HKSAR v. FU PUI YEE VICTORIA

DCCC 177/2017

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 177 OF 2017

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REASONS FOR SENTENCE

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Charge

1.  The defendant pleaded guilty to two charges of theft, contrary to s 9 of the Theft Ordinance, Cap 210.

2.  Charge 1 alleged that the defendant, on a day unknown in September 2012, at KC Ho & Fong Solicitors & Notaries, 18/F, Henley Building, No 5 Queen’s Road Central, stole one credit card, property belonging to Liao Zi-yin, Peggy (“PW1”).

3.  Charge 2 alleged that the defendant, between 1^st day of September 2012 and the 30^th day of September, 2013, both dates inclusive, in Hong Kong, stole choses in action, namely credit balances in the total sum of $294,811.85 in the credit card amount numbered 5520-8380-2030-3122 held by PW1 with Standard Chartered Bank (Hong Kong) Limited, (“the SCB”) property belonging to PW1.

Facts

4.  In gist, PW1 was a solicitor and the defendant was her secretary in 2012 until November that year.  The solicitors firm PW1 worked for was Messrs. K. C. Ho & Fong Solicitors & Notaries whose office in that period was located in the address stated in Charge 1.

5.  At that time, PW1 had a credit card which was the one described in Charge 2.  She had not applied for a supplementary card.  She last used the credit card in around June 2012.  Correspondences relating to the credit card would be sent to the office of PW1’s firm which would be handled by her secretary ie the defendant.

6.  In or about October 2013, PW1’s frim was about to move office.  PW1 arranged a change of correspondence address with the SCB.  The SCB then notified PW1 that she had an outstanding payment in respect of the said credit card in the sum of HK$262,533,76.

7.  PW1 recalled that the balance of the credit card was “nil/zero” as at 18 September 2012 and she had not used the credit card about since June 2012.

8.  The bank records showed that there were 26 cash advances in the sum of HK$235,331 made between September 2012 and May 2013.  Between September 2012 and September 2013, there were 80 transactions in the sum of HK$59,480.85. Hence, a total of HK$294,811.85 was stolen.

9.  According to PW1, she had put the credit card in a drawer in her room at her firm’s office during day time.  She would lock it when she left her office.  However, her secretaries would have keys to the drawer. 

10.  Travel Index Check records confirmed that the defendant was in Hong Kong between 1 September 2012 and 11 December 2013. 

11.  On 20 February 2016, the defendant was arrested.  Under caution, she said “I used the credit card because my mind took a wrong turn at that time.”

12.  In her cautioned interviews and subsequent video recorded interview, she admitted that:-

(a) She started working for PW1 as her secretary since April 2012.

(b) PW1 put the credit card in her drawer in the office. She took it away and used it between September 2012 and September 2013. She did so because she owed a substantial amount of debts to loan sharks and she could not repay them. So, she withdrew cash from PW1’s credit card to repay her creditors.

(c) The amount withdrawn was over HK$200,000.

(d) She changed the billing address of the credit card to her personal address to prevent PW1 from knowing what she had done with the credit card.

(e) She denied having used the credit card to make any purchases.

Previous Criminal Conviction

13.  The defendant is of clear record.

Antecedent

14.  The antecedent statement shows that the defendant, aged 60, a divorcee, had received secondary education.  She once worked as a clerk in a design company and in a law firm.  She claimed that she has been suffering from depression for 3 years.

Mitigation

15.  Miss Lam, Solicitors for the defendant, took no issue of the contents of the antecedent statement.  She supplemented that the defendant was divorced in 1996-1997.  At the time of the offence, she was aged 56 or 57.  The defendant suffered from depression and was referred to see a psychiatrist for her anxiety and depression problems.  However, she did not seek any treatment from a psychiatrist.

16.  In mitigation, Miss Lam submitted that it was a breach of trust case. The defendant stole the credit card because she had incurred debts to loan sharks.  She made cash advances with the use of the credit card in the sum of $233,400, and for each cash advance it incurred an administrative fee.  Besides, she had made some purchases with the use of the card.  She had made some repayment each month.  Miss Lam said that it went without saying that the bank suffered a loss which included the interests incurred for the non-payment.

17.  Miss Lam further submitted that the defendant was remorseful and she “surrendered” to the police on 20 February 2016.  At the instigation of the Court, Miss Lam was requested to provide more information in relation to the circumstances under which the surrender took place.  The case was stood down for Miss Lam to take further instructions.

18.  Having taken instructions, Miss Lam told this Court that 3 or 4 days prior to 20 February 2016, the ex-husband of the defendant telephoned the defendant and related to her that a “Lee Sir” was looking for her.  The telephone number of Lee Sir was given to the defendant who made a number of calls to Lee Sir but was unable to reach him.  One day, Lee Sir called the defendant and made an appointment to meet at the police headquarters.  By then, she was prepared to admit the offences and she did so on the day of the appointment.  She was then arrested.  A house search was conducted at her residence in Lama Island and nothing was found. 

19.  In response to the aforementioned, Miss Chan, Counsel for the prosecutions, submitted the following: (i) PW1 reported the case to the police in October 2013; (ii) police took some time to investigate and to identify the suspect; (iii) the defendant quitted her job with the said solicitors firm in November 2012 and moved home; (iv) the police were therefore unable to locate her; (iv) at a later stage, the police obtained her contact, telephoned her on 18 February 2016 and informed her about this case; and (v) 2 days later i.e. 20 February, the defendant “surrendered” herself to the police station.

20.  A letter written by the defendant dated 15 March 2017 was submitted to this Court.  The defendant said that she was in need of some money and out of greed she stole PW1’s credit card.  She wanted to apologize to PW1.  She also said that she should have surrendered herself to the police long time ago, however she was afraid of telling her mother about the offences. 

Authorities

21.  Miss Chan referred this Court to HKSAR v Lam See Chung Stephen [2013] 5 HKLRD 242 and HKSAR v Ng Kwok Wing [2008] 4 HKLRD 1017 whilst Miss Lam to HKSAR v Lee Lai Kit Kitty CACC 379/2008 and HKSAR v Cheung Mee Kiu CACC 99/2006 ([2006] 4 HKLRD 776).

Reasons for sentence

22.  In passing sentence, I take into account everything said on the defendant’s behalf by Miss Lam and written by the defendant in the said letter.

Charge 1

23.  The defendant being the secretary to PW1, by virtue of the trust reposed in her by PW1, was authorized to deal with the correspondences relating to the credit card.  In abuse of that trust, she dishonestly stole the card from the drawer of PW1.  She also approached the SCB to change the billing address of the credit card to her residential address so as to conceal her fraudulent uses of the credit card.  It is therefore correct for Miss Lam to say that it is a breach of trust case. 

24.  In light of the circumstances, I adopt a starting point of 9 months for the theft of the credit card.  Given that it is a breach of trust case I increase the starting point by 3 months to 12 months’ imprisonment.

Charge 2

25.  In respect of charge 2, it is noted that there was a premeditated plan on the part of the defendant to commit the offence of theft (charge 2).  She first stole the credit card, and subsequently changed the billing address of the credit card so as to conceal her misdeeds.  Obviously, she was driven by her greed to commit the offence which took place over a period of 13 months.  A substantial amount of money, almost $300,000, was stolen with the use of the credit card. 

26.  Although charge 2 is an offence of theft, it is considered to be a credit card fraud.  With the use of the credit card, the defendant made 26 cash advances in the sum of HK$235,331 and 80 transactions in the sum of $59,480.85. As such, I consider that the sentencing guidelines in respect of credit card fraud is applicable in the present case.

27.  In HKSAR v Lam See Chung Stephen (supra), the Court of Appeal, at paragraphs 39 and 40, said:-

“39. Those judgments which lay down a sentence of 3 years’ imprisonment or less for cases of simple credit card fraud are based on a number of sentencing principles and considerations. They are that counterfeit credit card offences require deterrent sentences; there is a need to protect the integrity of the credit card system, and the potential for loss is great and often will be far greater than the actual loss….

40. These sentencing principles and considerations are equally applicable to credit card fraud offences in which genuine credit cards are used and we can see 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 to commit the offence.”

28.  In light of all the circumstances of the case, I adopt a starting point of sentence of 3 years’ imprisonment but enhance it to 3 years and 3 months’ imprisonment for the breach of trust element.  

1/3 discount

29.  The defendant appeared in the District Court Plea Day Hearing on 16 March 2017, and she indicated that she would plead guilty to all the charges. She is therefore entitled to the full one-third discount of sentence.  Reduced by one-third for her pleas of guilty, the sentence for charge 1 is 8 months’ imprisonment, and the sentence for charge 2 is 26 months’ imprisonment.

Surrender to police

30.  As outlined above, the defendant was located by the police and through telephone conversations, she was informed that the police were investigating into this case.  As submitted by Miss Lam, the police made an appointment with the defendant to appear in the police headquarters on 20 February 2016.  By that time, the defendant was well aware that she had no realistic option but to turn herself in.  

31.  In her self-written letter, the defendant said that she should have surrendered to the police long time ago but she failed to do so as she was afraid to disclose her misdeeds to her mother.  In other words, she admitted that she did not surrender to the police.  Clearly, she took no steps to “surrender” herself between September 2013, the time she last committed the offence, and February 2016, the time she was finally located and contacted by the police. It was under these circumstances that she turned in at the police station. 

32.  As such, I do not consider what she did amount to a “voluntary surrender” to the authorities and allow her to put forward as a mitigating factor for a reduction of sentence.

Totality

33.  Having considered the totality principle, I order that both sentences are to run concurrently with each other, thus making a total of 26 months’ imprisonment.