HKSAR v. Dominguez Daniella

DCCC 577/2016

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 577 OF 2016

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Reasons for Sentence

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Charges

1.The Defendant pleads guilty to 6 charges (1^st – 6^th Charges) of procuring the making of an entry in a record of a bank by deception and 2 charges (7^th and 8^th Charges) of an attempt to commit the same offence.

Facts

2.On 29 September 2015, the Defendant opened a bank account with Hang Seng Bank in Hong Kong.  On 28 October 2015, she deposited an equivalent of over $2,200,000 in total into the account. Upon her application on 29 October 2015, she was issued a credit card (“the Credit Card”) by Hang Seng Bank.  The credit limit was $200,000.  On 10 December 2015, she withdrew all savings in the account.  

3.Between 9 October 2015 and 19 January 2016, she opened accounts in turn with Dah Sing Bank, HSBC, Citibank, and Bank of China respectively.  Each included a cheque account. 

4.Between 20 January and 14 February 2016, she had used the Credit Card to make purchases for goods and services from various sellers in Hong Kong and Macau, the most substantial ones were for jewelry and wine. 

5.Between 22 January and 19 February 2016, she provided Hang Seng Bank with 8 of her cheques of either Dah Sing Bank, HSBC, Citibank, or Bank of China, as the case may be, drawn in purported payment of the Credit Card outstanding balance.  The cheques were drawn for a low of near $200,000 to a high of near $2,500,000.  Hang Seng Bank did not process the last 2, each for $2,500,000, as her Credit Card was already suspended at that juncture.  That explained why the 7^th and the 8^th Charges are on attempt.  All 6 cheques processed by Hang Seng Bank were bounced for insufficient funds in her cheque accounts.  They relate to 1^st – 6^th Charges.  

6.The Credit Card account ended up with an outstanding balance of over $2,400,000. 

Mitigation

7.The Defendant is 21 years of age, of a clear record in Hong Kong.  She is a Canadian.  She came to Hong Kong in July 2015 on a working visa for one year as the gap year before university.  A university in Montreal has admitted her for the coming academic year but now she has to face the legal proceedings and consequences before anything. 

8.There are 2 mitigating letters from a former colleague when she worked part-time and a family friend respectively. They speak to her good character and suggest that it was out of her character to commit the present offences. 

9.When she came to Hong Kong, she worked as a waitress and resided in an apartment with her elder sister, who had a cohabiting boyfriend.  He hatched the scheme and reassured her everything would be alright.  She did not reject him.  She had derived no reward for her part. When she was arrested at the airport, the duo were flying to another destination.  He soon left her sister.  

10.Her father is a construction site worker and her mother is an assistant in a bar.  They are not well-off.  In an uphill effort to compensate Hang Seng Bank, they have mortgaged their house and put up savings to make out near $386,767.76.  The money now sits in Mr. Midgley’s firm’s trust account awaiting a court order directing restitution.   

11.Mr. Midgley asks me to suspend the sentence on the cumulative grounds that apart from partial restitution, as a rather naive or stupid girl, then aged 20, without much experience of the darker side of life, and without the benefit of parental advice around, she had been ill-used by her sister’s boyfriend.  The police were unable to get hold of him, let alone investigate him.  Mr. Midgley has a written account given by her sister outlining his culpable role.  It has no evidential value though, as Mr. Midgley concedes. 

12.Mr. Midgley regards this as an unusual case.  There are no precedents submitted for my reference. 

Sentencing this Defendant

13.The Defendant’s conduct was clearly reprehensible for her own role in the offences and ought to be punished.  There is no way to belittle the loss to the bank.  However, the bank’s conduct does not seem to invite too much sympathy.  It had to take gross inefficiency, edging on connivance of its credit control, to allow a credit card with a limit of only $200,000 to run up to an outstanding balance of over $2,400,000.  

14.Here was a simple scheme exploiting the dilatoriness of the bank’s credit control by using bad cheques, which were ephemeral and bound to be detected soon.  There is no aggravating feature in this case.  

15.All 8 offences are committed in the same manner and proximate in time.  They can be regarded as part and parcel of the same transaction.  Concurrent sentences are apposite.  I take 27 months as the starting point for each charge.  There is a one-third discount for her pleas of guilty. There is 2 months off for the partial restitution.  For the absence of gain on her part, I reduce the sentence by a further month.  The sentence is 15 months concurrent for each charge. 

16.There is nothing exceptional in the circumstances obtained in her or the case to warrant a suspended sentence.     

17.I make a compensation order to Hang Seng Bank in the sum of $386,767.76.