HKSAR v. DALBY LIANE SUSANNAH

DCCC 246/2014

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 246 OF 2014

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Reasons for Sentence

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1. Defendant, you have pleaded guilty to Charge 2. Charge 1 was left on the court file. Charge 2 is a fraud charge, contrary to section 16A of the Theft Ordinance, Cap 210. Particulars of that charge are that within a period of a week, 23 July to 31 July 2010, you used a Citibank credit card in the name of your friend with intent to defraud. The loss suffered ultimately by Citibank was $20,813.11.

2. The facts of the case are that you knew your friend, who is PW1 of this case, and had known her for years.  She would often stay at your home and use your address for certain correspondence like her Hang Seng Bank account.  She would receive statements using your address.

3. A Citibank Visa application was made in her name via the Internet, and what was submitted was a copy of a false Hong Kong identity card in her name, a fake or forged salary income proof from a kindergarten and her bank statement which was genuine.

4. On 20 July, Citibank approved a credit card and it was sent to your address.  The credit limit was HK$60,000. Subsequently, you used it on 11 different occasions within a period of seven days, all in Hong Kong.  They were mainly small amounts, either food or supermarkets.  There is a sum for a travel agent and several for doctors or hospital bills. 

5. Your friend found out and reported the matter to the police.  You were then subsequently arrested on 11 November 2010.  Now, according to the chronology submitted by the prosecution, you were released on 14 June 2011, some six months or so later. You were re-arrested on 10 February 2013.  You were then charged on 27 February 2014.  So from your first arrest to being charged, some three years and three months passed.  Now, delay is a factor here that can be ignored, and the delay in bringing you to court is certainly not caused in any way by you, and prosecution quite rightly concedes that there is no good explanation for the delay.

6. You are 42 years old, a mother of a 5-year-old, and a single parent.  Your son is presently with your parents, his grandparents, in England because, quite sensibly, this arrangement was put into place because of the likelihood you may serve a term of imprisonment.  But it is not a long-term solution for elderly grandparents to care for a 5-year-old, and your parents have written a letter, obviously asking for leniency and explaining the situation to the court.

7. From your background, I have come to know that you came to Hong Kong in 1996 and you are now working as a maternity nurse which I know in this city is a sought-after service.  At the time of this offence, you had a clear record.  You have a shoplifting conviction since and that was in 2013.

8. Mr Midgley has explained on the last occasion why you committed this offence, an offence that seems completely out of character.  You have explained that before the offence, you were raped by somebody you knew, that you would not and did not intend to report it.  I have no reason to disbelieve you but I have been told it obviously had a huge impact on you, changed your life and your behaviour.  Not long after, it seems that this fraud was suggested to you and you committed this offence without caring about the consequences.  Mr Midgley has described you as going off the rails as a result of the crime.

9. You have sought help now some time later, and there is a letter from St John’s Cathedral Counselling Service, from Dr Gandolfi who explains that you have been receiving help since June 2012, and counsellors are of the view that you have suffered from depression, anxiety, and I have been told you have attempted suicide.  You have been hospitalised as a result.  Not only are you receiving counselling service from St John’s.  You have received medical care from psychiatrists and medication.

10. The letter recommends medium to long-term counselling and psychiatric care, and I have been told that you accept that, agree it is necessary and are willing to continue to receive help.

11. As I have said, I had a letter from your parents. I have also seen a letter from a grateful client and a letter from a colleague who has since become your friend, all asking for leniency on your behalf and explaining their relationship with you.

12. I adjourned the sentence for full restitution which is a mitigating factor that can be taken into account, and it has now been confirmed by Mr Lee for the prosecution that has been dealt with.  The bank has been compensated.

13. Now, what I have before me is a defendant who has suffered at the hands of a rapist.  And as I have said, I have no reason to doubt you.  It led to this offence.  It led perhaps to the mental health issues that you have suffered since, and I can take into account that prior to that, you had been here for many years and not committed any offences. 

14. Other relevant factors include the fact you pleaded guilty, which shows remorse, and as I have said, you have made full restitution.  I do take into account that the money spent on that credit card was during a very short period of time and on fairly banal items and doctors’ bills.  Lastly, you were not prosecuted in a timely fashion.  The delay may have exacerbated your mental and emotional state, and that possibility I will not rule out.  And I can justify my suspending the term of imprisonment I will impose because of that reason as well as the other good mitigating factors I have heard. 

15. So having taken all that into account, I intend to impose a term of imprisonment but I intend to suspend it.  This is to reflect the exceptional circumstances presented in this case. 

16. For Charge 2 - please stand up - for Charge 2, I intend to impose a term of imprisonment of 12 months, but I am going to suspend it for 24 months.

17. I have to explain the suspended sentence to you.  You do not immediately have to serve this 12-month sentence but in the next 24 months, you cannot commit an offence that is punishable by imprisonment.  If you do and you are convicted, then it is very likely that the next court will activate that 12 months, and you will have to serve that 12 months as well as any further sentence for the next offence.  Do you understand what a suspended sentence means?

DEFENDANT: Yes, your Honour.