HKSAR v. Lee Cheuk Kwan Jimmy

DCCC 192/2015

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 192 OF 2015

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REASONS FOR SENTENCE

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Charges

1.The defendant pleads guilty to Charges 1 to 13.  Charge 1 is Theft, Charges 2 to 12 are Obtaining Property By Deception, Charge 13 is Obtaining Services By Deception.

Facts

Charge 1

2.The victim, Mr Tsui, was the defendant’s friend.  Tsui stayed at the defendant’s flat for three days, between 5 September 2014 and 7 September 2014.  Tsui carried in his wallet a Standard Chartered Bank visa card, which was the subject matter of all the 13 charges.

3.In the evening on 7 September 2014, Tsui left the defendant’s place for work.  He soon found that his credit card was missing. 

4.The fact was that the defendant stole Tsui’s card.  After being arrested by police on 12 September 2014, the defendant told police that he found Tsui’s credit card in his flat, so he took it out of greed. 

5.On 9 September 2014, within that one day, the defendant made 12 transactions with Tsui’s credit card.   

Charge 2

6.The defendant used the card to purchase a gold wrist chain valued at HK$9,680 from a jewellery shop.  He later sold it for $7,000. 

Charge 3

7.The defendant used the card to purchase a smart phone valued at HK$6,800 from a shop.  He then sold the phone for $4,600.

Charge 4

8.The defendant used the card to purchase a gold ring valued at HK$2,260 from a jewellery shop.  He then sold the ring.

Charge 5

9.The defendant used the card to purchase another smart phone valued at HK$4,297 from a shop.  This phone was later seized by police during house search.

Charge 6

10.The defendant used the card to purchase a third smart phone valued at HK$3,998 from another shop.  He later sold the phone for about $2,000.

Charge 7

11.The defendant used the card to purchase a portable game machine, some game tapes and accessories valued at HK$2,190 from a shop.

Charge 8

12.The defendant used the card to purchase another game machine and other game tapes and accessories valued at HK$3,645 from the same games shop.  The goods relating to this charge and the previous charge, ie Charge 7, were found by police during house search.

Charge 9

13.The defendant used the card to purchase some food valued at HK$88 from a shop. 

Charge 10

14.The defendant used the card to purchase a Prada wallet valued at HK$3,180 from a shop.  The wallet was found by police in the defendant’s possession.

Charge 11

15.The defendant used the card to purchase another gold wrist chain valued at HK$5,114 from a jewellery shop.  He later sold the chain back to the shop for HK$4,600.

Charge 12

16.The defendant used the card to purchase another gold chain valued at HK$5,706 from another jewellery shop.  He later sold the chain for HK$4,000.

Charge 13

17.The defendant went to a restaurant and ordered a bottle of brandy.  He paid the bill with the card.  The bill was HK$1,280.

18.The bank only contacted Tsui on 11 September 2014 to inquire about the various transactions made on 9 September 2014. 

19.In Charge 11, the saleslady remembered that the defendant returned to the shop on the next day, ie 10 September 2014.  The defendant sold the wrist chain back to the shop.  On 12 September 2014, when police came to the shop to make inquiries, the saleslady told police what she could remember of the defendant. It happened that the defendant came back to the shop in the evening that day. Police thus arrested the defendant on 12 September.

20.The defendant admitted to the police that he stole Tsui’s card.  He made further admissions about Charges 2 to 13. 

21.Police found some of the purchased property in the defendant’s home, namely one smart phone (Charge 5); two game machines and some game tapes or accessories (Charges 7 and 8).  Police also found the Prada wallet in defendant’s possession (Charge 10).

Record

22.The defendant is aged 44.  He has a clear record.

Mitigation

23.Counsel says the defendant has parents and four siblings but the defendant lives on his own.  Previously, the defendant had rented a place for accommodation but after March 2015, he became homeless and had to sleep in a park.

24.Counsel says the defendant had completed secondary education.  He had studied hard and obtained some diplomas and even a degree by distance learning.  The defendant had worked previously in different jobs but he was poor in social handling, so he could not hold on to a job permanently.

25.Counsel says the defendant last worked in MTR till June 2014.  So by September, the defendant had been unemployed for some months and he felt financial constraints.

26.Counsel says Tsui was the defendant’s classmate.  The two had known each other for 20 years.  That was not the first time Tsui had stayed at the defendant’s place.  On that particular day in September 2014, Tsui asked the defendant to take some money from his wallet to buy cigarettes downstairs.  When the defendant opened Tsui’s wallet, he noticed the unsigned credit card.  Out of momentary madness and folly, he stole the card for his own use.  Counsel says the defendant at that time thought he could pay back what he spent when he had money. However, days later, he was arrested by police.

27.Counsel says even though the defendant now wants to make compensation to the victim, he cannot do it now. 

28.Counsel says the offences were not planned or sophisticated.  The defendant committed all the offences by himself.  Counsel also points out that the defendant has a previous good character and some of the purchased items have been recovered.

29.Counsel mentioned two decided cases, namely CACC 99/2006 Cheung Mee Kiu and CACC 464/2006 Tu I Lang.  The case of Cheung Mee Kiu was concerned with breach of trust, while the case of Tu I Lang was related to the discussion of using and possessing forged credit cards on a small scale.

30.Counsel agrees that there was a kind of breach of trust in Charge 1, where the defendant stole the card from his friend Tsui. 

Sentence

31.There is nothing to rebut counsel’s saying that the defendant was asked by Tsui to take money from his wallet for cigarettes.  Only then the defendant opened Tsui’s wallet and found the unsigned credit card.  He then took the card for his own use.  I accept Charge 1 was a crime committed in that opportunistic circumstance.  However, there was a breach of trust there, a trust placed by Tsui on the defendant who had known Tsui for 20 years.  Even though the defendant says he wanted to repay Tsui for what he spent when he had money, the breach of trust was still a serious matter.

32.As to Charges 2 to 13, I only agree with counsel that these offences were not sophisticated crimes, but the defendant certainly planned what he would and could buy with the card now bearing his own signature.  There were 12 transactions within one day.  The properties and services involved totally valued over $48,000.  I notice that the properties relating to Charge 5, Charge 7, Charge 8 and Charge 10 had been recovered. 

33.The case of Tu I Lang is irrelevant because it is concerned with forged credit cards, which is not the case here.

34.The case of Cheung Mee Kiu applies to Charge 1 because the defendant did breach his friend’s trust on him when he stole the card.  According to Cheung Mee Kiu, in breach of trust cases where stolen properties were worth less than $250,000, the starting point should be less than 2 years.

35.The defendant stole his friend’s credit card.  He then signed on it and used the card to make 12 transactions, obtaining goods and services over $48,000 within one day.  Although that exact sum of HK$48,238 was never close to the $250,000 benchmark, the 12 transactions all involved the defendant using another’s credit card bearing his own signature.  All occurred within one day. In my view, the starting point for the totality imprisonment for all these 13 charges should still be around 2 years’ imprisonment.

36.I impose the following sentences.  Charge 1, the starting point is 18 months’ imprisonment.  After one-third discount for defendant’s plea, the sentence is one of 12 months’ imprisonment.  For Charges 2, 3, 4, 5, 6, 7, 8, 9, 11, 12 and 13, I adopt 9 months’ imprisonment as the starting point for all these charges.  After one-third discount for the defendant’s plea, the sentence for each of these offences would be one of 6 months’ imprisonment.  Charge 10 only involves a purchase of $88. I adopt 3 months’ imprisonment as the starting point.  After one-third discount for the defendant’s plea of guilty, I impose a sentence of 2 months for this offence.

37.Charge 7 and Charge 8 were two purchases from the same shop.  The defendant certainly could have made those two purchases in one go and thus attracted one charge for it.  The total value of these two purchases would still be less than $6,000.  The effective sentence for that would still be one of 6 months after plea.  I am of the view that these two 6-month terms for Charge 7 and Charge 8 can run concurrently.  I also order 1 month out of this combined term, that is, for Charge 7 and Charge 8, and 1 month out of each of the sentence for Charges 2, 3, 4, 5, 6, 9, 11, 12 and 13, 2 weeks out of the sentence for Charge 10 and 5 months out of the sentence for Charge 1 to run consecutively to one another.  This will result in a total sentence of 15 months and 2 weeks’ imprisonment for Charges 1 to 13.