HKSAR v. Lee Yun Shek
|
DCCC 1157/2012 IN THE DISTRICT COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION CRIMINAL CASE NO. 1157 OF 2012 -----------------------------------
---------------------------- 1.The defendant pleaded guilty to two charges of Attempting to obtain property by deception, contrary section 17(1) of the Theft Ordinance, Cap.210 and section 159G of the Crimes Ordinance, Cap.200. 2.The defendant had pleaded not guilty to the original charges of using a false instrument and possession of a false instrument and trial on those charges had commenced. Upon the prosecution amending the charge sheet on the second day of trial, the defendant decided to plead guilty to the amended charges. Facts 3.The defendant entered Emperor Watch & Jewellery store at around 4:02pm on 20th October 2012 and picked out a black “Audemars Piguet” brand watch priced at $172,480. The defendant presented a Gold American Express Card in the name of Leung Nai Tak for payment. Staff of the store tried to complete the transaction with the card but was unsuccessful. 4.The defendant then presented another card in the same person’s name and requested to split the amount between the said two cards. The transactions failed. Staff referred the matter to the credit card centre and was told that both were false credit cards. The matter was reported to the Police. 5.At about 4:45pm, just when the defendant was leaving the store, Police officer arrived and told the defendant to stop. The defendant ran and the Police officer gave chase and stopped the defendant at the basement of Times Square. 6.The defendant was cautioned and was asked why he ran. The defendant said he was afraid that he would be arrested because he had used false credit cards just now. The defendant was arrested and under caution asked for a chance and alleged that the credit cards were picked up by him. 7.Upon search, a Standard Chartered Bank Visa card in the same name was found in the defendant’s wallet. In the later video recorded interview under caution, the defendant claimed that he picked up a red-packet from the ground at Yeung Uk Road near Chung On Street in Tsuen Wan at about 7pm on 19th October 2012 and found the 3 credit cards inside. He kept them for his own use out to greed and attempted to purchase a watch using the first 2 cards. He did not know the person whose name was printed on the 3 credit cards. Previous convictions 8.The defendant has no previous convictions in Hong Kong. He was however convicted of trafficking in dangerous drugs in Thailand on 23 May 1988 and was sentenced to life imprisonment there. He was expatriated back to Hong Kong on 22 March 2006 to finish serving his sentence. The defendant was released from prison on 27 November 2009. Mitigation 9.The defendant is 47, single. The defendant managed to find a cleaning job within 20 days of leaving jail in 2009. Since 18 April 2011, the defendant has been employed by the Chevalier Group to carry out air-conditioner maintenance work. 10.Legal representative for the defendant repeated in mitigation that in the defendant’s video recorded interview, he said he picked up the cards in Yeung Uk Road. It is the defendant’s case that the cards were signed. It is suggested that perhaps someone used the fake cards and had just dropped it. The defendant had tried hard to live a proper life after his previous jail stint. He was just greedy, thinking to buy something he could not afford. There is no suggestion of an international element, there is a potential of loss and deterrent to consider, there is no suggestion of the defendant being part of a syndicate, the credit cards involved were just 2. The defendant asked for leniency. 11.The defendant was living with his mother prior to custody. His father passed away in 2000. Sentence 12.The maximum sentence for amended charge 1 and 2 is both 10 years’ imprisonment. 13.The defendant is of clear record in Hong Kong. I have not taken into consideration his previous conviction for drug trafficking in Thailand when sentencing. 14.As I mentioned to defence counsel at the end of her mitigation, I find the defendant’s conduct throughout his deception amazingly calm and collected. One simply cannot detect any sign of nervousness just from the outward appearance and body language of the defendant. He behaved just like a normal customer with money to spend. 15.The defendant said he picked up the 3 credit cards in a red packet in Tsuen Wan the night before. He kept the cards and then decided to go to Causeway Bay the following day to use the cards to buy something. He chose to go to one of the posh watch shops along Russell Street to make a purchase. When inside, he picked a watch worth $172,480, by no means a cheap watch. As seen from the closed circuit television footages, which had been admitted into evidence, the defendant behaved calmly and just sat out the whole waiting for credit card to be authorized ordeal. Even when he must have realized that something had gone wrong, he did not run away. He walked out of the shop slowly, stood outside the shop for a short time, held his phone against his ear as if using it, then he went away. 16.What the defendant did gave one an impression that he was in control of himself and knew exactly what he was doing, that is to say, he was using credit cards that did not belong to him and he was therefore committing a criminal offence. This is slightly different to the picture of the defendant that Ms. Chan was trying to paint in mitigation, that the credit cards came to the defendant by pure chance and out of momentary greed he decided to use them to buy something. I find that there is certainly some degree of premeditation in the obtaining by deception by the defendant. 17.There is no evidence of any international element in the case. The defendant seemed to have acted alone. The merchandise he was trying to deceive the victim shop out of was not a small amount but at the same time not a huge amount. 18.The deception however did involve the use of forged credit card. There is a need to incorporate the element of deterrence in the sentence. 19.In the case of HKSAR v Kwan Po Keung, CACC 79/2011, the Court of Appeal considered that in a charge for obtaining property by deception where the applicant had used one credit card that belonged to another person on one occasion to purchase jewellery and watches worth $56,116, the proper starting point without considering other aggravating factors is that of 3 years’ imprisonment. There the initial starting point was enhanced by 4 months in view of the applicant being a persistent offender. 20.Although one would be highly suspicious of someone picking up credit cards in a ‘lai see’ packet on the street, I will still grant the benefit of the doubt to the defendant and sentence on the basis that he had in fact picked the cards up the previous night. 21.Bearing in mind all the circumstances of the case, I will adopt a starting point of 3 years’ imprisonment in relation to charge 1. The defendant has pleaded guilty to the amended charge and I will grant him the full one-third discount and sentence him on charge 1 to 2 years’ imprisonment. Charge 2 22.For the same reasons given in relation to charge 1, I will also adopt a starting point of 3 years’ imprisonment in relation to charge 2, discounted to 2 years’ imprisonment for the defendant’s guilty plea. Totality 23.Applying the principle of totality, I will order that the sentence in both charges to run concurrently. The defendant is therefore sentenced to a total of 2 years’ imprisonment.
| ||||||||||||||||||||||||||
Cases cited in this judgment