HKSAR v. LOK PUI YING, EMILY

 DCCC160/2010

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 160 OF 2010

----------------------

----------------------

---------------------

Reasons for Sentence

---------------------

1.  The defendant has pleaded guilty to 2 charges of theft, 11 charges of obtaining property by deception and a final charge of attempting to obtain property by deception.

2.  The facts are that the defendant was at all material times a neighbour of the victim in the theft charges. The victim lived alone and over the years trusted the defendant. When she went out the defendant would take care of her flat. The victim had about 10 credit cards which she kept inside a drawer or in her wallet at her home.

3.  On 8 July 2009, the victim was notified by phone by the Card Centres of the Bank of East Asia and the Development Bank of Singapore that her credit cards were being used in the Mongkok area. She went home to check and the realised that the cards that she had kept at home had gone missing. These were:

2 DBS cards;

1 Bank of East Asia card; and

1 Bank of China card.

4.  On 15 July 2009, Hang Seng Bank chased her for outstanding credit card debt. She then also found out that her Hang Seng Bank Visa card had been used without her authority or consent and a report was thus made to the police. Upon investigation by the police it was discovered the transactions which resulted in the obtaining property by deception charges had taken place. These credit cards had been used to pay for goods at different places in Hong Kong between 6 June 2009 and 8 July 2009.

5.  Aside from the attempting to obtain property by deception charge, the total cost of the items which were bought using the stolen credit cards amounted to $108,348.80.

6.  On 9 November 2009, the defendant having bought a lot of jewellery from the Chow Sang Sang shop had returned to the shop on 9 November to collect a diamond ring which she had bought on 8 July. The salesperson then identified the defendant to the police and the police declared arrest on the defendant. When she was cautioned, the defendant denied she had anything to do with it and she blamed someone called Mong Ga-ling, who told her to take the ring.

7.  Subsequently, items were recovered from a pawn shop at Sham Shui Po. The items were pawned by a person presenting the ID card of the defendant. Other items had been pawned and not recovered because the date of the redemption had passed. Subsequently, an interview was conducted with the defendant under caution where she finally admitted that she was the person who pawned the items in the pawn shop. She said she had stolen a credit card from the wallet of the victim of the theft and used it on payment for a number of occasions. After she had used it, she would put it back into the victim’s wallet and subsequently she would again sneak into the victim’s home and steal another 4 credit cards from the victim’s drawer. She would then make purchases and subsequently she had discarded 4 of the victim’s credit cards in the rubbish bin.

8.  The defendant is aged 31. She has two previous convictions of theft and so she cannot be said to be a first offender. In mitigation, Mr Lai on her behalf had submitted that the defendant has a complicated background and that he would like an adjournment to support the fact that she had uncontrollable impulses due to a psychiatric condition. I allowed an adjournment to be made in order to give time for the defence to obtain such psychiatric report.

9.  The psychiatric report is now before me. It was prepared by a Dr Peter Ho Pang-nin and Dr Ho had prepared this report on the basis of his interviews with the defendant and her family members. The doctor disclosed that the defendant had epilepsy from the age of 3 to 14 years and had suffered from some form of hyperactivity in her teenage years; that the defendant was not on good terms with her parents and she suffered a miscarriage in 2006, resulting in her feeling depressed, worthless and suicidal. She developed the compulsive buying habit which gave her some relief from her depression.

10.  Dr Ho says that the exact aetiology of compulsive buying is not exactly known. He included a photocopy of a textbook called “The Synopsis of Psychiatry” by Kaplan and Sadock where the authors said the cause of the disorder is unknown. The onset of the disorder is usually about 18 years of age and they do not seek treatment until serious financial problems happen. Treatment is difficult and it appears to be a new science. However, I must stress what Dr Ho said towards the end of his report. In his opinion, the defendant is able to understand what she was doing at the time of the offences and she knew that it was wrong. She also knew the nature of the offences and the consequences. He recommends that she should have treatment from psychiatrists and clinical psychologists.

11.  Mr Lai on the defendant’s behalf has pleaded for leniency and has said everything possible that could be said on her behalf in mitigation. Mr Lai also produced letters from the defendant and from her parents asking for leniency. Mr Lai also very helpfully referred this court to several cases dealing with credit card frauds. But this case is not the normal credit card fraud because in the case of Chan Sui To, which is reported - I think this was taken from a computer, so I only have the case number here, CACC 115 of 1996 - forged credit cards were used to make purchases. In another case referred to, Candy Lai Mei-yuk, CACC 427 of 2003, there was an application using a false authorisation to collect credit cards and subsequently the credit card was used. But in that case, full restitution had been made and so the result was that the total sentence imposed on the applicant by the Court of Appeal was reduced to 2 years’ imprisonment.

12.  It is very helpful to look at past cases and the level of sentences which is handed down by the courts in those cases. But every case is different and distinct and I agree with Mr Lai that if one looks at the amount of money involved, that this would be considered to be a small operation in relation to the financial level which was laid down in Chan Sui To.

13.  However, in this case the defendant did purposely and deliberately steal the credit cards of the victim who trusted her with her flat. There was some form of planning involved because the defendant’s modus operandi was to take several cards, buy things with them and then return those cards to the victim’s home in order to avoid detection. In some cases she threw away the credit card. So there was some planning involved and it is not the typical type of compulsive buying.

14.  Of the items that the defendant bought in Charges 3 to 7 were, one could say, the most valuable items would be the mobile phones and the Gucci handbag. Apart from that, she bought a sun‑block and Bluetooth but the most valuable were the jewellery which she proceeded to purchase from Chow Sang Sang. I have to take into account the fact that there has not been restitution in this case so that people that have been affected have not been given back their money.

15.  Having considered the overall culpability, I consider that in this case a proper sentence, overall, taking into account the plea of the defendant, would be one of 3 years’ imprisonment and so I sentence the defendant in the following way. On Charges 1 and 2, the theft charges, I consider a starting point of 2 years’ imprisonment to be appropriate. Because of the plea of the defendant, the defendant is given 16 months’ imprisonment on each charge to be concurrent.

16.  On the obtaining property by deception charges, Charges 3 to 7, 15 months starting point on each charge is appropriate, reduced to 10 months on each charge because of her plea. Charges 8 to 14, I consider that an appropriate starting point on each charge would be 30 months’ imprisonment, but because of her plea she would be sentenced to 20 months on each charge to be served concurrently. I do take into consideration that Charge 14 is the attempting charge, but in reality the sentence should not be different from the substantive charge, because if not for the quick thinking of the shopkeeper the defendant would have gotten away with the offence.

17.  Having considered the totality in this case, I have decided to make the 16 months’ imprisonment for Charges 1 and 2 consecutive with the 10 months for Charges 3 to 7, and also the 20 months for Charges 8 to 14 will be consecutive to the 20 months, thus making a total of 46 months.

18.  I also consider that the defendant has a problem - a psychiatric condition. Although it is a new science, however, it is recognised as a psychiatric disease, so in that case because of the report of Dr Peter Ho, I will reduce the sentence by 10 months to 36 months. The defendant will go to prison for a total of 3 years.