HKSAR v. Wong Hiu Yee

DCCC 1000/2018

[2019] HKDC 747

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 1000 OF 2018

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Reasons for Sentence

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Charges and facts

1.The Defendant pleads guilty to 6 charges of theft. 

2.On 3 occasions between 20 July 2016 and 24 July 2016 in the capacity of a KFC meal deliverer, she stole the credit card details of 3 individual customers each paying by credit card.  She then used such information to make purchases for herself.  The first victim’s credit card details were used in 4 online transactions (Charges 1 – 4).  The second victim’s credit card details were used in 1 online transaction (Charge 5).  The third victim’s credit card details were used in 1 online transaction (Charge 6).  The purchases were made from 2 online sites, $6,513 in total.  They comprised clothing and health drinks. 

3.Soon after the victims discovered the unauthorized use of their credit card details, on 28 July 2016, the Defendant was arrested.  In the subsequent police enquiries up to August 2016, she made full admissions to the offences.   

Mitigation

4.The Defendant is 24 years of age. She is married and lives with her grandparents.  She looks after and financial supports them.  She was upset and ill-affected by her parents’ ongoing marital discord, which resulted in their divorce in 2014.   

5.She committed 2 counts of theft involving breach of trust and was sentenced to the Rehabilitation Centre in December 2012 where she spent the next 7 months.  During the 3-year supervision period, she committed 2 sexual offences and was put on 24 months’ probation. Four months into the probation period, she was in breach of the probation and sentenced to 3 months’ imprisonment, to be suspended for 3 years.  Within 19 months of the suspended period, she committed the present offences.  It was near or just after the expiry of the 3 years’ supervision from the Rehabilitation Centre that she committed the present offences.  The present offences all involve a breach of trust reposed by the customers.   

6.I am told in mitigation that despite her full admissions to the police in August 2016, she was not formally charged until October 2018.  Between July 2017 and the present date, a duration of 1 year and 9 months, she had settled herself in a logistics company as a full-time warehouse worker.  Her job was to manually handle goods.  There is a letter of commendation by her employer that speaks to her good and responsible attitude and performance.  She had reportedly honestly told her employer her involvement in the previous theft case and the present one.  Her counsel Mr. Tsui submits that sending her to prison will mean a disruption of her stable job.  She is able and prepared to make full compensation to the victims forthwith.  Today the compensation is made as ordered by court.  He asks me to consider a suspended sentence.     

Sentencing considerations

7.Mr. Tsui refers to the case of HKSAR v Lam See Chung Stephen [2013] 5 HKLRD 242 for the proposition that simple credit card frauds warrant a sentence of 3 years or below.  I agree. 

8.There is no dispute that where a breach of trust is involved, the sentence will be more severe. 

9.As illustrated by the case of S.J. v Hui Siu Man [1999] 2 HKLRD 236 a 50% discount was given upon a plea of guilty and full compensation to the victim.   

10.HKSAR v Tsui Wai Kin (transliteration) DCCC 654/2107, a judgment in Chinese, is an example of the court suspending the sentence where the prosecution was in delay for 2 years despite the defendant’s full admissions made at the earliest stages of police enquiries.

Sentencing the Defendant

11.The Defendant had committed theft involving breach of trust a few years before.  No doubt she had a clear idea of penal consequences.  However, she reoffended to clothes and health drinks.  The previous lesson had not quite registered in her mind.  I have also considered the possible impact of imprisonment on the Defendant’s job.  It is not a skilled job or one that is designed to attain any particular qualifications so that a disruption of it will mean a substantial loss of opportunities or advantages.   

12.I take an initial starting point of 30 months for each charge.  As each involves a breach of trust reposed by the customer, the actual starting point is to be increased to 36 months.  After a one-third discount for the plea of guilty, the sentence is 2 years.  I deduct 3 months due to the delay in prosecution.  There is an extra month off for full compensation to the victims.  The sentence is 1 year 8 months. 

13.I see no justification to suspend the sentence.  The sentences shall be wholly concurrent．

14.I make no order relating to the suspended sentence for the 2 sexual offences.