HKSAR v. Ngai Vincent Ming Fung

DCCC 944/2014

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 944 OF 2014

----------------------

----------------------

---------------------------------------

REASONS FOR SENTENCE

---------------------------------------

1.The defendant Ngai Ming Fung Vincent pleaded guilty before me to one charge of Theft (Charge 1) and 2 of Obtaining Property by Deception (Charges 2 and 3).

2.All three offences were committed on 27 March 2013 in Ma On Shan, New Territories.  At around 1 pm, the defendant stole a credit card left by the cardholder at an ATM machine outside Bank of China at Ma On Shan Plaza.  At around 1:37 pm, the defendant used the card to purchase a laptop computer from the Fortress Shop at Ma On Shan Plaza, Ma On Shan.  At around 1:52 pm, the defendant used the card to purchase 1 box of medicine and 2 cans of milk powder from the Watsons Shop at Sunshine City, Ma On Shan.

3.CCTV footage of Fortress and Watsons captured the defendant making the transactions in question.

4.The defendant was arrested on 7 November 2013.

5.The laptop computer, valued HK$7,264 was recovered at the residence of the defendant whilst the medicine and milk powder, valued $2,157.70, were not.

6.On 17 March 2015, when the defendant appeared before me and pleaded to the Charge, I was told that the defendant has a clear record which Mr McGuinniety for the prosecution accepted.  The Antecedent Statement shows, however that the defendant has one previous record of Attempt to Obtain Property by Deception. Mr McGuinniety told me that the case referred to in the Antecedent Statement was in fact the present case and somehow the police had made a mistake in the Antecedent Statement.  I asked the Prosecution to verify the criminal record of the defendant, the fact that the matter referred to in the Antecedent Statement was a case of Attempt to Obtain Property by Deception suggests something as the present case had never been a case of attempt from inception.

7.Miss Chow submitted a full written mitigation for the defendant.  She told me that the defendant was suffering from psychiatric illness and was under multiple stresses from various sources before the offences. 

8.Miss Chow asked me to consider a CSO report.  She urged me not to remand the defendant in custody pending presentencing reports. 

9.After hearing Miss Chow, I acceded to her plea and called for a CSO report, I also called for a background report, a psychiatric report and a psychological report, and I remanded the defendant in custody pending these reports.  I also asked the Prosecution to verify the criminal record of the defendant and prepare a chronology of events explaining why it took so long for the defendant to be taken to court since his arrest in November 2013.

10.Mr McGuinniety informed me today that the defendant does not have a clear record.  He was convicted of Attempt to Obtain Property by Deception in 2003 and he was sentenced to perform 140 hours’ community service under a Community Service Order.

11.The background report sets out in detail the background information of the defendant.  He lived with his wife and 3 years old daughter in Ma On Shan before his remand.  The defendant was a self-employed person running his website business. 

12.The probation officer who prepared the CSO report advised against Community Service Order on the grounds that the defendant had suicidal ideations and unstable emotion conditions.  He is in need of psychiatric treatment with medications.  Putting him to perform work in the community may impose additional stress that may not be beneficial for his psychiatric rehabilitation. 

13.Dr Choi, who prepared the psychiatric report for the defendant, noted that the defendant had not been known to any psychiatric services prior to the date of the present offence.  Dr Choi opines that the defendant could have suffered from reactive depression as precipitated by the stresses related to the present offences but inpatient treatment is not required. 

14.Ms Im, the clinical psychologist who prepared the psychological report for the defendant, states that the defendant impressed her as a pessimistic individual with strong sense of insecurity and poor emotional regulation. Given the defendant’s poor emotional regulation and depressed mood after the index offence, Ms Im recommends psychological treatment on emotional regulation for the defendant.

15.Miss Chow told me in mitigation that the defendant had lost his own credit card not long before 27 March 2013.  He was not aware that he had taken others’ card when he took the credit card from the ATM machine.  He only knew it was not his card when he was told by the salesperson that his signature was not correct.

16.I told Miss Chow that I am not prepared to accept the defendant’s claim that he was not aware he was taking someone’s credit card when the facts admitted by the defendant show that he had used the card twice on the same day after he had taken it from the ATM machine.  It defies common sense for the defendant to suggest he thought the credit card at the ATM machine was his when he took it.

17.The defendant maintained his innocent claim when he was interviewed by Dr Choi and Ms Im. 

18.I reject the defendant’s claim that he tried to imitate signature of the cardholder and signed the slip at Fortress out of fear and unclear mind. 

19.Mr McGuinniety told me today the defendant has 1 previous conviction in 2003 for Attempt to Obtain Property by Deception and was sentenced to perform 140 hours of community service under a Community Service Order.  That was a case of attempt to use someone else’s cheque.

20.Miss Chow accepted what the Prosecution said today about the defendant’s criminal record.

21.The defendant has made full compensation through his legal representatives. 

22.Miss Chow urged me to place the defendant under a Community Service Order. She submitted that if Community Service Order is not an option, I should suspend the sentence.

23.I have considered all the matters urged on the defendant’s behalf by Miss Chow.  In the end I do not think a Community Service Order is the appropriate way to deal with the defendant. 

24.I agree with the views of the probation officer that with the ideations and unstable emotion condition, the defendant is not a suitable candidate to be placed under a Community Service Order.  In my judgment, the defendant’s remorse for Charge 1 and 2 is superficial, as evidenced by his claim that he was not aware he had taken and was using someone else’s credit card until he was alerted by the salesman.  Furthermore, he had committed a dishonesty related offence back in 2003 and was placed under a Community Service Order. It appears to me he just did not cherish the leniency given to him by the court.

25.The 3 offences each calls for a term of custodial sentence.  There is no good reason to suspend the sentences. 

26.In sentencing the defendant, I have borne in mind that the theft of the credit card was a theft by finding.  The opportunity presented itself to the defendant and the defendant acted dishonestly, not only did he take the credit card, he used the card on 2 occasions on the same day. 

27.There are authorities that the use of a stolen credit card is no less serious than the use of forged credit card.  In the present case, the use of the credit card was unplanned in the sense that the defendant seized the opportunity when the owner of the card carelessly left the card at the ATM machine after use.  The defendant was not a member of any criminal syndicate. The opportunistic nature of this case makes it less serious than the typical credit card fraud cases. 

28.As full compensation has been made for Charges 2 and 3, the defendant should be given some credit for it.

29.Mr McGuinniety told me since the defendant was arrested in November 2013, the case file was sent to the Department of Justice for advice in early 2014 and it was only until mid-October 2014 that the advice was given to prosecute the defendant.  In my judgment, there is no good reason why the Department of Justice should take so long to advise on the matter as the case is a straightforward and simple one.  I agree there is delay in prosecution which added to the stresses suffered by the defendant. 

30.All matters considered, I have come to the conclusion that the 3 offences each calls for a custodial sentence.  There is no good reason to suspend the sentence.

31.On Charge 1, I take 9 months as the starting point.  The defendant is entitled to 1/3 reduction for his plea.  I would allow the defendant an additional reduction of 1 month because of the delay in prosecution.  I sentence the defendant to 5 months’ imprisonment.

32.On Charges 2 and 3, I each take 21 months as the starting point.  The defendant is entitled to 1/3 reduction for his pleas.  I allow the defendant an additional reduction of 1 month for the full compensation.  I further reduce the sentence by 1 month for the delay and the stresses suffered by the defendant as a result.  I sentence the defendant to 12 months’ imprisonment.

33.Bearing totality in mind, a total term of 15 months should adequately reflect the overall criminality of the 3 offences.  I order the sentences for Charges 2 and 3 to run concurrently with each other.  3 months of the sentence for Charge 1 shall run consecutively to the sentences for Charges 2 and 3, hence making a total term of 15 months’ imprisonment.