HKSAR v. Yeung Chui Ping

DCCC 278/2018

[2018] HKDC 1007

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 278 OF 2018

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Reasons for Sentence

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1.The defendant has pleaded guilty to four charges today - two of them are obtaining by deception and two of them are theft - and they relate to the taking by her of two cards and they are used to obtain two iPhones and a Samsung smartphone, and then the use of them at various ATM machines to obtain some $57,000 in cash.

2.The salient facts of the case are that the defendant and the victim in the case were married in the past.  They were married in 1999, they have four children between them, and they divorced in 2008.  The victim retained custody of the children but the defendant would visit them at the victim’s home, and it was because of her access to the victim’s home that she was able to take the two cards in question, the first one being an HSBC credit card and the second one being the replacement card for that HSBC credit card, because after the defendant had stolen the first card the victim reported the card as missing and received a replacement. 

3.The defendant was also able to get hold of what would be the password for the credit card as well and that meant she could use it to buy the smartphones and also to withdraw cash with the two cards.

4.On both cards there are a total of 15 transactions between 2 July 2015 and 22 October 2015, and the value of the cash and electronic goods obtained was totally $73,237.  There was also a financial charge of 2,850 on the second card.

5.The police were able to locate the defendant, of course, because she was recorded on CCTV in respect of some of the transactions.  The defendant was interviewed eventually by police in 2015.  She said she was in financial difficulties.

(Clarification of year of arrest)

6.Arrested in 2016.  She was in financial difficulties and had stolen the credit cards for overdraft and purchases, and she had been living in the unit where the children were at the victim’s suggestion.  She was able to access the unit and also to find the bank letters with the password, and she had last used the cards in October 2015.

7.As far as the defendant’s background is concerned, she is aged 42.  She is in fact educated in the United States.  She has, as we know, four children, presently in the custody of her ex-husband.

8.She also has a criminal record.  The relevant convictions:  although she had a theft conviction in 2010 for which she was given a suspended sentence, she was sentenced to what appears to be a total of 22 months’ imprisonment on 16 March 2017 for a number of offences of fraud and theft, and her antecedent record shows that she had finished serving that sentence on 19 May 2018.  The offences that formed the convictions in 2017 were committed after these offences, these offences being committed between July and October of 2015.

9.Now, the defence submit that there is some delay. However, the real risk is that there would be an excessive sentence for this series of offences that occurred in 2015 and 2016, if they are sentenced together and in ignorance, as it were, of each other, because if all the offences have been dealt with together, they may well have been dealt with, to a certain extent, concurrently and consecutively.

10.As far as the mitigation is concerned, the defendant’s motivation appears to arise out of the fact that her former husband had started a new relationship and was taking his girlfriend overseas, and also she faced financial difficulties.

11.The victim himself has told the police, I think, that if he had realised that his former wife had stolen the credit cards, he would never have reported the case and pursued the matter, so there is a strong what I would describe as domestic element in these offences.  They are not the normal case of a stranger stealing a credit card and using it.  There was at the time a relationship between the parties and which appears to still exist, as both the victim and his children have written to the court, asking that I treat the defendant with leniency. 

12.Also, the victim has repaid the money that was taken, and the daughters apparently wish to be able to see their mother again outside prison, which is where she has been since March of 2017.

13.Now, the normal starting point for a simple offence involving a credit card fraud such as this would be 3 years’ imprisonment for a person of clear record who was convicted after trial.  That starting point does assume, to a certain extent, an arm’s length transaction and, in this case, the parties, or the victim and the defendant, were married and do share children in common, so it may well not be appropriate to invoke the normal starting point for credit card fraud in this case.

14.The second factor I have to consider is the fact that the victim has repaid, but he has done it on behalf of the defendant, so I have to take it as her repayment.  That is a mitigating factor.

15.The third factor - and I think the most important factor in this case - is the separation of the sentencing of the offences in 2017 and now in 2018, and I have to guard against that leading to what would be an overall excessive sentence on this defendant.

16.Taking all those factors into account, I have decided that in this case, because of its unusual and unique circumstances, there can be a deduction or a reduction from the normal starting point for sentence in respect of matters such as this, and I am going to quantify that as a reduction from the normal starting point of 9 months, leading to a starting point on the obtaining offences of 27 months’ imprisonment. 

17.In fact, what I shall do is that, on each of the four offences for which she is charged, I will take a starting point of 27 months’ imprisonment and reduce that to 18 months’ imprisonment because of her plea of guilty.

18.I also take the view this is, in effect, one exercise in criminality and, having regard to the question of overall totality, I am going to order those sentences be served concurrently to each other, leading to an overall sentence of 18 months’ imprisonment.