HKSAR v. Liu Wing Man
Read the full judgment text of DCCC 145/2017 on BabelCite. This District Court judgment was delivered on 1 August 2017.
1. The defendant pleaded guilty to 5 charges of "Theft" (Charges 1, 5, 10, 12 and 14) and 12 charges of "Obtaining property by deception" (Charges 2, 6 to 9, 11, 13, 15 to 17, 20 and 21). The prosecution applied to leave Charges 3, 4, 18, 19 and 22 to 25 in the court file; not to be proceeded against the defendant without leave of court. I granted the application.
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DCCC 145/2017 IN THE DISTRICT COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION CRIMINAL CASE NO. 145 OF 2017 ____________
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REASONS FOR SENTENCE 1.The defendant pleaded guilty to 5 charges of "Theft" (Charges 1, 5, 10, 12 and 14) and 12 charges of "Obtaining property by deception" (Charges 2, 6 to 9, 11, 13, 15 to 17, 20 and 21). The prosecution applied to leave Charges 3, 4, 18, 19 and 22 to 25 in the court file; not to be proceeded against the defendant without leave of court. I granted the application. 2.The defendant stole credit cards from her friend, colleagues and customers; and then used the stolen credit cards to purchase consumer goods at retail shops with an aggregate value of almost $60,000. Summary of Facts Stealing and Using a Friend's Credit Card 3.In August 2016, Mr. LEE (PW1) and the defendant became friends. On 9 August 2016, the bank informed PW1 that his Hang Seng Bank MasterCard had been used. (Charge 1) 4.At 11:54 a.m. on 9 August 2016, someone used PW1's credit card to purchase a necklace at the price of $6,950 from the jewellery shop particularized in Charge 2. Receipts which bear the defendant's fingerprints were seized. Stealing and Using Credit Cards of Customers and a Colleague 5.On 15 October 2016, the defendant began to work as a beautician at a beauty shop situated at KOLOUR Tsuen Wan I, No.68 Chung On Street, Tsuen Wan ("The Beauty"). 6.The defendant served Madam CHAN (PW2) from 1:00 p.m. to 2:00 p.m. on 15 October 2016. Before her treatment began, PW2 placed her handbag on a desk in the treatment room. During her treatment, PW2 heard the beautician touching her handbag. (Charge 5) 7.On 22 October 2016, PW2 found her Hang Seng Bank Platinum VISA Card missing. Bank records showed that on 15, 16, 17 and 20 October 2016, someone used PW2's credit card to purchase a bracelet, 2 necklaces and a pair of shoes respectively from the 4 shops particularized in Charges 6 to 9. The total value of the goods was almost $20,000. CCTV footage of the shops in Charges 6, 7 and 9 captured the defendant's presence. 8.In her video-recorded interview, the defendant admitted stealing PW2's credit card when she was sleeping. Having done so, she used PW2's credit card to purchase the goods particularized in Charges 6 to 9. 9.On 19 October 2016, Madam KWOK (PW3), a colleague of the defendant at The Beauty, last saw her Hang Seng Bank VISA Card in her handbag. A few days later, PW3 found her credit card missing and the bank informed her that her credit card had been used. (Charge 10) 10.Bank record showed that on 20 October 2016, someone used PW3's credit card to purchase 3 jackets from the shop particularized in Charge 11. The total value of the jackets was almost $1,600. CCTV footage of the shop in Charge 11 captured the defendant's presence. Two of the jackets were found in the defendant's home later on. 11.Under caution, the defendant admitted that on 19 October 2016, she found PW3's locker having been left unlocked. She therefore took the opportunity to steal PW3's credit card. She used PW3's credit card to purchase 3 jackets on the following day. 12.The defendant served Madam WONG (PW4) from 12:30 p.m. to 2:00 p.m. on 23 October 2016. Before treatment began, PW4 stored her bag in a locker outside the treatment room. She was certain that her Bank of East Asia VISA Card was still in her wallet, which was placed inside her bag. The defendant assisted in locking the locker and then handed the key to PW4, who did not check if the locker was actually locked. The defendant then brought PW4 to the room and began treatment. (Charge 12) 13.Later on the same day, the bank informed PW4 that her credit card had been used. Bank record showed that on 23 October 2016, someone used PW4's credit card to purchase a necklace from the shop particularized in Charge 13. The value of the necklace was $5,700. CCTV footage of the shop in Charge 13 captured the defendant's presence. 14.Under caution, the defendant admitted taking the chance to steal PW4's credit card. She used PW4's credit card to purchase the necklace and sold it afterwards. 15.The defendant served Madam ZHU (PW5) from 11:00 a.m. to 12:30 p.m. on 25 October 2016. About 4:00 p.m. on the same day, PW5 found her Standard Chartered Platinum MasterCard missing and requested the bank to deactivate the card. (Charge 14) 16.In the evening on 29 October 2016, the Police informed PW5 that her credit card was misused by someone. Bank records showed that once on 26 and twice on 29 October 2016, someone used PW5's credit card to purchase a necklace, a box of biscuits and a necklace respectively from the 3 shops particularized in Charges 15 to 17. The total value of the goods was about $15,000. CCTV footage of the shops in Charges 15 to 17 captured the defendant's presence. The necklace in Charge 17 was found in the defendant's possession later on. 17.Under caution, the defendant claimed that she had accrued gambling debts in a total sum of $100,000 at casinos in Macau. She took the chance to steal PW5's credit card. She used PW4's credit card to purchase the goods particularized in Charges 15 to 17. PW5's credit card was found on the defendant when she was arrested. Stealing and Using a Colleague's Credit Card 18.On 5 October 2016, the defendant began to work as a beautician at a beauty shop situated at Park-In Commercial Centre, No.56 Dundas Street, Mongkok ("Amour"). 19.In the morning on 13 October 2016, Madam CHAN (PW6), a colleague of the defendant at Amour, found her Hang Seng Bank MasterCard missing. 20.Bank records showed that on 11 and 12 October 2016, someone used PW6's credit card to purchase a piece of jewellery and a necklace respectively from the same shop particularized in Charges 20 and 21. The total value of the goods was about $10,000. CCTV footage of the shop in Charges 20 and 21 captured the defendant's presence. 21.Under caution, the defendant admitted having stolen PW6's credit card and used it to purchase goods out of greed. Arrest 22.The defendant was arrested on 29 October 2016. Upon search, the Police found in the left front pocket of her shirt, PW5's credit card and the credit card receipt in relation to Charge 17; in her plastic bag, the necklace and shop receipt in relation to Charge 17; and in the right front pocket of her shirt, the shop and credit card receipts in relation to Charge 16. Mitigation & Sentence 23.The defendant is now 30, married with a 3-year-old son. She has 1 conviction of "Theft" (dated 2012), for which she was given a Community Service Order. Defence solicitor Mr. LI informed me that prior to her arrest, the defendant worked as a beautician earning about $20,000 per month. 24.In mitigation, Mr. LI submitted that on 21 September 2016, the defendant went to gamble in Macau and lost. She borrowed $100,000 from loan sharks and signed an IOU. She was escorted back to Hong Kong and then taken to a karaoke lounge in Tsim Sha Tsui. The loan sharks obtained details of her family members and took her nude photos. With the help of her mother, the defendant repaid the loan sharks a total sum of $130,000 (including interest) and retrieved the IOU. 25.In early October 2016, the defendant received a phone call from one of the loan sharks asking her for an additional sum of $488,000 in exchange for her nude photos; or otherwise those photos would be released on the internet. Red paint was splashed on the doors of the homes of the defendant, her mother-in-law and her mother the following days. In mid-October, the defendant and her mother each received an envelope containing apparently nude photos of the defendant. The defendant reported the matter at Tuen Mun Police Station but was told that there was nothing the Police could do. 26.Mr. LI submitted that out of fear and feeling helpless, the defendant committed the present offences. She sold the goods purchased with the stolen credit cards in order to obtain cash to pay off the loan sharks. Letters written by the defendant and her husband were placed before me; their contents are duly noted. 27.What the defendant had experienced is no doubt sad and traumatic. It seems to me that the root of her problems is gambling. Borrowing from loan sharks is certainly unwise and risky. She cannot blame anyone but herself for putting her and her family members in such a vulnerable position. The predicament she is facing today could have been avoided but for her gambling debts and borrowing from loan sharks. Theft Charges 28.I treat them as opportunistic theft offences aggravated by an element of breach of trust. The defendant's purpose of stealing the credit cards was clear - to use them. I adopt a starting point of 15 months' imprisonment for each charge. With the guilty plea, the sentence is reduced to 10 months. For Charges 1, 5, 10, 12 and 14, I sentence the defendant to 10 months' imprisonment each. Deception Charges 29.Credit card offences are serious and must be deterred. In HKSAR v CHEN Wing Hong CACC 40/2005, the Court of Appeal observed that "… in this day and age the integrity of the credit card system is highly important and those who attempt to beat the system by fraudulent methods necessarily erode the confidence which people are entitled to place on this aspect of modern commercial life."[1] 30.In HKSAR v Tandon William CHAING CACC 404/2012, Macrae J (as he then was) endorsed a starting point of 3 years' imprisonment for the unauthorized use of 1 credit card belonging to another person on a single occasion in order to obtain jewellery and watches which valued $56,116 in total[2]. 31.I have borne in mind the value and nature of the products purchased by the defendant. I also note that the credit cards used by the defendant were not false instruments (albeit stolen). I consider 2.5 years' imprisonment to be the appropriate starting point for each charge. With the guilty plea, the sentence is reduced to 20 months. For Charges 2, 6, 7, 8, 9, 11, 13, 15, 16, 17, 20 and 21, I sentence the defendant to 20 months' imprisonment each. Overall Sentence 32.Bearing in mind the totality principle, I consider a global starting point of 3.5 years to be appropriate for all 17 charges. With the guilty pleas, the overall sentence is reduced to 28 months. I order the sentences to run in the following manner :-
Thus, arriving at a total prison term of 28 months.
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