HKSAR v. Andriani Wibi Astutik

DCCC 603/2014

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 603 OF 2014

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REASONS FOR SENTENCE

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1.You have pleaded guilty to one charge of theft, contrary to section 9 of the Theft Ordinance, Chapter 210 and five charges of fraud, contrary to section 16A of the Theft Ordinance.

2.In summary in December 2013 you started working as a domestic helper for Mr Yuen. On the 24 March this year Mr Yuen received a phone call from the Bank of China enquiring whether he had used his credit card.  As Mr Yuen had not used the card he checked his drawer where credit cards were kept and discovered five were missing.  On the same day Mr Yuen confronted you when you admitted you started using the cards in December 2013.  A report was made to the police and you were arrested.  Under caution you admitted using the cards.

3.Police investigation revealed that between the 26 December 2013 and the 24 March 2014 the five cards had been fraudulently used a total of 114 times to obtain goods to the value of $171,317.30.  26 items valued at $16,218.90 were recovered.  I am told Mr Yuen has paid the credit card bills and therefore he has suffered the loss. 

4.I have carefully considered the written and oral submissions of Mr Nasir together with your mitigation letter and that written by your former employer Mr Yuen.  You have promised never to commit crime again and that you will repay Mr Yuen.  Mr Yuen in a very sympathetic letter feels that you have truly repented and understands the financial constraints leading to your commission of the offences.  The reality however is that you are unable to repay Mr Yuen.

5.I take into account that you have a clear record however having only arrived in Hong Kong five months before you first used one of the credit cards this carries little weight.

6.In passing sentence I take into account the factors which a sentencing judge will need to consider in credit card frauds as set out by the Court of Appeal in R v Chan Sui To [1996] 2 HKCLR 128, including the size of the operation; the planning that had gone into perpetrating the fraud; whether there is an international dimension; and whether the accused played a major role.  The factors were not intended however to be exhaustive but provide valuable assistance to the court.  The courts have repeatedly stressed that deterrent sentences are to be imposed.

7.Whilst Chan Sui To was a case concerning forged credit cards the factors apply to credit card frauds generally and are not restricted to forged credit cards.  Using a stolen credit card, just like using a forged credit card, undermines the integrity of the credit card system.  As was said in HKSAR v Wong Wan Shan CACC 9 &10/2002, a case concerning stolen credit cards:

“This court has said, on many occasions, that credit card frauds are an insidious poison in the community; one which affects a large number of citizens and erodes the credit card system, and also damages Hong Kong's standing in the international community. This court has also said that those who engage in it can expect to be dealt with severely by the courts.”

8.Where the facts of the offence point to a small unsophisticated operation, involving one or a few forged cards uncomplicated by other evidence materially linking the offender to a larger operation, a starting point of 3 years or less may be appropriate (see HKSAR v Tu I Lang  CACC 464/2006 and HKSAR v Wong Chin Hang CACC 409/2008). 

9.Whilst the present case cannot be said to be sophisticated there is present the aggravating feature that you stole the credit cards from your employer in the same month you started working for him thereby breaching the trust he placed in you by allowing you to work in his home as a domestic helper.  

10.Nor can this be said to be a small operation.  Over a period of almost three months you used the five cards a total of 114 times to obtain goods to the value of $171,317.30. In Chan Sui To the Court of Appeal suggested that an accused who played an active 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 5 to 6 years after trial. 

11.The court further emphasised that the sum of money was only one, and not the most significant factor.  The potential for loss is also to be considered.  No doubt had the Bank of China not telephoned Mr Yuen you would have continued to use the cards as is evidenced by the fact on the day you were confronted by Mr Yuen you had used the Bank of China card once and one of the HSBC cards three times.  

12.I am satisfied the proper starting points after trial are 2 years imprisonment for theft of the credit cards and 3 years and 6 months imprisonment for each of the fraud charges.  

Totality

13.In HKSAR v Tandon William Chaing CACC 404/2012 the trial judge adopted an initial starting point of 3 years for three offences of obtaining property by deception which was enhanced by 3 months because of previous convictions.  Giving a one third discount the sentence on each charge was reduced to 26 months.  The judge then ordered 13 months consecutive making a total sentence of 39 months imprisonment. The three offences concerned the use of three different stolen credit cards to purchase goods worth $96,500.  The Court of Appeal expressed the view that there could have been no complaint on the facts and antecedents if there had been a higher sentence. 

14.In determining totality I have taken into account the observations of the Court of Appeal in HKSAR v Lam See Chung, Stephen CACC 339/2012 as to where some assistance can be gleaned from the sentencing bands for breach of trust theft cases (see paragraph 52). 

15.Taking into account the number of times the cards were used;  the amount involved; the potential for further loss; that goods to the value of $16,218.90 were recovered I am satisfied that an overall starting point of 5 years and 3 months imprisonment is appropriate. 

Sentence

16.Giving you full credit for your pleas of guilty you are convicted and sentenced to 1 year and 4 months imprisonment on charge 1 and 2 years and 4 months imprisonment on each of charges 2-6.

17.I order the sentence on charge 1 to be served concurrently with the sentence imposed on charges 2-6; 4 months of each of the sentences on charges 3, 4 & 5 to be served consecutively to charge 2 with 2 years concurrent; and 2 months of the sentence on charge 6 to be served consecutively to charges 2-5 with 2 years and 2 months concurrent. 

18.The total sentence to be served by you is 3 years and 6 months imprisonment, which I am satisfied properly reflects your criminality on all six charges