A A
B B
DCCC 526/2020
C [2021] HKDC 494 C
D D
IN THE DISTRICT COURT OF THE
E HONG KONG SPECIAL ADMINISTRATIVE REGION E
CRIMINAL CASE NO 526 OF 2020
F F
G -------------------------------- G
HKSAR
H H
v
I CHOI PING CHIU I
--------------------------------
J J
K Before: HH Judge K Lo K
Date: 10 March 2021
L L
Present: Mr Victor Chiu, counsel on fiat, for HKSAR
M Mr Woon Jee Quan Freddy, instructed by Anthony Kwan & M
Co, assigned by the Director of Legal Aid, for the defendant
N N
Offence: [1] & [2] Obtaining property by deception (以欺騙手段取得
O O
財產)
P [3] Theft (盜竊罪) P
[4] Possession of offensive weapons in a public place (在公
Q Q
眾地方管有攻擊性武器)
R R
[5] Possession of an instrument fit for an unlawful purpose
S (管有適合作非法用途的工具) S
T T
U U
V V
-2-
A A
B B
--------------------------------------
C REASONS FOR SENTENCE C
--------------------------------------
D D
E 1. The defendant was convicted on his own plea and agreement E
to Summary of Facts to a charge of obtaining property by deception,
F F
contrary to section 17(1) of the Theft Ordinance, Cap 210 (2 nd charge); a
G charge of theft, contrary to section 9 of the Theft Ordinance, Cap 210 G
(3rd charge) and a charge of possession of offensive weapons in a public
H H
place, contrary to section 33(1) and (2) of the Public Order Ordinance,
I Cap 245 (4th charge). Upon the application of the prosecution, it is ordered I
that the 1st charge and 5th charge against the defendant be put on court file
J J
and not to be proceeded with without leave of the court.
K K
Facts
L L
M 2. In this case, the defendant was intercepted by police carrying M
two knives and a recently stolen wallet containing victim’s Hong Kong ID
N N
card and a smartphone.
O O
3. Subsequent to the arrest of the defendant, defendant was
P P
identified to have committed a credit card deception, he was captured on
Q the relevant shop’s CCTV. Q
R R
S S
T T
U U
V V
-3-
A A
B B
3rd and 4th Charge
C C
4. On 21 February 2020 after the defendant was seen with his
D D
girlfriend acting furtively in a pawnshop, he was invited outside by the
E police subsequent to which he was arrested. E
F F
5. Upon search, police seized two knives, each with handle
G wrapped by a tissue paper held between the defendant’s left armpit, and a G
wallet containing another person’s Hong Kong ID card in the name of
H H
Mr Au Hon Fong in a bag carried by the defendant.
I I
6. Later in the police station, the police also found amongst his
J J
other personal properties, 7 mobile phones, amongst which was a Samsung
K Galaxy 2 smartphone which belonged to Mr Au. K
L L
7. Under caution at the scene, the defendant told the police that
M the knives were for his own defence as he was being pursued by his M
creditors.
N N
O 8. Police soon got in touch with the Hong Kong ID card holder, O
Mr Au, who reported to police how his personal properties were being
P P
stolen in the morning while he was drunk.
Q Q
9. According to him, on 21 February 2020, at about 0650 hours,
R R
he was drunk after a long night of drinking. He sat on the rear staircase at
S Sun Hing Building, 607 Nathan Road, Mong Kok. He then felt a man S
approached him and sat beside him for less than a minute. He recalled that
T T
U U
V V
-4-
A A
B B
this man dressed in apparel which resembled that of the defendant at the
C time of his arrest. C
D D
10. He said after the man was gone, he noticed his wallet was
E gone. He also noticed the bag that he was carrying had been cut open and E
his smartphone, value at about $3,000 inside was being stolen. His wallet
F F
contained $700, his Hong Kong ID card, a photo, a security staff card, two
G ATM cards and a HSBC credit card. Later, the wallet, Hong Kong ID card G
and the smartphone were seized on the defendant.
H H
I 2nd Charge I
J J
11. Upon the defendant’s arrest, he was identified to have
K committed a credit card deception in December 2018. K
L L
12. The credit card belonged to Ms Liang Jia-xin. Ms Liang
M applied for credit card at the DBS Bank. The bank had issued her the credit M
card but she had never received it. The credit card had a credit limit of
N N
$22,000.
O O
13. By 22 December 2018, she was notified by the bank that the
P P
credit card had been activated and been used unauthorised. CCTV
Q captured defendant making the unauthorised transaction. Further Q
investigation revealed that on 22 December 2018, at 2024 hours, at
R R
“Citylink” electronics shop, the defendant purchased an iPhone for
S $10,710 from a staff at the shop by presenting the credit card. S
T T
U U
V V
-5-
A A
B B
14. On 21 February 2020, the defendant stole Mr Au’s wallet
C (along with its contents) and smartphone at the staircase (3rd charge), and C
that when he was intercepted by police, he was carrying offensive weapons,
D D
ie, two knives, at a public place with intent to cause injuries with them
E (4th charge). E
F F
15. On 22 December 2018, the defendant defrauded the said shop
G of their goods by the unauthorised use of the credit card (2nd charge). G
H H
Criminal Record
I I
16. The defendant has 33 previous records involving convictions
J J
of 67 charges, of which 39 of them relate to dishonesty, 2 of which were
K similar to 2nd charge and 32 of them are similar to the 3rd charge. He was K
last sentenced to 9 months’ imprisonment for theft conviction on 3 July
L L
2019 and was discharged on 9 November 2019.
M M
Mitigation
N N
O 17. The defendant is aged 43. He is single. He was born in Hong O
Kong and had completed Form 3 education.
P P
Q 18. Defence counsel submitted that the defendant, at the time of Q
arrest, ran a second-hand telephone business with average monthly income
R R
of HK$15,000. It was also submitted that he had worked in the past as a
S hair stylist and a restaurant waiter. S
T T
19. Both of the defendant’s parents are aged 78 and are retired.
U U
V V
-6-
A A
B B
C 20. It was submitted that the victim’s brother in the 2nd charge C
activated victim’s new credit card using her personal particulars and
D D
handed the same to the defendant for his use as the victim’s brother owed
E the defendant $5,000. It was agreed between the victim’s brother and the E
defendant that should they be successful in using the credit card, they
F F
would sell the product obtained and distribute the cash received equally
G with the defendant. G
H H
21. On 22 December 2018, an iPhone was successfully purchased
I using the relevant credit card and it was resold at $10,000. The defendant I
got $5,000 and another $5,000 was, in principle, a reward for the victim’s
J J
brother, but as he owed the defendant $5,000, the same was repaid to the
K defendant. K
L L
22. Defence counsel invited the court to accept that the defendant
M was not the mastermind of the 2nd charge. He submitted that had it not M
been the proposal and assistance of victim’s brother, the defendant would
N N
never have the victim’s personal information which was required to
O activate the credit card. And had the defendant not in a hurry to get the O
money back from the victim’s brother, the defendant would not have
P P
agreed to commit the relevant offence.
Q Q
23. As for the 3rd charge, it was said that when the defendant saw
R R
the victim drunk and sat on the rear staircase, out of momentary greed, he
S stole the victim’s wallet and smartphone. The victim’s wallet, ID card and S
smartphone were recovered at the time of the defendant’s arrest. The
T T
victim’s credit card and the bank card had never been used. They were
U U
V V
-7-
A A
B B
actually being abandoned in a rubbish bin before the arrest of the
C defendant. It was submitted that the defendant was merely acting as an C
opportunist and that it was not a well-planned operation.
D D
E 24. For the 4th charge, it was submitted by defence counsel that E
the defendant was in possession of the knives for the purpose of preventing
F F
the debtors from using violence to force him to repay his debt. It was said
G that the defendant had borrowed money from lenders with triad G
background. Since he has not been able to repay the loan on time and he
H H
has been constantly harassed and intimated by those debtors and therefore
I he kept those knives when he went out for self-defence purpose. I
J J
25. Defence counsel invited the court to accept the defendant’s
K guilty plea, which indicated genuine remorse. K
L L
26. For the 2nd charge, there is no evidence that the defendant was
M part of a syndicate with international element involved. He invited the M
court to accept that the offence was not sophisticated, only one credit card
N N
was involved and the value of the property concerned was only $10,710.
O O
27. In relation to the 3rd charge, it is said that the defendant had
P P
already repaid $700 in full compensation to the victim. It was said further
Q that the victim’s smartphone and identity card were recovered when the Q
defendant was arrested.
R R
S 28. Defence counsel also urged this court not to aggravate the S
sentencing starting point by reason that the defendant had numerous
T T
U U
V V
-8-
A A
B B
previous record for dishonesty and to accept that he was only at the verge
C of being a recidivist. C
D D
29. He also invited this court to take into account the totality
E principle in sentencing the defendant. E
F F
30. He also handed to court a mitigation letter written by the
G defendant, where the defendant said he committed the offence out of G
momentary greed, it was not pre-planned and he was remorseful. He urged
H H
this court for a lenient sentence so that he could return, upon his release, to
I care for his elderly mother. I
J J
Discussion
K K
2nd Charge
L L
M 31. On conviction upon indictment of this charge, a person is M
liable to imprisonment for 10 years.
N N
O 32. The Court of Appeal in the case of HKSAR v Tandon William O
Chaing CACC 404/2012, approved sentencing starting point of 3 years’
P P
imprisonment adopted in the case of HKSAR v Kwan Po Keung [2012] 2
Q HKLRD 12, for the unauthorised use of a credit card belonging to another Q
on a single occasion to obtain jewellery and watches to a total value of
R R
$56,116.
S S
33. In passing sentences on this charge, it was said that the court
T T
must take into consideration the factors relevant to sentencing for credit
U U
V V
-9-
A A
B B
card fraud as laid out by the Court of Appeal in the case of R v Chan Sui
C To [1996] 2 HKLRD 128. These factors are not exhaustive but they have C
given assistance to the court. Again, in the case of HKSAR v Tu I Lang
D D
CACC 464/2006, it is said by the Court of Appeal that where the facts of
E the offence point to a small unsophisticated operation, involving one or a E
few forged credit cards uncomplicated by other evidence materially linking
F F
to the offender to a larger operation, then a starting point of 3 years’
G imprisonment or less would be appropriate. G
H H
34. In this case, the amount involved is $10,710 and the credit
I limit for the card in question is $22,000. This is one of the factors to be I
considered by the court.
J J
K 35. The commission of the offence was, to a certain extent, a K
premeditated one as the defendant had beforehand agreed with the victim’s
L L
brother how they would divide the proceeds of crime if the defendant was
M successful in using the credit card of the victim. Two persons were M
involved in this scheme.
N N
O 36. Considering all the circumstances of the case, this court finds O
that 3 years’ imprisonment is an appropriate sentencing starting point for
P P
this charge involving simple case of credit card fraud where stolen genuine
Q credit cards are used to commit the offence. The case relied on is HKSAR Q
v Lam See Chung, Stephen [2013] 5 HKLRD 242.
R R
S 37. The defendant has one previous conviction in year 2002. This S
court, however, is not going to enhance the sentencing starting point by
T T
reason of such record.
U U
V V
- 10 -
A A
B B
C 38. After considering the guilty plea, which is the most valid C
nd
mitigating factor in this case, the sentence in respect of the 2 charge is
D D
reduced by one-third to 24 months’ imprisonment.
E E
3rd Charge
F F
G 39. Any person on conviction upon indictment of this charge is G
liable to imprisonment for 10 years.
H H
I 40. According to the agreed facts, the wallet of the victim was I
stolen from him, the bag carried by the victim was also cut open and the
J J
smartphone inside stolen from him. These were done by the defendant,
K who clearly took advantage of the drunken state of the victim at the time. K
L L
41. Whilst this court accepts that the commission of this offence
M was not premeditated, the modus operandi adopted by the defendant, for M
example, the cutting of the bag, resemble closely to that of pickpocketing.
N N
The court noted that although the smartphone was recovered and that the
O bank card had not been used. The defendant had also repaid the loss of O
$700 as compensation to the victim. The appropriate sentencing starting
P P
point for this charge is 15 months’ imprisonment. The defendant, however,
Q is a persistent offender for theft charges as he had 32 similar convictions. Q
Sentencing starting point is therefore aggravated by 6 months to 21
R R
months’ imprisonment.
S S
42. This court has also carefully considered his mitigation on his
T T
behalf, including his own letter in mitigation, and again finds the most valid
U U
V V
- 11 -
A A
B B
mitigating ground is that of his guilty plea, for which he is entitled to one-
C third sentencing discount. C
D D
43. He is therefore sentenced to 14 months’ imprisonment for this
E charge. E
F F
4th Charge
G G
44. Maximum sentence for a person over the age of 25 convicted
H H
of this charge upon indictment is 3 years’ imprisonment.
I I
45. The defendant here possessed two knives. This court had the
J J
opportunity of the sight of the knives. Each knife is 31 cm in length and
K the blade is of 20 cm in length. The cutting surface of these two knives are K
rugged. They are definitely lethal weapons and do not resemble weapons
L L
just for self-defence.
M M
46. Appropriate sentencing starting point is 12 months’
N N
imprisonment. Again, the defendant is afforded one-third sentencing
O discount by reason of his guilty plea. He is therefore sentenced to O
8 months’ imprisonment for this charge.
P P
Q 47. The nature of the 2nd, 3rd and 4th offences are different, Q
although the 2nd and 3rd offence are theft-related. The 3rd and 4th charges
R R
offence are committed within 5 hours on the same day but the nature of
S these offences are different and the commission of the offence are not S
related. There is no evidence to show that the knives were used in the 3 rd
T T
charge offence.
U U
V V
- 12 -
A A
B B
C 48. Commission of the 2nd charge offence took place 14 months C
rd th
earlier than the 3 and the 4 offence.
D D
E 49. Considering the totality principle and the overall culpability E
of the defendant in the whole case, this court consider that a total sentence
F F
of 40 months’ imprisonment after plea is just and proportionate.
G Accordingly, 10 months’ imprisonment for the sentence for the 3 rd charge G
and 6 months’ imprisonment for the sentence in the 4th charge are to run
H H
consecutive to the sentence in the 2 nd charge. The rest of the sentence for
I the 3rd and the 4th charge are to run concurrent to the sentence in the I
2nd charge.
J J
K 50. The defendant is therefore sentenced to a total of 40 months’ K
imprisonment in this case.
L L
M M
N N
O O
( K Lo )
P P
District Judge
Q Q
R R
S S
T T
U U
V V
A A
B B
DCCC 526/2020
C [2021] HKDC 494 C
D D
IN THE DISTRICT COURT OF THE
E HONG KONG SPECIAL ADMINISTRATIVE REGION E
CRIMINAL CASE NO 526 OF 2020
F F
G -------------------------------- G
HKSAR
H H
v
I CHOI PING CHIU I
--------------------------------
J J
K Before: HH Judge K Lo K
Date: 10 March 2021
L L
Present: Mr Victor Chiu, counsel on fiat, for HKSAR
M Mr Woon Jee Quan Freddy, instructed by Anthony Kwan & M
Co, assigned by the Director of Legal Aid, for the defendant
N N
Offence: [1] & [2] Obtaining property by deception (以欺騙手段取得
O O
財產)
P [3] Theft (盜竊罪) P
[4] Possession of offensive weapons in a public place (在公
Q Q
眾地方管有攻擊性武器)
R R
[5] Possession of an instrument fit for an unlawful purpose
S (管有適合作非法用途的工具) S
T T
U U
V V
-2-
A A
B B
--------------------------------------
C REASONS FOR SENTENCE C
--------------------------------------
D D
E 1. The defendant was convicted on his own plea and agreement E
to Summary of Facts to a charge of obtaining property by deception,
F F
contrary to section 17(1) of the Theft Ordinance, Cap 210 (2 nd charge); a
G charge of theft, contrary to section 9 of the Theft Ordinance, Cap 210 G
(3rd charge) and a charge of possession of offensive weapons in a public
H H
place, contrary to section 33(1) and (2) of the Public Order Ordinance,
I Cap 245 (4th charge). Upon the application of the prosecution, it is ordered I
that the 1st charge and 5th charge against the defendant be put on court file
J J
and not to be proceeded with without leave of the court.
K K
Facts
L L
M 2. In this case, the defendant was intercepted by police carrying M
two knives and a recently stolen wallet containing victim’s Hong Kong ID
N N
card and a smartphone.
O O
3. Subsequent to the arrest of the defendant, defendant was
P P
identified to have committed a credit card deception, he was captured on
Q the relevant shop’s CCTV. Q
R R
S S
T T
U U
V V
-3-
A A
B B
3rd and 4th Charge
C C
4. On 21 February 2020 after the defendant was seen with his
D D
girlfriend acting furtively in a pawnshop, he was invited outside by the
E police subsequent to which he was arrested. E
F F
5. Upon search, police seized two knives, each with handle
G wrapped by a tissue paper held between the defendant’s left armpit, and a G
wallet containing another person’s Hong Kong ID card in the name of
H H
Mr Au Hon Fong in a bag carried by the defendant.
I I
6. Later in the police station, the police also found amongst his
J J
other personal properties, 7 mobile phones, amongst which was a Samsung
K Galaxy 2 smartphone which belonged to Mr Au. K
L L
7. Under caution at the scene, the defendant told the police that
M the knives were for his own defence as he was being pursued by his M
creditors.
N N
O 8. Police soon got in touch with the Hong Kong ID card holder, O
Mr Au, who reported to police how his personal properties were being
P P
stolen in the morning while he was drunk.
Q Q
9. According to him, on 21 February 2020, at about 0650 hours,
R R
he was drunk after a long night of drinking. He sat on the rear staircase at
S Sun Hing Building, 607 Nathan Road, Mong Kok. He then felt a man S
approached him and sat beside him for less than a minute. He recalled that
T T
U U
V V
-4-
A A
B B
this man dressed in apparel which resembled that of the defendant at the
C time of his arrest. C
D D
10. He said after the man was gone, he noticed his wallet was
E gone. He also noticed the bag that he was carrying had been cut open and E
his smartphone, value at about $3,000 inside was being stolen. His wallet
F F
contained $700, his Hong Kong ID card, a photo, a security staff card, two
G ATM cards and a HSBC credit card. Later, the wallet, Hong Kong ID card G
and the smartphone were seized on the defendant.
H H
I 2nd Charge I
J J
11. Upon the defendant’s arrest, he was identified to have
K committed a credit card deception in December 2018. K
L L
12. The credit card belonged to Ms Liang Jia-xin. Ms Liang
M applied for credit card at the DBS Bank. The bank had issued her the credit M
card but she had never received it. The credit card had a credit limit of
N N
$22,000.
O O
13. By 22 December 2018, she was notified by the bank that the
P P
credit card had been activated and been used unauthorised. CCTV
Q captured defendant making the unauthorised transaction. Further Q
investigation revealed that on 22 December 2018, at 2024 hours, at
R R
“Citylink” electronics shop, the defendant purchased an iPhone for
S $10,710 from a staff at the shop by presenting the credit card. S
T T
U U
V V
-5-
A A
B B
14. On 21 February 2020, the defendant stole Mr Au’s wallet
C (along with its contents) and smartphone at the staircase (3rd charge), and C
that when he was intercepted by police, he was carrying offensive weapons,
D D
ie, two knives, at a public place with intent to cause injuries with them
E (4th charge). E
F F
15. On 22 December 2018, the defendant defrauded the said shop
G of their goods by the unauthorised use of the credit card (2nd charge). G
H H
Criminal Record
I I
16. The defendant has 33 previous records involving convictions
J J
of 67 charges, of which 39 of them relate to dishonesty, 2 of which were
K similar to 2nd charge and 32 of them are similar to the 3rd charge. He was K
last sentenced to 9 months’ imprisonment for theft conviction on 3 July
L L
2019 and was discharged on 9 November 2019.
M M
Mitigation
N N
O 17. The defendant is aged 43. He is single. He was born in Hong O
Kong and had completed Form 3 education.
P P
Q 18. Defence counsel submitted that the defendant, at the time of Q
arrest, ran a second-hand telephone business with average monthly income
R R
of HK$15,000. It was also submitted that he had worked in the past as a
S hair stylist and a restaurant waiter. S
T T
19. Both of the defendant’s parents are aged 78 and are retired.
U U
V V
-6-
A A
B B
C 20. It was submitted that the victim’s brother in the 2nd charge C
activated victim’s new credit card using her personal particulars and
D D
handed the same to the defendant for his use as the victim’s brother owed
E the defendant $5,000. It was agreed between the victim’s brother and the E
defendant that should they be successful in using the credit card, they
F F
would sell the product obtained and distribute the cash received equally
G with the defendant. G
H H
21. On 22 December 2018, an iPhone was successfully purchased
I using the relevant credit card and it was resold at $10,000. The defendant I
got $5,000 and another $5,000 was, in principle, a reward for the victim’s
J J
brother, but as he owed the defendant $5,000, the same was repaid to the
K defendant. K
L L
22. Defence counsel invited the court to accept that the defendant
M was not the mastermind of the 2nd charge. He submitted that had it not M
been the proposal and assistance of victim’s brother, the defendant would
N N
never have the victim’s personal information which was required to
O activate the credit card. And had the defendant not in a hurry to get the O
money back from the victim’s brother, the defendant would not have
P P
agreed to commit the relevant offence.
Q Q
23. As for the 3rd charge, it was said that when the defendant saw
R R
the victim drunk and sat on the rear staircase, out of momentary greed, he
S stole the victim’s wallet and smartphone. The victim’s wallet, ID card and S
smartphone were recovered at the time of the defendant’s arrest. The
T T
victim’s credit card and the bank card had never been used. They were
U U
V V
-7-
A A
B B
actually being abandoned in a rubbish bin before the arrest of the
C defendant. It was submitted that the defendant was merely acting as an C
opportunist and that it was not a well-planned operation.
D D
E 24. For the 4th charge, it was submitted by defence counsel that E
the defendant was in possession of the knives for the purpose of preventing
F F
the debtors from using violence to force him to repay his debt. It was said
G that the defendant had borrowed money from lenders with triad G
background. Since he has not been able to repay the loan on time and he
H H
has been constantly harassed and intimated by those debtors and therefore
I he kept those knives when he went out for self-defence purpose. I
J J
25. Defence counsel invited the court to accept the defendant’s
K guilty plea, which indicated genuine remorse. K
L L
26. For the 2nd charge, there is no evidence that the defendant was
M part of a syndicate with international element involved. He invited the M
court to accept that the offence was not sophisticated, only one credit card
N N
was involved and the value of the property concerned was only $10,710.
O O
27. In relation to the 3rd charge, it is said that the defendant had
P P
already repaid $700 in full compensation to the victim. It was said further
Q that the victim’s smartphone and identity card were recovered when the Q
defendant was arrested.
R R
S 28. Defence counsel also urged this court not to aggravate the S
sentencing starting point by reason that the defendant had numerous
T T
U U
V V
-8-
A A
B B
previous record for dishonesty and to accept that he was only at the verge
C of being a recidivist. C
D D
29. He also invited this court to take into account the totality
E principle in sentencing the defendant. E
F F
30. He also handed to court a mitigation letter written by the
G defendant, where the defendant said he committed the offence out of G
momentary greed, it was not pre-planned and he was remorseful. He urged
H H
this court for a lenient sentence so that he could return, upon his release, to
I care for his elderly mother. I
J J
Discussion
K K
2nd Charge
L L
M 31. On conviction upon indictment of this charge, a person is M
liable to imprisonment for 10 years.
N N
O 32. The Court of Appeal in the case of HKSAR v Tandon William O
Chaing CACC 404/2012, approved sentencing starting point of 3 years’
P P
imprisonment adopted in the case of HKSAR v Kwan Po Keung [2012] 2
Q HKLRD 12, for the unauthorised use of a credit card belonging to another Q
on a single occasion to obtain jewellery and watches to a total value of
R R
$56,116.
S S
33. In passing sentences on this charge, it was said that the court
T T
must take into consideration the factors relevant to sentencing for credit
U U
V V
-9-
A A
B B
card fraud as laid out by the Court of Appeal in the case of R v Chan Sui
C To [1996] 2 HKLRD 128. These factors are not exhaustive but they have C
given assistance to the court. Again, in the case of HKSAR v Tu I Lang
D D
CACC 464/2006, it is said by the Court of Appeal that where the facts of
E the offence point to a small unsophisticated operation, involving one or a E
few forged credit cards uncomplicated by other evidence materially linking
F F
to the offender to a larger operation, then a starting point of 3 years’
G imprisonment or less would be appropriate. G
H H
34. In this case, the amount involved is $10,710 and the credit
I limit for the card in question is $22,000. This is one of the factors to be I
considered by the court.
J J
K 35. The commission of the offence was, to a certain extent, a K
premeditated one as the defendant had beforehand agreed with the victim’s
L L
brother how they would divide the proceeds of crime if the defendant was
M successful in using the credit card of the victim. Two persons were M
involved in this scheme.
N N
O 36. Considering all the circumstances of the case, this court finds O
that 3 years’ imprisonment is an appropriate sentencing starting point for
P P
this charge involving simple case of credit card fraud where stolen genuine
Q credit cards are used to commit the offence. The case relied on is HKSAR Q
v Lam See Chung, Stephen [2013] 5 HKLRD 242.
R R
S 37. The defendant has one previous conviction in year 2002. This S
court, however, is not going to enhance the sentencing starting point by
T T
reason of such record.
U U
V V
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A A
B B
C 38. After considering the guilty plea, which is the most valid C
nd
mitigating factor in this case, the sentence in respect of the 2 charge is
D D
reduced by one-third to 24 months’ imprisonment.
E E
3rd Charge
F F
G 39. Any person on conviction upon indictment of this charge is G
liable to imprisonment for 10 years.
H H
I 40. According to the agreed facts, the wallet of the victim was I
stolen from him, the bag carried by the victim was also cut open and the
J J
smartphone inside stolen from him. These were done by the defendant,
K who clearly took advantage of the drunken state of the victim at the time. K
L L
41. Whilst this court accepts that the commission of this offence
M was not premeditated, the modus operandi adopted by the defendant, for M
example, the cutting of the bag, resemble closely to that of pickpocketing.
N N
The court noted that although the smartphone was recovered and that the
O bank card had not been used. The defendant had also repaid the loss of O
$700 as compensation to the victim. The appropriate sentencing starting
P P
point for this charge is 15 months’ imprisonment. The defendant, however,
Q is a persistent offender for theft charges as he had 32 similar convictions. Q
Sentencing starting point is therefore aggravated by 6 months to 21
R R
months’ imprisonment.
S S
42. This court has also carefully considered his mitigation on his
T T
behalf, including his own letter in mitigation, and again finds the most valid
U U
V V
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A A
B B
mitigating ground is that of his guilty plea, for which he is entitled to one-
C third sentencing discount. C
D D
43. He is therefore sentenced to 14 months’ imprisonment for this
E charge. E
F F
4th Charge
G G
44. Maximum sentence for a person over the age of 25 convicted
H H
of this charge upon indictment is 3 years’ imprisonment.
I I
45. The defendant here possessed two knives. This court had the
J J
opportunity of the sight of the knives. Each knife is 31 cm in length and
K the blade is of 20 cm in length. The cutting surface of these two knives are K
rugged. They are definitely lethal weapons and do not resemble weapons
L L
just for self-defence.
M M
46. Appropriate sentencing starting point is 12 months’
N N
imprisonment. Again, the defendant is afforded one-third sentencing
O discount by reason of his guilty plea. He is therefore sentenced to O
8 months’ imprisonment for this charge.
P P
Q 47. The nature of the 2nd, 3rd and 4th offences are different, Q
although the 2nd and 3rd offence are theft-related. The 3rd and 4th charges
R R
offence are committed within 5 hours on the same day but the nature of
S these offences are different and the commission of the offence are not S
related. There is no evidence to show that the knives were used in the 3 rd
T T
charge offence.
U U
V V
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A A
B B
C 48. Commission of the 2nd charge offence took place 14 months C
rd th
earlier than the 3 and the 4 offence.
D D
E 49. Considering the totality principle and the overall culpability E
of the defendant in the whole case, this court consider that a total sentence
F F
of 40 months’ imprisonment after plea is just and proportionate.
G Accordingly, 10 months’ imprisonment for the sentence for the 3 rd charge G
and 6 months’ imprisonment for the sentence in the 4th charge are to run
H H
consecutive to the sentence in the 2 nd charge. The rest of the sentence for
I the 3rd and the 4th charge are to run concurrent to the sentence in the I
2nd charge.
J J
K 50. The defendant is therefore sentenced to a total of 40 months’ K
imprisonment in this case.
L L
M M
N N
O O
( K Lo )
P P
District Judge
Q Q
R R
S S
T T
U U
V V