HKSAR v. SUMARNI

DCCC 1368/2024

[2025] HKDC 974

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 1368 OF 2024

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REASONS FOR SENTENCE

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The defendant pleaded guilty to a charge of "Theft" (Charge 1)  and 2 charges of "Fraud" (Charges 2 and 3). She stole 2 credit cards of her employer and used them to make multiple purchases within a few weeks.

Summary of Facts

2.  In November 2022, Madam Chen (PW1)  began to employ the defendant as a foreign domestic helper working and residing at her home situated at Tower 1, No.8 Waterloo Road, Yau Ma Tei ("the Flat").

3.  PW1 had a VISA Platinum credit card (4006-1210-0482-2144)  ("Card 1")  issued by Hang Sang Bank ("HSB")  and a Mastercard (5521-3528-0288-0702)  ("Card 2")  issued by OCBC Bank ("OCBC").  She had never used these 2 credit cards.  She kept them in a cardholder placed inside a wardrobe in the Flat.

4.  On 7 and 17 May 2024 respectively, PW1 received 2 letters from HSB reminding her to settle the outstanding balance of Card 1.  She checked her cardholder and found both Card 1 and Card 2 missing.  PW1 made enquiries with the banks and discovered that both cards had been used between March and May 2024.

5.  On 29 May 2024, PW1 confronted the defendant.  She found a transaction slip (E1)  in the defendant's wallet showing a purchase made at a boutique at 1755 hours on 23 March 2024; a sum of $899 was charged to Card 1.  The defendant admitted to PW1 that she had used Card 1 to make purchases.  PW1 reported the matter to the Police.

6.  Upon arrest and under caution, the defendant admitted having stolen Card 1 and Card 2 from PW1 out of greed and charged a number of purchases to Card 1.

7.  In her video recorded interview, the defendant admitted, inter alia, that she had used Card 1 and Card 2.  In March 2024, she found both credit cards in a drawer in the living room and thought they were expired.  She used Card 1 and Card 2 from March to April 2024 in many stores to make purchases.  In March 2024, she threw one credit card into a rubbish bin outside a basketball court in Prince Edward.  In April 2024, she threw the other credit card into a rubbish bin. Regarding E1, she purchased a suitcase for someone she knew.

8.  The monthly statements of Card 1 showed 42 purchases made between 22 March and 5 April 2024, which amounted to a total sum of $19,989 plus finance charges in the sum of $1,056.55 and late charges in the sum of $600.

9.  The monthly statements of Card 2 showed 48 purchases made between 4 and 19 April 2024, which amounted to a total sum of $9,905.30 plus finance charge $140.07 and late charge $100.

10.  CCTV footage of Langham Beauty captured the defendant presenting a credit card for payment at 1314 hours on 22 March 2024 and at 2126 hours on 6 April 2024. Business records of Langham Beauty showed that a sum of $370 was charged to Card 1 at 1317 hours on 22 March 2024; and the same amount was charged to Card 2 at 2130 hours on 6 April 2024.

11.  In June 2024, PW1 settled in full the outstanding balances of Card 1 and Card 2.  She cancelled both credit cards afterwards.

Mitigation & Sentence

12. The defendant is 29 and has a clear record. In mitigation, defence counsel Mr. Grounds informed me that the defendant comes from Indonesia. Mr. Grounds submitted that she has frankly confessed her criminal acts to PW1 and subsequently to the Police. Furthermore, the defendant would be deported to Indonesia after serving her sentence and is unlikely to be able to take up similar employment in Hong Kong again.

13. According to the relevant sentencing authorities[1], credit card offences are serious and must be deterred. Even a small scale credit card fraud with small losses by an offender who is not alleged to be part of a larger syndicate can attract a starting point of 3 years' imprisonment. In HKSAR v Chen Wing Hong CACC 40/2005, the Court of Appeal observed that "… in this day and age the integrity of the credit card system is highly important and those who attempt to beat the system by fraudulent methods necessarily erode the confidence which people are entitled to place on this aspect of modern commercial life[2]."

14. Mr. Grounds, with his usual diligence, has referred me to the Court of Appeal decision in HKSAR v Li Chi Yat [2019] HKCA 458 (CACC 189/2018)  in which Zervos JA commented that authorities including Lam See Chung, Stephen[3] and Tu I Lang[4] have recognized that small-scale credit card offences cannot be subjected to strict guidelines because they can vary significantly in a number of ways and that a starting point of 3 years' imprisonment or less would be appropriate[5].

15. In Li Chi Yat, the appellant stole a credit card from the wallet left behind by the owner of his company and used it to purchase an item (valued at slightly under $8,000). There were also 2 failed attempts to purchase other items (valued at $10,000 and $7,000 respectively)  using the same credit card.

16. In the present case, the defendant stole 2 credit cards from her employer and used them to make respectively 42 and 48 purchases within a few weeks, which aggregated to $19,989 and $9,905.30 respectively. I note that the credit limits for Card 1 and Card 2 were respectively $20,000 and $10,000[6]. In other words, the defendant has used both credit cards to their limits. I draw the irresistible inference that she discarded them in public rubbish bins because she could no longer use them.

17. Plainly, the usage of the credit cards in present case is far more serious than in Li Chi Yat. Furthermore, Zervos JA in Li Chi Yat described the credit card as being stolen opportunistically[7]; whereas I do not regard the defendant's stealing of Card 1 and Card 2 as opportunistic, since both cards were kept in a cardholder placed inside a wardrobe (or drawer).

18. I will follow the sentencing principles stipulated in Li Chi Yat. For Charges 2 and 3, however, I adopt a starting point of 2.5 years' imprisonment instead of 2 years. For Charge 1, I adopt a starting point of 9 months' imprisonment. With the timely guilty pleas, the sentences for the 3 charges become 6 months, 20 months and 20 months respectively. Apart from this, I see no other mitigating factors which warrant any further reduction. I sentence the defendant respectively to 6 months', 20 months' and 20 months' imprisonment for Charges 1 to 3.

19. Bearing in mind the totality principle, I order the sentences for Charges 2 and 3 to run concurrently; and 3 months in Charge 1 to run consecutive to the sentences for Charges 2 and 3. Thus, arriving at a total prison term of 23 months.