HKSAR v. Cho Ka Yeung

DCCC 77/2015

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 77 OF 2015

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Reasons for Sentence

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1.The defendant pleaded guilty to one charge of burglary, three charges of theft, one charge of fraud and one charge of going equipped for stealing.

Facts

Charge 1: burglary

2.Closed circuit television cameras captured the defendant inserting an umbrella through the gap of the door of a property agency in Kingswood Richly Plaza at 1:10 am on 16 November 2014 and used the umbrella to steal a wallet and a plastic folder.

Charge 2: theft

3.After the burglary, the defendant used one of the credit cards that was inside the stolen wallet to withdraw money from automatic teller machines at 4 different locations between 4:28 am and 10:35 am. He was successful with the withdrawals on 4 occasions out of 11 attempts and a total of $10,200 was stolen.

Charge 3: fraud

4.The defendant did not stop there and went on to use a different credit card from the stolen wallet to make purchases at 6 different shops between 1:42 pm and 8:10 pm on the same day. A total of 10 transactions were completed and the total value of his purchases was $28,586. The bottle of wine and the gold ornament that the defendant bought were later found in the defendant’s home on 22 November.

Charge 4: theft

5.In addition to using the second credit card to make purchases, the defendant also used it to withdraw money 3 times between 2:08 pm and 2:11 pm. A total of $26,500 was stolen.

Charge 5: theft

6.In a different incident that took place on 18 November, 2014, $500 was found missing from the cash register of a boutique stall in the same shopping mall as the property agency that was burgled. Closed circuit television footage show the defendant loitering around a fashion boutique stall from 4:39 to 4:52 am.

Charge 6: going equipped for stealing

7.At around 11:29pm on 21 November, Police officers who were on anti-burglary patrol at Kingswood Richly Plaza noticed the defendant loitering inside the mall. At 12:16 am, the defendant was seen acting furtively near a stall on the 1^st floor of the mall.

8.The defendant was intercepted 2 minutes later by a Police officer and was arrested and cautioned. Upon search, a pair of pliers and a screwdriver were found on the defendant’s waist and inside his shoulder bag respectively.

9.In subsequent cautioned video recorded interviews, the defendant admitted that he used an umbrella to hook out the things on a desk inside the property agency in charge 1; that he made the various withdrawals with the stolen credit cards (charge 2 and 4); that he made purchases with one of the credit cards at various shops (charge 3); that he found the credit cards’ Personal Identification Numbers written in the notebook inside the stolen wallet; and that he had stolen the money from the cash register of the boutique stall in charge 5.

Previous convictions

10.The defendant has various previous convictions including 2 for theft and one of going equipped for stealing.

Mitigation

11.The defendant is 34 years old. He fathered 2 children with his girlfriend. The daughter is 10 and the son 6 years old. They are being taken care of by the girlfriend who had returned to the defendant after having left him due to his drug addiction. They were living together prior to the defendant’s latest detention in the drug addiction treatment centre.

12.The defendant is educated up to form 5 level. Prior to his arrest and detention, he worked as a casual worker at the airport. Before that he worked as a cook in a Japanese restaurant until June 2014 when the restaurant closed down.

13.The defendant has been a drug addict since 2004.

14.The defendant is unable to make an offer of restitution. The money he had stolen had been spent on his drug addiction.

15.I am told the defendant committed the offences because he was driven by his drug addiction to make some quick money. Mr. Lee for the defendant pointed out that the offences were not sophisticated, that the defendant acted on his own, and that the commission of the offences was unsophisticated.

16.Mr. Lee suggested that I should take into consideration that the defendant only used an umbrella to enter the stall and committed the burglary and adopt a lower starting point.

Sentencing guidelines

17.It is not disputed that the premises that was burgled by the defendant in charge 1 is a non-domestic premises. It is trite law that the proper starting point for non-domestic burglary for a first offender with no aggravating or mitigating factor is that of 2 and a half years’ imprisonment.

Sentence

Charge 1: burglary

18.The maximum sentence for burglary is that of 14 years’ imprisonment.

19.As mentioned above, this is a case involving the burglary of a non-domestic premises. The burglary took place at 1:10 am, by which time the stores in the mall were closed and there was minimal risk of confrontation between the defendant and customers. The defendant did use an umbrella to hook the bag out of the property agency, but there was no property damage to either the stall or the mall. The defendant acted alone.

20.Although Mr. Lee did not actually use the words ‘opportunistic burglary’, given his submission that I should take into account that the defendant did not physically enter the property agency to steal and adopt a lower starting point, I feel that this is in fact the proposition that he was putting forward and that I should deal with it accordingly.

21.In deciding whether it was an opportunistic burglary, I note first of all that this was not a case where the door of the shop was left open. According to the summary of facts, the defendant saw the bag inside the stall first, then he picked up an umbrella nearby, he went back to the shop, inserted the umbrella through the gap of the door and maneuvered the umbrella to “hook the things on a desk inside the shop”.

22.Looking at the photographs of the property agency shop, one can see that the gap between the glass doors of the agency is quite narrow and it would have required considerable effort from the defendant to insert the umbrella and then maneuver it to reach the nearest desk and hook out the things on the desk.

23.Based on those facts, I find that it was not an opportunistic burglary. The defendant had gone to some length to avail himself of the opportunity to steal.

24.I see therefore no reason to depart from the sentencing guidelines, and I adopt a starting point of 2 and a half years’ imprisonment.

Aggravating factors

25.I note that the defendant is a persistent offender but this is his first burglary offence. I do not find his conviction records as an aggravating factor in relation to the charge of burglary.

Mitigating factors

26.I find that the only mitigating factor is the defendant’s timely plea.

27.The defendant is therefore sentenced to 20 months’ imprisonment on charge 1.

Charge 2 and 4: Theft

28.The maximum sentence for theft is that of 10 years’ imprisonment.

29.In relation to charge 2, the defendant made 11 attempts over a period of about 10 hours to withdraw money with the credit card. He was successful on 4 occasions and a total of $10,200 was stolen.

30.In relation to charge 4, he made 3 attempts within 3 minutes on the same day and they were all successful. A total of $26,500 was stolen.

31.For each of charge 2 and 4, I adopt a starting point of 18 months’ imprisonment.

Aggravating factors

32.The defendant has 2 previous convictions for theft. In relation to the one dated 30 December 2014, it was imposed after his commission of the present offences. The other theft conviction was back in 2002 when he was fined $800. I find that given the timing of these two offences, they are not aggravating factors.

Mitigating factors

33.I find that the only mitigating factor is the defendant’s timely plea of guilty.

34.The defendant is sentenced to 12 months’ imprisonment on each of charge 2 and 4.

Charge 3: Fraud

35.The maximums sentence for fraud is that of 14 years’ imprisonment.

36.Mr. Hui for the prosecution referred to the case of HKSAR v Lam See Chung, Stephen, CACC 339/2012. There the appellant pleaded guilty to one count of theft and three counts of obtaining property by deception. The appellant took the credit card of his wife’s post-natal helper and used it on 3 occasions to purchase 3 smart phones with a total value of $15,240.

37.The Court of Appeal found that the use of another’s genuine credit card should be treated as credit card fraud, and that the sentencing principles and considerations that apply to the use of counterfeit credit cards are equally applicable to offences in which genuine credit cards are used. For that reason, the Court of Appeal held that the three year starting point for simple cases of counterfeit credit card fraud should also apply to simple cases of credit card fraud where stolen genuine credit cards are used to commit the offence.

38.Mr. Lee referred to the case of HKSAR v Lee Tat Hoi, CACC 164/2014. There the appellant pleaded guilty to 11 counts of obtaining property by deception. The facts were that the appellant was the boyfriend of the victim. He used her credit card on 11 occasions to make purchases at the same pharmacy, buying $71,843 worth of merchandise.

39.The Court of Appeal referred to the above case of Lam See Chung Stephen and applied the principles stated therein. The Court observed that the appellant had used the credit card 11 times as opposed to 3 times in Lam See Chung Stephen, that the total amount involved is about $55,000 more than the earlier case, and opined that the starting point of two and a half years’ imprisonment adopted by the trial judge was probably too lenient.

40.Turning to our present case. There was only 1 credit card involved in this charge of fraud. Yet the defendant had used the credit card on 10 occasions and had bought $28,586 worth of merchandise. Only the gold ornament ($1,300) and a bottle of wine ($1,830) were recovered. The defendant did not offer any repayment in restitution.

41.Having considered the above cases and the circumstances in our present case, I find that an appropriate starting point for the credit card fraud committed by the defendant is that of 3 years’ imprisonment.

42.This is the defendant’s first conviction for fraud. Despite his previous convictions, I do not find his persistent offending an aggravating factor for this particular charge.

43.The only mitigating factor is the defendant’s timely guilty plea. The defendant is sentenced to 2 years’ imprisonment on charge 3.

Charge 5: Theft

44.This is a theft of $500 from the cash register of the boutique stall. According to the defendant’s confession, he committed the offence at around 4 am. He saw the stall covered by a piece of cloth, sneaked in, found the cash register and took the money.

45.For this theft charge, I adopt a starting point of 6 months’ imprisonment. I find that there are no aggravating factors and the only mitigating factor is the defendant’s timely guilty plea. The defendant is sentenced to 4 months’ imprisonment on charge 5.

Charge 6: Going equipped for stealing

46.The maximum sentence for this offence on conviction upon indictment is that of 3 years’ imprisonment.

47.The equipment found to be in the defendant’s possession were one screwdriver and a pair of pliers. Neither is big in size. The obvious intention of the defendant must have been to use them to assist in stealing from the shops inside the shopping mall.

48.For this charge, I adopt a starting point of 6 months’ imprisonment.

49.This is the defendant’s second conviction for going equipped for stealing. The previous similar conviction was however recorded after the defendant’s commission of the present offence. I find that there are no aggravating factors and the only mitigating factor is the defendant’s timely guilty plea. The defendant is sentenced to 4 months’ imprisonment on charge 6.

Totality

50.The defendant is currently under detention in a drug addiction treatment centre as a result of his convictions dated 30 December 2014 for the offences of theft and going equipped for stealing.

51.To recap, after granting the defendant the usual one-third discount for his guilty plea, he is sentenced to 20, 12, 24, 12, 4 and 4 months’ imprisonment on charges 1 to 6 respectively.

52.Charges 1, 2, 3 and 4 took place on the same day and arose out of the same initial incident of the burglary of the property agency shop where the wallet containing the credit cards was stolen.

53.Charges 5 and 6 are isolated incidents with no connection to the other offences. 

54.Although the burglary and the stealing of money through the ATM and the fraud of using the credit card are linked, one does not necessarily lead to another. The defendant could just have taken the money in the wallet and throw away the credit cards. He did not have to use the cards to make the withdrawals or to make the purchases.

55.Taking a step back and applying the principle of totality, I order 4 months of the sentence in charges 1, 2 and 4 to be served consecutively to the sentence in charge 3, the balance to be served concurrently, making a total of 36 months’ imprisonment for the four charges.

56.I order 2 months of the sentence in each of charge 5 and 6 be served consecutively to the rest of the sentences, the balance concurrently.

57.In other words, the defendant is sentenced to a total 40 months’ imprisonment for the 6 offences.

The defendant’s present DATC order

58.Pursuant to section 6A(1)(b) of the Drug Addiction Treatment Centres Ordinance, Cap.244, since the defendant is sentenced to imprisonment for a term more than 9 months, the previous detention order made under the same Ordinance shall cease to have effect.