HKSAR v. Zhang Mingyan

DCCC 458/2018

[2018] HKDC 1352

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 458 OF 2018

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Reasons for Sentence

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1.The Defendant has pleaded guilty to a total of four charges.  The first two counts are “Theft”, contrary to section 9 of the Theft Ordinance, Cap. 210 and the other two charges are “Obtaining Property by Deception” contrary to section 17(1) of the Theft Ordinance.

2.These charges arise from the stealing of a Citibank credit card numbered 4617-2670-0624-5791 (“the Credit Card”), a property belonging to a Ms. Cheung Leong-ting (“CHEUNG”). CHEUNG had used it at about 7:30 p.m. on 22 November 2016 apparently for the purpose of using a photocopying machine in a library of the Education University of Hong Kong (“the University”).  She however had departed without noticing that she had inadvertently left the Credit Card at the photocopying machine.    

3.The CCTV had depicted that the Defendant, who was a student of the University, had taken away the Credit Card from the photocopying machine at 7:52 p.m.  This is Charge 1.  What followed were three unauthorised transactions dishonestly made by the Defendant with the Credit Card between 9:23 p.m. and 10:10 p.m. on the same day.  These are the subjects of Charges 2, 3 and 4.

4.The first unauthorised transaction was a payment for a meal for HK$62 that the Defendant had made with the Credit Card at a restaurant near the University in Tai Po.

5.Later at about 9:40 p.m., the Defendant used the Credit Card again to buy a HK$98 hair dryer at a shop called “Japan Home Centre” which was also in Tai Po.  She also made a subsequent purchase with the Credit Card at about 10:10 p.m. at the same place for a luggage priced at HK$799.  These unauthorised transactions in Japan Home Centre were found captured by the CCTV.

6.The Defendant was not arrested until 27 February 2017, approximately three months later, when she turned up at Tai Po Police Station upon the request of the Police.  

7.Under caution, the Defendant admitted the above offences.  She said she committed the offences out of greed.  The Police managed to retrieve the hair dryer, the luggage but not the Credit Card during a subsequent home search.  

Mitigations

8.The Defendant is 29, and she is a person of a clear criminal record. 

9.The Defendant came from the Mainland China in 2012 and started studying in the University reading a Master Degree in International Chinese Education.  She then embarked on a doctorate thesis on Developmental and Educational Phycology.  During those years, she was being employed by the Graduate School of the University as a student associate.  I have before me a number of mitigation letters.  One of them is written by Prof S.K. Lo, the Dean of Graduate School, who has given very positive comments about the Defendant both as a student and a staff member. 

10.In these letters, the Defendant is described to be exceptionally outstanding in academic performance and that she was well regarded by her seniors and fellows.  It is also revealed that the Defendant had received many prominent awards in the Mainland China; she managed to obtained a number of certificate in English study with flying colours; she took the Insurance Intermediaries Qualifying Exams at the same time when she was studying in HK in order to enhance her chances of getting more jobs and income in HK which would in turn reduce the financial burden of her family.  It is sad to observe, but for this case, the Defendant would be an exemplary student and a fond daughter and needless to say she would have a very bright future in HK or back in her home town had she been able to continue with her study and obtained her PHD Degree.     

11.As to her personal background, the Defendant is the only child of the family which, as I am told, could barely support her study in HK.  From the mitigation letter of the parents, I can see the frustration and stress of them, and, I would add, those of the Defendant.  It seems that the Defendant has had a bitter lesson.  I am impressed that the Defendant is genuinely remorseful and I accept that the offences were committed seemingly totally out of character of this young woman. 

12.In mitigation, Mr. Leung submits that the Defendant is prepared to compensate Citibank who had absorbed the lost regarding Charges 2, 3 and 4.  However, he has been told by the Police that the offer was turned down.  That said, the offences remain serious in nature. 

13.Credit card offences 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."(see para.11)

14.The Court of Appeal set out various sentencing factors in the case of R v Chan Sui To [1996] 2 HKCLR 128, such as the size of the operation, planning, international dimension, the defendant’s role in the transactions, and whether there is a plea of guilty. The Court of Appeal went on to say: -

“Allowing for the different facts and the varying degrees of culpability, it is impossible to formulate a set of principles of sentencing from those decisions. We think however it would be helpful to the courts if they were guided by some criterion. We would therefore suggest that an accused who plays an active but not necessarily a key role in a medium size operation involving between $50,000 and $150,000, with no elaborate planning and equipment, and without an international dimension, should receive a sentence of five to six years after trial. Sentences may be adjusted upwards or downwards according to circumstances.” (see para.30)

15.In HKSAR v Tandon William CHAING CACC 404/2012, the Court of Appeal endorsed a starting point of 3 years' imprisonment adopted in HKSAR v KWAN Po Keung [2012] 2 HKLRD 12 for the unauthorized use of 1 credit card belonging to another person on a single occasion in order to obtain jewellery and watches valued at $56,116 in total. The Court of Appeal went on to say, “Although comparisons with the sentences passed in other cases are often not helpful, we are dealing with three credit cards belonging to other persons on three occasions (albeit on two days) resulting in the obtaining of goods worth HK$96,500”. (see para.8) (emphasis added)

16.In an earlier case, HKSAR v Tu I Lang [2007] HKLRD 403, the Court of Appeal remarked that: -

“Where the facts of the offence point to a small, unsophisticated operation involving only one or a few forged cards uncomplicated by other evidence materially linking the offender to a larger operation, then a starting point of 3 years’ imprisonment or less will be appropriate.” (see para.10) (emphasis added)

17.In the present case, I note the seriousness of the offences involved but I trust one can say the present case is one of the simplest forms of credit card offence.  The size of the operation is fairly small - HK$959.  The transactions made were not for luxurious items.  I was told that the Defendant had no money to afford a hairdryer in the past when she was studying in HK and therefore one of the subject properties in this case she “stole”, so to speak, was a hairdryer. 

18.To bear the risk of stating the obvious, there was no planning; no international dimension; and the Defendant was not involved in a syndicate in any form.  The Defendant also enters a plea of guilty with a genuine remorseful attitude.  I should add that I find the Defendant a person of positive good characters in the past and she continues to live a decent and constructive life after the arrest, for example, she has been trying to continue with her doctorate degree knowing the difficulties and time constraint for her to achieve it because a doctorate degree has to be completed within a certain period of time.

19.Taking all the circumstances in this case into consideration, and guarding against the temptation to compare with cases, I can safely say that the present case falls on the lowest end of the spectrum of criminality.

20.Although the offence in Charge 2 is one of theft, I find as a matter of principle that it is of the same nature and criminality as Charges 3 and 4.  Section 9 and Section 17 of the Theft Ordinance, Cap.210 provide the same maximum penalty of 10 years’ imprisonment for these two offences. 

21.The focus of my consideration is whether I should adopt the usual 3 year starting point in the present case for these charges or I should impose a more lenient sentence including a suspended sentence or a Community Service Order. 

22.Mr. Leung has helpfully referred this court to a number of authorities and cases. 

23.In HKSAR v Wan Ka Ling CACC318/2012, the Applicant faced a count of theft and another of Obtaining Property by Deception.  The Applicant stole by finding two credit cards and made fraudulent purchases valued at $9,687.  The Applicant had 4 previous convictions – two similar – and was released from jail for a sentence of 2 years’ imprisonment shortly before the case he was appealing against. 

24.The Court of Appeal remarked that “there are no guidelines for credit cards frauds as the facts and the offender’s degree of culpability vary to a large extent from case to case”.  The Court of Appeal described the passage quoted in paragraph 14 above from the case of Chan Sui-to as “some criterion as guidance”. (see para.17)

25.The Court of Appeal were also of the view that the amount involved in that case to be “relative small (just under $10,000)” (See para.20).  A 3-year starting point was said to be appropriate for the count of deception.  It was adjusted upward by 3-month for the previous similar record of the Applicant.

26.In HKSAR v Leung Pui Shan CACC317/2007, the Applicant, aged 19, was ordered by the Court of Appeal to observe a Probation Order for 18 months.  The case was that two credit cards were stolen from work colleagues and 5 purchases were effected for designer label products.  These were done, as the sentencing judge accepted, “to regain the affection of (the Applicant’s) boyfriend”.  The case was said to involve a degree of planning and they took place on a number of occasions across a few weeks.  The Applicant was originally sentenced to a Training Centre.

27.The Court of Appeal accepted that the Training Centre order was manifestly excessive in light of the Applicant’s age, guilty plea, restitution, positive good character, demonstrable remorse, and the circumstances in which she came to commit the offence. 

28.The Court of Appeal then expressed in paragraph 14, in my view, in strong terms, the following: -

“But sentencing is an art which must carefully be moulded not only to the category of offence but to the offender. There is a danger of sentencing becoming over-mechanical with too little regard for unusual circumstances that might arise in relation to the commission of particular offences and too little regard to circumstances peculiar to the offender. Experience suggests that mitigation advanced sometimes takes the form of a mantra in our courts; with the courts being told of the age, health circumstances and number of an offender’s family members and of other matters which have little to do whatsoever with what has led the particular offender to the commission of the offence and what circumstances peculiar to the offender go in mitigation of sentence. There are certain offences – and these are well-known – in which personal circumstances and the circumstances leading to an offence will count much less than in others, because those offences demand, as a matter of public protection, deterrence as an overwhelming consideration. That said, the circumstances of this case provide an opportune moment in which to stress the need for individual justice having regard, of course, to the policy considerations that might dictate in a category of case a stern general approach but never forgetting the fact that the courts are on each sentencing occasion dealing with an individual whose peculiar circumstances, if they exist, always deserve careful attention. Consistency in sentencing is important but consistency does not dictate blindness to individual circumstances of a case and to those of an offender. An overly rigid pre-occupation with uniformity can be inimical to individual justice”.

29.I hasten to add that what distinguishes the Applicant in that case and the Defendant in the present case are essentially the age and that the Applicant committed the offence out of certain emotional confusion with a misguided hope of re-attracting her former boyfriend.  On the other hand, the lack of planning and the scale of offence in the present case would go in the Defendant’s favour.  Furthermore, based on what I can see from the Court of Appeal’s judgment about the Applicant in that case, it seems to me the personal achievements and background of the Defendant in the present deserve equal, if not more, attention and positive considerations. 

30.One might get concerned about the effect of the 5-month period the Applicant had already served in the Training Centre, but the Court of Appeal expressed glaringly that “the appropriate order, both of the time of sentence, and now, is a probation order”.  Therefore, one can safely assume that the period of remand in that case did not contribute to the change of sentence.     

31.Mr. Leung also refers me to a number of Magistracy Appeals and District Court cases in which the jail terms imposed on the offenders were substituted by a non-immediate custodial sentence.  There are salient features in those cases that the courts considered appropriate not to impose an immediate custodial sentence, such as voluntary surrender, full restitution, significant past community services. 

32.In HKSAR v Choi Chung Ching HCMA577/2012, the former Hon. Woo V-P (then sitting as a Deputy High Court Judge) distinguished the gravity of an offence between a case where the credit card was stolen and that of being found left behind by a victim and picked up afterwards by an offender.  The latter was viewed to carry a lesser criminality (see para.34).  The impact of the fact that the Appellant in that had already served 33 days in jail was also taken into account being capable of serving as a deterrence to the Applicant who had a clear criminal record.  I note that that case involved a left behind credit card at the ATM machine and it was later used by the Appellant for the purchase of four mobile phones on two occasions the total value of which was $25,952.  In terms of the circumstances pertaining to the offences, I am of the view that that case is more serious than the one I am now dealing with. 

33.On a side note, one can see that the approach of the prosecution towards these offences, arising from facts which would put the offender towards the lower end of the spectrum of criminality, varies quite significantly.  The Appellant in Choi Chung Ching had referred to quite a number of Magistracy Appeals to advance the point that there are plenty of cases where the offenders, in the lower end of credit card fraud cases, were sentenced to a Community Service Order or a suspended sentence.  To say the least, Choi Chung Ching and the case of HKSAR v Chan Nung Yin HCMA524/2014 now submitted by Mr. Leung are also cases with the offenders being brought to the Magistracy in the first instance.  It seems clear to me that those cases referred to in Choi Chung Ching (a total of 7 Magistracy Appeals) involved a more serious scenario than that in the present case insofar as the scale and gravity of the offences are concerned.     

34.For the purpose of sentencing in the present case, what is clear is that the courts have been careful in dealing with individual cases because on the one hand the circumstances pertaining to the commission of offence may be similar, those about the accused on the other hand could vary quite substantially.  Sentencing is an art as we have noted and experienced time and again.  That said, it is important to identify the salient features of the mitigation and to decide carefully what appropriate sentence that justice demands for the Defendant.

35.As I have said in the above, I accept that the Defendant has a positive good character - that is more than a lack of previous criminal conviction.

36.I have called for a Community Service Order Suitability Report with the usual warning that an immediate custodial sentence is normally called for in this type of cases and a favourable report would not stand as any assurance of lenience.  The CSO Report before me is however very favourable.  It is clear in the CSO Report that the Defendant has impressed the officer.  The report discloses some tragic experiences of the Defendant when she was doing part time job in HK.  She has suffered from a Post Trumatic Stress Disorder and this has certain long term impact upon the Defendant.  On the other hand, the performance of her has gained recognition and her university tutor, Madam H Y Wong is willing to give full support for her to continue with her doctorate study.  She also receives strong support from her character witness Pastor Siu in Tin Yiu Church.  I am told that the University has granted her the permission to complete her doctorate degree study should I pass a non-custodial sentence on the Defendant.     

37.There are other mitigations.  In summary, the value involved is not significant.  There are no aggravating features in this case.  The Defendant has been an outstanding student with lots of achievements for her and her family to be proud of.  I trust that the present case was an isolated matter and was totally out of character.  Importantly, I am sure that the Defendant has learnt a bitter lesson.  The current remand must have deterred her from any form of recidivism.  As it is observed, a custodial sentence is not imposed without exception in this sort of cases.  I have considered the case of HKSAR v Chow Chak Man [1999] 2 HKC 659 and come to the conclusion that the Defendant is a suitable candidate to perform community service.

38.For these reasons, I am of the view that an immediate custodial sentence is not the only appropriate sentence.  A CSO Order is a suitable alternative. 

39.In light of all the mitigations helpfully put forward on behalf of the Defendant, I am prepared to give a chance to this Defendant.  I shall impose a community service order for each of the charges for a period of 240 hours to be served concurrently.  The Defendant is sentenced accordingly.