HKSAR v. CHAN YING TENG

DCCC 15/2020

[2020] HKDC 789

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 15 OF 2020

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Reasons for Sentence

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1.  The defendant has pleaded guilty to one charge of theft, contrary to section 9 of the Theft Ordinance, Cap 210, where she admits on or about 3 October 2019, she stole three credit cards belonging to Lai Hoi-wing Winnie in Hong Kong. She has also pleaded guilty to Charge 2, attempting to obtain property by deception where she admits that on 3 October 2019, she attempted to dishonestly obtain by deception 14 bottles of skincare products in a La Mer shop in Sogo department store, Tsim Sha Tsui, Kowloon. She falsely represented that she was the genuine holder of one credit card issued by DBS Bank in the name of Lai Hoi-wing Winnie and was authorized to use the said credit card to make payment.

2.  The facts of this case are straightforward.  On 3 October 2019, at about 3.25 in the afternoon, the defendant was in Sogo department store, in the La Mer shop and tried to buy 14 bottles of skincare products totalling $33,400.  She presented to the salesperson a credit card issued by DBS Bank in the name of Lai Hoi-wing Winnie.  Due to the number of items and their high value, the shop assistant felt suspicious about the defendant. 

3.  She gave the DBS Bank credit card to the cashier for payment but at the same time alerted that cashier staff member.  That cashier checked the signature of the defendant on the sales invoice signed already and found it incompatible with the signature on the card.  She tried to put the payment through on a credit card machine but it was rejected.  She then called the credit card authorization centre but was told there was a problem with the card.  She was advised to report the matter to the police.  The police arrived at 3.49 pm and arrested the defendant. 

4.  Under caution at the scene, the defendant admitted that she had picked up the credit card on a street that morning in Tsim Sha Tsui although she had forgotten which street.  She did it out of greed and asked for a chance.  The police then searched her handbag and found two other credit cards issued in the same name, Lai Hoi-wing Winnie.  She was arrested again for theft and under caution she admitted that she had also picked up those two cards on the street and asked for a chance. 

5.  During a subsequent video-recorded interview, she admitted the offences, admitted she committed them out of greed and had wanted to use the three credit cards to pay for items. 

6.  Lai Hoi-wing Winnie received a call from the credit card authorization centre on the same day at about 3 pm and was informed that her credit card was being used by someone else.  She then realized that her wallet which had contained all three credit cards in her name was missing.  She confirmed she had never authorized any person to use any of her credit cards. 

Mitigation

7.  The defendant has a clear record in Hong Kong but that carries little weight as she is a Malaysian national here in Hong Kong as a tourist.  She is 29 years old.  In Malaysia, she lives with her parents and two sons aged 8 and 10.  She is divorced.  She was working as a saleslady in Malaysia, earning about $8,000 each month.  Her best mitigation is her plea of guilty at the earliest opportunity.  Mr Lai has said all he can say on behalf of the defendant and I thank both counsel for their assistance and authorities they have brought to my attention to assist me in sentencing. 

8.  In mitigation, it has been stressed that she is very remorseful and ashamed by her actions.  There is a letter from her stepmother and from the defendant herself.  I have been told she comes from a broken family and had to learn to be self-sufficient from a young age.  She was married at 18 and had two sons but her husband left her to bring them up on her own.  Her father has recently had surgery to deal with a hip and knee joint operation.  He is recovering at home. 

Reasons for Sentence

9.  Defence counsel stressed that she pleaded guilty to Charge 1 on the basis that it was a theft-by-finding case.  It was three credit cards belonging to the same person.  There is no evidence from the police to suggest otherwise and the victim did not know her wallet with the cards in it was missing until the commission of the second offence. 

10.  Defence counsel also stressed that there was only one card involved in the deception charge and the attempt to obtain goods was thwarted.  Even then, if she had succeeded, it was not a large sum of money.  He submits that the facts indicate a small-scale credit card fraud case.  Ultimately, no loss was suffered by any victim. 

11.  Prosecution relies on the case of HKSAR v Lam See Chung Stephen [2013] 5 HKLRD 242 as well as HKSAR v Tu I Lang, CACC 464/2006, where the Court of Appeal held a 3-year starting point for simple counterfeit credit card fraud or simple credit card fraud using stolen genuine credit cards is appropriate.  The same sentencing principles, of which the most important consideration was potential for loss which often exceeded actual loss, apply to both types of offences. 

12.  I have also considered the more recent case of HKSAR v Li Chi Yat [2019] HKCA 458 on credit card fraud where the Court of Appeal looked at the approach courts should take in sentencing offences it can describe as small-scale offences.  The court in Li’s case examined more closely the question of when a starting point of less than 3 years’ imprisonment could be approached in a credit card offence. 

13.  The Court of Appeal recognized that small-scale credit card offences cannot be subject to strict guidelines because they can vary significantly in a number of ways, and that a starting point of 3 years’ imprisonment or less can be found appropriate. 

14.  I have taken into account the facts of this case.  It is relevant that there were three cards stolen but only an attempt to use one.  That attempt, if successful, would have resulted in the loss of about $33,000, not a huge amount of money.  However, that does not detract from the fact that the potential loss of using three credit cards dishonestly may have been significant. 

15.  As I have said earlier, the fact that she has a clear record here and is a tourist in Hong Kong carries little weight. She should have known there would have been consequences if caught and arrested. 

16.  I have taken into account her family background but that too carries little weight when I consider the facts of the case and possible potential loss. 

17.  I do accept, however, that this is a small-scale operation with ultimately no loss suffered.  There were three credit cards but they were all in the same name.  There is no evidence to suggest it was not a theft by finding. 

18.  After considering all the mitigation and factors I have highlighted above, for Charge 1, I take a starting point of 9 months’ imprisonment and reduce it by 3 months to reflect her timely plea. 

19.  For Charge 2, I take a starting point of 2 years and 6 months and reduce it by 10 months to reflect her timely plea. 

20.  Accordingly, the defendant is sentenced to 6 months’ imprisonment for Charge 1 and 1 year and 8 months’ imprisonment for Charge 2. 

21.  She tried to use one card on the same day that she found and stole all three cards.  Therefore, I find it appropriate to order both sentences to run concurrently. 

22.  Therefore, the defendant is sentenced to 1 year and 8 months’ imprisonment.