A A
B B
DCCC 491/2022
C [2024] HKDC 1115 C
D IN THE DISTRICT COURT OF THE D
HONG KONG SPECIAL ADMINISTRATIVE REGION
E E
CRIMINAL CASE NO 491 OF 2022
F F
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G G
HKSAR
H V H
TSUI BE CHAI
I I
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J J
Before: His Honour Judge Tam
K K
Date: 4 July 2024
L Present: Ms Lam S Y Yanky, counsel-on-fiat, for HKSAR L
Mr Wong Shun Yin Terry, Counsel instructed by Bobby Tse
M M
& Co, assigned by the Director of Legal Aid, for the defendant
N N
Offences: [1] & [2] Theft（盜竊罪）
O [3] Obtaining property by deception（以欺騙手段取得財產） O
[4] Attempted to obtain property by deception（企圖以欺騙
P P
手段取得財產）
Q Q
[5] Using an identity card relating to another person（使用他
R 人的身分證） R
[6] Failing to surrender to custody without reasonable cause
S S
（無合理因由而沒有按照法庭的指定歸押）
T T
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V V
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A A
B B
C ----------------------------------------- C
REASONS FOR SENTENCE
D D
-----------------------------------------
E E
1. Mr Tsui pleaded guilty before me to 6 charges on a Charge
F F
Sheet as follows.
G G
2. Charge 1 is Theft, contrary to section 9 of the Theft Ordinance,
H H
Cap 210. Particulars are that he, on 14 January 2021, in Hong Kong, stole
I one card holder containing one Hong Kong Identity Card, one credit card I
and one Octopus card, property belonging to Yeung Kwan.
J J
K 3. Charge 2 is also Theft. Particulars are that he, on the same K
day, in Hong Kong, stole choses in action, namely debts in the total sum of
L L
$68.4 Hong Kong currency, owed by Octopus Cards Limited to Yeung
M Kwan in an Octopus card numbered 57419654, property belonging to the M
said Yeung Kwan.
N N
O 4. Charge 3 is Obtaining property by deception, contrary to O
section 17(1) of the Theft Ordinance, Cap 210. Particulars are that he, on
P P
the same day, at Circle K Convenience Store, Ground Floor, No 38
Q Hennessy Road, Wan Chai, in Hong Kong, dishonestly obtained from the Q
staff member of Circle K Convenience Stores (HK) Limited (“the said
R R
company”) one can of beer (“the said goods”), with the intention of
S permanently depriving the said company thereof by deception, namely, by S
falsely representing that he was the genuine holder of one Citibank (Hong
T T
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A A
B B
Kong) Limited MasterCard numbered 5520-0400-0288-0900 issued in the
C name of Yeung Kwan (“the said MasterCard”) and was authorized and C
entitled to use the said MasterCard to make payment for the said goods.
D D
E 5. Charge 4 is Attempted to obtain property by deception, E
contrary to section 17(1) of the Theft Ordinance, Cap 210, and section
F F
159G of the Crimes Ordinance, Cap 200. Particulars are that he, on the
G same day, at “Chin Fai Gold & Jewell Wanchai HKG”, Ground Floor, No G
148 Johnston Road, Wan Chai, in Hong Kong, attempted to dishonestly
H H
obtain from the staff member of Chin Fai Gold & Jewellery (Wan Chai)
I Company Limited (“the said company”) one gold chain (“the said goods”), I
with the intention of permanently depriving the said company thereof by
J J
deception, namely, by falsely representing that he was the genuine holder
K of one Citibank (Hong Kong) Limited MasterCard numbered 5520-0400- K
0288-0900 issued in the name of Yeung Kwan (“the said MasterCard”) and
L L
was authorized and entitled to use the said MasterCard to make payment
M for the said goods. M
N N
6. Charge 5 is Using an identity card relating to another person,
O contrary to section 7A(1A) of the Registration of Persons Ordinance, Cap O
177. Particulars are that he, on the same day, at “Chin Fai Gold & Jewell
P P
Wanchai HKG”, Ground Floor, No 148 Johnston Road, Wan Chai, in Hong
Q Kong, without lawful authority or reasonable excuse, used one Hong Kong Q
Identity Card which related to another person, namely Yeung Kwan.
R R
S S
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A A
B B
7. Charge 6 is Failing to surrender to custody without reasonable
C excuse, contrary to section 9L(1) and (3) of the Criminal Procedure C
Ordinance, Cap 221. Particulars are that he, on 23 August 2022, in Hong
D D
Kong, being a person admitted to bail, without reasonable cause, failed to
E surrender to custody as had been appointed by a court. E
F F
Facts admitted by Mr Tsui
G G
8. On 14 January 2021, at about 3:21 pm, Ms Yeung Kwan
H H
(PW1) received an SMS message from Citibank asking her to confirm a
I transaction of her credit card ending in “0900” at “Chin Fai Gold & Jewell I
Wanchai HKG” for $12,180. Since she had not used her credit card that
J J
day, PW1 went to look for it and found that her card holder (value: $800)
K (“Card Holder”) was missing. K
L L
9. PW1 last saw the Card Holder at 12 noon on 14 January 2021,
M when she left No 108 Gloucester Road with it for lunch. The Card Holder M
contained the following items:-
N N
O (a) PW1’s HKID card (“ID Card”); O
P P
(b) One Citibank Master Credit Card of PW1 with card no
Q 5520-0400-0288-0900 (“Credit Card”); Q
R R
(c) One Octopus card of PW1 with Automatic Add Value
S Service numbered 57419654 (“Octopus Card”); and S
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A A
B B
(d) Cash of $500.
C C
10. Immediately PW1 contacted Citibank to block the Credit Card
D D
and she was informed that the Credit Card had two transactions that day:
E E
(a) A successful transaction at 15:07:12 at CIRCLE K for
F F
$13; and
G G
(b) An unsuccessful transaction at 15:20:24 at CHIN FAI
H H
GOLD for $12,180.
I I
11. PW1 then called “Chin Fai Gold & Jewell Wanchai HKG”
J J
and she was told by a male staff member of Chin Fai Gold & Jewellery
K (Wan Chai) Company Limited which was situated at Ground Floor No 148 K
Johnston Road, Wan Chai, that someone had tried to purchase gold with
L L
the Credit Card and had given the Credit Card and the ID Card to the staff
M at the time of attempted purchase. PW1 was told that the transaction was M
unsuccessful and had been cancelled. The male staff member also said that
N N
he took the Credit Card and the ID card to the Citibank branch at No 141
O Johnston Road, Wan Chai. O
P P
12. At about 5:30 pm on the same day, PW1 went to collect the
Q Credit Card and the ID Card from Citibank and reported the case to the Q
police. She had also cancelled the Automatic Add Value Service of the
R R
Octopus Card, which was last topped up for $250 at about 7:20 am that day.
S S
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A A
B B
13. Upon investigation, it was found that the Octopus Card had
C three successful transactions on 14 January 2021 not made by PW1:- C
D D
(a) At 12:40:02 at 7-Eleven Linux POS for $15.50;
E E
(b) At 14:26:57 at Circle K for $13; and
F F
G (c) At 17:58:06 at Wellcome (“Wellcome”) for $39.90. G
H H
14. CCTVs of “Chin Fai Gold & Jewell Wanchai HKG” and
I Wellcome captured the transactions made with the Credit Card and I
Octopus Card respectively.
J J
K 15. On 22 January 2021, Mr Tsui was arrested by police. Under K
caution, he said:-
L L
M (a) Upon seeing a wallet, he picked it up out of greed to see M
if there was anything valuable inside;
N N
O (b) Seeing there was a credit card inside the wallet, he went O
to OK convenience store to try using it to buy drinks;
P P
and
Q Q
(c) Since the credit card could be used successfully, he
R R
went to gold store to purchase gold intending to encash
S the same. S
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A A
B B
16. In a cautioned VRI conducted in the small hours of the next
C day, Mr Tsui stated the following:- C
D D
(a) At about 12:30 pm on 14 January 2021, he found the
E Card Holder lying on the street opposite Hopewell E
Centre and picked it up;
F F
G (b) The Card Holder was pink and contained the ID Card, G
the Credit Card as well as the Octopus Card;
H H
I (c) After taking the cards out, he threw the Card Holder I
into the drain on Queen’s Road West near Ship Street
J J
at about 6 pm the same day;
K K
(d) He used the Octopus Card to make the following
L L
purchases:
M M
(i) One can of beer from the 7-Eleven on Johnston
N N
Road near Fenwick Street for $15.50;
O O
(ii) One can of beer from the Circle K on Fenwick
P P
Street for $13; and
Q Q
(iii) One chicken from the Wellcome on Hennessy
R R
Road opposite Wan Chai Fire Station for $39.90;
S S
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A A
B B
(e) In order to test if the Credit Card was still working, he
C further purchased a can of beer with the Credit Card for C
$13 from the Circle K in Fenwick Street;
D D
E (f) Upon confirmation that the Credit Card had not been E
cancelled, he went to Chin Fai Gold & Jewellery to see
F F
if he could purchase a gold chain with it; if so, he could
G sell the gold chain for money; G
H H
(g) When the staff asked him to sign on the credit card slip,
I he initially signed in his own name; however, he did not I
feel right so he purportedly signed PW1’s name;
J J
K (h) The staff asked to see HKID card for verification; since K
he did not have PW1’s ID Card with him, he went home
L L
to fetch it; on return, he passed the Credit Card and
M PW1’s ID Card to the staff; and M
N N
(i) The staff member said he had called the police so he
O (Mr Tsui) left with nothing purchased. O
P P
17. “Chin Fai Gold & Jewell Wanchai HKG” and Chin Fai Gold
Q & Jewellery (Wan Chai) Company Limited are one and the same entity. Q
R R
S S
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A A
B B
18. Mr Tsui, whilst on court bail, failed to appear in the District
C Court on 23 August 2022 as appointed by the court for mention without C
reasonable cause. The District Court issued an arrest warrant against him.
D D
Mr Tsui was re-arrested on 17 November 2023 during a police operation.
E E
Criminal record
F F
G 19. Mr Tsui has one dissimilar previous conviction recorded in G
September 1998.
H H
I Antecedents I
J J
20. Mr Tsui is aged almost 69 (65 at the time of the main offences),
K educated to primary school level. K
L L
Mitigation
M M
21. Mr Terry Wong of counsel assigned by the Director of Legal
N N
Aid mitigated on behalf of Mr Tsui. The following is a summary of the
O mitigation submissions. O
P P
22. Mr Tsui is 69 years old living alone in a cubicle room owned
Q by an old friend who collects from Mr Tsui a monthly rent of $5,000. After Q
Mr Tsui has finished primary 6, he worked as a sewing worker for many
R R
years until 2013 when he suffered from calcification of hip bone. He
S applied for CSSA and obtained around $7,000 inclusive of rent per month S
up till now. He has lost contact with family members.
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A A
B B
C 23. In the present incident, Mr Tsui committed a series of offences C
in one day. He picked up the card holder on the road and his greed
D D
overcame his sense. He wanted to get money by using the Octopus card,
E the credit card and the identity card. He has a guilty conscience. He E
decides to admit guilt to all 6 charges without even instructing his legal
F F
team to bargain with the prosecution.
G G
24. Mr Tsui was foolish not to have learnt how to sign as the credit
H H
card holder does. The use of a female identity card was done impetuously
I without prior planning and must fail, for how could an old man impersonate I
a woman?
J J
K 25. Mr Tsui jumped bail because he was afraid of going to jail K
such that he might die in prison (because of old age).
L L
M 26. Charge 1 is really theft by finding. Normally the jail term is M
shorter. Mr Wong asked for a starting point of 6 months’ imprisonment.
N N
O 27. Charge 2 involved the use of a stolen Octopus card to buy O
$68.40 of low-valued goods. Mr Wong again asked for a starting point of
P P
6 months’ imprisonment.
Q Q
28. Charge 3 involved the use of a stolen genuine credit card to
R R
obtain a can of beer. As a credit card is used, no matter if it is fake or
S genuine, HKSAR v Lam See Chung, Stephen, CACC 339/2012, 3rd S
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A A
B B
September 2013, [2013] 5 HKLRD 242, para 42, can be used as a reference.
C Normally, 3 years’ imprisonment may be adopted as the starting point. C
D D
29. Charge 4 involved the use of a stolen genuine credit card to
E attempt to buy a gold chain with value $12,180. Again, 3 years’ E
imprisonment may be adopted as the starting point.
F F
G 30. Charge 5 involved the use of a genuine HKID card. HKSAR G
v Fan King Lam, CACC 220/2010, 30 September 2011, paras 19-20 may
H H
be used as a reference. A starting point of 12 months’ imprisonment may
I be adopted. I
J J
31. Charge 6 involved Mr Tsui failing to surrender to custody
K without reasonable cause. The period during which Mr Tsui was at large K
lasted from 23 August 2022 to 17 November 2023, ie almost 1 year and 3
L L
months. A starting point of 3 months’ imprisonment may be adopted.
M M
32. Mr Wong asked that the sentencing discount of 1/3 be applied
N N
to all of the charges.
O O
33. Mr Wong further reminded the court to apply the totality
P P
principle.
Q Q
34. Mr Tsui is 69 years old. He has been out of trouble for 25
R R
years. In order not to crush him, and allow him the opportunity to leave
S prison before he dies, a lenient sentence is requested. In particular, the S
offences subject of Charges 1 to 5 all happened within a short period of
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A A
B B
time when Mr Tsui was overcome by greed without thinking of the serious
C consequences. The court is asked to adopt a merciful approach and to C
consider sentencing Mr Tsui to a total of 34 months’ imprisonment.
D D
E Sentence E
F F
35. Mr Tsui has stayed out of trouble for almost 26 years. I shall
G treat him as a person with a clear record. G
H H
36. For Charge 1 of Theft by finding, I will adopt a starting point
I of 6 months’ imprisonment. I
J J
37. For Charge 2 of Theft of stored value of $68.40 in an Octopus
K card in order to purchase items at Circle K1, I will adopt a starting point of K
6 months’ imprisonment.
L L
M 38. For Charge 3 of Obtaining property (ie one can of beer) by M
deception through the use of a genuine credit card of another, I shall adopt
N N
a starting point of 3 years’ imprisonment as invited by Mr Wong.
O O
39. Similarly, for Charge 4 of Attempted to obtain property (ie
P P
one gold chain) by deception through the use of the same genuine credit
Q card, I shall again adopt a starting point of 3 years’ imprisonment as invited Q
by Mr Wong.
R R
S S
T T
1
and other shops (an addendum on re-visiting the papers)
U U
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A A
B B
40. For Charge 5 of Using another person’s ID card, the usual
C sentence for simple possession without use is 12 months’ imprisonment C
after plea; however, if the ID card has actually been produced or used to
D D
conceal one’s real identity, the sentence after plea is 15 months’
E imprisonment: HKSAR v Li Chang Li, HCMA 935A/2004. On the facts of E
the present case, Mr Tsui used the ID Card to impersonate another person.
F F
Even on a plea of guilty, the correct sentence should be 15 months’
G imprisonment. G
H H
41. For Charge 6 of Failing to surrender to custody, I note that Mr
I Tsui had been at large for almost 1 year and 3 months; he did not surrender I
himself but was re-arrested during a police operation. I shall adopt a
J J
starting point of 6 months’ imprisonment.
K K
42. For the reason that Mr Tsui has absconded from court process,
L L
it cannot be said he pleaded guilty to Charges 1 to 5 at the first opportunity.
M However, I note that although the period of absconding was long, no M
substantive hearing dates had been fixed before he absconded. Hence, the
N N
waste of court resources was minimal and the inconvenience caused to
O potential witnesses was measured. Consequently, I feel able to exercise O
my discretion to still give him the usual 1/3 sentencing discount upon plea 2.
P P
Q 43. Mr Tsui pleaded guilty to Charge 6 at the first opportunity; he Q
shall be entitled to the customary 1/3 sentencing discount.
R R
S S
T 2
There will be no further discount to the 15 months’ sentence on Charge 5 under this head because T
that is the sentence after plea.
U U
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A A
B B
44. For his effectively clear record and old age, I shall grant Mr
C Tsui an additional one month’s discount from his sentences after plea on C
Charges 1 to 5 only. There are no other mitigating factors of weight to
D D
justify any further reduction in sentence.
E E
45. It is correct that the offences subject of Charges 1 to 5 were
F F
committed on the same day. The real question was whether those offences
G were somehow connected. It may be argued that Octopus card was G
equivalent to cash, and so, Charge 2 was simply an extension of Charge 1;
H H
otherwise why commit the offence subject of Charge 1 (theft by finding).
I I
46. However, Charges 3 and 4 were much more than an extension
J J
of Charge 1 and involved a challenge to the credit card system that is at the
K heart of international consumer credit arrangements. There needn’t have K
been a commission of the credit card offences (and the associated misuse
L L
of another person’s ID card) after the theft by finding. As such, I am of the
M view that although the sentences under Charges 1 & 2 may be made to run M
concurrently between themselves, the sentences under Charges 3 to 5 (as a
N N
group) ought in principle to run consecutively to those under Charges 1 &
O 2. O
P P
47. As regards the sentences within Charges 3 to 5, the associated
Q offences were connected in that they were part of the same plot to obtain Q
more valuable property by use of another person’s genuine credit card.
R R
However, I must not ignore the fact that the use of another person’s ID card
S aggravates the circumstances of the plot. I am satisfied that the sentences S
on Charges 3 and 4 may be allowed to run concurrently with one another;
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A A
B B
but that part of the sentence on Charge 5 will have to run consecutively to
C the sentences on Charges 3 and 4. C
D D
48. In principle, the sentence on Charge 6 needs to run
E consecutively to the rest. E
F F
49. Before passing the final sentence, I will have in mind the
G principle of totality. G
H (Mr Tsui, please stand) H
I I
50. On Charge 1, the sentence is 3 months’ imprisonment.
J J
51. On Charge 2, the sentence is 3 months’ imprisonment.
K K
52. On Charge 3, the sentence is one year 11 months ie 23 months’
L imprisonment. L
M M
53. On Charge 4, the sentence is one year 11 months ie 23 months’
N imprisonment. N
O 54. On Charge 5, the sentence is 14 months’ imprisonment. O
P P
55. On Charge 6, the sentence is 4 months’ imprisonment.
Q Q
56. I order that the sentences on Charges 1 & 2 are to run
R R
concurrently with one another. This is the Group A sentences.
S S
57. I order that the sentences on Charges 3 & 4 are to run
T T
concurrently with one another. This is the Group B sentences.
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A A
B B
C 58. I order that the Group A sentences, the Group B sentences, the C
sentence on Charge 6, and 3 months only of the sentence on Charge 5 are
D D
to run consecutively to each other. The aggregate sentence is therefore 33
E months’ imprisonment. E
F F
59. I note that this aggregate sentence is still lower than the one
G suggested by Mr Wong on behalf of Mr Tsui. G
H H
I I
J J
( Isaac Tam )
K K
District Judge
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M M
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O O
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Q Q
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S S
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A A
B B
DCCC 491/2022
C [2024] HKDC 1115 C
D IN THE DISTRICT COURT OF THE D
HONG KONG SPECIAL ADMINISTRATIVE REGION
E E
CRIMINAL CASE NO 491 OF 2022
F F
----------------------------
G G
HKSAR
H V H
TSUI BE CHAI
I I
----------------------------
J J
Before: His Honour Judge Tam
K K
Date: 4 July 2024
L Present: Ms Lam S Y Yanky, counsel-on-fiat, for HKSAR L
Mr Wong Shun Yin Terry, Counsel instructed by Bobby Tse
M M
& Co, assigned by the Director of Legal Aid, for the defendant
N N
Offences: [1] & [2] Theft（盜竊罪）
O [3] Obtaining property by deception（以欺騙手段取得財產） O
[4] Attempted to obtain property by deception（企圖以欺騙
P P
手段取得財產）
Q Q
[5] Using an identity card relating to another person（使用他
R 人的身分證） R
[6] Failing to surrender to custody without reasonable cause
S S
（無合理因由而沒有按照法庭的指定歸押）
T T
U U
V V
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A A
B B
C ----------------------------------------- C
REASONS FOR SENTENCE
D D
-----------------------------------------
E E
1. Mr Tsui pleaded guilty before me to 6 charges on a Charge
F F
Sheet as follows.
G G
2. Charge 1 is Theft, contrary to section 9 of the Theft Ordinance,
H H
Cap 210. Particulars are that he, on 14 January 2021, in Hong Kong, stole
I one card holder containing one Hong Kong Identity Card, one credit card I
and one Octopus card, property belonging to Yeung Kwan.
J J
K 3. Charge 2 is also Theft. Particulars are that he, on the same K
day, in Hong Kong, stole choses in action, namely debts in the total sum of
L L
$68.4 Hong Kong currency, owed by Octopus Cards Limited to Yeung
M Kwan in an Octopus card numbered 57419654, property belonging to the M
said Yeung Kwan.
N N
O 4. Charge 3 is Obtaining property by deception, contrary to O
section 17(1) of the Theft Ordinance, Cap 210. Particulars are that he, on
P P
the same day, at Circle K Convenience Store, Ground Floor, No 38
Q Hennessy Road, Wan Chai, in Hong Kong, dishonestly obtained from the Q
staff member of Circle K Convenience Stores (HK) Limited (“the said
R R
company”) one can of beer (“the said goods”), with the intention of
S permanently depriving the said company thereof by deception, namely, by S
falsely representing that he was the genuine holder of one Citibank (Hong
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A A
B B
Kong) Limited MasterCard numbered 5520-0400-0288-0900 issued in the
C name of Yeung Kwan (“the said MasterCard”) and was authorized and C
entitled to use the said MasterCard to make payment for the said goods.
D D
E 5. Charge 4 is Attempted to obtain property by deception, E
contrary to section 17(1) of the Theft Ordinance, Cap 210, and section
F F
159G of the Crimes Ordinance, Cap 200. Particulars are that he, on the
G same day, at “Chin Fai Gold & Jewell Wanchai HKG”, Ground Floor, No G
148 Johnston Road, Wan Chai, in Hong Kong, attempted to dishonestly
H H
obtain from the staff member of Chin Fai Gold & Jewellery (Wan Chai)
I Company Limited (“the said company”) one gold chain (“the said goods”), I
with the intention of permanently depriving the said company thereof by
J J
deception, namely, by falsely representing that he was the genuine holder
K of one Citibank (Hong Kong) Limited MasterCard numbered 5520-0400- K
0288-0900 issued in the name of Yeung Kwan (“the said MasterCard”) and
L L
was authorized and entitled to use the said MasterCard to make payment
M for the said goods. M
N N
6. Charge 5 is Using an identity card relating to another person,
O contrary to section 7A(1A) of the Registration of Persons Ordinance, Cap O
177. Particulars are that he, on the same day, at “Chin Fai Gold & Jewell
P P
Wanchai HKG”, Ground Floor, No 148 Johnston Road, Wan Chai, in Hong
Q Kong, without lawful authority or reasonable excuse, used one Hong Kong Q
Identity Card which related to another person, namely Yeung Kwan.
R R
S S
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A A
B B
7. Charge 6 is Failing to surrender to custody without reasonable
C excuse, contrary to section 9L(1) and (3) of the Criminal Procedure C
Ordinance, Cap 221. Particulars are that he, on 23 August 2022, in Hong
D D
Kong, being a person admitted to bail, without reasonable cause, failed to
E surrender to custody as had been appointed by a court. E
F F
Facts admitted by Mr Tsui
G G
8. On 14 January 2021, at about 3:21 pm, Ms Yeung Kwan
H H
(PW1) received an SMS message from Citibank asking her to confirm a
I transaction of her credit card ending in “0900” at “Chin Fai Gold & Jewell I
Wanchai HKG” for $12,180. Since she had not used her credit card that
J J
day, PW1 went to look for it and found that her card holder (value: $800)
K (“Card Holder”) was missing. K
L L
9. PW1 last saw the Card Holder at 12 noon on 14 January 2021,
M when she left No 108 Gloucester Road with it for lunch. The Card Holder M
contained the following items:-
N N
O (a) PW1’s HKID card (“ID Card”); O
P P
(b) One Citibank Master Credit Card of PW1 with card no
Q 5520-0400-0288-0900 (“Credit Card”); Q
R R
(c) One Octopus card of PW1 with Automatic Add Value
S Service numbered 57419654 (“Octopus Card”); and S
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A A
B B
(d) Cash of $500.
C C
10. Immediately PW1 contacted Citibank to block the Credit Card
D D
and she was informed that the Credit Card had two transactions that day:
E E
(a) A successful transaction at 15:07:12 at CIRCLE K for
F F
$13; and
G G
(b) An unsuccessful transaction at 15:20:24 at CHIN FAI
H H
GOLD for $12,180.
I I
11. PW1 then called “Chin Fai Gold & Jewell Wanchai HKG”
J J
and she was told by a male staff member of Chin Fai Gold & Jewellery
K (Wan Chai) Company Limited which was situated at Ground Floor No 148 K
Johnston Road, Wan Chai, that someone had tried to purchase gold with
L L
the Credit Card and had given the Credit Card and the ID Card to the staff
M at the time of attempted purchase. PW1 was told that the transaction was M
unsuccessful and had been cancelled. The male staff member also said that
N N
he took the Credit Card and the ID card to the Citibank branch at No 141
O Johnston Road, Wan Chai. O
P P
12. At about 5:30 pm on the same day, PW1 went to collect the
Q Credit Card and the ID Card from Citibank and reported the case to the Q
police. She had also cancelled the Automatic Add Value Service of the
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Octopus Card, which was last topped up for $250 at about 7:20 am that day.
S S
T T
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V V
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A A
B B
13. Upon investigation, it was found that the Octopus Card had
C three successful transactions on 14 January 2021 not made by PW1:- C
D D
(a) At 12:40:02 at 7-Eleven Linux POS for $15.50;
E E
(b) At 14:26:57 at Circle K for $13; and
F F
G (c) At 17:58:06 at Wellcome (“Wellcome”) for $39.90. G
H H
14. CCTVs of “Chin Fai Gold & Jewell Wanchai HKG” and
I Wellcome captured the transactions made with the Credit Card and I
Octopus Card respectively.
J J
K 15. On 22 January 2021, Mr Tsui was arrested by police. Under K
caution, he said:-
L L
M (a) Upon seeing a wallet, he picked it up out of greed to see M
if there was anything valuable inside;
N N
O (b) Seeing there was a credit card inside the wallet, he went O
to OK convenience store to try using it to buy drinks;
P P
and
Q Q
(c) Since the credit card could be used successfully, he
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went to gold store to purchase gold intending to encash
S the same. S
T T
U U
V V
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A A
B B
16. In a cautioned VRI conducted in the small hours of the next
C day, Mr Tsui stated the following:- C
D D
(a) At about 12:30 pm on 14 January 2021, he found the
E Card Holder lying on the street opposite Hopewell E
Centre and picked it up;
F F
G (b) The Card Holder was pink and contained the ID Card, G
the Credit Card as well as the Octopus Card;
H H
I (c) After taking the cards out, he threw the Card Holder I
into the drain on Queen’s Road West near Ship Street
J J
at about 6 pm the same day;
K K
(d) He used the Octopus Card to make the following
L L
purchases:
M M
(i) One can of beer from the 7-Eleven on Johnston
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Road near Fenwick Street for $15.50;
O O
(ii) One can of beer from the Circle K on Fenwick
P P
Street for $13; and
Q Q
(iii) One chicken from the Wellcome on Hennessy
R R
Road opposite Wan Chai Fire Station for $39.90;
S S
T T
U U
V V
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A A
B B
(e) In order to test if the Credit Card was still working, he
C further purchased a can of beer with the Credit Card for C
$13 from the Circle K in Fenwick Street;
D D
E (f) Upon confirmation that the Credit Card had not been E
cancelled, he went to Chin Fai Gold & Jewellery to see
F F
if he could purchase a gold chain with it; if so, he could
G sell the gold chain for money; G
H H
(g) When the staff asked him to sign on the credit card slip,
I he initially signed in his own name; however, he did not I
feel right so he purportedly signed PW1’s name;
J J
K (h) The staff asked to see HKID card for verification; since K
he did not have PW1’s ID Card with him, he went home
L L
to fetch it; on return, he passed the Credit Card and
M PW1’s ID Card to the staff; and M
N N
(i) The staff member said he had called the police so he
O (Mr Tsui) left with nothing purchased. O
P P
17. “Chin Fai Gold & Jewell Wanchai HKG” and Chin Fai Gold
Q & Jewellery (Wan Chai) Company Limited are one and the same entity. Q
R R
S S
T T
U U
V V
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A A
B B
18. Mr Tsui, whilst on court bail, failed to appear in the District
C Court on 23 August 2022 as appointed by the court for mention without C
reasonable cause. The District Court issued an arrest warrant against him.
D D
Mr Tsui was re-arrested on 17 November 2023 during a police operation.
E E
Criminal record
F F
G 19. Mr Tsui has one dissimilar previous conviction recorded in G
September 1998.
H H
I Antecedents I
J J
20. Mr Tsui is aged almost 69 (65 at the time of the main offences),
K educated to primary school level. K
L L
Mitigation
M M
21. Mr Terry Wong of counsel assigned by the Director of Legal
N N
Aid mitigated on behalf of Mr Tsui. The following is a summary of the
O mitigation submissions. O
P P
22. Mr Tsui is 69 years old living alone in a cubicle room owned
Q by an old friend who collects from Mr Tsui a monthly rent of $5,000. After Q
Mr Tsui has finished primary 6, he worked as a sewing worker for many
R R
years until 2013 when he suffered from calcification of hip bone. He
S applied for CSSA and obtained around $7,000 inclusive of rent per month S
up till now. He has lost contact with family members.
T T
U U
V V
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A A
B B
C 23. In the present incident, Mr Tsui committed a series of offences C
in one day. He picked up the card holder on the road and his greed
D D
overcame his sense. He wanted to get money by using the Octopus card,
E the credit card and the identity card. He has a guilty conscience. He E
decides to admit guilt to all 6 charges without even instructing his legal
F F
team to bargain with the prosecution.
G G
24. Mr Tsui was foolish not to have learnt how to sign as the credit
H H
card holder does. The use of a female identity card was done impetuously
I without prior planning and must fail, for how could an old man impersonate I
a woman?
J J
K 25. Mr Tsui jumped bail because he was afraid of going to jail K
such that he might die in prison (because of old age).
L L
M 26. Charge 1 is really theft by finding. Normally the jail term is M
shorter. Mr Wong asked for a starting point of 6 months’ imprisonment.
N N
O 27. Charge 2 involved the use of a stolen Octopus card to buy O
$68.40 of low-valued goods. Mr Wong again asked for a starting point of
P P
6 months’ imprisonment.
Q Q
28. Charge 3 involved the use of a stolen genuine credit card to
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obtain a can of beer. As a credit card is used, no matter if it is fake or
S genuine, HKSAR v Lam See Chung, Stephen, CACC 339/2012, 3rd S
T T
U U
V V
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A A
B B
September 2013, [2013] 5 HKLRD 242, para 42, can be used as a reference.
C Normally, 3 years’ imprisonment may be adopted as the starting point. C
D D
29. Charge 4 involved the use of a stolen genuine credit card to
E attempt to buy a gold chain with value $12,180. Again, 3 years’ E
imprisonment may be adopted as the starting point.
F F
G 30. Charge 5 involved the use of a genuine HKID card. HKSAR G
v Fan King Lam, CACC 220/2010, 30 September 2011, paras 19-20 may
H H
be used as a reference. A starting point of 12 months’ imprisonment may
I be adopted. I
J J
31. Charge 6 involved Mr Tsui failing to surrender to custody
K without reasonable cause. The period during which Mr Tsui was at large K
lasted from 23 August 2022 to 17 November 2023, ie almost 1 year and 3
L L
months. A starting point of 3 months’ imprisonment may be adopted.
M M
32. Mr Wong asked that the sentencing discount of 1/3 be applied
N N
to all of the charges.
O O
33. Mr Wong further reminded the court to apply the totality
P P
principle.
Q Q
34. Mr Tsui is 69 years old. He has been out of trouble for 25
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years. In order not to crush him, and allow him the opportunity to leave
S prison before he dies, a lenient sentence is requested. In particular, the S
offences subject of Charges 1 to 5 all happened within a short period of
T T
U U
V V
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A A
B B
time when Mr Tsui was overcome by greed without thinking of the serious
C consequences. The court is asked to adopt a merciful approach and to C
consider sentencing Mr Tsui to a total of 34 months’ imprisonment.
D D
E Sentence E
F F
35. Mr Tsui has stayed out of trouble for almost 26 years. I shall
G treat him as a person with a clear record. G
H H
36. For Charge 1 of Theft by finding, I will adopt a starting point
I of 6 months’ imprisonment. I
J J
37. For Charge 2 of Theft of stored value of $68.40 in an Octopus
K card in order to purchase items at Circle K1, I will adopt a starting point of K
6 months’ imprisonment.
L L
M 38. For Charge 3 of Obtaining property (ie one can of beer) by M
deception through the use of a genuine credit card of another, I shall adopt
N N
a starting point of 3 years’ imprisonment as invited by Mr Wong.
O O
39. Similarly, for Charge 4 of Attempted to obtain property (ie
P P
one gold chain) by deception through the use of the same genuine credit
Q card, I shall again adopt a starting point of 3 years’ imprisonment as invited Q
by Mr Wong.
R R
S S
T T
1
and other shops (an addendum on re-visiting the papers)
U U
V V
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A A
B B
40. For Charge 5 of Using another person’s ID card, the usual
C sentence for simple possession without use is 12 months’ imprisonment C
after plea; however, if the ID card has actually been produced or used to
D D
conceal one’s real identity, the sentence after plea is 15 months’
E imprisonment: HKSAR v Li Chang Li, HCMA 935A/2004. On the facts of E
the present case, Mr Tsui used the ID Card to impersonate another person.
F F
Even on a plea of guilty, the correct sentence should be 15 months’
G imprisonment. G
H H
41. For Charge 6 of Failing to surrender to custody, I note that Mr
I Tsui had been at large for almost 1 year and 3 months; he did not surrender I
himself but was re-arrested during a police operation. I shall adopt a
J J
starting point of 6 months’ imprisonment.
K K
42. For the reason that Mr Tsui has absconded from court process,
L L
it cannot be said he pleaded guilty to Charges 1 to 5 at the first opportunity.
M However, I note that although the period of absconding was long, no M
substantive hearing dates had been fixed before he absconded. Hence, the
N N
waste of court resources was minimal and the inconvenience caused to
O potential witnesses was measured. Consequently, I feel able to exercise O
my discretion to still give him the usual 1/3 sentencing discount upon plea 2.
P P
Q 43. Mr Tsui pleaded guilty to Charge 6 at the first opportunity; he Q
shall be entitled to the customary 1/3 sentencing discount.
R R
S S
T 2
There will be no further discount to the 15 months’ sentence on Charge 5 under this head because T
that is the sentence after plea.
U U
V V
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A A
B B
44. For his effectively clear record and old age, I shall grant Mr
C Tsui an additional one month’s discount from his sentences after plea on C
Charges 1 to 5 only. There are no other mitigating factors of weight to
D D
justify any further reduction in sentence.
E E
45. It is correct that the offences subject of Charges 1 to 5 were
F F
committed on the same day. The real question was whether those offences
G were somehow connected. It may be argued that Octopus card was G
equivalent to cash, and so, Charge 2 was simply an extension of Charge 1;
H H
otherwise why commit the offence subject of Charge 1 (theft by finding).
I I
46. However, Charges 3 and 4 were much more than an extension
J J
of Charge 1 and involved a challenge to the credit card system that is at the
K heart of international consumer credit arrangements. There needn’t have K
been a commission of the credit card offences (and the associated misuse
L L
of another person’s ID card) after the theft by finding. As such, I am of the
M view that although the sentences under Charges 1 & 2 may be made to run M
concurrently between themselves, the sentences under Charges 3 to 5 (as a
N N
group) ought in principle to run consecutively to those under Charges 1 &
O 2. O
P P
47. As regards the sentences within Charges 3 to 5, the associated
Q offences were connected in that they were part of the same plot to obtain Q
more valuable property by use of another person’s genuine credit card.
R R
However, I must not ignore the fact that the use of another person’s ID card
S aggravates the circumstances of the plot. I am satisfied that the sentences S
on Charges 3 and 4 may be allowed to run concurrently with one another;
T T
U U
V V
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A A
B B
but that part of the sentence on Charge 5 will have to run consecutively to
C the sentences on Charges 3 and 4. C
D D
48. In principle, the sentence on Charge 6 needs to run
E consecutively to the rest. E
F F
49. Before passing the final sentence, I will have in mind the
G principle of totality. G
H (Mr Tsui, please stand) H
I I
50. On Charge 1, the sentence is 3 months’ imprisonment.
J J
51. On Charge 2, the sentence is 3 months’ imprisonment.
K K
52. On Charge 3, the sentence is one year 11 months ie 23 months’
L imprisonment. L
M M
53. On Charge 4, the sentence is one year 11 months ie 23 months’
N imprisonment. N
O 54. On Charge 5, the sentence is 14 months’ imprisonment. O
P P
55. On Charge 6, the sentence is 4 months’ imprisonment.
Q Q
56. I order that the sentences on Charges 1 & 2 are to run
R R
concurrently with one another. This is the Group A sentences.
S S
57. I order that the sentences on Charges 3 & 4 are to run
T T
concurrently with one another. This is the Group B sentences.
U U
V V
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A A
B B
C 58. I order that the Group A sentences, the Group B sentences, the C
sentence on Charge 6, and 3 months only of the sentence on Charge 5 are
D D
to run consecutively to each other. The aggregate sentence is therefore 33
E months’ imprisonment. E
F F
59. I note that this aggregate sentence is still lower than the one
G suggested by Mr Wong on behalf of Mr Tsui. G
H H
I I
J J
( Isaac Tam )
K K
District Judge
L L
M M
N N
O O
P P
Q Q
R R
S S
T T
U U
V V