HKSAR v. BARRION JAE MARIE LUYA

DCCC 22/2016

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 22 OF 2016

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Reasons for Sentence

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1.  The defendant pleads guilty before me to six offences.

2.  She was a Filipino domestic helper.  In August 2015, her employer applied for a Visa card from HSBC.  The application was approved.  When the Visa card and card password arrived at the defendant’s employer’s residence by post, the defendant stole the card and activated it on 13 September 2015 (Charge 1).

3.  On 18 and 20 September 2015, respectively, the defendant on each occasion successfully used the Visa card to withdraw $10,000 cash at the ATM machine of HSBC (Charges 2 and 3).

4.  On 22 September and 7 October 2015, the defendant attempted to withdraw $10,000 on each occasion from an ATM machine of HSBC.  These transactions were unsuccessful because the cash withdrawal limit of the card had been reached (Charges 4 and 5).

5.  On 9 October 2015, the defendant successfully used the Visa card to purchase one bottle of soft drink valued at $14 at a 7‑Eleven convenience store (Charge 6). 

6.  The defendant’s employer made inquiries with HSBC about the progress of the Visa card application, and the offences were detected.

7.  The defendant’s employment was terminated.  When she went to the Immigration Department to extend her working visa, she was arrested.  Under caution, she admitted the offences.

8.  The defendant is aged 40, with a clear record in Hong Kong.  Mr Lai, solicitor for the defendant, has prepared a written submission for mitigation which discloses the full background of the defendant.  The defendant is married, with a 3‑year‑old son.  Her son and husband live in the Philippines.  As her husband had been unemployed for 14 years, she being the sole breadwinner of the family, decided to come to Hong Kong to work as a domestic helper in March 2014.  She gave almost all her monthly salary to the employment agent and her family for their household expenses.

9.  It is said that in the end of July 2015, the defendant’s grandmother’s health was in a critical situation, and the defendant had to raise money for her medical expenses.  The offences were hence committed.  The stolen money was remitted back to the Philippines in payment of the medical expenses of her grandmother, who unfortunately passed away.

10.  Mr Lai in his written submission draws the court’s attention to a few cases which explain the general sentencing principles such as breach of trust and totality.  I do not think it is necessary to repeat the general principles and refer to the facts of the cases here.

11.  Drawing the court’s attention to various sentencing factors in paragraph 6 of his written submission, Mr Lai emphasises that the trust reposed in the defendant as a domestic helper by the employer was not much.  The offences, he says, lasted for only two months.  The effect on the victim could not be severe, while the defendant might not be able to work in Hong Kong again.  The offences were committed in order to raise money for the grandmother’s medical expenses.  Co‑operation with the police is also pleaded.

12.  I have read the mitigation letter written by the defendant in which she expresses her remorse in the case.

13.  Relying on Cheung Mee Kiu[1] and referring to the amount of the money stolen being much below $250,000, defence counsel submits that the proper sentence of this case is below 2 years. He also asks the court to treat all the offences as one transaction and take into consideration the totality principle.

14.  On the other hand, the prosecution refers to HKSAR v Lam See Chung Stephen[2], reminding the court that the 3‑year starting point for simple counterfeit credit card fraud is also applicable to stolen genuine credit cards.

15.  Here we have a Filipino domestic helper stealing the employer’s credit card and using it to withdraw money and purchase.  I have no reason not to accept that she needed the money for the medical expenses of her grandmother in the Philippines, yet it breached the trust reposed in her by her employer.

16.  The offences were  not committed in one isolated incident but lasted for about a month.  When she could not withdraw any more cash by the stolen card from the ATM machine, she started to use it for purchase.  While the item she purchased was only worth $14, the potential loss to the victim and the damage to the credit card system must not be ignored. The credit limit of the credit card was $227,000.  Had the defendant not been detected, she might have continued to use the credit card for more purchases.

17.  In HKSAR v To I Lang[3], the Court of Appeal says small scale credit card offences cannot be subjected to strict guidelines.  Where the facts of the offence point to a small, unsophisticated operation involving only one or a few forged cards, uncomplicated by other evidence materially linking the offender to a large operation, then a starting point of 3 years’ imprisonment or less would be appropriate.

18.  In this case, only one credit card was used, and the amount deceived was very small.  I will treat all the offences in this case as one course of criminal conduct of the defendant.

19.  Having considered all the circumstances of the case and the mitigation put forward, I take 21 months as the global starting point for all of the offences.  The defendant will have one‑third reduction of sentence for her plea of guilty to these offences.

20.  The defendant is therefore sentenced to 14 months’ imprisonment on each of the offences, all sentences to run concurrently.

[1] HKSAR v Cheung Mee Kiu [2006] 4 HKLRD 476

[2] HKSAR v Lam See Chung Stephen [2013] 5 HKLRD 242

[3] HKSAR v Tu I Lang [2007] HKCU 859