HKSAR v. Hung Ha-nui Angel

DCCC 53/2019

[2019] HKDC 1377

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 53 OF 2019

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Reasons for Sentence

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1.As far as the rest of the sentence is concerned, the defendant has pleaded guilty to a single charge of obtaining property by deception, which involved the use of a Hang Seng credit card to purchase a gold wrist chain.

2.The deception arises from the fact that it was not the defendant’s credit card, and the credit card had been taken from the wallet of the victim, who was a colleague working alongside the defendant at a massage parlour, and the defendant had taken the credit card and used it while the victim was working. 

3.There are in fact two transactions registered, but it was the purchase of a single item, which was the gold wrist chain, total loss of the victim being $11,028.  The defendant had thereafter pawned the gold wrist chain at a pawn shop for $8,500. 

4.She admitted all this in her record of interview and has pleaded guilty and has indicated that she will pay for restitution to the victim. 

5.The defendant is a lady aged 43.  She has no criminal record.  As far as her family is concerned, she is married but is undergoing divorce proceedings and has a 21-year-old daughter who lives with the defendant.  She is in good health and is not a drug addict, so I am told.

6.The offence is a one-off use of another person’s credit card.

7.In those circumstances, I consider that it was a possibility that a non-custodial sentence or a community service order might be appropriate in the light of the defendant’s clear record and otherwise respectable life.  To that end, I obtained a report.

8.The report is favourable to the defendant and contains some indication of the pressures that the defendant was under when she resorted to this unlawful form of raising money.  The defendant spoke to the community service officer and she said she attributes her law transgression, as it is called, to her greediness, poor coping, and desperate need for money to pay the rent and electricity bills.  It says this: 

“During the relevant period when the offence took place, her daughter ceased financial support for the family as she had to quit her job to prepare for surgery. Her mother was also found suffering from cancer around the same time. Scared by the debt collectors, which apparently resulted from her husband’s debts, together with her mother and daughter they moved back to their old unit. Yet they received notice from the Housing Department they would be evicted. They could not settle the two-month overdue rent as her husband was unwilling to pay for it. Being a person with a bankruptcy order herself, she believed no one would loan her money, including her siblings, who were angry with her. Facing these financial problems, she made the wrong decision to commit the present offence instead of seeking professional help from the welfare sector. She spent all the money she received from the offence on rent, electricity bills and family maintenance. She said she had learnt a grave lesson.”

9.This would appear to be a person who is at a desperate level of society, stricken with poverty, debt, and resorted to this unlawful form of raising money.

10.Now, I turn to the normal and approved method of sentencing in cases involving credit cards.  I have been referred to the case of Chan Sui To, which sets out the conditions the court should look at.

11.There also is another case called “Tu I Lang”, which deals with what one might describe as smaller credit card fraud, where it says in a smaller credit card fraud involving a lower amount of money and fewer cards, the court can take a starting point for sentence at 3 years or less.

12.Now, the expression “or less” has also been looked at more recently by the Court of Appeal in determining, in the small type of credit card cases similar to this case, the court can take a starting point of 2 years’ imprisonment, and the court says one must not lose sight of the underlying criminality involved here, just simply because a credit card has been used.

13.Now, analysing this case, this would appear to be perhaps the least serious of credit card offence possible.  The credit card is not stolen.  It is not a fake card.  It is simply borrowed and then used. The amount of money obtained is $11,000-odd, which is a substantial sum. Nevertheless, were a credit card not to be used, a person of clear record may not expect an immediate custodial sentence for an offence of this nature.

14.In my view, the starting point for sentence for a case such as this can range below 2 years’ imprisonment.  In fact, I would consider an appropriate starting point in a case such as this to be in the region of 18 months.

15.After deduction for a plea of guilty is taken into account and furthermore any remission the defendant may be entitled to, she would be looking at an actual prison sentence in single figures.

16.In the light of that, I believe a court is obliged to consider if some other form of sentencing can be appropriate, where such short sentence is likely to be enacted, given that this is a person with a clear record, who has never been to prison, who has never committed any criminal offences before this incident.

17.I consider that in these exceptional circumstances - it seems to me an exceptional case and an exceptional defendant - that the court can look to another form of punishment within the community, where the money can be repaid and the defendant can learn to live a law-abiding life.

18.My conclusion is the same as the officer who interviewed the defendant.  He says she has a remorseful attitude, positive family support, and a concrete plan to cope with her marital problem (she is getting divorced).  She should stand a good chance to reform in the open.  She would benefit from professional assistance for enhancing her coping skills to instil a concept of law and order, and restitute for her law-abiding behaviour.  He considers a community service order of a high duration is recommended.

19.Thus, this order achieves a number of objectives.  It is unlikely the defendant would re-offend, but it does help to instil in her a proper concept of law and order.  It allows the community to receive restitution where she provides work to the community as opposed to paying for her to be in a prison.  She stands a good chance to reform.  She will receive professional assistance and enhance her coping skills as a result of the order that I intend to enact.

20.It would appear to me that that is, as a matter of natural justice, the correct approach for me to take.

21.I do bear in mind it is an exceptional disposal of the case, given the fact that normally an offence of this nature would lead to an immediate custodial sentence, but, as I say, there are exceptions to every rule and the guidelines are not always rules that must absolutely be enforced.

22.Having said all that, what I propose to do is impose a maximum order of 240 hours community service.  This is an order that requires the defendant to indicate her consent, so she must understand what she is committing herself to and the nature of the order.

COURT: What you are going to be required to do is provide a total of 240 hours of unpaid work to the community. That work will be done at the direction of a supervising officer. You must complete the work to his directions. You must follow the directions. You must attend as directed and perform the work as directed.

You must perform that work within the time allocated and, in any event, it must be completed within 12 months of today. If you have any difficulty in performing that work within the allocated time, you must refer the matter back, through your supervising officer, to the court.

You must also keep the peace and be of good behaviour generally. If you breach any of these conditions or you commit any further offence while this order is enforced, you could be brought back to this court and sentenced again for the offence for which you were originally convicted.

Do you understand this?

DEFENDANT: (Through interpreter from this point) Yes, I do.

COURT: Do you consent to perform the community service order?

DEFENDANT: Yes, I do.

COURT: There is a reporting condition which will be on the form that you will sign today. You must comply with that reporting condition.

All right. Then I confirm the order I have already made, which is 240 hours’ community service, plus a compensation order of $11,028 to be paid today, and I will indicate that the $3,000 bail money can be applied if you wish to do so.