HKSAR v. YAN HEI YEE EVA

DCCC1039/2011

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 1039 OF 2011

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Reasons for Sentence

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1.  Defendant, you have pleaded guilty to a total of 15 charges, Charges 1 to 12 being offences of using a false instrument contrary to section 73 of the Crimes Ordinance Cap.200, Laws of Hong Kong and Charges 13 to 15, offences of attempting to use a false instrument contrary to section 73 and section 159G of the Crimes Ordinance, Cap.200, Laws of Hong Kong.

2.  Charges 1 to 5 were all committed on 26 and 27 April 2011 and involved you going to five separate branches of PCCW, submitting a forged acknowledgement of an application for a Hong Kong ID card in the names of existing PCCW customers in order to join a promotion plan.  In each case you paid HK$411 being the first month’s service charge and you left the respective branches with a new Smartphone.  The five phones that you obtained were valued at $24,324 in total. 

3.  Charges 6 to 12 involved you using three separate forged American Express Cards on 14 and 15 May 2011 by visiting various retail outlets in Hong Kong and Kowloon and purchasing expensive items such as diamond rings, cameras, wine, cash coupons and the like to a total value of $105,466. 

4.  Charges 13 to 15 relate to offences committed by you on 7 June of this year when you went to Watson’s Wine Cellar in IFC Building intending to purchase a bottle of wine for HK$34,000.  You presented a total of three forged credit cards in an attempt to complete the purchase but on each occasion the transaction failed.  The salesperson at Watsons recognised you as having previously uttered a forged card in May when you purchased a bottle of wine - that is Charge 10 - and they then called the police. 

5.  With regard to the first 5 charges of submitting the forged acknowledgement of an ID card you told the police that you were given the forged documents by someone called “Smarty” who provided you with the money for you to make the first payment.  You handed over the phones to him and collected $300 from him as a reward after each occasion. 

6.  With regard to the credit card offences you told the police that you were recruited by someone to make the purchases in February and March 2011.  You were given 6 per cent of the price of the items as the reward and earned over $10,000 by taking part in this illicit enterprise. 

7.  You are 24 years of age and have two previous convictions for theft, the last one being in April 2010 when you were placed on probation.  I am told by your counsel that you are now pregnant.  Further, I am told that the reason that you committed these offences was because you had been cheated by your ex-boyfriend causing you to lose money and you therefore succumbed to the temptation of earning quick money due to the financial pressure that you were under. 

8.  Credit card frauds are, of course, extremely serious.  Hong Kong is a consumer-orientated society which depends very heavily on the use of credit cards.  The use of forged credit cards is prevalent in Hong Kong, and as has been said in these courts on numerous occasions before, it is the potential for loss that is the most important consideration.  The credit card frauds committed by yourself in which you used the three forged American Express Cards were committed on 14 and 15 May this year - that is Charges 6 to 12 - and whilst individually the transactions were relatively small, less than $20,000 save for Charge 10 which related to a bottle of wine costing $34,000, the total amount comes to $105,466. 

9.  I have reviewed a number of cases, particularly the case of R v Chan Sui To & Anor Criminal Appeal No. 115 of 1996 and the cases referred to therein, and I am satisfied that taking a global view this can be considered as a medium-sized operation.  I am satisfied, however, also that you were not the mastermind behind the operation but were simply recruited to use the forged credit cards for a reward.  This, of course, you succumbed to due to financial pressure.  You of course had a total of six forged credit cards, three of which you attempted to use and are the subject matters of Charges 13 to 15.  I see no reason to differentiate in terms of sentence between the charges of using a false instrument and attempting to use a false instrument. 

10.  With regard to the first 5 charges relating to the use of a forged acknowledgment of an application for a Hong Kong ID Card, these are also serious offences.  They are, of course, a deception on PCCW and I note that the offences which you have admitted are part of a larger operation involving 24 other fraudulent applications.  These offences I consider to be similar to using a forged identity card.  However, a distinction can be made because those offences are very often associated with people who are not entitled to stay in Hong Kong using such forged instruments either to extend their stay in Hong Kong or seek employment.  You, of course, are a Hong Kong resident but were perfectly aware of the deception that you were perpetrating on PCCW. 

11.  In sentencing you I take account of all that has been put forward by your counsel on your behalf including your plea of guilty. I have not lost sight of the fact that you are pregnant and most certainly will give birth whilst you are in prison.  This is not, however, something that merits any further discount in sentence. 

12.  On Charges 6 to 15 I adopt a starting point of 3½ years’ imprisonment.  I will discount that by one-third to take account of your plea of guilty coming to 28 months’ imprisonment on each charge.  I order the sentences to run concurrently with each other. 

13.  On Charges 1 to 5 I adopt a starting point of 15 months’ imprisonment and once again will reduce this by one-third to reflect your plea, coming to 10 months’ imprisonment on Charges 1 to 5.  I order these sentences to run concurrently with each other but due to the question of totality of sentence and in order to reflect your overall criminality I order that 6 months of the sentence on Charges 1 to 5 to run consecutively to the sentences imposed on Charges 6 to 15 and the balance of 4 months concurrently, arriving at an overall sentence of 34 months’ imprisonment in all.