HKSAR v. Tandon William Chaing

DCCC 616/2012

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO.616 OF 2012

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Reasons for Sentence

1.The defendant pleaded guilty to 3 charges of Obtaining Property by Deception, contrary to s.17(1) of the Theft Ordinance, Cap.210. All 3 charges involved the use of credit card belonging to another person by the defendant.

Facts

2.Closed circuit television footage showed the defendant using the 3 credit cards at 3 different shops to purchase goods worth a total amount of HK$96,500. The defendant was eventually located and arrested for various offences of obtaining property by deception. The defendant was identified by one of the shop personnel who sold the defendant a watch and which the defendant had paid for with one of the credit cards. The defendant was then charged with the various offences.

Previous convictions

3.The defendant has 33 previous convictions in 11 court appearances. 15 of those related to dishonesty. Of those 15, 10 were for either obtaining property by deception or attempting to do so; 2 were for theft; 1 for handling stolen goods; 1 for using false instrument; and 1 for possessing a false instrument. The defendant’s last conviction was for criminal assault and criminal intimidation when he was fined $1000 each in March 2010.

4.The last time the defendant was sentenced for offences relating to dishonesty was in July 2006, when he was convicted of handling stolen goods, obtaining property by deception, using a false instrument, using an identity card relating to another person, and possessing a false instrument. The defendant served his sentence and was discharged from jail in 2008 and had not been convicted of any dishonesty offences until now.

Mitigation

5.The defendant is 37, married. He lives with his girlfriend who is the mother of his son aged 9, together with 2 daughters aged 16 and 19 born to his girlfriend in another relationship.

6.I was told that since the defendant was last released from prison in 2008, he had worked as a clerk in a container company earing about $9,000 per month. The defendant tried very hard to put himself on the right track. He even managed to start his own container transportation business, but unfortunately, one of the containers was stolen in China and caused him to be in debt and subsequently the company had to close down. The defendant then went back to working as a container clerk.

7.It is the defendant’s case that he had somehow picked up the 3 credit cards involved in the 3 charges and out of greed had decided to use them. Ms. See pointed out, quite rightly, that there is no direct evidence to suggest that the defendant was part of a bigger operation or syndicate, that there are no international elements involved in this case, that the defendant had used only 1 credit card for each charge and that the amount involved was only on a small scale, there wasn’t much planning into perpetrating the obtaining and the defendant had pleaded guilty.

Sentence

8.I was referred to the case of HKSAR v Kwan Po Keung, CACC 79 of 2011 by the prosecution and the cases of R v Chan Sui To, CACC 115 of 1996, HKSAR v Tu I Lang, CACC 464 of 2006, HKSAR v Chan Ka Chung, CACC 379 of 2010, HKSAR v Poon Cho Shu, CACC 55 of 2000 and HKSAR v Chen Jiasheng and another, CACC 97 of 2011.

9.Ms. See for the defendant is suggesting that, if the various factors mentioned in Chan Sui To were taken into consideration, and even if the present case involved use of forged credit cards, the defendant should not be facing a starting point higher than 3 years’ imprisonment, given that only 1 card was used in each charge and the lack of any of the other aggravating factors mentioned in the case. Ms. See argued that since the use of someone else’s credit card is less serious than being involved with the use of forged credit card, the defendant’s sentence must be adjusted downwards accordingly.

10.Ms. Fung for the prosecution relies on Kwan Po Keung to suggest that the unauthorized use of a credit card belonging to another person on a single occasion to obtain property to the value of around $56,000 should normally attract a starting point of 3 years’ imprisonment.

11.In Kwan Po Keung, this starting point was then enhanced by the Court of Appeal by 4 months to “reflect the gravity of the offence in the context of persistent reoffending.” The applicant in Kwan Po Keung had however not been convicted of any criminal offence during the 12 years and 7 months period that he had absconded from justice. Yet, the Court found it necessary to enhance his sentence in view of his some 55 previous convictions which included convictions for various offences relating to dishonesty.

12.In our present case, I find that the defendant was involved in a small scale operation on his own with no international dimension. I find that none of the aggravating factors mentioned in Chan Sui To are present in relation to any of the 3 charges.

13.I find however that the defendant is a persistent re-offender. Although he may have less previous convictions than the applicant in Kwan Po Keung, the defendant has repeatedly committed and been convicted of offences relating to dishonesty. I find that this is an aggravating factor and as such will require the sentence to be enhanced appropriately to reflect the gravity of the offences in the context of persistent re-offending.

14.Having considered the various cases referred to above and the facts in our present case, I find that an appropriate initial starting point for each of the 3 charges is that of 3 years’ imprisonment.

15.For reasons I mentioned above, I will enhance this sentence by 3 months’ imprisonment for each of the 3 charges, bring the final starting point to 3 years and 3 months’ imprisonment.

16.The sentences are then discounted in recognition of the defendant’s plea of guilty and reduced each to 26 months’ imprisonment. I find that there are no other mitigating factors that would allow me to further lower this sentence.

Totality

17.The 3 offences were committed by the defendant at 3 different shops. Charge 1 was committed on 18^th February 2011 while charges 4 and 5 were committed on the same day within minutes of each other on 13^th June 2011, which was some 4 months after the commission of the charge 1 offence. There is no factual connection whatsoever between the incident in February and the incident in June and they are completely separate decisions by the defendant to obtain property by deception made independently at different times.

18.Having regard to totality, I will first of all order the sentences in charges 4 and 5 to be served concurrently. I will however order 13 months of charge 1 to be served consecutively to the sentences of charges 4 and 5, taking the total overall sentence to that of 39 months’ imprisonment.

Please refer to CACC404/2012 for the relevant appeal(s) to the Court of Appeal.