DCCC 365/2015





Leung On-yee Ivan also known as
Leung Man-ching


Before: HH Judge Woodcock

Date: 3 August 2015 at 12.51 pm

Present: Mr Edward Laskey, Counsel on fiat, for HKSAR
Mr Tam Kwong-tak Carmel, instructed by Cheung & Yip, assigned by the Director of Legal Aid, for the defendant

Offence: (1) & (6) Theft (盜竊罪)
(2)-(5) Obtaining property by deception (以欺騙手段取得財產)

Reasons for Sentence

1. The defendant has been charged with six offences:

(1) Charges 1 and 6 are theft offences, contrary to Section 9 of the Theft Ordinance, Cap 210;

(2) Charges 2, 3, 4 and 5 are obtaining property by deception, offences contrary to Section 17(1) of the Theft Ordinance.

2. The defendant has pleaded guilty to all six charges.

3. The facts are as follows.

4. PW1, who was the victim of the first charge, on 16 January 2015 locked his bag with his personal belongings in it in a public lockerat the Happy Valley sports field with his own padlock. He came back later to find the padlock had been cut off and the bag stolen. Within two to three hours of him having locked his bag in the locker, the defendant had used one of his credit cards four timesin four different stores.

5. The purchases included a mobile phone, telephone products, garments and a pair of shoes. These are the subject matters of Charges2 to 5. The total amount of loss is $13,793.

6. Defendant told the police that the other personal items in PW1’s bag had been thrown away. PW1 had in his bag cash of $1,000,Octopus cards, his identity card and four other bank cards.

7. Charge 6 took place one week later on 23 January 2015, where the defendant admits stealing another bag from the same lockers at theHappy Valley sports field.

8. The victim of Charge 6 had locked his bag in a locker again with his own padlock. He came back to find it gone. He lost clothes,shoes, his identity card, his Home Visit Permit, six bank cards, two Octopus cards and $150 cash.

9. The defendant has no money to be able to make any restitution.

10. I have been told he committed these offences due to financial difficulty.

11. His best mitigation is his plea of guilty.

12. The defendant is not a man of clear record. He can be described as a recidivist, persistent offender. He has 13 previous convictionsfor theft. I have been told that those previous convictions of theft were committed like Charges 1 and 6 here in similar places: parks, playing fields and sports grounds.

13. These places are targeted because members of the public are busy playing sports. I know from my time in the Magistracy that theseoffences in these places are prevalent. Happy Valley, in particular, is a target location and the police often deploy plainclothesofficer to observe these areas. The offence is so prevalent that the police even walk around and warn members of the public to notleave their belongings unattended.

14. These types of thefts cause not only financial loss to victims but huge inconvenience. Bank cards and Hong Kong identity cards haveto be replaced, as do car keys and door keys; this causes a huge nuisance.

15. The defendant here on several times has lost his liberty.

16. Today he writes a letter expressing his remorse and shame for disappointing his family. I hope there is some truth in what he writes.

17. The defendant is 30 years old and says he is not a drug addict. He is single, educated to Form 4. I can see from his mitigationletter, he writes well. Despite looking fit and healthy, he is a CSSA recipient and supplements this with casual work.

18. The defendant’s explanation for committing offences of this nature gets little sympathy from me.

19. I have heard mitigation put forward on his behalf. Mr Tam has said all he can.

20. I accept his submission that this is a simple credit card fraud case. I accept that only one card was used, there was no syndicate- the defendant acted alone – and there was no international element. I accept the amount of loss suffered is not significant andthere is no evidence of any sophisticated operation here.

21. Even then, the authorities from the Court of Appeal are of the view that a 3-year starting point is appropriate. That is when thecredit card fraud is simple and not sophisticated.

22. Mr Tam has referred me to the authority HKSAR v Lam See Chung Stephen, CACC 339/2012, specifically paragraph 14.

23. For thefts with facts like this, there are no guidelines, except for the starting point I have just referred to.

24. There must be a deterrent element to any sentence for offences of this nature.

25. Defendant, please stand up.

26. I have taken into account mitigation put forward, the defendant’s background, plea and the facts of the case.

27. I have also taken into account that Charges 1 to 5 all took place on the same day within hours. I will take into account the totalityprinciple.

28. For the two theft charges, I intend to take a starting point of 2 years’ imprisonment (that is Charge 1 and Charge 6).

29. For Charges 2, 3, 4 and 5, I will take a starting point of 3 years’ imprisonment.

30. Defendant, you are entitled to a discount of one-third for your plea.

31. Therefore:

(1) for Charge 1, you are sentenced to 1 year and 4 months;

(2) for Charges 2, 3, 4 and 5, you are sentenced to 2 years’ imprisonment;

(3) for Charge 6, you are sentenced to 1 year 4 months’ imprisonment.

32. After careful consideration, I order that 4 months of Charge 1 be made consecutive to Charge 2. Charge 2 to 5 would be all servedconcurrently.

33. I also order that 6 months of Charge 6 be served consecutively to Charge 2. The balance of Charges 1 and 6 will be served concurrentlyto other sentences.

34. Therefore, a total sentence of 2 years and 10 months is ordered.

COURT: Do you understand that sentence?

DEFENDANT: Understand.

A. J. Woodcock
District Judge