HKSAR v. Fontanilla Myra Basaen

DCCC 24/2015

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 24 OF 2015

----------------------

---------------------
Reasons for Sentence
---------------------

1.The defendant has pleaded guilty to 13 charges of obtaining property by deception, one of obtaining services by deception, and two of attempting to obtain property by deception.

2.The defendant has admitted the facts of the case and I have convicted her.

3.All the charges arise out of the use or attempted use of a credit card, and this was a VISA card owned by the first prosecution witness.  The defendant had been hired as a domestic helper by the first prosecution witness in February 2014 and she worked with him up until August of 2014.  She moved out of his residence on 29 August 2014. 

4.The first prosecution witness was the owner of a VISA card and he asked for a replacement for that card in February 2014.  He received and activated the replacement card, but the old card was left in his home and was not cut up, as it should be.  It was the defendant who then used the old card, representing herself to be the first prosecution witness to purchase or attempt to purchase the items set out in the 16 charges to which she has pleaded guilty. 

5.The card was first used on 2 August 2014 in FORTRESS, where a smartphone was bought, and the card was continued to be used up till 16 September 2014, when the defendant attempted to make two purchases in the Ka Ka Gold and Jewellery Company Limited.  She was unable to sign the first prosecution witness’ name properly on the receipts.  As a result of that, eventually the police were called.

6.On arrest, she was cautioned.  She admitted the card belonged to her ex-employer.

7.Various items were found on her and she admitted buying items such as a mobile phone, charger, clothing and jewellery with the card.  Some items had been pawned, such as gold ornaments.

8.In the subsequent interviews and proceedings, the defendant has admitted to using her ex-employer’s credit card to make payments for the transactions set out in the 16 charges and she admits that she was never authorised to use the first prosecution witness’s credit card for the transactions.

9.The 16 fraudulent transactions were set out in the facts admitted by the defendant.  They were made with different merchants between 2 August 2014 and 16 September 2014.  They involve the purchase of items such as mobile phones, items of jewellery, items of clothing, and food and drink.  Some items had been recovered from pawn shops and some were recovered from the defendant herself.

10.The defendant’s antecedents have been admitted. She is aged 33 years old.  She is a Philippine passport-holder.  She has a clear criminal record in Hong Kong.  She has received university education in the Philippines up to bachelor level.  She has a daughter and a son, both living in the Philippines.

11.The defendant’s personal situation was further outlined in mitigation.  Her family lives in Baguio City in the Philippines.  She is a single parent.  She was separated from her boyfriend in 2010.  She has a son aged 11 and a daughter aged 6.  The daughter had a series of unfortunate illnesses.  She has had an abnormality of the large intestine that required surgery.  She also has a juvenile form of tuberculosis. 

12.The defendant has incurred medical expenses in treatment for her child and, of course, she has worked in Hong Kong as a domestic helper to support her children.  She has parents who have had also some illnesses.  At the present moment, she cannot afford to pay for her children’s schooling and their schooling is suspended.

13.The defendant has an education history.  As I said, she was educated to university level at the Saint Louis University in the Philippines.  After obtaining her degree, she has worked in a call centre as an agent and supervisor and also as a quality controller for Texas Instruments.

14.Around about the time of this offence, she was looking to obtain a job in Russia and also in Canada.  She incurred expenses in obtaining those employments and she said in mitigation that she was trying to obtain money to repay the amounts that she had already incurred.

15.She is remorseful but is not in a position to make any further restitution or recompense.

16.Of importance in her mitigation is her plea of guilty and the position of her children, especially that of her younger daughter. 

17.Any sentence of imprisonment unnecessarily impacts on the children of women who are imprisoned.  It removes the child from the society and support of its mother and inflicts a punishment both on the mother and the child, and, of course, the child is entirely innocent and courts must bear that in mind when imposing sentences of imprisonment on women who are the supporters of young children.

18.I now turn to the offences that the defendant has committed.

19.The salient feature of all these offences is the use of a credit card.  In the case of Chan Sui To & Anor [1996] 2 HKCLR 128, the courts set out the approach to sentencing of cases involving counterfeited credit cards and listed the aggravating features that could be found in regard to sentencing of such cases.  Necessarily, these aggravating features will seldom be present in simple small-scale use of credit cards, forged or stolen. 

20.In the case of HKSAR v Tu I Lang (that is, CACC 464/2006), a sentencing tariff of 3 years’ imprisonment or less was said to be appropriate for the small-scale use of a forged credit card and the courts said that:

“Where the facts of” an “offence point to a small unsophisticated operation, involving” “one or a few forged cards uncomplicated by other evidence” “linking the offender to a larger operation, then a starting point of 3 years’ imprisonment or less would be appropriate”.

21.And the courts have said that these sentencing principles and considerations are equally applicable to credit card fraud offences in which genuine credit cards are used and it has been said by the Court of Appeal that there is no good reason why the 3-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.

22.This offence involves the use of a genuine credit card for a period of somewhat over one month to purchase a large number of items, the total value of which is something in the region of $50,000, some of which are recovered.

23.I consider there is no substantial reason to depart from the normal sentence for credit card fraud in this case.

24.What I shall do is take a starting point of 3 years’ imprisonment in respect of each of the 16 charges. 

25.I shall reduce that to 2 years’ imprisonment for the defendant’s plea of guilty on each charge. 

26.These offences were committed on different dates and are separate and individual offences, and can be served consecutively or partly consecutive, but I must consider the appropriate overall totality for this series of offending and also bear in mind factors particular to the defendant, such as the situation of her youngest child.

27.I consider that the overall criminality of the defendant can be adequately dealt with by ordering all the sentences to run concurrently.

28.The defendant’s overall sentence of imprisonment will be one of 2 years’ imprisonment.