HKSAR v. Soinem

DCCC 138/2016

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 138 OF 2016

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REASONS FOR SENTENCE

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Introduction

1.Upon her arraignment on 8 April 2016, the defendant, a domestic helper from Indonesia, pleaded guilty to and was duly convicted of a total of nine charges.  The first charge was theft, contrary to section 9 of the Theft Ordinance, Cap 210;  the second to the seventh charges were obtaining property by deception laid against her under section 17(1) of the Theft Ordinance, Cap 210; and the remaining two charges were attempting to obtain property by deception contrary to section 17(1) of the Theft Ordinance, Cap 210 and section 159C of the Crimes Ordinance, Cap 200.

Facts

2.Mr C L Yu is the holder of a DBS Bank Visa Card with a credit limit of $216,000, a card that can be used to settle transactions under $500 without Mr Yu’s signature or confirmation.   The card was at the material time kept by Mr Yu’s aged mother, who has reduced mobility and has to rely on a wheel-chair to move about, unless Mr Yu needed to use the card himself.  On 19 March 2015, Mr Yu employed the defendant to look after his mother.

3.On the morning of 8 November 2015, Mr Yu’s mother was unable to locate the card (Charge 1).  In consequence, Mr Yu informed the credit card centre and terminated the card.  It transpired that the defendant has in the course of that morning and of the early afternoon conducted ten transactions at various shops with the use of Mr Yu’s card, six of which transactions have been successfully processed.  First, she bought three apples, one bottle of shampoo, one bottle of conditioner, and two tubes of toothpaste, valued at $165.2, at TASTE of A.S. Watson Group (HK) Limited, Shop nos.228-228A, Level 2, East Point City, No.8 Chung Wa Road, Tseung Kwan O, New Territories (Charge 2).  Secondly, she went to the Wellcome Supermarket operated by The Dairy Farm Company, Limited, at Ground Floor, Nos.503-505 Jaffe Road, Causeway Bay, and bought one bottle of hair gel, one bottle of cleansing lotion, and one bottle of antiperspirant, worth a total of $106.7 (Charge 3).  Thirdly, she went a couple of shops next door and arrived at a 7-Eleven Convenience Store in the management of the Dairy Farm Company, Limited, at Shop no.7, Ground Floor, Malahon Apartments, No.513 Jaffe Road, Causeway Bay, where she bought three packets of cigarettes at $165 (Charge 4).  Fourthly, at the “H & M” of H & M Hennes & Mauritz Limited on the Ground Floor, Hang Lung Centre, Nos.2-20 Paterson Street, Causeway Bay, she bought one shirt at $149 (Charge 5).  Fifthly, minutes later, she purchased at the same shop a cap and a pair of shoes worth a total of $248.9 (Charge 6).  Then, she proceeded to another 7-Eleven Convenience Store of The Dairy Farm Company, Limited, located at Kiosk No. CAB E11 of the MTR Station, Causeway Bay, and bought two packets of cigarettes and two bottles of drinks at $133 (Charge 7).  Next, she tried using the card twice, without success, to pay for a T-shirt and a pair of shorts worth $310 at bossini of Bossini Enterprises Limited, Shop no.B88, Ground Floor, Nos.28-30 Argyle Street, Mong Kok (Charge 8).  Still not giving up her endeavours, she attempted twice to use the card, neither with any success, to settle payment for some goods worth a total of $360 in dahood of FITTER SPORTS COMPANY LIMITED at Shop E, Ground Floor, No. 100B Fa Yuen Street, Mong Kok (Charge 9).

4.The defendant was arrested on 10 November 2015. Under caution, she admitted having used the card to make various purchases on the day of the offences.  In a subsequent cautioned interview, she repeated her admissions to the arresting officer and added she had, on 7 November 2015, found the card at the entrance of TASTE when she accompanied Mr Yu’s mother there, she had handed the stolen items to an Indonesian friend to be taken to Indonesia, and that she had discarded the card in a rubbish bin in Quarry Bay.

Mitigation

5.The defendant is an Indonesian national born in July 1979.  She has received education to Form Three standard.  She has had a clear record in Hong Kong prior to her current convictions.  Her elderly parents and her three children live in Indonesia.

6.In her plea in mitigation, Miss Gina Chong, solicitor appearing for the defendant, provides the court with further information on the defendant’s background.  The defendant’s husband had passed away in 2006 when the youngest of the defendant’s three children was but three years old.  As to the defendant’s work history, Miss Chong says that she has worked as a domestic helper in Malaysia between 2003 and 2005.  When her husband died, she returned to Indonesia and stayed home for several years.  In 2009, she secured a DH contract to work as a domestic helper in Singapore.  She completed that contract in 2011 and came to work in Hong Kong that year.  The subject offences took place in the course of her second contract in Hong Kong. Miss Chong submits that the defendant has been a regular domestic helper who has completed three such employment contracts in various places.  In 2013, the defendant’s father (who is now 86 years old) came down with a stroke.  All along, it has been the defendant’s practice, says Miss Chong, to send almost all her salaries home to support her family.  With respect to the offences, the defendant maintained that she had picked up the card in TASTE, rather than stealing it from the wallet of Mr Yu’s mother; but she admitted she was not the true holder of the card.  In terms of value of the items the defendant purchased with the use of Mr Yu’s card, Miss Chong emphasizes that it totalled $967.8 only and that the items were household necessaries rather than luxurious articles or electronic appliances with obvious, significant resale value.  Miss Chong asks the court to consider the defendant an unsophisticated and simple-minded person who committed these serious offences – just to give her poor family “a little extra.”    Miss Chong refers to the leading authority for sentencing credit card fraud cases, namely HKSAR v Tu I Lang[1], and asks the court to consider the principle of totality having regard to the facts that the defendant has made and attempted to make the offending purchases on one single day and that all the nine offences relate but to one card.

Consideration

7.The court has significant doubt with respect to the circumstances in which the defendant came to have in her possession her employer’s credit card.  In any event, the court finds in all the circumstances that even if the defendant has just picked up the card at the entrance of TASTE, she must have known that the card was her employer’s.  The court notes that the defence does not seriously argue that this is not a breach-of-trust case.

8.The court has repeatedly said that credit card fraud is a serious offence.  In the recent case of HKSAR v Lam See Chung, Stephen[2], the Court of Appeal reviewed a number of previous authorities, including R v Chan Sui To and anor[3], HKSAR v Ng Swee Thiam and ors[4], HKSAR v Cheung Ka Wo Johnny [5] and HKSAR v Tu I Lang[6],  and said:

‘39. Those judgments which lay down a sentence of 3 years’ imprisonment or less for cases of simple credit card fraud are based on a number of sentencing principles and considerations. They are that counterfeit credit card offences require deterrent sentences; there is a need to protect the integrity of the credit card system; and the potential for loss is great and often will be far greater than the actual loss. In fact, it is precisely because of this last consideration that the actual loss will not necessarily be an important factor when it comes to sentencing a credit card offender; rather “it is this potential for losses which is the most important consideration.” ’ (emphasis supplied)

9.The Court of Appeal held in HKSAR v Lam See Chung, Stephen[7] that it makes little difference in sentence whether a forged or a genuine card has been used in the commission of the crime.

10.Had the defendant, with the use of her employer’s credit card, made purchases of goods of significant value or of substantial resale value, the proper overall starting point must be in excess of three years: there are clearly the aggravating features of breach of trust and multiplicity of offences in this case.

11.That said, the court notes that the defendant has had a clear record before the subject offences; she comes from a poor family; she has completed three DH contracts without incident; and in the commission of the subject offences, while she has stolen her employer’s credit card, she has chosen to buy consumables and household items to the total value of less than $1,000.  A credit card fraud as this case certainly is, there is, in the circumstances of the commission of the crime, however, not any criminal “operation” to speak of: the offences exhibit no sophistication whatsoever, nor is there any evidence tending to show or suggest any syndicated effort having been employed.

12.With respect to the breach-of-trust consideration, the value of the stolen property is never the be-all and end-all in sentencing.  The more important consideration is often the degree of trust concerned.  A domestic helper who lives in her employer’s residence is invariably regarded as a person in whom a tremendous degree of trust has been reposed.  Nevertheless, the court notes that the starting point for theft of up to $250,000 committed in breach of trust should be less than two years’ imprisonment (see HKSAR v Cheung Mee Kiu[8] and HKSAR v Ng Kwok Wing (transl.)[9]).  In the instant case, it seems obvious that the defendant must be aware of the fact that the card could be used, without validation from her employer, to make purchases of small value only: she has used it to make purchases well within $500, never falsifying her employer’s signature to go beyond that limit. 

13.In all the circumstances, an overall, global starting point for the nine offences should be one of 12 months’ imprisonment, which should be enhanced – on consideration of breach of trust and multiplicity of offences – to 15 months.  The defendant is entitled to one-third discount for her guilty pleas and previous good character; the final sentence should be one of ten months’ imprisonment.

14.To achieve that overall sentence, the starting point for each of the nine charges should be nine months’ imprisonment, which is reduced to eight months for the defendant’s guilty plea.  On consideration of the totality principle, it is ordered that the sentences for the second to the ninth charges be served concurrently, and that two months of the sentence in respect of the first charge be served consecutively to the concurrent sentence for the second to the ninth charges, making a final sentence of ten months’ imprisonment.

Conclusion

15.For the offences in the nine charges of which she stands convicted, the defendant is sentenced to ten months’ imprisonment.