HKSAR v. YU SAU WAI

DCCC 456/2013

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 456 OF 2013

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Reasons for Sentence

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1.   The defendant pleaded guilty to 18 charges of obtaining property or services by deception.

2.   The facts admitted by the defendant reveal that she is the wife of Mr Cheng Kwok-wai(PW1).  PW1 and the defendant were married in 2008.  Sometime in 2010, the relationship between the defendant and PW1 turned sour and the defendant moved out of the flat around July 2011.

3.   PW1 was the holder of a MasterCard issued by the Hong Kong Bank.  He kept the card inside a drawer in the flat.

4.   Between 21 June to 23 July 2011, unbeknownst to PW1, the defendant took PW1’s HSBC credit card and used it to pay for 18 purchases for a total amount of $83,627.60.  For each of the 18 purchases, the defendant forged PW1’s signature on the payment slips to complete each transaction.

5.   PW1 later discovered and confronted the defendant, who finally admitted using his credit card for a shopping spree. She promised to repay by instalments.

6.   Eventually, PW1 made a police report.

7.   The defendant was not located until 7 March 2013, when she was intercepted at the departure hall of Lo Wu Control Point when she was attempting to leave Hong Kong.

8.   Under caution, she stated that she was upset about her relationship with her husband.  In order to release stress, she went on a shopping spree using her husband’s card.

Personal background and mitigation

9.   The defendant’s background can be gathered from the background report and psychologist’s report, which I called for.

10.   The defendant is now aged 36.  She received education up to Form 3.  She has one previous conviction for theft in 2007, when she was placed in community service order.

11.   She cohabited with her husband first and they got married in 2008.  The defendant was pregnant in 2005 but her husband was indifferent to her pregnancy.  The defendant underwent abortion after five months’ pregnancy because the baby had a genetic birth defect.  She blamed her husband for providing little support during the period of time. 

12.   The relationship turned sour and the husband deserted the family in April 2011.  He only returned home occasionally.

13.   The defendant also found out her husband had extra-marital affair and she was very angry. 

14.   She, therefore, committed the present offences as a revenge on her husband.

15.   Miss Regina Kwong, clinical psychologist, takes the view that, in view of her unstable employment and one prior conviction, her risk of re-offending is assessed to be low to moderate. Professional counselling to manage her marital problem and distress is recommended.

16.   Mr Li told the court that the defendant promised to make compensation but when the court indicated that an offer to make restitution has no significance in mitigation, Mr Li, having taken instructions from the defendant, confirmed that the defendant is not in a position to make any payment now.

17.   Mr Li asked the court to consider the principle of totality and to order concurrent sentences for all charges.

Reasons for sentence

18.   Credit card fraud is no doubt a serious crime.

19.   However, this case is not a usual one and not the kind of typical case which is prevalent.  The defendant was a distressed wife whose motive in committing the offence was primarily to take revenge on her husband.

20.   I have considered three similar cases for using stolen credit cards as a means to take revenge.

21.   In HKSAR v Lam Pui Tak, HCMA 655/2001, the defendant took the credit card which belonged to her girlfriend from the mail, activated it and used it to make purchase on four separate occasions. She wrote a confession letter and voluntarily surrendered herself to the police and admitted the offences under caution.  Restitution had been made before court proceedings began.  The amount of money involved was said to be small. The victim in that case asked the court for leniency on behalf of the defendant.  The Magistrate’s sentence of 8 months’ imprisonment on the defendant’s plea of guilty was upheld on appeal to the High Court.

22.   In HKSAR v Yiu Hoi Yan, HCMA 417/2004, the defendant, a woman of previous good character in her early 20s pleaded guilty to charges of using her former boyfriend’s credit card to obtain services and properties for a total value of about $11,000.  The primary motive for committing the offences, as accepted by the Magistrate, was for revenge.  The sentence of 12 months’ imprisonment was reduced to 6 months on appeal.

23.   In HKSAR v Leung Pui Shan, CACC 317/2007, the defendant was aged 19, with previous good character.  She pleaded guilty to seven charges relating to taking and using her colleague’s two credit cards to buy designer label products in order to pretend to have a boyfriend, that they were from a new male friend, in the hope that jealousy might encourage a renewal of interest.  The total value of the property was about $16,600. The defendant had made full restitution before she was charged.  The judge sentenced her to training centre.  On appeal to the Court of Appeal, when the defendant had  been in custody at the training centre for about five months, the Court of Appeal substituted the sentence by a probation order.

24.    In this case, the defendant is not a person of unblemished record.  She had a previous record for theft.  According to what she told the clinical psychologist, it happened in a jewellery shop where she worked.  She had been given a chance and was placed on community service order.

25.   After the defendant’s husband reported the case to the police, the defendant could not be located until March 2013, when she was attempting to leave Hong Kong.

26.   No full restitution has been made, though the prosecution confirmed that the defendant had repaid her husband $6,000 before the matter was reported to the police.

27.   While the defendant indicated her willingness to pay restitution, Mr Li confirmed that the defendant is not in a position to pay any restitution before sentence. 

28.   A mere willingness to make restitution, however, cannot have significance in mitigation.  Given the means of the defendant, the offer to make compensation is an empty one. 

29.   What is in favour of the defendant in this case is that I do accept that the primary motive of the defendant committing the offences was to take revenge on her husband and I accept that she is now remorseful.

30.   Having considered all the factors and mitigation of her counsel, I am of the view that an immediate term of imprisonment is appropriate, though I will adopt a lower starting point for the unusual background of the case.

31.   I use 12 months’ imprisonment as the starting point and reduce it to 8 months for the defendant’s plea of guilty.

32.   The sentences on each of the offences she has pleaded guilty to run concurrently.

33.   The total term of imprisonment is, therefore, 8 months’ imprisonment.