HKSAR v. TAI WAI YIN

DCCC 976/2023

[2024] HKDC 673

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 976 OF 2023

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REASONS FOR SENTENCE

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1.  The defendant has pleaded guilty to a total of six charges today which are based on the handling of a stolen credit card and then the use of that card on five separate occasions. She is charged with handling stolen goods and then five separate charges of obtaining property by deception.

2.  The original incident was on 28 June 2023 at around 1645 hours when the 1^st prosecution witness appeared to lose his wallet which contained an American Express credit card.  He suspended the service of the card the following day. He was informed by the bank that there had been a total of five fraudulent transactions had been made on the card and each of those transactions is represented by a single charge of obtaining property by deception and from the schedule in the Admitted Facts we could see that the card was used on 28 June 2023 between 2156 hours and 2350 hours and then on 29 June 2023 in the early hours of the morning.

3.  The first transaction was at the Dairy Farm Company, a Mannings shop, with $1,079 of property being stolen and that is boxes of birds nest and chicken essence.  The second transaction at the same location later on that evening were 16 cans of milk powder were obtained at a cost of $4,461.  The third transaction at 7-Eleven at 11.40 in the evening, where goods valued at $31 were obtained.  On the fourth transaction, at the same location 10 minutes later, goods valued at $37 were obtained and then on the fifth transaction on the 29^th at 7-Eleven, goods valued at $44 were obtained.

4.  What had happened was that when the cans of milk powder were bought, eight of the cans of milk powder were not available so the purchaser would have to return to the location to collect the remainder of the milk powder that had been ordered, and when the defendant returned there was a controlled police operation and she was arrested at that time.

5.  At that time the defendant admitted using the card, that was the American Express card, to purchase goods from Mannings and 7-Eleven for herself.  She said that a card had been picked up by a friend and was given to her and she had been asked by the friend to use the card.  At the time of her arrest, defendant only had $351.50, a Union Pay card and 2 Octopus cards on her and the defendant had used the card to obtain the goods.

6.  Defendant made a cautioned statement, again repeating what she had said earlier, the card had been given to her by a friend, she had used the card to make the purchases at the three separate locations, had thrown the card into a rubbish bin in Kwai Chung eventually, identified herself in CCTV captures from the three locations and did not provide any details of the friend.

7.  The defendant has accordingly pleaded guilty to the six charges.  The total amount obtained in the five transactions is $5,652.50.

8.  As far as the mitigation is concerned put forward by counsel, the defendant is a Hong Kong Permanent Resident, 34 years old, single with no children and been working as a waitress.  She has family in Hong Kong.  The defendant, I am told, was depressed and stressed about her relationship with her mother at the time of the offences and she thought that shopping with this card would make her less depressed.

9.  Defendant has from the time of arrest made frank admissions to us as to her role in the offences, assisted the police during arrested interview except for providing the name of the friend who provided her with the card and has indicated a plea of guilty at an early time.  She is willing to offer full restitution to the victims in this case and I understand money has been obtained and will be provided by way of a payment of a Compensation Order which I shall make in respect of American Express who are the victims here, which will be in the full sum of $5,652.50.

10.  Turning to the approach, what has been used here is a credit card and the fraudulent use of credit cards whether forged or unlawfully obtained, the sentencing can be seen in the case of HKSAR v Lam See Chung, Steven, a case in 2013 which has generally, where there is a simple small-scale use of a forged credit card, sentence tariffs of 3 years or less has been said to be appropriate.  That was from a case in 2006 from Mr Justice McMahon, HKSAR v Tu I Lang.  But it says also in the Steven Lam case said that where the offence point to a small, unsophisticated operation involving one or a few forged cards uncomplicated by other evidence materially linking the offender to a larger operation then the starting point of 3 years' imprisonment or less would be appropriate.

11.  I have been referred to a number of cases that involve what one would call small, unsophisticated operations involving one or a few credit cards where sentences with a starting point of around 2 years' imprisonment have been used for these kind of cases.

12.  Here a single card is used, no other aggravating factors, it does not point to a larger operation, no international aspect to the case, generally unsophisticated.  The credit card in fact was lost rather than stolen and was lost by the victim and obviously found later and then taken.

13.  So I consider in a case such as this that the general starting point for sentence should be in the region of 24 months' imprisonment.

14.  I need to also reflect the fact that defendant has made full restitution and also consider the nature of the defendant herself.  Although not a person of clear record, she has no previous convictions for dishonesty and appears to have fallen on somewhat hard times.  What I shall do is from that starting point, the overall starting point of 24 months' imprisonment, I shall deduct 3 months' imprisonment from that to reflect her remorse, her plea of guilty and her efforts to make compensation.  She is a person of small means and the ability to make compensation is an important factor in her case.  It shows her remorse.

15.  So the sentence I will impose will be as follows.  Charge 1, I will take a starting point of 12 months' imprisonment, reduce that to 8 months' imprisonment for her plea of guilty.  On the other charges, I shall take a starting point after deduction of the 3 months, of 21 months' imprisonment.  I will reduce that to 14 months' imprisonment on each of charges 2, 3, 4, 5 and 6.  Having regard to the overall totality, all sentences will be served concurrently to a total of 14 months' imprisonment and a compensation of $5,652.50 to American Express, payable within the next 7 days.