DCCC1008/2010

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 1008 OF 2010

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Reasons for Sentence

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1.  The Defendant pleaded guilty before me to the following 23 charges :

1^st - 4^th, 8^th, 10^th, 12^th, 14^th, 16^th - 18^th charges : theft, contrary to section 9 of the Theft Ordinance, Cap. 210

5^th & 7^th charges : fraud, contrary to section 16A of the Theft Ordinance, Cap. 210

6^th charge : obtaining property by deception, contrary to section 17(1) of the Theft Ordinance, Cap. 210

9^th charge : attempted theft, contrary to section 9 of the Theft Ordinance, Cap. 210 and section 159G of the Crimes Ordinance, Cap. 200

11^th, 13^th, 15^th, 20^th - 23^rd charges : using an identity card relating to another person, contrary to section 7A(1A) of the Registration of Persons Ordinance, Cap. 177

19^th charge : possession of an identity card relating to another person, contrary to section 7A(1A) of the Registration of Persons Ordinance, Cap. 177.

2.  Based on the facts admitted by the Defendant, the offences could broadly be grouped into three different categories. Firstly, the offences committed when the Defendant falsely represented to her victims that she would repay some old debts she owed to them, thereby causing her victims to let her operate their accounts on the ATM machines or causing them to transfer money to her own account (Group 1). Secondly, the offences she committed when she stole properties from the residents or her co-workers or her bosses while at work (Group 2). Thirdly, the offences she committed when she possessed/used an identity card belonging to another (Group 3).

3.  Charges 1 to 7 belong to Group 1.

4.  On 28 January 2009, the Defendant met LIN Sau-mui, her ex-colleague, and pretended to repay the money she owed to LIN by way of ATM transfers. Later that day, the Defendant had LIN inserted her bank card into an ATM machine and had LIN keyed in her PIN. The Defendant then asked LIN to let her conduct the operation and she transferred HK$19,000 from LIN’s account to her own. This is the subject matter of the 1^st charge.

5.  On 29 January 2009, the Defendant met LAI Pui-seung, a long-term friend, and offered to repay an old debt she owed to LAI. Again, the Defendant had LAI inserted her bank card into an ATM machine and had LAI keyed in her PIN. The Defendant then asked LAI to let her operate LAI’s account during which operation the Defendant had HK$10,000 transferred from LAI’s bank account to her own. This is the subject matter of the 2^nd charge.

6.  On 1 January 2009, the Defendant offered to repay an old debt she owed to TAM Kwan-ying, an ex-colleague. Using the same method mentioned above, the Defendant transferred HK$36,000 from TAM’s bank account to her own. This is the subject matter of the 3^rd charge.

7.  On 12 January 2009, the Defendant visited TAM and offered to repay the money previously deceived from TAM. They then went to an ATM machine. Once again, the Defendant had TAM inserted her bank card and keyed in her PIN, she then transferred HK$44,500 from TAM’s account to her own. This is the subject matter of the 4^th charge.

8.  On 2 February 2009, the Defendant told TAM over the phone that she had deposited a cheque in the sum of HK$160,000 into TAM’s bank account. TAM was informed that part of the sum was to repay the money the Defendant owed to her and the other part was to repay debts the Defendant owed to her other ex-colleagues. A few days later, on 6 February 2009, the Defendant asked TAM to transfer HK$32,500 to her bank account. Believing that she had HK$50,000 kept for the Defendant, TAM instructed her husband to transfer the said sum of HK$32,500 to the Defendant’s bank account. The cheque of HK$160,000 issued by the Defendant was, however, later bounced. This is the subject matter of the 5^th charge.

9.  On 17 February 2009, the Defendant told TAM that she had deposited a cheque in the sum of HK$50,000 into TAM’s bank account. Believing what the Defendant said, TAM met with the Defendant and withdrew cash of the same amount to give to the Defendant. The cheque, however, was later bounced. This is the subject matter of the 6^th charge.

10.  On 18 February 2009, the Defendant called TAM and promised to repay all the sums owed to or deceived from her but asked TAM to first transfer another HK$25,000 to her. TAM did as asked by the Defendant but the Defendant was not able to be reached afterwards. This is the subject matter of the 7^th charge.

11.  Charges 8-10, 12, 14, 16-18 belong to Group 2.

12.  CHU Shiu-yu is an elderly lady of 85 years old who lived in an elderly home where the Defendant worked as a caretaker between March and August 2009. Sometime before 10 August 2009, the Defendant stole two cheques from CHU during a night shift. On 10 August 2009, the Defendant falsified CHU’s signature on one of the cheques and obtained cash of HK$35,000 from the bank. This is the subject matter of the 8^th charge.

13.  On that same day, the Defendant tried to cash the other cheque obtained from CHU for the sum of HK$100,000. However, as there was insufficient fund in CHU’s account, the Defendant’s act was not successful. This is the subject matter of the 9^th charge.

14.  On 10 January 2010, while the Defendant was working in another elderly home as a cleaner, she stole from the locker of Au Fung, her colleague, items including AU’s identity card, some bank passbooks and bank card as well as cash of HK$270. This is the subject matter of the 10^th charge.

15.  On 31 March 2010, while the Defendant was working at Kimberly Inn, she stole cash of HK$6,425 from the till. This is the subject matter of the 12^th charge.

16.  On 4 April 2010, while the Defendant was working at Ginza Guest House, she stole cash of HK$3,690 from the till. This is the subject matter of the 14^th charge.

17.  On 9 April 2010, while the Defendant was working at Kai Lai Hotel, she stole cash of HK$2,500 from the till. This is the subject matter of the 16^th charge.

18.  On 11 April 2010, while the Defendant was working at Lo Ma Villa, she stole cash of HK$1,645 from the till. This is the subject matter of the 17^th charge.

19.  On 24 April 2010, while the Defendant was working at Nga Lai Villa, she stole cash of HK$1,478 from the till and another sum of HK$2,376 which was entrusted to her for temporary safe-keeping. This is the subject matter of the 18^th charge.

20.  Charges 11, 13, 15, 19-23 belong to Group 3.

21.  On 25 March 2010, 2 April 2010 and 7 April 2010, the Defendant sought employment at Kimberly Inn, Ginza Guest House and Kai Lai Hotel respectively by producing AU’s identity card. These are the subject matters of charges 11, 13 and 15.

22.  On 4 May 2010, the Defendant was intercepted by the police and was found to have in her possession AU’s identity card. This is the subject matter of the 19^th charge.

23.  After her arrest, the Defendant admitted under caution that she had used AU’s identity card to apply for fixed telephone line service. Further police investigation revealed that she had used AU’s identity card to apply for mobile phones. These are the subject matters of the 20^th – 23^rd charges.

24.  The Defendant has been before the Court on 7 occasions, 6 of which were related to convictions of theft, obtaining property by deception and forgery.

25.  The Defendant is now aged 55 and divorced. She has lost contact with her family members since 1999. In mitigation, it was said that the Defendant was brought up in a foster family and was only educated up to Primary 6. She had an unhappy childhood and had been physically abused by her foster mother. The Defendant started work at the age of 18 but was unemployed at the time of her arrest. It was said by Ms. Ip for the Defendant that the Defendant is a gambler and she resorted to committing these offences when she had no money or when being pressed for repayment of loans. As the Defendant was co-operative and has pleaded guilty to all the charges, the full one-third reduction in sentence is asked for.

26.  I have carefully considered all the matters put forth in mitigation, including the Defendant’s background and the circumstances under which she committed these offences. Needless to say, the fact that she was hard pressed financially is no excuse for committing the offences. Apart from the Defendant’s pleas for which she will be given the one-third reduction, I do not see any other reasons for reducing the sentences.

27.  For the Group 1 offences, the Defendant clearly abused the relationship she had with her victims. They were either long-term friends or ex-colleagues of the Defendant. If not because of this relationship, there was no reason why they would so easily allow the Defendant to operate their accounts on the ATM machines. In the case of TAM, the repeated fraud/theft/deception practised on this 64-year old lady illustrated that the Defendant was a heartless person who preyed on her gullible victim. Within just about 1½ months, the Defendant repeatedly targeted TAM and eventually had TAM lost a total of about HK$190,000. I take all these as aggravating factors insofar as the Group 1 offences are concerned. 

28.  Now, for the Group 2 offences, they were committed by the Defendant while she worked in those premises. On most of those occasions, money was either entrusted to the Defendant or left for her safe-keeping in her capacity as an employee but she took the opportunities to have the properties stolen. Although for charges 8 and 9, the cheques were stolen, not from the Defendant’s employer, but from a resident in the elderly home, I regard that also as an abuse of her position as an employee for if she were not on duty there, she would not have that easy access to the personal belongings of CHU. Similarly, if the Defendant was not an employee there, she would not have easy access to AU’s properties which were stored in the locker of their work premises.

29.  Further, for charges 12, 14, 16-18, it is clear on the facts that the Defendant was not genuinely interested in seeking employments as, invariably, she committed the theft offences just a few days after she had started her work in those premises. I take this as an aggravating factor for it showed that there was certain pre-planning on the part of the Defendant. In other words, she tried to get employed in those premises and then used the opportunities to commit these offences at where she worked.

30.  For theft offences involving a breach of trust committed by employees or people who have abused their positions of trust, the sentencing guidelines were set out in HKSAR v Cheung Mee Kiu [2006] 4 HKLRD 776. 

31.  Finally, for the Group 3 offences, there is also an aggravating factor where the Defendant presented AU’s identity card for seeking employments. That was so because in claiming herself to be AU and allowing a copy of AU’s card to be photocopied for the record, the Defendant was no doubt paving ways to avoid detection of her true identity when she got missing after committing the theft offences in her workplaces. Further, as admitted by the Defendant, the reason why she used AU’s identity card to apply for the telephone services was so that she could get the telephone bills in AU’s name, which would then enable her to present herself as AU when getting employments. Such showed the planning involved in these offences.  

32.  Having considered all the relevant facts, the aggravating factors mentioned above, the multiplicity of the offences involved, and the fact that the previous sentences imposed on the Defendant do not seem to have sufficient deterrent effect, I consider the following starting points to be appropriate :

Charges 1 & 2 : a term of 6 months each

Charges 3-7 : a term of 12 months each

Charges 8 & 9 : a term of 9 months each

Charge 10 : a term of 3 months

Charges 11, 13 & 15 : a term of 12 months each

Charges 12, 14, 16-18 : a term of 9 months each

Charges 19-23 : a term of 9 months each

33.  As I have already indicated, the Defendant will be given one-third reduction for her pleas and the terms, after reduction, will be as follows :

Charges 1 & 2 : a term of 4 months each

Charges 3- 7 : a term of 8 months each

Charges 8 & 9 : a term of 6 months each

Charge 10 : a term of 2 months

Charges 11, 13 & 15 : a term of 8 months each

Charges 12, 14, 16-18 : a term of 6 months each

Charges 19-23 : a term of 6 months each

34.  If these sentences were to run wholly consecutively, such would no doubt produce an excessively high sentence. Therefore, after considering the totality principle, I am of the view that, taking into account the Defendant’s pleas, an overall sentence of 28 months is appropriate for all these 23 charges. I therefore order that :

(1) The sentences in respect of charges 1 to 7 are to be served wholly concurrently, making a total of 8 months’ imprisonment;

(2) The sentences in respect of charges 8 to 10 are to be served wholly concurrently, making a total of 6 months’ imprisonment. However, this term of 6 months is to be served wholly consecutively to the term in respect of charges 1-7.

(3) The sentences in respect of charges 12, 14, 16-18 are to be served wholly concurrently, making a total of 6 months’ imprisonment. This term, however, is to be served wholly consecutively to the terms in respect of charges 1 to 7 and 8 to 10.

(4) The sentences in respect of charges 11, 13, 15, 19-23 are to be served wholly concurrently, making a total of 8 months’ imprisonment. However, this term is to be served wholly consecutively to the terms imposed in respect of the other charges.

35.  Therefore, the Defendant is going to serve a total term of 28 months’ imprisonment for these 23 charges.