HKSAR v. Wong Siu Chun, Cindy

DCCC766/2011

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 766 OF 2011

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Reasons for Sentence

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1.The defendant enters a plea of guilty to one charge of “Obtaining property by deception”, laid against her under section 17(1) of the Theft Ordinance, Cap.210, and one charge of “Attempt to obtain property by deception”, preferred under the same section of the Theft Ordinance and section 159G of the Crimes Ordinance, Cap.200.

2.The facts of the case to which the defendant agrees are as follows.  The defendant presented a Bank of America Credit Card to a staff member of Eco Ring Hong Kong Limited at Tsim Sha Tsui and purchased a Chanel handbag (Charge 1). 

3.Later the same day, she arrived at Fuleight International Holding Limited, located also at Tsim Sha Tsui, and made use of the same credit card to pay for another Chanel handbag.  She asked the staff member who attended to her to deal with the transaction quickly.  Using the card the defendant gave her, the staff member processed the transaction, but the deal with disapproved (Charge 2).  The staff member caused a report to be made to the police and told the defendant that she had to obtain an approval code.  The defendant retrieved the card from the staff member and left.

4.Police officers arrived and located the defendant nearby.  In her possession were found the suspect credit card and the invoice relating to the Chanel handbag she purchased earlier at Eco Ring.  Under caution, she claimed to have picked up the credit card in the street and admitted she had suspected the genuineness of the card due to its poor quality, and that she had used the credit card to buy a Chanel bag at Eco Ring and fled Fuleight when her attempt to use the card a second time failed.

5.The card was later confirmed to be a forged credit card.

6.The court finds the defendant guilty as charged.  The defendant has had five criminal records prior to her current conviction, including burglary, theft, robbery and possession of a dangerous drug, for which she was sent to the DATC.

7.In mitigation, the defence puts forward the following matters for the court’s consideration.  The defendant is still young.  She is now receiving treatment at the DATC.  A mother of a 2-year-old daughter, the defendant misses the daughter.  She is remorseful, and she has demonstrated her full remorse by pleading guilty to the charges.  A mitigation letter written by the defendant has been placed before the court.  The defence urges the court to allow the defendant’s drug treatment to continue.

8.The Training Centre report shows the following. The defendant was born on the Mainland and she came to Hong Kong in 1991.  She is now 20 years old.  Under the bad influence of friends having the habit of drug abuse, she sniffed ketamine daily in late 2005, and inhaled cocaine about four times a week in 2006.  She was then in the company of a drug-dealer boyfriend, and got into trouble with the law repeatedly.  Throughout the years, she has never been gainfully employed over any sustained periods. In 2009 she gave birth to a daughter.  Motherhood, however, has had little effect on her lifestyle.  She remained unable to obtain stable employment and unable to rid herself of the vice habit.

Discussion

9.The offences of which the defendant stands convicted are serious.  Deterrent sentences are called for, as these offences are “a running scourge” (see HKSAR v Leung Pui Shan, CACC317/2007). 

10.In HKSAR v Cheung Ka Wo, CACC136/2001, the Court of Appeal reiterated that,

“In Hung Ping Wah, the total sums involved related to goods valued at $7,000. There was, as in the present case, no suggestion of an international dimension and no evidence of a syndicated operation. An overall starting point of four years for the two charges of using a false instrument was regarded by this court as having been ‘on the high side’, but it was said to have been ‘not manifestly excessive’. There was, however, the further factor in that case, namely, that following the appellant’s arrest, he was found to have had ten more false credit cards in his possession, reflected in the third charge, which no doubt caused the judge in the present case to adopt the lower starting point of three years’ imprisonment…

‘There was every reason to believe that but for his arrest he would have continued to use the credit cards.’

…the amount proved to have been lost by the fraudulent use of credit cards:

‘pale(s) into insignificance when consideration is given to the potential for losses in the future.

It is this potential for losses which is the most important consideration.’”

11.In the instant case, the court accepts that this is a small-scale operation, without any international element, involving the use of one forged card only.  The court notes, however, that the defendant targeted luxurious items with significant resale value.  An overall starting point of 36 months’ imprisonment would be adequate to reflect the criminality of the two charges and, in the court’s view, a DATC order would not.

12.Apart from the defendant’s guilty pleas, nothing in her personal and family circumstances would warrant any further reduction. 

13.In the result, the court would adopt a starting point of 24 months’ imprisonment for each of the two charges, which is reduced by one-third, on account of the defendant’s guilty pleas, to one of 16 months’ imprisonment for each charge.  Having considered the principle of totality, the court orders that eight months of the sentence for Charge 2 should be served consecutively to the 16 months for Charge 1, making a total sentence of 24 months’ imprisonment.

Order

14.The defendant is sentenced to a term of imprisonment of 24 months.