HKSAR v. WONG TO KWAN

DCCC 902/2013

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 902 OF 2013

____________

HKSAR
v
WONG TO KWAN

____________

Before: HH Judge Dufton

Date: 6 December 2013

Present: Miss Lily Yip, PP, of the Department of Justice, for HKSAR
Mr Ho Pak Wa of Alan Ho & Co on the 22 November 2013 Mr Terence Cheong of Alan Ho & Co on the 6 December2013,, assigned by the Director of Legal Aid, for the defendant

Offences: (1) & (6) Theft (盜竊罪) (2) Forgery (偽造) (3) Fraud (欺詐罪) (7) Possessing a false instrument (管有虛假文書)

REASONS FOR SENTENCE

1. Wong To Kwan you have pleaded guilty to two charges of theft, contrary to section 9 of the Theft Ordinance, Chapter 210 (charges 1 & 6); one charge of forgery, contrary to section 71 of the Crimes Ordinance, Chapter 200 (charge 2); one charge of fraud, contrary to section 16A of the Theft Ordinance (charge 3); and one charge of possessinga false instrument, contrary to section 75(1) of the Crimes Ordinance (charge 7).

2. In summary you were arrested by the police in the early hours of the 6 May this year. The police found from your right front trouserpocket a Samsung mobile phone, which had been lost by the owner on the 30 April when he fell asleep while playing computer insideCyberfield at Shop No 18 on the Ground Floor of Fuk Sing Building in Yuen Long. Under caution you admitted stealing the phone inCyberfield (charge 6).

3. The police also searched your black knapsack and found the Business Registration Certificate of Ba Tat Construction Eng. Co, whichthe owners had found missing from their home on the 21 May (charge 1). Also found in the knapsack was a forged company chop of BaTat (charges 2 & 7); and a series of false documentation relating to an application for IDD services with New World Telecom,which you had applied for using the forged company chop of Ba Tat (charge 3). Under caution you admitted you found the BusinessRegistration Certificate of Ba Tat on the street and had applied for the IDD services using the certificate and a company chop ofBa Tat which you had forged.

4. In passing sentence I take into account everything said on your behalf by Mr Ho including that you were injured at work in 2011as a result of which you are now disabled and have to rely on social security and disability allowance.

Theft of a mobile phone

5. Whilst this was clearly an opportune theft you took advantage of someone who was asleep. Mobile phones are valuable property andoften contain a lot of personal data. The loss of a mobile phone causes substantial inconvenience to the owner. I am satisfiedthe proper starting point after trial is 9 months imprisonment.

6. You are properly to be regarded as a persistent offender, having multiple convictions for offences of dishonesty. As will be seenlater the offence was committed whilst you were on bail for offences for which you are now serving sentence. In the circumstancesI am satisfied the starting point is to be increased by 3 months to 12 months imprisonment.

7. Giving you full credit for your plea of guilty the sentence is reduced to 8 months imprisonment.

Theft, forgery, fraud and possessing a false instrument

8. These four offences are all related. I proceed on the basis that you found the Business Registration Certificate of Ba Tat on thestreet there being no evidence as to the circumstances that the certificate came to be lost. You clearly knew this was an importantdocument as shown by your subsequent use of the certificate. In the circumstances I am satisfied the proper starting point aftertrial is 3 months imprisonment. Giving you full credit for your plea of guilty the sentence is reduced to 2 months imprisonment.

9. You then proceeded to forge a company chop which you used together with the Business Registration Certificate of Ba Tat to deceiveNew World Telecom in granting you IDD facilities. At the time of arrest you had benefitted in the sum of $4,485, all of which remainsoutstanding.

10. Taking into account the way you committed the fraud with the use of a stolen Business Registration Certificate and a forged chopand the amount obtained as a result of the fraud I am satisfied the proper starting point after trial for the forgery, the fraudand possessing a false instrument is 9 months imprisonment. Again by reason of you being a persistent offender and committing theoffences whilst you were on bail the starting point for each offence is increased by 3 months to 12 months imprisonment. Givingyou full credit for your pleas of guilty the sentence on each charge is reduced to 8 months imprisonment.

Totality

11. I am satisfied these four charges arise out of the same facts and circumstances for which concurrent sentences are appropriate. The theft of the mobile phone is however entirely separate and distinct for which a consecutive sentence is appropriate. This makesa total sentence to be served by you of 16 months imprisonment which I am satisfied properly reflects your criminality on the fivecharges.

12. You are presently serving a sentence of 4 years and 1 month for multiple offences of dishonesty. 4 years was imposed on 10 September2013 in DCCC 522/2013 & 524/2013 and 2 months on the 24 September 2013 by the Tuen Mun Magistracy in TMC 3217/2013 with 1 monthconsecutive and 1 month concurrent to the 4 years.

13. I have read all the case files including the Reasons for Sentence and the psychiatric and background reports called for in the DistrictCourt cases. In summary you committed two offences of theft and seven offences of using a false instrument (DCCC 524/2013) betweenJuly and December 2011; one offence of fraud between July and October 2011(TMC 3217/2013) and two offences of blackmail; two offencesof deception and ten offences of fraud (DCCC522/2013) between October and December 2012. You were arrested on the 21 December 2012. The present offences were committed between January and May this year and are therefore entirely separate and distinct from theoffences in 2011 and 2012. Consecutive sentences are therefore appropriate.

14. In determining whether to order the present sentence to be served consecutively to your existing sentence I must look to your overallculpability and ensure that whilst receiving a meaningful punishment for your offences the total sentence you will serve is not disproportionateto your culpability. I am satisfied that a total sentence, after plea, of 4 years and 9 months imprisonment is proportionate toyour overall culpability (see HKSAR v Lam See Chung, Stephen CACC339/2012).

Sentence

15. You are convicted and sentenced as follows:

CHARGE 1 – 2 MONTHS IMPRISONMENT; CHARGES 2, 3 & 7 – 8 MONTHS IMPRISONMENT SENTENCE ON CHARGES 1, 2, 3 & 7 TO BE SERVEDCONCURRENT.

CHARGE 6 – 8 MONTHS IMPRISONMENT CONSECUTIVE TO CHARGES 1, 2, 3 & 7

TOTAL SENTENCE IS 16 MONTHS IMPRISONMENT OF WHICH 8 MONTHS IS TO BE SERVED CONSECUTIVE TO THE SENTENCE YOU ARE NOW SERVING AND 8 MONTHSCONCURRENT.

(D. J. DUFTON)
District Judge