A A
B DCCC 77/2015 B
C C
IN THE DISTRICT COURT OF THE
D HONG KONG SPECIAL ADMINISTRATIVE REGION D
CRIMINAL CASE NO. 77 OF 2015
E E
-----------------------------------
F HKSAR F
v.
G G
CHO KA YEUNG
-----------------------------------
H H
Before: HH Judge Douglas T.H. Yau
I Date: 6th March 2015 at 12:38pm I
Present: Mr. Joe Hui, Public Prosecutor of the Department of Justice,
J J
for HKSAR
K K
Mr. Lee Kwok Lun of M/s Tai Tang & Chong,
L
assigned by DLA, for the Defendant L
Offences: 1) Burglary (入屋犯法罪)
M M
2, 4 & 5) Theft (盜竊罪)
N 3) Fraud (欺詐罪) N
O
6) Going equipped for stealing (外出時備有偷竊用的物品) O
----------------------------
P P
Reasons for Sentence
Q ---------------------------- Q
1. The defendant pleaded guilty to one charge of burglary, three
R R
charges of theft, one charge of fraud and one charge of going
S equipped for stealing. S
T Facts T
U U
CRT21/6.3.2015 DCCC77/2015/Reasons for Sentence
V V
- 2 -
A A
B Charge 1: burglary B
2. Closed circuit television cameras captured the defendant inserting
C C
an umbrella through the gap of the door of a property agency in
D D
Kingswood Richly Plaza at 1:10 am on 16 November 2014 and
E
used the umbrella to steal a wallet and a plastic folder. E
F Charge 2: theft F
3. After the burglary, the defendant used one of the credit cards that
G G
was inside the stolen wallet to withdraw money from automatic
H teller machines at 4 different locations between 4:28 am and 10:35 H
am. He was successful with the withdrawals on 4 occasions out of
I I
11 attempts and a total of $10,200 was stolen.
J J
Charge 3: fraud
K K
4. The defendant did not stop there and went on to use a different
L credit card from the stolen wallet to make purchases at 6 different L
shops between 1:42 pm and 8:10 pm on the same day. A total of 10
M M
transactions were completed and the total value of his purchases
N was $28,586. The bottle of wine and the gold ornament that the N
defendant bought were later found in the defendant’s home on 22
O O
November.
P P
Charge 4: theft
Q Q
5. In addition to using the second credit card to make purchases, the
R defendant also used it to withdraw money 3 times between 2:08 pm R
and 2:11 pm. A total of $26,500 was stolen.
S S
T Charge 5: theft T
U U
CRT21/6.3.2015 DCCC77/2015/Reasons for Sentence
V V
- 3 -
A A
B 6. In a different incident that took place on 18 November, 2014, $500 B
was found missing from the cash register of a boutique stall in the
C C
same shopping mall as the property agency that was burgled.
D Closed circuit television footage show the defendant loitering D
around a fashion boutique stall from 4:39 to 4:52 am.
E E
F
Charge 6: going equipped for stealing F
7. At around 11:29pm on 21 November, Police officers who were on
G G
anti-burglary patrol at Kingswood Richly Plaza noticed the
H defendant loitering inside the mall. At 12:16 am, the defendant was H
seen acting furtively near a stall on the 1st floor of the mall.
I I
J 8. The defendant was intercepted 2 minutes later by a Police officer J
and was arrested and cautioned. Upon search, a pair of pliers and a
K K
screwdriver were found on the defendant’s waist and inside his
L shoulder bag respectively. L
M M
9. In subsequent cautioned video recorded interviews, the defendant
N admitted that he used an umbrella to hook out the things on a desk N
inside the property agency in charge 1; that he made the various
O O
withdrawals with the stolen credit cards (charge 2 and 4); that he
P made purchases with one of the credit cards at various shops P
(charge 3); that he found the credit cards’ Personal Identification
Q Q
Numbers written in the notebook inside the stolen wallet; and that
R R
he had stolen the money from the cash register of the boutique stall
S
in charge 5. S
T Previous convictions T
U U
CRT21/6.3.2015 DCCC77/2015/Reasons for Sentence
V V
- 4 -
A A
B 10. The defendant has various previous convictions including 2 for B
theft and one of going equipped for stealing.
C C
Mitigation
D D
11. The defendant is 34 years old. He fathered 2 children with his
E E
girlfriend. The daughter is 10 and the son 6 years old. They are
F being taken care of by the girlfriend who had returned to the F
defendant after having left him due to his drug addiction. They were
G G
living together prior to the defendant’s latest detention in the drug
H addiction treatment centre. H
I I
12. The defendant is educated up to form 5 level. Prior to his arrest and
J detention, he worked as a casual worker at the airport. Before that J
he worked as a cook in a Japanese restaurant until June 2014 when
K K
the restaurant closed down.
L L
13. The defendant has been a drug addict since 2004.
M M
N 14. The defendant is unable to make an offer of restitution. The money N
he had stolen had been spent on his drug addiction.
O O
P 15. I am told the defendant committed the offences because he was P
driven by his drug addiction to make some quick money. Mr. Lee
Q Q
for the defendant pointed out that the offences were not
R R
sophisticated, that the defendant acted on his own, and that the
S
commission of the offences was unsophisticated. S
T T
U U
CRT21/6.3.2015 DCCC77/2015/Reasons for Sentence
V V
- 5 -
A A
B 16. Mr. Lee suggested that I should take into consideration that the B
defendant only used an umbrella to enter the stall and committed
C C
the burglary and adopt a lower starting point.
D D
Sentencing guidelines
E E
17. It is not disputed that the premises that was burgled by the
F defendant in charge 1 is a non-domestic premises. It is trite law that F
the proper starting point for non-domestic burglary for a first
G G
offender with no aggravating or mitigating factor is that of 2 and a
H half years’ imprisonment. H
I Sentence I
J Charge 1: burglary J
18. The maximum sentence for burglary is that of 14 years’
K K
imprisonment.
L L
19. As mentioned above, this is a case involving the burglary of a
M M
non-domestic premises. The burglary took place at 1:10 am, by
N which time the stores in the mall were closed and there was minimal N
risk of confrontation between the defendant and customers. The
O O
defendant did use an umbrella to hook the bag out of the property
P agency, but there was no property damage to either the stall or the P
mall. The defendant acted alone.
Q Q
R
20. Although Mr. Lee did not actually use the words ‘opportunistic R
S
burglary’, given his submission that I should take into account that S
the defendant did not physically enter the property agency to steal
T T
and adopt a lower starting point, I feel that this is in fact the
U U
CRT21/6.3.2015 DCCC77/2015/Reasons for Sentence
V V
- 6 -
A A
B proposition that he was putting forward and that I should deal with B
it accordingly.
C C
D 21. In deciding whether it was an opportunistic burglary, I note first of D
all that this was not a case where the door of the shop was left open.
E E
According to the summary of facts, the defendant saw the bag
F inside the stall first, then he picked up an umbrella nearby, he went F
back to the shop, inserted the umbrella through the gap of the door
G G
and maneuvered the umbrella to “hook the things on a desk inside
H the shop”. H
I I
22. Looking at the photographs of the property agency shop, one can
J see that the gap between the glass doors of the agency is quite J
narrow and it would have required considerable effort from the
K K
defendant to insert the umbrella and then maneuver it to reach the
L nearest desk and hook out the things on the desk. L
M M
23. Based on those facts, I find that it was not an opportunistic burglary.
N The defendant had gone to some length to avail himself of the N
opportunity to steal.
O O
P 24. I see therefore no reason to depart from the sentencing guidelines, P
and I adopt a starting point of 2 and a half years’ imprisonment.
Q Q
Aggravating factors
R R
25. I note that the defendant is a persistent offender but this is his first
S S
burglary offence. I do not find his conviction records as an
T aggravating factor in relation to the charge of burglary. T
U U
CRT21/6.3.2015 DCCC77/2015/Reasons for Sentence
V V
- 7 -
A A
B B
Mitigating factors
C C
26. I find that the only mitigating factor is the defendant’s timely plea.
D D
27. The defendant is therefore sentenced to 20 months’ imprisonment
E E
on charge 1.
F F
Charge 2 and 4: Theft
G G
28. The maximum sentence for theft is that of 10 years’ imprisonment.
H H
I 29. In relation to charge 2, the defendant made 11 attempts over a I
period of about 10 hours to withdraw money with the credit card.
J J
He was successful on 4 occasions and a total of $10,200 was stolen.
K K
30. In relation to charge 4, he made 3 attempts within 3 minutes on the
L L
same day and they were all successful. A total of $26,500 was
M M
stolen.
N N
31. For each of charge 2 and 4, I adopt a starting point of 18 months’
O O
imprisonment.
P P
Aggravating factors
Q Q
32. The defendant has 2 previous convictions for theft. In relation to the
R R
one dated 30 December 2014, it was imposed after his commission
S of the present offences. The other theft conviction was back in 2002 S
when he was fined $800. I find that given the timing of these two
T T
offences, they are not aggravating factors.
U U
CRT21/6.3.2015 DCCC77/2015/Reasons for Sentence
V V
- 8 -
A A
B B
Mitigating factors
C C
33. I find that the only mitigating factor is the defendant’s timely plea
D D
of guilty.
E E
34. The defendant is sentenced to 12 months’ imprisonment on each of
F charge 2 and 4. F
G G
Charge 3: Fraud
H H
35. The maximums sentence for fraud is that of 14 years’
I imprisonment. I
J J
36. Mr. Hui for the prosecution referred to the case of HKSAR v Lam
K See Chung, Stephen, CACC 339/2012. There the appellant pleaded K
guilty to one count of theft and three counts of obtaining property
L L
by deception. The appellant took the credit card of his wife’s
M M
post-natal helper and used it on 3 occasions to purchase 3 smart
N
phones with a total value of $15,240. N
O O
37. The Court of Appeal found that the use of another’s genuine credit
P card should be treated as credit card fraud, and that the sentencing P
principles and considerations that apply to the use of counterfeit
Q Q
credit cards are equally applicable to offences in which genuine
R credit cards are used. For that reason, the Court of Appeal held that R
the three year starting point for simple cases of counterfeit credit
S S
card fraud should also apply to simple cases of credit card fraud
T where stolen genuine credit cards are used to commit the offence. T
U U
CRT21/6.3.2015 DCCC77/2015/Reasons for Sentence
V V
- 9 -
A A
B 38. Mr. Lee referred to the case of HKSAR v Lee Tat Hoi, CACC B
164/2014. There the appellant pleaded guilty to 11 counts of
C C
obtaining property by deception. The facts were that the appellant
D was the boyfriend of the victim. He used her credit card on 11 D
occasions to make purchases at the same pharmacy, buying $71,843
E E
worth of merchandise.
F F
39. The Court of Appeal referred to the above case of Lam See Chung
G G
Stephen and applied the principles stated therein. The Court
H observed that the appellant had used the credit card 11 times as H
opposed to 3 times in Lam See Chung Stephen, that the total amount
I I
involved is about $55,000 more than the earlier case, and opined
J that the starting point of two and a half years’ imprisonment J
adopted by the trial judge was probably too lenient.
K K
L L
40. Turning to our present case. There was only 1 credit card involved
M
in this charge of fraud. Yet the defendant had used the credit card on M
10 occasions and had bought $28,586 worth of merchandise. Only
N N
the gold ornament ($1,300) and a bottle of wine ($1,830) were
O recovered. The defendant did not offer any repayment in restitution. O
P P
41. Having considered the above cases and the circumstances in our
Q present case, I find that an appropriate starting point for the credit Q
card fraud committed by the defendant is that of 3 years’
R R
imprisonment.
S S
T T
U U
CRT21/6.3.2015 DCCC77/2015/Reasons for Sentence
V V
- 10 -
A A
B 42. This is the defendant’s first conviction for fraud. Despite his B
previous convictions, I do not find his persistent offending an
C C
aggravating factor for this particular charge.
D D
43. The only mitigating factor is the defendant’s timely guilty plea. The
E
defendant is sentenced to 2 years’ imprisonment on charge 3. E
F F
Charge 5: Theft
G G
44. This is a theft of $500 from the cash register of the boutique stall.
H According to the defendant’s confession, he committed the offence H
I
at around 4 am. He saw the stall covered by a piece of cloth, I
sneaked in, found the cash register and took the money.
J J
K
45. For this theft charge, I adopt a starting point of 6 months’ K
imprisonment. I find that there are no aggravating factors and the
L L
only mitigating factor is the defendant’s timely guilty plea. The
M defendant is sentenced to 4 months’ imprisonment on charge 5. M
N N
Charge 6: Going equipped for stealing
O O
46. The maximum sentence for this offence on conviction upon
P indictment is that of 3 years’ imprisonment. P
Q 47. The equipment found to be in the defendant’s possession were one Q
screwdriver and a pair of pliers. Neither is big in size. The obvious
R R
intention of the defendant must have been to use them to assist in
S stealing from the shops inside the shopping mall. S
T T
48. For this charge, I adopt a starting point of 6 months’ imprisonment.
U U
CRT21/6.3.2015 DCCC77/2015/Reasons for Sentence
V V
- 11 -
A A
B B
49. This is the defendant’s second conviction for going equipped for
C stealing. The previous similar conviction was however recorded C
after the defendant’s commission of the present offence. I find that
D D
there are no aggravating factors and the only mitigating factor is the
E
defendant’s timely guilty plea. The defendant is sentenced to 4 E
F
months’ imprisonment on charge 6. F
G G
Totality
H 50. The defendant is currently under detention in a drug addiction H
I
treatment centre as a result of his convictions dated 30 December I
2014 for the offences of theft and going equipped for stealing.
J J
K
51. To recap, after granting the defendant the usual one-third discount K
for his guilty plea, he is sentenced to 20, 12, 24, 12, 4 and 4 months’
L L
imprisonment on charges 1 to 6 respectively.
M M
52. Charges 1, 2, 3 and 4 took place on the same day and arose out of
N N
the same initial incident of the burglary of the property agency shop
O where the wallet containing the credit cards was stolen. O
P P
53. Charges 5 and 6 are isolated incidents with no connection to the
Q other offences. Q
R 54. Although the burglary and the stealing of money through the ATM R
and the fraud of using the credit card are linked, one does not
S S
necessarily lead to another. The defendant could just have taken the
T money in the wallet and throw away the credit cards. He did not T
U U
CRT21/6.3.2015 DCCC77/2015/Reasons for Sentence
V V
- 12 -
A A
B have to use the cards to make the withdrawals or to make the B
purchases.
C C
55. Taking a step back and applying the principle of totality, I order 4
D D
months of the sentence in charges 1, 2 and 4 to be served
E E
consecutively to the sentence in charge 3, the balance to be served
F
concurrently, making a total of 36 months’ imprisonment for the F
four charges.
G G
H
56. I order 2 months of the sentence in each of charge 5 and 6 be served H
consecutively to the rest of the sentences, the balance concurrently.
I I
J 57. In other words, the defendant is sentenced to a total 40 months’ J
imprisonment for the 6 offences.
K K
L The defendant’s present DATC order L
M 58. Pursuant to section 6A(1)(b) of the Drug Addiction Treatment M
Centres Ordinance, Cap.244, since the defendant is sentenced to
N N
imprisonment for a term more than 9 months, the previous
O detention order made under the same Ordinance shall cease to have O
effect.
P P
Q Q
R R
(Douglas T.H .Yau)
District Judge
S S
T T
U U
CRT21/6.3.2015 DCCC77/2015/Reasons for Sentence
V V
A A
B DCCC 77/2015 B
C C
IN THE DISTRICT COURT OF THE
D HONG KONG SPECIAL ADMINISTRATIVE REGION D
CRIMINAL CASE NO. 77 OF 2015
E E
-----------------------------------
F HKSAR F
v.
G G
CHO KA YEUNG
-----------------------------------
H H
Before: HH Judge Douglas T.H. Yau
I Date: 6th March 2015 at 12:38pm I
Present: Mr. Joe Hui, Public Prosecutor of the Department of Justice,
J J
for HKSAR
K K
Mr. Lee Kwok Lun of M/s Tai Tang & Chong,
L
assigned by DLA, for the Defendant L
Offences: 1) Burglary (入屋犯法罪)
M M
2, 4 & 5) Theft (盜竊罪)
N 3) Fraud (欺詐罪) N
O
6) Going equipped for stealing (外出時備有偷竊用的物品) O
----------------------------
P P
Reasons for Sentence
Q ---------------------------- Q
1. The defendant pleaded guilty to one charge of burglary, three
R R
charges of theft, one charge of fraud and one charge of going
S equipped for stealing. S
T Facts T
U U
CRT21/6.3.2015 DCCC77/2015/Reasons for Sentence
V V
- 2 -
A A
B Charge 1: burglary B
2. Closed circuit television cameras captured the defendant inserting
C C
an umbrella through the gap of the door of a property agency in
D D
Kingswood Richly Plaza at 1:10 am on 16 November 2014 and
E
used the umbrella to steal a wallet and a plastic folder. E
F Charge 2: theft F
3. After the burglary, the defendant used one of the credit cards that
G G
was inside the stolen wallet to withdraw money from automatic
H teller machines at 4 different locations between 4:28 am and 10:35 H
am. He was successful with the withdrawals on 4 occasions out of
I I
11 attempts and a total of $10,200 was stolen.
J J
Charge 3: fraud
K K
4. The defendant did not stop there and went on to use a different
L credit card from the stolen wallet to make purchases at 6 different L
shops between 1:42 pm and 8:10 pm on the same day. A total of 10
M M
transactions were completed and the total value of his purchases
N was $28,586. The bottle of wine and the gold ornament that the N
defendant bought were later found in the defendant’s home on 22
O O
November.
P P
Charge 4: theft
Q Q
5. In addition to using the second credit card to make purchases, the
R defendant also used it to withdraw money 3 times between 2:08 pm R
and 2:11 pm. A total of $26,500 was stolen.
S S
T Charge 5: theft T
U U
CRT21/6.3.2015 DCCC77/2015/Reasons for Sentence
V V
- 3 -
A A
B 6. In a different incident that took place on 18 November, 2014, $500 B
was found missing from the cash register of a boutique stall in the
C C
same shopping mall as the property agency that was burgled.
D Closed circuit television footage show the defendant loitering D
around a fashion boutique stall from 4:39 to 4:52 am.
E E
F
Charge 6: going equipped for stealing F
7. At around 11:29pm on 21 November, Police officers who were on
G G
anti-burglary patrol at Kingswood Richly Plaza noticed the
H defendant loitering inside the mall. At 12:16 am, the defendant was H
seen acting furtively near a stall on the 1st floor of the mall.
I I
J 8. The defendant was intercepted 2 minutes later by a Police officer J
and was arrested and cautioned. Upon search, a pair of pliers and a
K K
screwdriver were found on the defendant’s waist and inside his
L shoulder bag respectively. L
M M
9. In subsequent cautioned video recorded interviews, the defendant
N admitted that he used an umbrella to hook out the things on a desk N
inside the property agency in charge 1; that he made the various
O O
withdrawals with the stolen credit cards (charge 2 and 4); that he
P made purchases with one of the credit cards at various shops P
(charge 3); that he found the credit cards’ Personal Identification
Q Q
Numbers written in the notebook inside the stolen wallet; and that
R R
he had stolen the money from the cash register of the boutique stall
S
in charge 5. S
T Previous convictions T
U U
CRT21/6.3.2015 DCCC77/2015/Reasons for Sentence
V V
- 4 -
A A
B 10. The defendant has various previous convictions including 2 for B
theft and one of going equipped for stealing.
C C
Mitigation
D D
11. The defendant is 34 years old. He fathered 2 children with his
E E
girlfriend. The daughter is 10 and the son 6 years old. They are
F being taken care of by the girlfriend who had returned to the F
defendant after having left him due to his drug addiction. They were
G G
living together prior to the defendant’s latest detention in the drug
H addiction treatment centre. H
I I
12. The defendant is educated up to form 5 level. Prior to his arrest and
J detention, he worked as a casual worker at the airport. Before that J
he worked as a cook in a Japanese restaurant until June 2014 when
K K
the restaurant closed down.
L L
13. The defendant has been a drug addict since 2004.
M M
N 14. The defendant is unable to make an offer of restitution. The money N
he had stolen had been spent on his drug addiction.
O O
P 15. I am told the defendant committed the offences because he was P
driven by his drug addiction to make some quick money. Mr. Lee
Q Q
for the defendant pointed out that the offences were not
R R
sophisticated, that the defendant acted on his own, and that the
S
commission of the offences was unsophisticated. S
T T
U U
CRT21/6.3.2015 DCCC77/2015/Reasons for Sentence
V V
- 5 -
A A
B 16. Mr. Lee suggested that I should take into consideration that the B
defendant only used an umbrella to enter the stall and committed
C C
the burglary and adopt a lower starting point.
D D
Sentencing guidelines
E E
17. It is not disputed that the premises that was burgled by the
F defendant in charge 1 is a non-domestic premises. It is trite law that F
the proper starting point for non-domestic burglary for a first
G G
offender with no aggravating or mitigating factor is that of 2 and a
H half years’ imprisonment. H
I Sentence I
J Charge 1: burglary J
18. The maximum sentence for burglary is that of 14 years’
K K
imprisonment.
L L
19. As mentioned above, this is a case involving the burglary of a
M M
non-domestic premises. The burglary took place at 1:10 am, by
N which time the stores in the mall were closed and there was minimal N
risk of confrontation between the defendant and customers. The
O O
defendant did use an umbrella to hook the bag out of the property
P agency, but there was no property damage to either the stall or the P
mall. The defendant acted alone.
Q Q
R
20. Although Mr. Lee did not actually use the words ‘opportunistic R
S
burglary’, given his submission that I should take into account that S
the defendant did not physically enter the property agency to steal
T T
and adopt a lower starting point, I feel that this is in fact the
U U
CRT21/6.3.2015 DCCC77/2015/Reasons for Sentence
V V
- 6 -
A A
B proposition that he was putting forward and that I should deal with B
it accordingly.
C C
D 21. In deciding whether it was an opportunistic burglary, I note first of D
all that this was not a case where the door of the shop was left open.
E E
According to the summary of facts, the defendant saw the bag
F inside the stall first, then he picked up an umbrella nearby, he went F
back to the shop, inserted the umbrella through the gap of the door
G G
and maneuvered the umbrella to “hook the things on a desk inside
H the shop”. H
I I
22. Looking at the photographs of the property agency shop, one can
J see that the gap between the glass doors of the agency is quite J
narrow and it would have required considerable effort from the
K K
defendant to insert the umbrella and then maneuver it to reach the
L nearest desk and hook out the things on the desk. L
M M
23. Based on those facts, I find that it was not an opportunistic burglary.
N The defendant had gone to some length to avail himself of the N
opportunity to steal.
O O
P 24. I see therefore no reason to depart from the sentencing guidelines, P
and I adopt a starting point of 2 and a half years’ imprisonment.
Q Q
Aggravating factors
R R
25. I note that the defendant is a persistent offender but this is his first
S S
burglary offence. I do not find his conviction records as an
T aggravating factor in relation to the charge of burglary. T
U U
CRT21/6.3.2015 DCCC77/2015/Reasons for Sentence
V V
- 7 -
A A
B B
Mitigating factors
C C
26. I find that the only mitigating factor is the defendant’s timely plea.
D D
27. The defendant is therefore sentenced to 20 months’ imprisonment
E E
on charge 1.
F F
Charge 2 and 4: Theft
G G
28. The maximum sentence for theft is that of 10 years’ imprisonment.
H H
I 29. In relation to charge 2, the defendant made 11 attempts over a I
period of about 10 hours to withdraw money with the credit card.
J J
He was successful on 4 occasions and a total of $10,200 was stolen.
K K
30. In relation to charge 4, he made 3 attempts within 3 minutes on the
L L
same day and they were all successful. A total of $26,500 was
M M
stolen.
N N
31. For each of charge 2 and 4, I adopt a starting point of 18 months’
O O
imprisonment.
P P
Aggravating factors
Q Q
32. The defendant has 2 previous convictions for theft. In relation to the
R R
one dated 30 December 2014, it was imposed after his commission
S of the present offences. The other theft conviction was back in 2002 S
when he was fined $800. I find that given the timing of these two
T T
offences, they are not aggravating factors.
U U
CRT21/6.3.2015 DCCC77/2015/Reasons for Sentence
V V
- 8 -
A A
B B
Mitigating factors
C C
33. I find that the only mitigating factor is the defendant’s timely plea
D D
of guilty.
E E
34. The defendant is sentenced to 12 months’ imprisonment on each of
F charge 2 and 4. F
G G
Charge 3: Fraud
H H
35. The maximums sentence for fraud is that of 14 years’
I imprisonment. I
J J
36. Mr. Hui for the prosecution referred to the case of HKSAR v Lam
K See Chung, Stephen, CACC 339/2012. There the appellant pleaded K
guilty to one count of theft and three counts of obtaining property
L L
by deception. The appellant took the credit card of his wife’s
M M
post-natal helper and used it on 3 occasions to purchase 3 smart
N
phones with a total value of $15,240. N
O O
37. The Court of Appeal found that the use of another’s genuine credit
P card should be treated as credit card fraud, and that the sentencing P
principles and considerations that apply to the use of counterfeit
Q Q
credit cards are equally applicable to offences in which genuine
R credit cards are used. For that reason, the Court of Appeal held that R
the three year starting point for simple cases of counterfeit credit
S S
card fraud should also apply to simple cases of credit card fraud
T where stolen genuine credit cards are used to commit the offence. T
U U
CRT21/6.3.2015 DCCC77/2015/Reasons for Sentence
V V
- 9 -
A A
B 38. Mr. Lee referred to the case of HKSAR v Lee Tat Hoi, CACC B
164/2014. There the appellant pleaded guilty to 11 counts of
C C
obtaining property by deception. The facts were that the appellant
D was the boyfriend of the victim. He used her credit card on 11 D
occasions to make purchases at the same pharmacy, buying $71,843
E E
worth of merchandise.
F F
39. The Court of Appeal referred to the above case of Lam See Chung
G G
Stephen and applied the principles stated therein. The Court
H observed that the appellant had used the credit card 11 times as H
opposed to 3 times in Lam See Chung Stephen, that the total amount
I I
involved is about $55,000 more than the earlier case, and opined
J that the starting point of two and a half years’ imprisonment J
adopted by the trial judge was probably too lenient.
K K
L L
40. Turning to our present case. There was only 1 credit card involved
M
in this charge of fraud. Yet the defendant had used the credit card on M
10 occasions and had bought $28,586 worth of merchandise. Only
N N
the gold ornament ($1,300) and a bottle of wine ($1,830) were
O recovered. The defendant did not offer any repayment in restitution. O
P P
41. Having considered the above cases and the circumstances in our
Q present case, I find that an appropriate starting point for the credit Q
card fraud committed by the defendant is that of 3 years’
R R
imprisonment.
S S
T T
U U
CRT21/6.3.2015 DCCC77/2015/Reasons for Sentence
V V
- 10 -
A A
B 42. This is the defendant’s first conviction for fraud. Despite his B
previous convictions, I do not find his persistent offending an
C C
aggravating factor for this particular charge.
D D
43. The only mitigating factor is the defendant’s timely guilty plea. The
E
defendant is sentenced to 2 years’ imprisonment on charge 3. E
F F
Charge 5: Theft
G G
44. This is a theft of $500 from the cash register of the boutique stall.
H According to the defendant’s confession, he committed the offence H
I
at around 4 am. He saw the stall covered by a piece of cloth, I
sneaked in, found the cash register and took the money.
J J
K
45. For this theft charge, I adopt a starting point of 6 months’ K
imprisonment. I find that there are no aggravating factors and the
L L
only mitigating factor is the defendant’s timely guilty plea. The
M defendant is sentenced to 4 months’ imprisonment on charge 5. M
N N
Charge 6: Going equipped for stealing
O O
46. The maximum sentence for this offence on conviction upon
P indictment is that of 3 years’ imprisonment. P
Q 47. The equipment found to be in the defendant’s possession were one Q
screwdriver and a pair of pliers. Neither is big in size. The obvious
R R
intention of the defendant must have been to use them to assist in
S stealing from the shops inside the shopping mall. S
T T
48. For this charge, I adopt a starting point of 6 months’ imprisonment.
U U
CRT21/6.3.2015 DCCC77/2015/Reasons for Sentence
V V
- 11 -
A A
B B
49. This is the defendant’s second conviction for going equipped for
C stealing. The previous similar conviction was however recorded C
after the defendant’s commission of the present offence. I find that
D D
there are no aggravating factors and the only mitigating factor is the
E
defendant’s timely guilty plea. The defendant is sentenced to 4 E
F
months’ imprisonment on charge 6. F
G G
Totality
H 50. The defendant is currently under detention in a drug addiction H
I
treatment centre as a result of his convictions dated 30 December I
2014 for the offences of theft and going equipped for stealing.
J J
K
51. To recap, after granting the defendant the usual one-third discount K
for his guilty plea, he is sentenced to 20, 12, 24, 12, 4 and 4 months’
L L
imprisonment on charges 1 to 6 respectively.
M M
52. Charges 1, 2, 3 and 4 took place on the same day and arose out of
N N
the same initial incident of the burglary of the property agency shop
O where the wallet containing the credit cards was stolen. O
P P
53. Charges 5 and 6 are isolated incidents with no connection to the
Q other offences. Q
R 54. Although the burglary and the stealing of money through the ATM R
and the fraud of using the credit card are linked, one does not
S S
necessarily lead to another. The defendant could just have taken the
T money in the wallet and throw away the credit cards. He did not T
U U
CRT21/6.3.2015 DCCC77/2015/Reasons for Sentence
V V
- 12 -
A A
B have to use the cards to make the withdrawals or to make the B
purchases.
C C
55. Taking a step back and applying the principle of totality, I order 4
D D
months of the sentence in charges 1, 2 and 4 to be served
E E
consecutively to the sentence in charge 3, the balance to be served
F
concurrently, making a total of 36 months’ imprisonment for the F
four charges.
G G
H
56. I order 2 months of the sentence in each of charge 5 and 6 be served H
consecutively to the rest of the sentences, the balance concurrently.
I I
J 57. In other words, the defendant is sentenced to a total 40 months’ J
imprisonment for the 6 offences.
K K
L The defendant’s present DATC order L
M 58. Pursuant to section 6A(1)(b) of the Drug Addiction Treatment M
Centres Ordinance, Cap.244, since the defendant is sentenced to
N N
imprisonment for a term more than 9 months, the previous
O detention order made under the same Ordinance shall cease to have O
effect.
P P
Q Q
R R
(Douglas T.H .Yau)
District Judge
S S
T T
U U
CRT21/6.3.2015 DCCC77/2015/Reasons for Sentence
V V