HKSAR v. Zhang Hu

DCCC 110/2015

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 110 OF 2015

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REASONS FOR SENTENCE

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Introduction

1.The defendant (male) pleaded guilty in the District Court before me this morning to one count of attempting to obtain property by deception (1st Charge) and another count of what is more commonly known as unlawful remaining (2nd Charge). He admitted the Summary of Facts and was duly convicted of both charges accordingly.

The facts

2.The circumstances of the offences are simple and straightforward.  The deception by the defendant in relation to the 1st Charge was that he used a credit card to make purchase of two packets of cigarettes, valued HK$110.  The credit card used by the defendant is one Hang Seng Bank credit card (“the credit card”). 

3.At around 5:50 pm on 13 November 2014, the defendant entered a 7-Eleven Convenience Store located at Shop Nos 19-20, Ground Floor, MTR Nam Cheong Station, Kowloon and used the credit card and attempted to purchase two packets of cigarettes.  However, the transaction failed and as the shopkeeper tried to swipe the credit card again for payment, she noticed that the credit card number shown on the credit card was different from the credit card number shown on the credit card machine.  In the end, the defendant took back the credit card and left the shop. 

4.A report was made to the police.  Police officers later arrived at the shop to conduct investigation.  About half an hour later, the manager of the shop saw the defendant walking past the shop again and he immediately alerted the police and the defendant was subsequently intercepted by the police. 

5.Upon initial enquiry by the police, the defendant admitted that:-

(a) he had used a credit card to purchase two packets of cigarettes, but failed;

(b) he had thrown away the said credit card; and

(c) he picked up the said credit card in Shenzhen and he just wanted to try if the said credit card could be used to make purchases.

6.Upon search of the defendant, no identification document was found on him and the defendant was arrested.  Under caution, he admitted using the credit card once. 

7.In the subsequent cautioned interview, the defendant further admitted sneaking into Hong Kong from the Mainland on 13 November 2014.

8.In the Summary of Facts, the defendant agreed that he had falsely represented that he was the genuine holder of the Hang Seng Bank credit card presented to the shopkeeper by him.

Criminal record and background of the defendant

9.At the time of the sentence, the defendant is 28 years old.  He is a resident of the mainland.  In the past, he had one criminal record in Hong Kong.  In 2012, he was convicted of an offence of attempted theft (pickpocket) and was sentenced to 15 months’ imprisonment.  He only had primary 6 level of education.  He is a married man.  His wife, aged 21, is a housewife and they had a 5 years old son who is studying in a primary school. 

Mitigation

10.In mitigation, Mr Stephen Tam, the solicitor appearing on behalf of the defendant, had submitted to the court a letter written by the defendant which stated that he was very remorseful.  Mr Tam told the court that the defendant’s parents passed away when he was 10 in an accident and thereafter the defendant was raised up by his grandparents.  He therefore had to discontinue his studies.

11.In this case, Mr Tam reminded the court that only one credit card was used to buy two packets of cigarettes with a low value.  He described the offence as small scale and also unsophisticated.

12.In relation to the 2nd Charge, Mr Tam told the court that he committed this offence purely for economic reason.

13.Mr Tam said that the defendant used to have a job of a salesman in Shenzhen but he became unemployed last year.  Defendant was the sole breadwinner of the family.  What is more, the defendant’s father-in-law was diagnosed to have suffered from tuberculosis.  Each month, the defendant had to be responsible for the 700 Renminbi medical expenses incurred by the father-in-law.  Because of the heavy economic burden, the defendant just listened to his friend’s advice and thought to come to Hong Kong to seek job opportunities as the wages in Hong Kong is high.

14.In the letter of mitigation, the defendant spoke of extremely remorse. He said he felt regret especially when it came to his mind that his wife now needs to take care of their son and also the father-in-law.  The defendant promised to be a law abiding person in the future and begged the court to give him a chance to take care of the family.

15.Mr Tam said that there are guidelines in relation to both charges. However, taking into account the mitigation, he still urged the court to consider the principle of totality and to pass the defendant a lenient sentence.

Sentencing considerations

16.Before passing the sentence, I took into account the facts of this case, the mitigation which has been put forward and also the case authorities. 

17.In relation to the 1st Charge, I accept that the present offence is of a simple and small scale use of a credit card.  It is true that the sentencing tariff of 3 years’ imprisonment or less has been said to be appropriate by the Court of Appeal.  In the case of HKSAR v Tu I Lang CACC 464/2006, McMahon J said at paragraph 10 of the judgment:-

“Where the facts of the offence point to a small unsophisticated operation, involving only one or a few forged credit cards uncomplicated by other evidence materially linking the offender to a larger operation, then a starting point of 3 years’ imprisonment or less would be appropriate. This case was followed up by another division of the Court of Appeal in HKSAR v Chan Ka Chung CACC 379/2010.”

18.Although in the above quotation, McMahon J was referring to forged credit cards, I see no difficulty in applying the above decision in a case of even a genuine credit card.  It is highly suspicious that the credit card used by the defendant is a forged credit card as the credit card number shown on the credit card machine was different from the credit card number shown on the credit card itself.  However, as the defendant had thrown away the credit card after the futile attempt to make purchase and, as a result, the police was unable to conduct any examination of the credit card.

19.In relation to the 2nd Charge, in The Queen v So Man King & others [1989] 1 HKLR 142, a guideline tariff of 15 months’ imprisonment after a guilty plea was endorsed by the Court of Appeal for the offence of unlawful remaining in Hong Kong.  In order to deter the illegal sneaking into Hong Kong by the mainlanders, the guideline sentence will inevitably be ordered to run consecutively to the sentence for the offence which was resulted in the defendant being prosecuted in the first place. 

20.In a very recent Court of Appeal Chinese judgment, HKSAR v HUANG KEYAN and Another CACC 331/2014, Yeung VP affirmed the sentencing judge’s approach to order that the sentence on unlawful remaining and the sentencing on theft to run wholly consecutively.  His Lordship remarked that when an illegal immigrant committed the offence within the territory in Hong Kong, the sentence on the unlawful remaining charge has to be served consecutively with the sentence on the other offence, otherwise the sentence will lose its deterrence effect. (See HKSAR v Wong Kin Po CACC 2/2009 and also HKSAR v Lee Chin Yui CACC 24/2014)[1].

21.In this case, the defendant pleaded guilty which I can see is the only effective mitigation in this case, for which he shall be entitled to the usual one-third discount.

22.I am of course sympathetic with the circumstances of the family of the defendant.  All of them now stand to lose the support of the defendant. However, in the past, the Court of Appeal had said in so many cases that in cases which are of serious nature, family circumstances virtually play no part in mitigation.  The defendant should think twice before coming to Hong Kong to commit offence. 

23.In the 1st Charge, as said, the usual starting point is 3 years. However, I bear in mind that in this case only one credit card was involved and the value of the two packets of cigarettes that the defendant tried to obtain is low, only HK$110.  I decided therefore to adopt a lower starting point of 30 months.  After deduction of 1/3, the defendant will serve a sentence of 20 months’ imprisonment.

24.For the 2nd Charge, according to the usual tariff, being first time he came to Hong Kong illegally, he will serve the usual sentence of 15 months’ imprisonment upon a plea of guilty.

25.As said, the Court of Appeal had made it clear that in order to deter illegal immigrants to sneak into Hong Kong and commit crimes, the court should order that the sentences on both charges shall run wholly consecutively. Hence, I order that the sentence on both the 1st Charge and the 2nd to run consecutively, i.e. a total of 35 months’ imprisonment for the defendant.