HKSAR v. Andriani Wibi Astutik

CACC 296/2014

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 296 OF 2014

(ON APPEAL FROM DCCC NO. 603 OF 2014)

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BETWEEN

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REASONS FOR JUDGMENT

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Hon Lunn VP (giving the Reasons for Judgment of the Court) :

1.At the hearing we dismissed the applicant’s application for leave to appeal against a total sentence of 3 years and 6 months’ imprisonment imposed on her by District Court Judge Dufton on 22 August 2014 on her pleas of guilty to one count of theft between 9 December 2013 and 23 February 2014 of five credit cards belonging to Mr Yuen Man Chiu, Henry, contrary to section 9 of the Theft Ordinance, Cap. 210 (Charge 1) and five counts of fraud, contrary to section 16A of the Theft Ordinance, Cap. 210 (Charges 2-6). Each of the fraud charges concerned multiple occasions of the use of different credit cards by the applicant in which she falsely represented that she was authorised to use the credit card to obtain payment for goods and services in the overall period 26 December 2013 and 24 March 2014. We said that we would give our reasons for dismissing the application in due course. That, we do now.

The Facts

2.In the Summary of Facts, which the applicant accepted as the basis of the judge accepting her pleas of guilty, she acknowledged that she had worked for the victim Mr Yuen as his domestic helper since December 2013.  Mr Yuen kept five different credit cards issued in his name in an unlocked drawer in his flat. 

3.On 24 March 2014, Mr Yuen was alerted to the unauthorised use of one of those credit cards, namely issued by the Bank of China, by a telephone call from a member of the staff that bank.　 Then, he discovered that the five credit cards were missing from the drawer.

4.On being confronted the applicant admitted that she had been using the five credit cards to make purchases since December 2013.  However, only one of the credit cards remained in her possession.  The others were missing.

5.On 25 March 2014, having been arrested and cautioned by a police officer the applicant said:

“ I am really sorry to steal my boss’ cards. I buy things for my own use because I don’t have money in Hong Kong. I don’t know the value.”

6.Investigations by the police revealed that the applicant had used the five credit cards on a total of 114 occasions[1] between 26 December 2013 and 24 March 2014, in transactions to a total of $171,317.30.[2]  A total of 26 items, to a purchase value of $16,218.90 purchased by the applicant using one or other of the credit cards were recovered. 

Reasons for sentence

7.In sentencing the applicant, the judge noted that she had a ‘clear record’, but went on to observe that was of little weight, given that she had been in Hong Kong for only five months before the commission of the offences.

8.Whilst acknowledging that the commission of the offences was not sophisticated, the judge stated it to be a factor of aggravation that she began stealing the credit cards in the very month in which she began her employment.  That, was a breach of trust.  Further, the judge determined that the applicant’s conduct could not be described as a “small operation”, given that the applicant had used the five credit cards on 114 occasions over a period of 3 months to obtain goods to the value of HK$171,317.30.  Finally, the judge said that he had regard to the “potential for loss”, if Mr Yuen had not been alerted to the applicant’s misconduct by a member of the staff of the Bank of China.

Starting point

9.In determining the appropriate starting point to be taken for sentence in respect of the frauds committed by use of the stolen credit cards, the judge said that he had regard to the judgment of this Court in R v Chan Sui To[3], in which various factors relevant to sentence had been identified.  Further, he noted that the court had stressed the need for a deterrent sentence to be imposed for this kind of offence.  Having adverted to the judgment of this Court in HKSAR v Wong Wan Shan [4], he said that offences committed by the use of stolen credit cards also undermined the integrity of the credit card system and that those who engaged in such conduct could expect to be dealt with “severely” by the courts.

10.Finally, having adverted to the judgments of this Court in HKSAR v Tu I Ling [5] and HKSAR v Wong Chin Hang [6] the judge said that even in circumstances where the offences were committed in a “small unsophisticated operation, involving one or a few forged cards and uncomplicated by other evidence materially linking the offender to a larger operation”, nevertheless a starting point for sentence of 3 years’ imprisonment may be appropriate.

11.The judge stipulated a starting point for sentence for the offence of theft of 2 years’ imprisonment and 3 years and 6 months’ imprisonment for each of the offences of fraud.

Totality of sentence

12.In his consideration of the appropriate totality to be taken for sentence the judge adverted to the judgment of this Court in HKSAR v Tandon William Chaing [7], noting that the judge had stipulated a starting point for sentence of 3 years’ imprisonment for each of three offences of obtaining property by deception by the use of two credit cards belonging to two others, which she had enhanced by 3 months to reflect the applicant’s previous convictions.  Having afforded the defendant a discount of one-third from that starting point taken for sentence, to reflect his pleas of guilty, the judge had imposed sentences of 26 months’ imprisonment on each charge, 13 months of which sentence he had ordered to be served consecutively.  In the result, the total sentence imposed on the defendant was 39 months’ imprisonment.  Finally, the judge adverted to the judgment of this Court in HKSAR v Lam See Chung Stephen [8] in which McWalters J, as he was then, said that, in having regard to the appropriate totality of sentence to be imposed in respect of a large number of offences of fraud committed by the use of stolen credit cards, some perspective was afforded by having regard to the “sentencing bands for breach of trust that cases”.[9]

13.The judge stipulated a total sentence of 5 years and 3 months’ imprisonment as being the appropriate totality of sentence.

Discount

14.Having regard to the applicant’s pleas of guilty, the judge afforded the applicant a discount from the starting points taken for sentence of one-third.  Accordingly he imposed a sentence of 1 year and 4 months’ imprisonment in respect of Charge 1 and 2 years and 4 months’ imprisonment in respect of each of Charges 2-6.

Totality

15.The judge ordered 4 months of the sentences of imprisonment imposed in respect of Charges 3, 4 and 5 to be served consecutively to the sentence of imprisonment imposed in respect of Charge 2 and 2 months of the sentence of imprisonment imposed in respect of Charge 6 to be served consecutively to the sentence of imprisonment imposed in respect of Charges 2-5.  Accordingly, the total sentence imposed on the applicant was 3 years and 6 months’ imprisonment.

Ground of appeal against sentence

16.On behalf of the applicant, Mr Andrew Bullett submitted that the judge had adopted excessive starting points for sentence in respect of all the charges.

Charge 1

17.In respect of Charge 1, he submitted that having regard to the judgment of the single judge in HKSAR v Maramba Rowena Quilang[10], the theft of a necklace cellular and $75,000 by a domestic helper from her employer, and of this Court in HKSAR v Lam See Chung Stephen[11], the theft of a single credit card by an employer from a post-natal nurse employed in the home, the appropriate starting point to be taken for sentence was 6 months’ imprisonment.

Charges 2-6

18.In respect of Charges 2-6, he submitted that the starting point taken for sentence should not be more than 3 years’ imprisonment[12]. Mr Bullett submitted to the commission of the offences was to be regarded as opportunistic, requiring no planning or organisation at all.  Further, it was contended that, if the offences had not involved the use of credit cards and the case had involved a breach of trust simpliciter, the appropriate band for sentence for an amount of $250,000 or less would have been 2 years’ imprisonment.[13]

19.Then, it was submitted that the judge erred in not making the sentences for Charges 2-6 wholly concurrent with each other.

20.Finally, it was submitted that in arriving at a total sentence of 3 years and 6 months’ imprisonment, the judge:

(a)  gave excessive weight to or misapplied the guidelines in Chan Sui To;

(b)  gave insufficient weight to the unsophisticated and opportunistic nature of the offence;

(c)  misapplied sentencing principles for breach of trust;

(d)  erred in equating the criminality of the use of stolen credit cards with that of the use of forged credit cards; and

(e)  otherwise erred in his approach to totality of sentence.

The respondent’s submissions

Charge 1

21.In her written submissions for the respondent, Ms Winnie Mok invited the Court to note there was no tariff for the offence of theft.  She submitted that the judge was entitled to have regard to the fact that the applicant had stolen five credit cards in circumstances of an obvious breach of trust and that the potential for loss was at large until the matter was reported to the police.  Further, that the judge was entitled to adopt a starting point for sentence of 2 years’ imprisonment.

Charges 2-6

22.Ms Mok submitted that, given that the offences of fraud involved the use of stolen credit cards, the sentencing guidelines for theft case involving breach of trust in Cheung Mee Kiu were not applicable.  Further, the circumstances of the commission of the offence were aggravated by the fact that the offences were committed over a period of about 3 months.  Finally, it was relevant that the offences were brought to an end only by the fact of the matter being brought to the attention of Mr Yuen by the Bank of China.

23.In all those circumstances, she submitted that a starting point of 3 years and 6 months’ imprisonment was appropriate.

A consideration of the submissions

24.Clearly, the judge was correct to have regard to the fact that the applicant’s theft of the five credit cards, being theft committed by an employee trusted to work as a domestic helper within the home, was a breach of trust.  It was a gross breach of trust.  Similarly, it was a highly relevant fact that the potential for loss from the subsequent fraudulent use of those cards was not limited until the matter was reported by one of the banks on 24 March 2014.  It appears that no information was available to the judge as to the credit limits of the individual credit cards.  However, that information has been made available to this Court by the parties.  The monthly balances of all the credit card accounts were settled by autopay.  The two Hang Seng Bank credit cards (Charges 2 and 3) had credit limits of $30,000 and $50,000 respectively.  The two HSBC credit cards (Charges 4 and 6) had credit limits of $59,000 and $200,000 respectively.  The Bank of China credit card (Charge 5) had a credit limit of $140,000.  It follows that the potential loss to Mr Yuen, before that the total value of the credit limits was exceeded, in any given month was $479,000. 

25.Further, it is to be noted that the offences of fraud were committed over a period of three months.  The first offence was committed on 26 December 2013.  Although no offences were committed in January 2014 the applicant embarked upon a sustained spree of offences beginning on 8 February 2014 which continued unabated until the day after the unauthorised use of the cards had been detected first on 23 February 2014.

26.The authorities to which Mr Bullett has referred to the court in respect of the starting point taken by the judge for sentence in respect of the theft charge are of no assistance.  As this Court has said repeatedly, the unique circumstances of the commission of most offences, other than those in respect of which it is possible for this Court to provide guidelines, are such so reference to the circumstances of the commission of other offences is of little or no assistance.

27.In HKSAR v Maramba Rowena Quilang, a magisterial appeal, the applicant was unrepresented.  Of the theft of the necklace, the V. Bokhary J merely said that it was a sentence that was “not one which I can properly disturb.”  In HKSAR v Lam See Chung Stephen, the applicant had been convicted on his pleas of guilty of one charge of the theft of a credit card from his employee, a post-natal nurse hired to assist the family, and three charges of using that credit card to obtain property by deception.  There, the judge had adopted a starting point in respect of the theft charge of 6 months’ imprisonment.  Affording the applicant a discount of one-third from that starting point, to reflect his pleas of guilty, the judge imposed a sentence of 4 months’ imprisonment.  Understandably, that sentence was not the subject of appeal nor was it addressed by this Court.  Rather, the issues raised at the hearing were in respect of the sentences imposed for the offences of obtaining property by deception and the orders that those sentences be served consecutively to existing sentences of imprisonment which the applicant was serving.  Neither of those judgments is of the least assistance to this Court in addressing the issue of whether or not the judge was correct to take a starting point for the sentence, in respect of the theft offence, of 2 years’ imprisonment.

28.We are satisfied that the judge was correct to have regard to the evidence that the theft of the first of the five credit cards, which was used to obtain goods on 26 December 2013, happened in the same month in which the applicant came to be employed by Mr Yuen.  It is clear that the theft of the other credit cards occurred at least as early as February, in which month all four of them were used for the first time in unauthorised transactions.  As noted earlier, the potential loss, having regard to the total credit card limits of the five cards, was very substantial, namely $479,000.  In those circumstances, we are satisfied that the starting point taken for sentence by the judge of 2 years’ imprisonment was entirely appropriate.

29.There is no merit in the submission made by Mr Bullett that the judge had erred in having regard to judgments of this Court concerning the use of counterfeit credit cards in determining the appropriate sentence to take as the starting point for sentence in respect of the applicants offences of fraud by the use of the credit cards that she had stolen from her employer.  Similarly, the judge was not required to sentence on the basis that the offences of fraud were in breach of trust without having regard to the fact that they involve the use of stolen credit cards.  Those matters were addressed in terms in the judgment of McWalters J in HKSAR v Lam See Chung Stephen[14]:

“ The problem with Mr Hemmings’ argument is that it is premised on two assumptions, neither of which is correct. The first is that the applicant’s offences should not be treated as credit card fraud because they do not involve the use of counterfeit credit cards. The second is that because the applicant abused the trust of his employee in stealing her credit card, his subsequent dishonest use of that card entitles him to be sentenced as though his offences were breach of trust theft cases.

His first assumption is wrong because it is based upon a misconception of the sentencing cases relating to credit card fraud. True it may be that the earlier cases dealing with sentencing for credit card fraud were concerned with the use of counterfeit credit cards and many of the aggravating features listed in cases such as R v Chan Sui To & Anor [1996] 2 HKCLR 128 were peculiar to syndicated counterfeit credit card fraud.

But these aggravating features will not be present in the type of simple, small scale use of forged credit cards for which a sentencing tariff of 3 years’ imprisonment or less has been said to be appropriate. In HKSAR v Tu I Lang CACC 464/2006; unreported, 18 May 2007, McMahon J said at paragraph 10 of the judgment:

“ Where the facts of the offence point 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, then a starting point of three years’ imprisonment or less would be appropriate.”[15]

Those judgments which lay down a sentence of 3 years’ imprisonment or less for cases of simple credit card fraud are based on a number of sentencing principles and considerations. They are that counterfeit credit card offences require deterrent sentences; there is a need to protect the integrity of the credit card system;[16] and the potential for loss is great and often will be far greater than the actual loss. In fact, it is precisely because of this last consideration that the actual loss will not necessarily be an important factor when it comes to sentencing a credit card offender; rather “it is this potential for losses which is the most important consideration.”[17]

These sentencing principles and considerations are equally applicable to credit card fraud offences in which genuine credit cards are used and we can see no good reason why the three year starting point for 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.

In respect of the Mr Hemmings’ second assumption it is true there is an element of abuse of trust in the applicant’s conduct.  But, the abuse of trust cases relate to situations where a person is, by virtue of the trust reposed in him, authorized to deal with property belonging to another and, in abuse of that trust, dishonestly misappropriates that property.  Here that is not the situation.  The applicant was the employer, not the employee, and he was never authorized to deal with his employee’s property.  As with most employees, this victim was required to work at her employer’s premises, here his home and so, whilst she performed her duties she had to leave her personal possessions unattended.  By virtue of her circumstances she had no choice but to trust in her employer not to interfere with her personal property.  Properly analysed this is not an abuse of trust case but rather an abuse of position – an opportunistic exploitation of circumstances by the victim’s employer.  The theft of the credit card in the circumstances in which it occurred provides no justification for treating the offences arising from the subsequent use of the credit card as equivalent to breach of trust theft cases.”

30.In all the circumstances of the commission of the offences of fraud, we are satisfied that the judge was entitled to stipulate a starting point for sentence of 3 years and 6 months’ imprisonment for each of the charges.

31.Further, having regard not only to the actual loss to Mr Yuen, which was substantial, but also to the potential loss, together with the gross breach of trust involved in both the theft and use of the credit cards from Mr Yuen, we are satisfied that the judge was entitled to stipulate an overall starting point for sentence of 5 years and 3 months’ imprisonment.  The offences were very serious.

32.In the result, we are satisfied that the total sentence imposed on the applicant of 3 years and 6 months’ imprisonment was not manifestly excessive.

Conclusion

33.Accordingly, the application for leave to appeal against sentence was dismissed.

Ms Winnie Mok, SPP (Ag.) of the Department of Justice, for the respondent

Mr Andrew Bullett, assigned by Director of Legal Aid, for the applicant

[1] Note: 113 out of 114 transactions were successful.  The last transaction was declined by the Bank of China, after its staff had confirmed with the Mr Yuen that the transaction was not authorised.

[2] Note: the total amount of HK$171,317.30 includes the amount HK$11,368 which transaction was declined by the Bank of China (item 14 of the Table attached to the Summary of Facts; Appeal Bundle, page 13).  The total value of the goods obtained was HK$159,949.30, namely the total amount described in the Particulars of the Offence of Charges 2-6.

[3] R v Chan Sui To [1996] 2 HKCLR 128.

[4] HKSAR v Wong Wan Shan (CACC 9 & 10/2002; unreported, 4 June 2002).

[5] HKSAR v Tu I Ling (CACC 464/2006; unreported, 18 May 2007).

[6] HKSAR v Wong Chin Hang (CACC 409/2008; unreported, 30 April 2009).

[7] HKSAR v Tandon William Chaing (CACC 402/2012; unreported, 15 August 2013).

[8] HKSAR v Lam See Chung Stephen [2013] 5 HKLRD 242.

[9] HKSAR v Lam See Chung Stephen; page 255, paragraph 53.

[10] HKSAR v Maramba Rowena Quilang (HCMA 1003/2000; unreported, 9 November 2000).

[11] HKSAR v Lam See Chung Stephen [2013] 5 HKLRD 242.

[12] HKSAR v Tu I Lang.

[13] HKSAR v Cheung Mee Kiu [2006] 4 HKLRD 776.

[14] HKSAR v Lam See Chung Stephen; page 251-2, paragraphs 36-41.

[15] This case was followed by another division of the Court of Appeal in HKSAR v Chan Ka Chung CACC 379/2010; unreported, 13 June 2011.

[16] HKSAR v Cheung Ka Wo Johnny [2002] 2 HKC 517.

[17] HKSAR v Ng Swee Thiam & Ors [2000] 1 HKLRD 772 at 778.