HKSAR v. GALVIS SILVA PAOLA ANDREA

DCCC 138/2017

[2018] HKDC 558

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 138 OF 2017

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REASONS FOR SENTENCE

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1.  The defendant is convicted upon her own pleas and admission of facts for four charges. Charge 1 is theft, contrary to section 9 of the Theft Ordinance, Cap. 210. Charge 2 is attempted fraud, contrary to section 16A of the Theft Ordinance, Cap. 210 and section 159G of the Crimes Ordinance, Cap. 200. Charge 3 is fraud, contrary to section 16A of the Theft Ordinance, Cap. 210. Finally, Charge 4 is failing to surrender to custody without reasonable cause, contrary to section 9L(1) and (3) of the Criminal Procedure Ordinance, Cap. 221.

The Admitted Facts

Re Charges 1 to 3

2.  At all material times, Mr Parikh Jay Mahendra (PW1) had two credit cards: an American Express credit card (card A) and a Union Bank Visa credit card (card B).  PW1 kept both card A and card B inside a black card holder.

3.  At around 12:20 am on 16 September 2016, PW1 alighted from a taxi at Tsim Sha Tsui and realised that the card holder went missing.  He reported loss to the card centres and was informed that two transactions were made earlier the day for HK$1,700 and HK$500 respectively. The case was reported to the police.

4.  It transpired that earlier at around 1:27 am on the same day, the defendant and a man arrived at ‘Hotel MK’ in Mongkok, asking to rent a room.  They were served by the receptionist Mr Yip Pak-hung (PW2).

5.  The defendant was asked to pay HK$1,700 for a room plus HK$500 as deposit.  The defendant presented card A to PW2 and was asked for the PIN.  The defendant told PW2 that card A belonged to her husband and she did not know the PIN.  She then presented card B, and payments were successfully made.  The defendant signed on the sales receipts for both transactions.  The defendant and the man were then led to Room 309.

6.  On the same day, at around 3:45 am, police officers arrived at Room 309 and conducted a search inside.  Both card A and card B were found and seized.  The defendant was then arrested.

7.  In a subsequent cautioned interview, the defendant admitted, inter alia, that she picked up PW1’s card holder containing card A and card B on a taxi.  She threw away the card holder somewhere in Mongkok and used card A and card B to rent Room 309.

Re Charge 4

8.  On 24 August 2017, at 10:00 am, the defendant was due to appear in the District Court before a judge for plea and sentence. She did not show up.  A warrant of arrest was issued.

9.  On 16 November 2017, the defendant was re-arrested by the police.  Under caution, she said on 24 August 2017, she asked her private lawyer called Sunny to inform the court and the police that she could not attend court on that day.  She found out that the lawyer did not do that.  About two or three weeks later, she tried to contact the police officer in charge of her case to explain her absence from court but to no avail.  As she was ill and so was her mother, she then forgot to follow up with the matter.

10.  The defendant produced a referral letter dated 24 August 2017 written by a Dr Tan of ‘TY Medical Practice’ to the Accident and Emergency Department of Queen Elizabeth Hospital in relation to her complaint of abdominal pain on 24 August 2017.  According to the records of the said medical clinic, the defendant was registered for consultation on 24 August 2017 at 11:44 am and was seen by Dr Tan at 12:00 pm, and the consultation lasted for about four minutes.

Defendant’s background

11.  The defendant was born in Colombia in 1989.  She has received secondary school education and is unemployed at the time of the offence.  She is single, has a mother of 45-year-old and a 4-year-old daughter.  She reported no fixed abode.  She is a ‘Form 8’ recognizance holder, and the latest form was issued on 19 November 2015 which is still in force.

12.  The defendant has altogether 10 previous convictions entered on five court appearances with one count of theft in 2014. The others are mostly dangerous-drug-related offences.  The last conviction was entered on 1 March 2016 for offences of driving without licence, using a motor vehicle on a road against third-party risks and crossing continuous double white line, for all of which she was given concurrent sentences of 2 months’ imprisonment suspended for 18 months.  At one stage, the defendant sought to dispute the accuracy of those suspended sentences but eventually decided not to challenge them. 

Mitigation

13.  Now the defendant admits the information in relation to her background and the criminal record as supplied by the prosecution.  Mr Leung, the defence solicitor on the instruction of the Director of Legal Aid, fairly and correctly accepted that enhancement due to the defendant’s ‘Form 8’ status is inevitable, but he invited the court to consider a lesser enhancement in the region of 1 to 3 months. 

14.  Mr Leung also sought to distinguish the authority of HKSAR v Leung Kam Fai [2016] 2 HKLRD 308 submitted by the prosecution by drawing to the court’s attention that although the defendant had once absconded she all along had indicated her guilty plea, and for that reason, the court was invited to give her the full one-third discount for the guilty plea.

15.  Several documents were submitted to the court as mitigation on behalf of the defendant.  The defendant herself wrote a letter, expressing her remorse, and most importantly, informed the court that she is now 7 months’ pregnant and now looking forward to a normal decent delivery, and she asked for a lighter sentence.

16.  There is another letter prepared by Father John Wotherspoon where it was stated that if the court is willing to order community service for the defendant, the father’s organisation will be willing to assist.  Upon discussion with the defence, it seems that this is irrelevant for the present purpose as community service is simply out of question in view of the nature and the severity of the offences and the circumstances of the case.

17.  The defence also submitted a letter in Spanish prepared by the defendant’s mother.  I was told what was said in the letter was to the effect that the defendant’s mother pleaded for leniency on behalf of the defendant.  And, finally, the defence submitted two receipts as proof that the defendant had been attending business or management courses whilst in custody, and that shows her determination to reform.

18.  The defence also submitted two cases for my consideration.  Both are District Court decisions of similar or comparable facts to those of the present case.  The first one is HKSAR v Tan Wei Loong DCCC 1206/2010 where that defendant was also involved in a case of using forged credit cards, and that sentencing judge adopted a starting point of 3 years’ imprisonment for each of the relevant offences.

19.  The second one submitted is HKSAR v Achbboukh Jamal DCCC 234/2017.  Similarly, that defendant was also charged with and convicted upon his own plea of one count of obtaining property by deception. The facts disclosed that that defendant had used a lost credit card to buy a watch in the sum of HK$1,558.  The sentencing judge having considered certain authorities and eventually adopted a starting point of 30 months’ imprisonment. 

20.  The defence submitted that there was no premeditation in this case.  The credit cards in question were simply picked up by the defendant.  They were used but were only for a small amount, and they were simply used for renting a room, and the defendant even foolishly stayed in the room and eventually got arrested.

Sentence

21.  This is in essence a case of theft by finding of credit cards and subsequent fraudulent use or attempted use of them by the defendant.  The maximum penalties for theft and fraud are 10 years’ imprisonment and 14 years’ imprisonment respectively.  There are no particular sentencing guidelines for cases of theft and fraud for obvious reasons as the facts and circumstances of the individual cases can vary so much.  There are, however, Court of Appeal decisions which laid down certain relevant sentencing principles or even guidelines for credit-card-fraud cases.  Those are usefully summarised in a relatively recent authority HKSAR v Atienza Richard Montenegro CACC 38/2016, an unreported judgment given on 22 September 2016 which is helpfully referred to me by Miss Lam for the prosecution.

22.  The facts are also of much similarity to those of the present case.  It was also a case of theft by finding of a credit card and the subsequent unlawful use of it by the applicant.  The Court of Appeal, having considered and confirmed certain relevant sentencing principles, approved the starting point adopted by the sentencing judge, namely, one, starting point of 9 months’ imprisonment for the theft charge in relation to the credit card which was admittedly picked up in a park; and two, starting point of 3 years’ imprisonment for each of the several charges of obtaining or attempting to obtain property by deception in relation to the use or attempted use of the stolen credit card for various payments of property valued at a thousand-odd to several thousand Hong Kong dollars.  

23.  I noted that the charges in this case are fraud and attempted fraud as opposed to deception as in the said case Atienza Richard Montenegro.  All those charges are similar in nature and, more importantly, arising from similar, if not identical, factual circumstances.  I shall therefore adopt the same starting points for Charges 1 to 3 in this case.

24.  When coming to this decision, I have already considered the two District Court cases submitted by the defence as aforesaid and noted that in one of them, namely, DCCC 234/2017, the sentencing judge adopted a slightly lower starting point of 30 months’ imprisonment for the credit-card offence but without giving any particular reason.

25.  Now I shall proceed to deal with Charge 4 which can be conveniently described as the absconding charge.  On 16 May 2017, at a mention hearing in the District Court, the defendant through her counsel indicated that she would plead guilty to all the then charges, and as a result, a hearing for plea and sentence was fixed on 23 August 2017 and later refixed to 24 August 2017.

26.  She, however, failed to attend court on that return day though her then counsel and solicitor on the instruction of the Director of Legal Aid did attend.  The matter was stood down for an hour or two, but the defendant still failed to turn up.  As a result, a warrant of arrest was issued.  The defendant never turned up in court or surrendered to the authority.  It was not until 15 November 2017, i.e. more than three months later, that the defendant was intercepted by the police for identity check in Mongkok area.  Her wanted status was revealed, and then she was re-arrested. She was taken to the court on 17 November 2017, and eventually on 14 December 2017, the defendant through a legal-aid counsel confirmed her earlier indication of guilty pleas to all the theft and fraud charges as well as the newly added absconding charge.  A date was set down on 12 April 2018 for plea and sentence.

27.  In mitigation through her legal representative, the defendant maintained her version as disclosed to the police upon her re-arrest, i.e. she was sick on the day for which she was required to attend the court as per the medical proof of the private clinic which she had produced to the police (see paragraph 11 of the admitted facts).  Nevertheless, she admitted that she did not turn herself in subsequently but was only re‑arrested by the police in a public place.

28.  The maximum penalty for the absconding charge is 12 months’ imprisonment.  I have considered the said authorities submitted by the prosecution HKSAR v Lo Kam Fai where the same absconding charge and similar facts had been considered by the Court of Appeal. The Court of Appeal approved the starting point of 6 months’ imprisonment adopted by the sentencing judge.  I have considered all the relevant circumstances here and take the view that the same starting point is appropriate for this case.

29.  Now I shall proceed to deal with the aggravating factors and the mitigating factors in this case.  First, the aggravating factor arising from the defendant’s ‘Form 8’ status.  It was as early as in 2013 when the Court of Appeal observed in HKSAR v Sandagdorj Altankhuyag & Another [2014] 1 HKC 206 that the commission of an offence by a foreign national who was the holder of a ‘Form 8’ recognizance could constitute an aggravating factor and could have his sentence enhanced.  It is because that a foreign defendant when committing a crime, he had abused the hospitality and liberty offered by the Hong Kong Government, and his crime has affected Hong Kong’s reputation for order and security and gone to the very essence of Hong Kong’s integrity in the international community. 

30.  Since that judgment, the Court of Appeal has on various occasions enhanced or endorsed the enhancement by sentencing judges of sentences of defendants who were ‘Form 8’ holders.  The enhancement was usually in the region of a few months.

31.  Also as stated in the authorities submitted by the prosecution HKSAR v Shah Syed Arif [2016] 4 HKLRD 664, the Court of Appeal at paragraphs 34 and 35 of the judgment observed that it was neither prudent nor possible to issue sentencing guidelines for such cases. Such enhancement was best left to the discretion of the sentencing judge or magistrate, but obviously the greater the impact of the particular offence on the community at large and on Hong Kong’s reputation for order and security, the greater the enhancement.

32.  In that case, the applicant was convicted of trafficking in a substantial amount of cocaine, and for that primary offence, the sentencing judge adopted a starting point of 8 years and 2 months. The enhancement to reflect the applicant’s ‘Form 8’ status for 1 year and 10 months was nevertheless found to be too severe by the Court of Appeal, and the enhancement was eventually reduced to one of 1-year imprisonment after appeal.

33.  I have considered all the circumstances in this case, including the nature of the offences, and I take the view that the appropriate enhancement in this regard should be one of 3 months. 

34.  The main mitigating factor in this case is the defendant’s guilty pleas.  No doubt that should be reflected in the sentence, and the only issue is the extent of reduction.  I have considered the Court of Appeal decision Lo Kam Fai as aforesaid, including the dissenting judgment by Macrae JA as well as the two District decisions, HKSAR v Lin Kee Shing DCCC 219/2016 and HKSAR v Hung Hin Ming DCCC 1093/2016 submitted by the prosecution.

35.  I see the force in the reasoning of Macrae JA on the issue of double-counting if a defendant is to be given a reduced discount for his guilty plea due to his absconding and at the same time be additionally penalised by an absconding charge.  Also, perhaps more importantly, I bear in mind that the defendant here, unlike those in the said cases, had all along indicated her guilty pleas and at no stage had any trial dates been fixed or wasted.  In any event, as repeatedly pointed out by the Court of Appeal in HKSAR v Ngo Van Nam [2016] 5 HKLRD 1, the discount on guilty plea is a matter which is subject to the overriding discretion of the sentencing judge.

36.  Having considered all the circumstances, I am prepared to give the full one-third discount to the defendant on all charges.

37.  There is also one last matter of substance put forward by the defence as mitigation, i.e. the defendant is now 7 or 8 months’ pregnant.  I have considered some authorities in this area, in particular, a relatively recent one 香港特別行政區對何珈妮 (Ho Ka Nei) CACC 8/2014, the judgment was written in Chinese and was given on 15 May 2014. 

38.  On that occasion, the Court of Appeal, after having considered several authorities, confirmed that a defendant would not have her sentence reduced because of her pregnancy or her body conditions unless in very rare circumstances.  The Court of Appeal, however, agreed to the sentencing judge’s approach of exercising his discretion by giving an extra 3 months’ reduction for the defendant’s pregnancy and the inevitable birth of the baby in prison (see paragraphs 14 to 16 of the judgment).

39.  I shall in the similar circumstances of this case exercise the same discretion and give the same reduction of sentence to this defendant as matters of humanitarian reason and leniency. 

40.  To conclude, for Charge 1, I adopt a basic starting point of 9 months’ imprisonment, enhance it by 3 months to reflect the defendant’s ‘Form 8’ status and make it a 12 months’ imprisonment.  A one-third discount is given for the guilty plea, that makes it 8 months’ imprisonment.  A further 3 months’ reduction for the defendant’s pregnancy, the final sentence is 5 months’ imprisonment.

41.  For Charge 2, I adopt a basic starting point of 3 years’ imprisonment, enhance it by 3 months to reflect the defendant’s ‘Form 8’ status, and that makes it 3 years and 3 months’ imprisonment.  Again a one-third discount is given for the guilty plea, that makes it 26 months’ imprisonment.  Similarly, a further 3 months’ reduction for the defendant’s pregnancy, the final sentence is 23 months’ imprisonment.

42.  I adopt the same starting point, the same calculation and the same final sentence for Charge 3, i.e. 23 months’ imprisonment. 

43.  Finally, for Charge 4, I adopt a starting point of 6 months’ imprisonment and give it a one-third discount for the guilty plea, that makes it 4 months’ imprisonment.  A further 3 months’ reduction for the defendant’s pregnancy, the final sentence is 1-month imprisonment.

44.  Having considered the totality principle, I order the sentences for Charges 2 and 3 to run concurrently with that of Charge 1 whereas the sentence for Charge 4 to run consecutively with that of Charge 1.  The total sentence is therefore 24 months’ imprisonment.

45.  I have considered the suspended sentence of 2 months’ imprisonment under the last convictions of the defendant, i.e. item 5 of the criminal record.  Those are relatively minor convictions of road-traffic offences.  In view of the different and minor nature of those offences when compared to the present ones, I do not order to activate any of those suspended sentences. 

46.  Finally, the prosecution seeks to apply for forfeiture of the defendant’s bail money because of her absconding.  The defence makes no submission on that upon my invitation.  I therefore order the forfeiture of the bail money in the sum of $10,000 pursuant to section 9M of the Criminal Procedure Ordinance, Cap. 221.