HKSAR v. Suryati

DCCC 1085/2025

[2026] HKDC 1193

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 1085 OF 2025

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REASONS FOR SENTENCE

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1.D2 faced one 2 counts of theft (charge 4 and 5)  and one count of breach of condition of stay (charge 7). The particulars of charge 4 and 5 allege respectively, that D2 stole the wallet of Ms Rodiger, which contained, among other things, credit and debit cards and some cash, and she together with D1 stole the credit limit of about HK$3,162.5 available in that credit card. Charge 7 alleges that D2 overstayed since 5 December 2020.

2.D2 pleaded guilty to charge 5 and 7.  Having admitted the facts D2 is convicted of both charges.  Prosecution applied to leave charge 4 in court file.  I ordered charge 4 to be kept in court file and not to be proceeded with in the absence of court’s leave.

Facts

3.At 12:30 am on 5 September 2024, Ms Rodiger went to Carnegies with her friend and left at around 2 am.  At 7 am of the same day, she discovered that her wallet, which contained, among other things, a credit card was missing. She instructed the bank to disable the card.

4.The transactions of the credit card revealed 14 unauthorised transactions totalling HK$3,162.5 were made between 1:13 am and 2:11 am on 5 September 2024.  CCTV footage of different convenience stores located in Wan Chai and Central captured D1 and D2 making cashless purchases with a card during the above-mentioned period, which the time and location of those purchases correlate with 7 of those unauthorised transactions.

5.D2 was arrested on 3 October 2024.  Under caution she said “I am sorry, I use other person credit card to buy cigarette.”

6.In a subsequent video recorded interview, D2 admitted the following:

(a)  She used the credit card to purchase cigarettes from a Circle K convenience store;

(b)  She discarded the credit card at an unknown location; and

(c)  She worked in Hong Kong as a foreign domestic helper and her last contract ended in 2022.

7.Movement record of D2 showed that she entered Hong Kong on 3 July 2019 on a foreign domestic helper visa which with a limit of stay until 5 December 2020.  She had no record of extension of stay since then.

D2’s background

8.D2 is a 44 years old Indonesian national with a clear record in Hong Kong.  She is single and received education in Indonesia up to primary level. Her parents are separated and her younger sister is currently living in Indonesia.  It is submitted that D2 ceased working as a domestic helper in Hong Kong since 5 December 2020 as her employer did not wish to extend her contract.

Mitigation

9.Counsel for D2 submitted that D2 was drunk when she committed the acts in relation to charge 5, though she was fully aware of her acts, it is contended that her actions were not premeditated.  It is also submitted that the stolen properties were for D2’s own consumption.

10.For the sentence of charge 5, counsel referred to HKSAR v POP LASZLO ELEMER [2026] HKDC 778, in which Deputy District Judge Terrance Wai adopted a starting point of 2 years’ imprisonment for D1 in charge 5.  Counsel submitted that D2’s culpability was less than D1 as those CCTV only captured D2 used the card to pay for purchases of cigarettes twice, whereas D1 was seen making 4 purchases by himself.  Counsel urged the court to adopt a lower starting point than D1 for charge 5.

11.With respect to charge 7, counsel referred to HKSAR v Tiongson Patricia Manalad [2002] 1 HKLRD 681 and submitted that there is no aggravating feature such as employment during overstay.  Counsel urged the court to adopt a starting point of 4 months imprisonment to reflect the length of overstay.

Sentencing considerations

12.Charge 5 involves credit card fraud.  In HKSAR v Tu I Lang [2007] HKLRD 403, the Court of Appeal stated that where the facts of the offence points 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, a starting point of 3 years’ imprisonment or less would be appropriate.

13.In HKSAR v Lam See Chung Stephen [2013] 5 HKLRD 242, McWalters J (as he then was)  in para 39-40 of the judgment said that there is no reason why the above starting point of simple cases of counterfeit credit card fraud should not also apply to simple cases of credit card fraud where stolen genuine credit cards are used to commit the offence.

14.The learned deputy district court judge in sentencing D1 considered that charge 5 involved simple and unsophisticated credit card with the use of stolen credit card, with no evidence of any syndicated operation or international element.  The deputy judge acknowledged charge 5 was jointly committed by D1 and D2.  He also noted that the actual loss was slightly over HK$3,000 and there was little or no risk of potential loss as the card owner had promptly instructed the bank to disable the cards.  The deputy district judge adopted a starting point of 2 years’ imprisonment for charge 5.

15.Regarding the submission that D2’s culpability was less than D1 in charge 5, it should be noted that though the CCTV footage captured D1 made 4 purchases using the stolen credit card by himself, among those occasions there was once that D2 was standing behind D1 when he made the purchase at the counter of the convenience store, and there was another occasion that D1 and D2 left together after D1 made the purchase.  Further, D2 admitted that she had discarded the credit card.

16.I am of the view that D1 and D2 shared the same culpability for charge 5.

17.I will adopt a starting point of 2 years’ imprisonment for charge 5.

18.For charge 7, there is no sentencing tariff.  In Tiongson Patricia Manalad, the appellant had overstayed for about 2 ½ years, and had taken up employment during the overstay.  The Court of appeal stated that in sentencing the court would look at the length of the overstay; and taking up employment during overstay is an aggravating factor.  In that case, the Court adopted 4 ½ months imprisonment as the appropriate starting point.

19.D2 had overstayed for nearly 4 years at the time of her arrest.  I will adopt a starting point of 4 ½ months’ imprisonment.

20.D2’s guilty plea is the only mitigating factor.  She is entitled to a one-third discount in sentence.  The sentence of charge 5 and 7 is 16 months’ imprisonment and 3 months’ imprisonment respectively.

21.Charge 5 and 7 are separate and distinct offences.  I will order sentence of charge 7 to be run wholly consecutive to the sentence of charge 5.

22.The total sentence is 19 months’ imprisonment for both charges.