HKSAR v. LAM SZE YAN

DCCC 189/2015

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 189 OF 2015

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REASONS FOR SENTENCE
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1. D pleads guilty to a total of 19 Charges, all of which concern the fraudulent use of credit cards belonging to another person which she acquired by stealing. The cardholders are either her colleagues or roommate.

Summary of facts

2. The facts admitted by D revealed that on 12 April 2014, D stole Madam Pan Yue Ting’s (“Madam Pan”) Hang Seng Bank Visa card which she placed in the restroom of a bakery shop where she and D was working: Charge (1).  She then made 5 fraudulent purchases without Madam Pan’s authorization: Charges (2) – (6).  Hang Seng Bank contacted Madam Pan the same day and informed her of those unauthorized transactions.  The total loss arising from those fraudulent transactions is HKD 19,381.

3. On 26 April 2014, D sought to use a Manhattan id Visa card belonging to Wat Hon Chung (“Wat”), her then colleague, to purchase an I-phone in Mongkok but failed: Charge (8).  The shopkeeper made a report to the police who arrested D immediately.  Under caution, D admitted that she stole Wat’s Manhattan id Visa card and attempted to use it.  It was believed that she stole the card from Wat sometime in April: Charge (7).  The police then released D on police bail pending further inquiry.  The court later heard that D failed to answer police bail in June 2014, which explains why D was able to commit subsequent offences. 

4. Subsequent investigation revealed that Wat lost three other credit cards, namely 2 Citibank Visa cards and a Bank of East Asia Visa cards.  D actually stole those cards from him on a day unknown between 2 and 5 May 2014: Charge (9).  D made successful fraudulent purchases using those cards, and the amount involved is HKD 18,183: Charges (10) – (12).

5. In November 2014, D shared a hostel room with Madam Tsui Yick Yan, Jacqueline (“Madam Tsui”), a tourist from Australia where she stole Madam Tsui’s three Commonwealth Master cards.  D used the three Master cards to make seven fraudulent purchases totaling HKD 49,148: Charges (13) – (19).  Pausing here, it is remarkable for this Court to learn that the Prosecution considered it not necessary or inappropriate to lay an additional charge of theft, the purported reason being that “the credit cards were returned to Madam Tsui”: see para.18 of the Amended Summary of Facts.  In my judgment that is a clear misunderstanding of the law of theft.  The offence was complete once D decided to take those cards away and treated them as her own, and it is immaterial that out of good will or otherwise D decided to return them after use.

6. The total amount of loss, which normally would be borne by the banks, has been reduced to HKD 86,712.  That is a sensible concession by the Prosecution because Charge (8) is in fact an unsuccessful attempt on the part of D.

7. When being interviewed under caution, D made full admissions to the offences.  She said she had sold the I-phones to hawker stall or second-hand phone shop to earn some money.  One thing to her credit is that she handed HKD 28,000 to the police, which she said represented part of the sale proceeds of the items that she purchased and then re-sold.

Mitigation

8. In mitigation, Defence Solicitor told me that D came from a broken family.  Her father left her when she was a little child, and that she has little contact with her mother who works as a cleaner.  She only attained Form 2 education and therefore she had difficulty in earning a living.  Before she committed the offences she worked as a saleslady, but she became unemployed since July 2014.  She was indebted to her friend and a finance company, which partly explains why she committed the offences.  Defence counsel urges the Court to be lenient, for D is still relatively young, and her past theft convictions (a total of three) had nothing to do with fraudulent use of credit cards.

Sentence

9. D is no longer under 21 years of age so it is not necessary for this Court to consider other sentencing options before sending her to prison: section 109A of the Criminal Procedure Ordinance, Cap 221.  In these types of offences custodial sentence is almost inevitable.

10. D is no stranger to the court system.  She had been sent to training centre for theft offences, which the Prosecution informs the Court were committed whilst D was in a public library looking for chances.  She deserves no sympathy here. Financial reason is not a mitigating factor.

11. As the Court of Appeal had repeatedly said in R v Chan Sui-to & Anor CACC 115/1996, HKSAR v Cheung Ka-wo Johnny [2002] 2 HKC 517 and HKSAR v Yau Hoi-shan Shanly [2007] 3 HKC 284, the gravamen of these offences is destruction of the integrity of the credit card system. In the present case, certain degree of breach of trusts is also involved as the credit cards belong to someone who was close to D.  Deterrent sentence must be called for.  Another aggravating feature is that some of the offences were committed whilst D was on police bail.

12. In sentencing I would put the 19 charges into three separate groups, each relate to individual cardholders.  Having considered the facts of the case and the relevant sentencing guideline, I would take a global starting point of 3 years for each charge, and would then make appropriate adjustments by ordering part of the terms consecutive and concurrent.  D pleads guilty to the charges and she is entitled to full one-third discount.

13. For Charges (1) – (6), I impose a term of 2 years each, which are to run concurrently.  For Charges (7) – (12), I impose a term of 2 years each, again to run concurrently to each other.  I order that 6 months of them to run consecutively to the term for Charges (1) – (6).  As to Charges (13) – (19), I sentence D to 2 years each, which are to run concurrently.  I then order 6 months of which to run consecutively to Charges (1) – (12).  That makes a total of 3 years imprisonment.

14. As I have mentioned earlier, D has made partial restitution through the police.  I give her 2 months reduction for that gesture of remorse.  The resultant sentence is therefore 34 months imprisonment.