HKSAR v. DHALIWAL JASPREET KAUR AND ANOTHER

DCCC 539/2018

[2018] HKDC 1360

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 539 OF 2018

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REASONS FOR SENTENCE

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1.  Both the first and second defendants pleaded guilty to 2 joint charges of “Theft”, contrary to section 9 of the Theft Ordinance, Cap 210 (charges 1-2).  The first defendant also pleaded guilty to 4 additional counts of “Theft” (charges 3-6).

Charges 1-2

2.  In the small hours of 13 March 2017, Ms Lee Wing Yan, Jessica went to “The China Bar” (“the Bar”) at the address as particularized in Charge 1.  Leaving her handbag on the floor at about 3:30 am, Ms Lee went up to the dance floor.  At about 6:30 am, Ms Lee left the Bar with her handbag. 

3.  At 3:30 pm on the same day, Ms Lee found her Aeon Credit Card as particularized in Charge 2 (“the Credit Card”) and some other items missing.   

4.  Under caution, both defendants admitted finding and taking away the Credit Card from a bar table in the Bar and throwing it away after using it. Both defendants also admitted that they used the Credit Card to buy drinks of HK$254 from the Bar on 13 March 2017.    

Charges 3-6

5.  Investigation revealed the Credit Card was also used by the first defendant in the following transactions:-

(a) Signing for a room at a hotel in Tsim Sha Tsui for HK$550 on 13 March 2017 (Charge 3);

(b) Buying a set of meal in a restaurant in Tsim Sha Tsui for HK$160 on 13 March 2017 (Charge 4);

(c) Buying a phone from a shop in Sham Shui Po for HK$3,750 on 13 March 2017 (Charge 5); and

(d) Buying a phone from a shop in Sham Shui Po for HK$3,000 on 13 March 2017 (Charge 6).

6.  Under caution, the first defendant admitted using the Credit Card in the aforesaid transactions.

Mitigation

7.  The first defendant was born in Hong Kong and is aged 20, single and lives with her mother and 3 siblings.  Her father had passed away.  The family is relying on social assistance.  The first defendant has clear record and she is studying for high diploma. 

8.  The second defendant is the cousin of the first defendant.  She was born in Hong Kong and aged 23, single and lives with her step father, her mother and 2 siblings.  She has a clear record and works as a clerk earning about HK12,000 per month.

9.  In mitigation, it was submitted that on the day in question, the two defendants were in the Bar celebrating the birthday of the first defendant’s mother.  They had a lot of drinks, as a result of which they did something which they would not do had they been sober.  They are now very remorseful and prepared to compensate the credit card company.  Given the young age, the plea of guilty and willingness to compensate the victim, the defence urged the court to consider calling for a Community Service Order report before sentencing.  It was further submitted that in case the court was not minded to call for a Community Service Order report, the court was urged to suspend the sentence given the offences were committed on the spur of the moment.  

Sentence

10.  Given this case involves the use of credit card, I do not consider Community Service Order as an appropriate sentencing option.

11.  For the charge of theft of the Credit Card (ie Charge 1), I consider the appropriate starting point is 6 months’ imprisonment.  Given the defendants’ guilty plea, the sentence is reduced to 4 months’ imprisonment for each defendant.

12.  For the other charges of “theft”, credit card was used in the commission of the offences.  Credit card offences are serious and must be deterred. Offenders would expect to be punished by a substantial term of imprisonment. 

13.  In R v Chan Sui To and anor [1996] 2 HKCLR 128, the Court of Appeal laid down the various factors to be considered in sentencing this type of offence, which included the size and planning of the operation, whether there is any international dimension and the role played by the defendant.  In HKSAR v Tu I Lang, CACC 464/2006, the Court of Appeal stated that 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 offence to a larger operation, then a starting point of 3 years’ imprisonment or less would be appropriate (see para 10 of judgment).  In HKSAR v Lam See Chung, Stephen, CACC 339/2012, the Court of Appeal stated that the aforesaid sentencing principles were equally applicable to credit card fraud in which genuine cards are used.

14.  In this case, one genuine credit card was involved and used on 5 occasions without any marked degree of planning or organization.  Further, there is lack of international element.  The total value of goods/ services obtained is not high.  The two defendants are young persons with clear record.  In the circumstances, regarding the offences of misuse of the Credit Card, I consider it appropriate to adopt 2 years and 6 months as the starting point for each of charges 2-6.  Given the defendants’ guilty plea, the sentence for each of these charges is reduced to 20 months’ imprisonment. 

15.  Regarding the restitution, it is well settled that this can amount to mitigation, particularly when coupled with a plea of guilty (see HKSAR v Leung Shuk Man [2002] 3 HKC 424 and HKSAR v Cheung Suet Ting [2010] 6 HKC 249).  As both defendants have the money ready to be paid into court as compensation to the credit card company, each of them is entitled to a discount of 3 months from the sentence for each of theft charges involving use of credit card.  In other words, the sentence for each of Charges 2-6 is reduced to 17 months’ imprisonment. 

16.  Apart from the above, I do not see other mitigating factor justifying further reduction of sentence.  Further, I do not see factors justifying suspension of sentence.

17.  Taking into consideration the totality principle, I consider a total sentence of 23 months is sufficient to reflect the total criminality of the first defendant.  In the circumstance, I order 2 months of the sentence for Charge 1 to run consecutive to Charge 2, 1 month of the sentence for each of Charges 3-6 to run consecutive to the combined sentence of Charges 1-2, making a total of 23 months’ imprisonment.  I hereby sentence the first defendant to 23 months’ imprisonment.  For the second defendant, I consider a total sentence of 19 months is sufficient to reflect the total criminality of the second defendant.  I therefore order 2 months of the sentence of charge 1 to run consecutive to the sentence of charge 2, making a total sentence of 19 months.  I hereby sentence the second defendant to 19 months’ imprisonment.  

18.  There is a compensation order in the sum of HK$7,714 to Aeon Credit Service (Asia) Company Limited.