolen goods, namely 7 credit cards knowing or believing the same to be stolen goods.”

5.Upon the application by the prosecution, the 1^st and the 5^th Charges will be kept on Court file and not proceeded with unless with the leave of the Court.

6.The facts admitted by the Defendant reveal that:

(i) At all material times, MCSB System (HK) Limited and Computerland (“MCSB”) occupied the premises situated at Room 1504, 15^th Floor, Kodak House II, No.321 Java Road, North Point, Hong Kong (the “Office”).

(ii) When PW1 and PW2 returned to the Office after lunch on 18 February 1998, they saw the Defendant at the Office. They had not seen the Defendant before.

(iii) As PW2 found the Defendant acting suspiciously, she immediately checked her handbag and found her mobile phone missing.

(iv) PW1 was then alerted and chased after the Defendant who fled.

(v) The Defendant was subsequently intercepted by an off-duty plainclothes police officer DPC 16138. During the course of the Defendant’s flight, he dropped his wallet.

(vi) Upon body search on the Defendant, PW2’s mobile phone and cash of HK$10,410 were found. Under caution, the Defendant said, “I have just stolen the mobile phone and the cash from the Office.”

(vii) It was subsequently confirmed that cash in the total sum of HK$10,410 was stolen from the Office. PW2 also identified the mobile phone seized from the Defendant as her property.

(viii) Eight credit cards were found from the Defendant’s wallet. One of them belonged to the Defendant’s girlfriend. The following is the particulars of the other seven genuine credit cards issued to seven different individuals:

(a) Standard Chartered Bank Visa Card numbered 4509-3610-1015-6093 of which the cardholder was CHAN Wan-hoi;

(b) Chase Manhattan Bank Gold MasterCard numbered 5401-5771-0011-1690 of which the cardholder was SHIM Hau-ming Clive;

(c) Hongkong Bank Visa Gold Card numbered 4966-0400-0328-6473 of which the cardholder was WONG Lung-kwong;

(d) Hongkong Bank Super Ease Visa Card numbered 4541-8700-1090-6323 of which the cardholder was SIN Lai-lin;

(e) American Express Gold Card numbered 3763-9002-4402-001 of which the cardholder was PANG Tak-shing (“Card I”);

(f) Citibank Gold Visa Card numbered 4966-482-291-679 of which the cardholder was CHANG Wan-yi; and

(g) Hang Seng Bank Gold Visa Card numbered 4966-1302-7034-3725 of which the cardholder was LAW Hak-kam.

The aforesaid cardholders reported loss of their respective cards to their respective credit card issuing banks in 1997 and 1998.

(ix) The Defendant was charged with the offence of burglary on 19^th February 1998. He was remanded in jail custody until 6^th March 1998 when he was released on court bail. He failed to attend court on 27^th March 1998. On 25^th October 2010, he surrendered to North Point Police Station.

(x) Under caution, the Defendant admitted, inter alia, that:

(a) Card I was given to him by one Ah Chuen;

(b) Ah Chuen also gave him another American Express Card numbered 3763-8033-1782-005 of which the cardholder was PANG Tak-shing (“Card II”) but the Defendant had lost Card II;

(c) He had used Card II in a duty free shop in Tsimshatsui to buy watches and a ring in 1998; and

(d) He had sold the goods he purchased with Card II to one Ah Wing at half of the value of the goods he had purchased. He had spent all the proceeds thereof.

(xi) The Defendant used Card II to purchase a ring and two watches on 11^th February 1998 in Duty Free Shop, No.5 Hankow Road, Tsimshatsui (the “Shop”) by purporting to be the genuine holder of Card II. The transaction was handled by WONG Wai-lan, a staff member of the Shop. The total value of the ring and two watches was approximately HK$56,116.

(xii) PANG Tak-shing confirmed that he had not used Card II on 11^th February 1998 to make purchase at the Shop, and that he had not consented to the use of Card II by the Defendant at the material time.

Previous records and antecedents

7.The Defendant has 55 previous convictions from 1979 to 1993, out of which there are 15 previous convictions of obtaining pecuniary advantage by deception sentenced in 1991, 6 previous convictions of obtaining property by deception (the last conviction of which was sentenced in 1993), 3 previous convictions of theft, 2 previous convictions of handling stolen goods, 1 previous conviction of evasion of liability by deception, 1 previous conviction of forgery, 3 previous convictions of possession of an identity card relating to another person and 1 previous conviction of possession of forged HK identity card. I must say that the Defendant’s previous record is appalling, and most of his previous convictions are dishonesty-related.

8.The Defendant was born in August 1961. He is now 49 years old. He has received education up to Primary 5 level. Since the age of 14, the Defendant had worked as a trainee in a hair salon, a temporary actor, an electronic technician, a clerk and a salesperson. Prior to the commission of the present offences, he was last released in April 1996. 

Mitigation

9.Defence counsel sent me her written Submissions in Mitigation yesterday. According to the Submissions in Mitigation, the Defendant:

(i) was born in Hong Kong in 1961 and is now almost 50 years old;

(ii) received education up to Primary 5 level;

(iii) has a close relationship with his family members, including his 76-year-old mother, 75-year old stepfather, younger sister and brother-in-law;

(iv) expects to get married with his girlfriend after the Defendant has served the sentences for the present case;

(iv) spent most of his time in prison between 1980 and 1996; and

(v)surrendered to the police on 25^th October 2010 voluntarily.

10.It was also submitted by defence counsel, inter alia, that:

(i) The Defendant’s surrender to the police demonstrated his remorse for what he had done: R v Fung Yu Ming CACC 124/1996;

(ii) The Defendant was cooperative with the police and made admissions regarding the 2^nd, 3^rd and 4^th Charges;

(iii) Regarding the 2^nd Charge, a genuine credit card was used and there were no other aggravating factors; so the sentencing authority in R v Chan Sui-to and Another CACC 115/1996 might not be applicable;

(iv) The value of the goods involved in the 2^nd Charge was about HK$56,116;

(v) There were no serious aggravating features involved in the 4^th Charge: R v Webbe (unreported, The Times, 13^th June 2001) and Archbold Hong Kong 2011 paragraph 22-224;

(vi) The sentences for the 2^nd Charge and the 4^th Charge should run concurrently: HKSAR v Wong Wan Shan CACC 9 & 10/2002; and

(vii) Regarding the 3^rd Charge, no violence was used. No one was injured. The stolen property was recovered. The Defendant was acting alone without any break-in equipment.

11.Three letters respectively from the Defendant himself, his 26-year-old daughter and his brother-in-law were submitted to this Court asking for leniency.

Sentence

12.The Defendant has an appalling previous record of dishonesty-related offences. In HKSAR v Chan Pui Chi CACC 706/1997, Stuart-Moore VP said:

“Whilst it is always important for the sentencer to bear in mind the general principle that a defendant is being sentenced for the offence which has brought him before the court and not for previous offences for which he has already served the penalty, the constant repetition of this applicant’s trafficking in dangerous drugs had itself increased the gravity of these offences, at least so far as sentence is concerned. The sentences he had received in the past had proved to be no deterrent at all, and prevention of further repetition was demonstrably in the public interest. We should add that there is nothing original about the notion that a defendant, with previous convictions of the same or similar kind as the offence for which he is due to be sentenced, may receive a longer sentence than a defendant with none.

…

… more common example, in theft by shoplifting the courts will often impose a very moderate financial penalty for a first offender, but if such an offence is repeated, a heavier sentence is likely to be imposed for repetition. There are many examples of this kind to be made, and trafficking in dangerous drugs is certainly no exception, if indeed there are any exceptions, to the general rule that re-offending in the same or a similar way may aggravate the offence, at least so far as sentence is concerned. This will have the result that the starting point which would have been adopted for a man of good character will sometimes need to be increased to take into account the aggravating features of persistence and the failure of previous sentences to deter on the one hand, and the court’s duty to protect the public on the other. The court, in other words, is passing a deterrent sentence on the persistent offender, from whom the public needs protection, which is often unnecessary on a first or even sometimes a second-time offender. Much may depend on the gravity of the crime. The graver the crime, the more obvious becomes the need for a deterrent sentence on repetition in order that the public are properly protected.”

13.In light of the decision in HKSAR v Chan Pui Chi, I consider the Defendant’s previous convictions on dishonesty-related offences an aggravating factor which calls for an additional imprisonment term of 6 months for each of the 2^nd, 3^rd and 4^th Charges. Despite I will make an upward adjustment of 6 months to each of the charges the Defendant is convicted, the overall upward adjustment will not be as high as 18 months.

14.Regarding the 2^nd Charge, I note that genuine credit card of another person was used. However, I disagree that R v Chan Sui-to and Another is inapplicable in the present case. In this connection, the facts in HKSAR v Chau Yiu Cheong CACC 363/2008 are similar to the present case in that the applicant used a stolen credit card to purchase various items. On appeal against sentence, the Court of Appeal referred to R v Chan Sui-to and Another without saying it was inapplicable when the credit card used was genuine. Indeed, the Court of Appeal in HKSAR v Chau Yiu Cheong classified that case as a credit card fraud and said in paragraph 14 that:

“… This Court has emphasized on a number of occasions that severe sentences should be imposed on those who engage in credit card fraud. In HKSAR v Chen Wing Hong CACC 40/2005 the court observed that in the world today –

‘… the integrity of the credit card system is highly important and those who attempt to beat the system by fraudulent methods necessarily erode the confidence which people are entitled to place on this aspect of modern commercial life.’”

15.Having considered R v Chan Sui-to and Another, HKSAR v Wong Wan Shan, HKSAR v Chau Yiu Cheong and HKSAR v Chan Pui Chi, and in light of the value of the goods so deceived, I will adopt a starting point of 4½ years’ imprisonment for the 2^nd Charge.

16.The usual starting point for burglary of non-domestic premises is 2½ years’ imprisonment: R v Wong Man CACC 372/1992. In light of the decision in HKSAR v Chan Pui Chi, I will adopt a starting point of 3 years’ imprisonment for the 3^rd Charge.

17.Regarding the 4^th Charge, it is apparent from the facts admitted by the Defendant that he was acting in concert with at least Ah Chuen in the thieving of Card I, and that the Defendant must have intended to use the stolen credit cards to make different purchases. Unlike the individual charges of handling stolen goods in HKSAR v Wong Wan Shan, 7 stolen credit cards were involved in the 4^th Charge. Further, the use of Card II (which was involved in the 2^nd Charge) and the 7 stolen credit cards (which did not include Card II) in the 4^th Charge can hardly be said to be one course of criminal conduct. Having taken into account the decision of HKSAR v Chan Pui Chi, I will adopt a starting point of 3 years’ imprisonment for the 4^th Charge.

18.The Defendant had absconded for nearly 12 years and 7 months. In this connection, Yeung JA in HKSAR v Ko Chun Hung CACC 71/2007 quoted Stock JA (as he then was) in HKSAR v Chow Tak Fuk CACC 428/2004 that:

“… those might be minded to flee should not be led to believe that if ultimately they return they will be in no worse a position than had they not fled in the first place.”

19.Despite the decisions in HKSAR v Chow Tak Fuk and HKSAR v Ko Chun Hung, in light of the Defendant’s cooperation with the police, the fact that he voluntarily surrendered to the police and that the Defendant managed to stay away from causing trouble for the past 12 years and 7 months, I will nonetheless give the Defendant 1/3 discount for his guilty pleas for each of the sentences. The respective sentences for each of the 2^nd, 3^rd and 4^th Charges are therefore reduced to 3 years, 2 years and 2 years’ imprisonment. 

20.I have said that the use of Card II (which was involved in the 2^nd Charge) and the 7 stolen credit cards in the 4^th Charge can hardly be said to be one course of criminal conduct. As such, I order that 4 months in the 4^th Charge to run consecutively with the 3 years’ imprisonment in the 2^nd Charge.

21.As the 3^rd Charge is separate and distinct from the 2^nd and the 4^th Charges, I order that 1 year in the 3^rd Charge to run consecutively with the sentences passed on the 2^nd and the 4^th Charges. The total sentence is therefore one of 4 years and 4 months’ imprisonment.

Please refer to CACC79/2011 for the relevant appeal(s) to the Court of Appeal.