HKSAR v. RAHAYU NIKE

DCCC 1016/2020

[2021] HKDC 1034

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 1016 OF 2020

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REASONS FOR SENTENCE

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1.  The defendant is charged with:-

(i)  3 counts of fraud, contrary to section 16A of the Theft Ordinance, Cap 210 (Charges 1, 3 and 5);

(ii)  3 alternative charges to Charges 1, 3 and 5 of obtaining access to a computer with dishonest intent, contrary to section 161(1)(b)  of the Crimes Ordinance, Cap 200 (Charges 2, 4, and 6); and

(iii)  1 count of operating money service without a licence, contrary to section 29 of the Anti-Money Laundering and Counter-Terrorist Financing Ordinance, Cap 615 (Charge 7).

2.  The defendant pleaded guilty to Charges 1, 3, 5 and 7.

ADMITTED FACTS

3.  In 2015, Lee Hoi-yung (PW1)  employed the defendant as a domestic helper.  Since then, the defendant lived with PW1, PW1’s husband, MCOMIE Robert John (PW2), and their son, Ting Ching-hin (PW3)  at their residence in Kowloon Tong (the Residence).

4.  The defendant used the details of PW1 to PW3 to register 3 stored value facility (SVF)  accounts at TNG Asia Limited (TNG)  using TNG’s mobile application on her mobile telephone.  The defendant then applied to upgrade these accounts by scanning PW1 to PW3’s Hong Kong Identity Cards via the mobile application for verification.  This facilitated the collection of money from her friends for remittance to Indonesia, for which she charged a fee of HK$5 per transaction.

Arrest and caution

5.  On 4 March 2020, police arrested the defendant at the Residence for fraud.  Under caution, the defendant admitted that she secretly used the Hong Kong Identity Cards of her employer and her employer’s family to open SVF accounts.  The purpose was only to help her friends remit money to Indonesia and earn some money.

6.  At cautioned interviews, the defendant admitted that:-

(a)  In around 2019, she opened a SVF account to collect money from her friends. She transferred the funds to her personal Bank of China (BOC)  account and withdrew the amounts in cash. She then took the cash to Western Union to remit the funds to Indonesia in one go. Her family in Indonesia then transferred the respective amounts to the bank accounts of her friends. She charged her friends HK$5 for each remittance. As Western Union charged them around HK$30 for each remittance, her friends were able to save some money by sending the money through her. Therefore, her friends often sent money to her for remittance to Indonesia. She earned around HK$200 to HK$300 per month by doing this (Charge 7);

(b)  SVF accounts had transfer limits. Her SVF account had already reached the limit. Her friends were unwilling to lend their SVF accounts to her. As she was in urgent need to remit money back to Indonesia, she opened SVF accounts using the TNG mobile application on her Samsung mobile telephone with PW1 to PW3’s details without their permission. She used numbers of stored value phone cards for verification and scanned the Hong Kong Identity Cards of PW1 to PW3 when prompted during the applications. She found their Hong Kong Identity Cards when she was tidying the Residence (Charges 1-6);

(c)  The Samsung mobile telephone later malfunctioned and so she threw it away. After she used the stored value in the phone cards, she also threw them away.

Further Investigation

7.  Upon search, two mobile telephones and 1 tablet were found in the defendant’s bedroom at the Residence.

8.  PW1 to PW3 confirmed that they did not register for any SVF accounts at TNG.  They did not give consent to the defendant to use their Hong Kong Identity Cards to register for SVF accounts at TNG.  No loss was suffered by PW1 to PW3 as a result of the defendant’s acts.

9.  According to TNG, there are 3 types of SVF accounts at TNG:-

(a)  Basic Account: The maximum stored value balance is HK$3,000. The Annual Transaction Limit is HK$25,000. Transfer to and from other TNG users is not available;

(b)  VIP Account: The maximum stored value balance is HK$50,000. The Annual Transaction Limit is HK$100,000. Transfer to and from other TNG users is available;

(c)  SVIP Account: The maximum stored value balance is HK$100,000. There is no Annual Transaction Limit. Transfer to and from other TNG users is available.

10.  To apply for a Basic Account, a customer needs to download the TNG mobile application on their telephone and insert their personal details and telephone number.  A SMS verification code will then be sent to the customer’s telephone.  A Basic Account will be opened after the customer inputs the verification code into the mobile application and agree to the terms and conditions.

11.  A Basic Account customer can upgrade the account to a VIP Account by providing their identification document and nationality.  A Basic Account customer can also upgrade the account to a SVIP Account by providing their identification document, residential address and income status.  During the upgrade application, the customer is required to upload the necessary documents by scanning them with the telephone camera.  TNG staff will then verify the documents with the customer details using a computer at TNG.  They will also check if the customer is on their blacklist.  The process takes around 1 to 2 days.  If they are satisfied with the documents provided and if the customer is not on their blacklist, they will approve the application.  If a customer uses an identification document belonging to another without permission to upgrade the account, TNG staff will not approve the application.

12.  Records from TNG and BOC revealed the following:-

(a)  A TNG Basic Account (Account Number 6101801933490282)  was opened in the defendant’s name on 11 April 2017. An application to upgrade the account to a SVIP Account was submitted on 8 November 2018 and approved on 10 November 2018. The date of the first transaction was 8 November 2018. From 8 November 2018 to 16 October 2019:

(i)  A total of HK$946,869.64 (consisting of 967 transactions)  was deposited into this account, and

(ii)  a total of HK$92,895 (consisting of 46 transactions)  was transferred from this account to the defendant’s BOC account;

(b)  A TNG Basic Account (Account Number 6101801963745258)  was opened in PW3’s name on 13 May 2019. An application to upgrade the account to a VIP Account was submitted and approved on the same day. The date of the first transaction was 14 May 2019. From 14 May 2019 to 25 June 2019:

(i)  A total of HK$101,236 (consisting of 197 transactions)  was deposited into this account, and

(ii)  A total of HK$62,514 (consisting of 34 transactions)  was transferred from this account to the defendant’s BOC Account (Charges 1-2);

(c)  A TNG Basic Account (Account Number 6101801964411033)  was opened in PW2’s name on 27 May 2019. An application to upgrade the account to a VIP Account was submitted and approved on 3 June 2019. The date of the first transaction was 14 June 2019. From 14 June 2019 to 22 August 2019:

(i)  A total of HK$101,910 (consisting of 179 transactions)  was deposited into this account, and;

(ii)  A total of HK$34,756 (consisting of 17 transactions)  was transferred from this account to the defendant’s BOC account (Charges 3-4);

(d)  A TNG Basic Account (Account number 6101801963126434)  was opened in PW1’s name on 5 June 2019. An application to upgrade the account to a VIP Account was submitted on the same day. The date of the first transaction was 24 June 2019. From 24 June 2019 to 18 July 2019:

(i)  A total of HK$105,244 (consisting of 123 transactions)  was deposited into this account, and

(ii)  a total of HK$25,695 (consisting of 9 transactions)  was transferred from this account to the defendant’s BOC account. (Charges 5-6).

13.  The defendant has been using Western Union’s remittance services every year since 2011.  The remittance amounts before 8 November 2018 (the date of the first transaction of the 4 TNG accounts mentioned above)  were mainly in the hundreds, with occasional amounts in the thousands (the highest amount being HK$5,572).  The following suspicious remittances were recorded since 8 November 2018 (involving a total amount of HK$225,931.10)  (Charge 7):-

(a)  On 25 June 2019, the defendant remitted HK$10,000 to LIA PURNAMASARI in Indonesia;

(b)  On 24 October 2019, the defendant remitted HK$17,031 to RUSTINI in Indonesia;

(c)  On 30 October 2019, the defendant remitted HK$22,700 to LIA PURNAMASARI in Indonesia;

(d)  On 4 November 2019, the defendant remitted HK$30,900 to LIA PURNAMASARI in Indonesia;

(e)  On 10 November 2019, the defendant remitted HK$35,200 to LIA PURNAMASARI in Indonesia;

(f)  On 25 November 2019, the defendant remitted HK$27,600 to her own account in Indonesia;

(g)  On 9 December 2019, the defendant remitted HK$21,000 to her own account in Indonesia;

(h)  On 13 December 2019, the defendant remitted HK$24,300 to her own account in Indonesia;

(i)  On 7 January 2020, the defendant remitted HK$20,500 to her own account in Indonesia;

(j)  On 29 January 2020, the defendant remitted HK$16,700 to her own account in Indonesia.

14.  At all material times, the defendant did not have a money service operator licence (Charge 7).

15.  At all material times:-

(a)  The defendant, by deceit, namely falsely representing to staff of TNG that the genuine holders of Hong Kong Identity Cards issued in the names of PW1-PW3 were applying for VIP Accounts at TNG, and with intent to defraud, induced the staff of TNG to commit an act or a series of acts, namely to approve the applications, which resulted in benefit to the defendant or in prejudice or a substantial risk of prejudice to TNG (Charges 1, 3 and 5);

(b)  Alternatively, the defendant obtained access to a computer of TNG, with a dishonest intent to deceive (Charges 2, 4 and 6);

(c)  The defendant operated a money service without a licence (Charge 7).

THE DEFENDANT’S BACKGROUND

16.  The defendant is Indonesian.  She is now 37 years old and is divorced.  She was educated up to Form 3 level in Indonesia.

17.  The defendant came to Hong Kong in 2012.  She was employed by PW1 as a domestic helper between June 2015 to March 2020.  During that period, her monthly salary was HK$4,310.  Since December 2020, she has been employed as a casual worker, earning HK$600 per month.

DISCUSSION

18.  Counsel rightly pointed out that there are no sentencing guidelines or tariffs for the offence of fraud or “operating a money service without a licence”.  She referred the court to the sentencing guidelines for breach of trust theft cases laid down in HKSAR v Cheung Mei Kiu [2006] 4 HKLRD 776 and HKSAR v Ng Kwok Wing [2008] 4 HKLRD 1017.

19.  Counsel submitted that the total amounts involved in Charges 1, 3 and 5 are HK$101,236, HK$100,910 and HK$105,244 respectively.  Hence Charges 1, 3 and 5 all fall into the fifth sentencing band of Cheung Mei Kiu and Ng Kwok Wing, namely, below 2 years’ imprisonment.  According to her calculations, the amounts involved in Charges 1 and 3 would each attract a sentence of around 9.7 months’ imprisonment whilst the amount involved in Charge 5 would attract a sentence of around 10.1 months’ imprisonment.

20.  Counsel conceded that Charges 1, 3 and 5 involved the element of using the identity card of others.  She referred the court to Secretary for Justice v Tsang Wai Ling [2020] 4 HKLRD 208 where the Court of Appeal agreed that if a defendant committed: “a criminal act by using an identity card which relates to another person alone could have attracted a starting point of over 20 months…”.

21.  In fact, apart from the comment in Tsang Wai Ling, there are long standing sentencing guidelines in respect of the use of another person’s Identity Card.  Those sentencing guidelines are set out in HKSAR v Li Chang-li [2005] 1 HKLRD 864.  The guidelines and the difference between mere possession and use of an Identity Card relating to another was explained in HKSAR v Tran Viet Thanh [2012] 1 HKLRD 903.  Under those guidelines, if the offender has actually produced or used the Identity Card to cover up his identity, work illegally or illegally extend the length of his stay in Hong Kong, 15 months’ imprisonment is a proper sentence after a guilty plea (ie a starting point of 22.5 months).

22.  Counsel also conceded that the court could follow the guidelines for using an identity card belonging to another, instead of the guidelines for theft involving breach of trust.  In fact, in the present case, the defendant did not steal the stated amounts from her employer or her employer’s family.  This was a case of identity theft.  The defendant used PW1-PW3’s identity cards to operate an illegal remittance service and thereby exposed them to criminal liability.

23.  In those circumstances, this court finds that the guidelines for using an Identity Card belonging to another more appropriate.  I adopt a notional starting point of 22.5 months for each of the Charges 1, 3 & 5.

24.  I agree with counsel that this was a very serious breach of trust.  The defendant was employed by PW1 as her family’s domestic helper.  In other words, the defendant lived with PW1-PW3 and had access to their personal belongings.  Allowing someone to live in your house involves a high degree of trust.  The defendant abused that trust.  This is an aggravating factor which must be taken into account in sentence.

25.  Further, Hong Kong is an international financial and banking centre.  Financial institutions are subject to strict controls.  Practicing a fraud on a financial institution, concealing her own identity by using someone else’s Identity Cards to circumvent such controls is a serious matter.  According to the defendant, the “fake” accounts were used to transmit money to Indonesia.  In other words, there is an international element involved in her fraudulent scheme.  These are all aggravating factors.

26.  In addition, the defendant committed multiple offences within the space of 1 month.  This is yet another aggravating factor.

27.  In respect of Charge 7, counsel submitted that it may be helpful for the court to refer to the case of HKSAR v Fu Guangmiao [2020] HKCFI 1783; [2021] 1 HKLRD 476; [2021] 1 HKLRD 468.  In that case, the appellant told others that he could assist in the transfer of money from Hong Kong to the Mainland by depositing money into the appellant’s Hong Kong Bank account in Hong Kong dollars.  He would then remit the money in Renminbi from his own Mainland account to other designated accounts upon instructions.  The appellant conducted around 20 to 30 transfers involving about HK$300,000 to HK$500,000 in total.  The court held that since the facts of the case were not related to money laundering or terrorism, what the appellant did was not an act specifically targeted by the Anti-Money Laundering and Counter Terrorist Financing Ordinance (Cap 615).  Hence, the court considered that a fine of HK$20,000 was appropriate.

28.  There is a marked difference between the present case and Fu Guangmiao.  There was no suggestion that the offender in that case was subject to any conditions of stay.  In the present case, the defendant was a domestic helper and was subject to conditions of stay.  Not only was she only allowed to work for PW1 as a domestic helper, she was prohibited from starting or operating any businesses.  The defendant was clearly in breach of those conditions by starting and running a remittance service.  Such breaches usually attract a term of imprisonment.  The usual starting point for a first offender is 3 months.  The court disagrees that a fine would be appropriate in the present case.  In mitigation, counsel submitted that:-

(i)  The defendant’s timely indication of her guilty plea at the mention hearing on 21 April 2021, which saved the court’s time and resources;

(ii)  The defendant has been very co-operative with the police after arrest. She assisted in the investigations by providing useful and detailed information in a sincere manner;

(iii)  No one, including PW1-PW3, TNG and the defendant’s friends suffered any monetary loss. On the other hand, TNG and the defendant’s friends benefited from this case as:

(1)  The transactions concerned were conducted by using TNG’s service. The total number of transactions recorded by TNG would increase accordingly, which is beneficial for TNG’s promotion;

(2)  The defendant’s friends enjoyed a lower remittance fee for each remittance compared to using Western Union’s remittance services.

(iv)  According to the defendant’s cautioned statement dated 4 March 2020, she admitted that she would charge HK$5 for each remittance and she earned around HK$200-300 per month by doing this. Therefore, by taking into account the length of this practice and the number of transactions conducted, the defendant only earned relatively small amounts as a result of the offences:

(1)  Regarding Charges 1, 3 and 5, the defendant would have earned approximately HK$2,495 (HK$5 per transaction x 499 transactions)  in total over a period of around 4 months;

(2)  Regarding Charge 7, the defendant would have earned approximately HK$4,800 (HK$300 per month x 16 months)  in total over a period of about 16 months.

29.  The defendant has pleaded guilty to the charges at the first opportunity.  Since she was caught red-handed, it is difficult to see how she could have any other choice but to plead guilty.  In the light of what has transpired during these proceedings, I very much doubt that she has been telling the truth about the nature of her business and the reasons for stealing PW1-PW3’s identity cards to open the accounts.

30.  According to the admitted facts, a total of HK$1,254,259.64 has been deposited into the TNG accounts that the defendant operated between 8 November 2018 and 16 October 2019 (ie 12 months).  However, only a total of HK$215,860 had been transferred to her BOC account and only HK$225,931.10 had been remitted to Indonesia through Western Union.  When the defendant was confronted with these figures, she gave an explanation which was wholly different from that in her cautioned statements.

31.  The defendant then changed her story.  She stated that she used funds from her accounts in Indonesia to pay her friends’ family and later reimbursed her own Indonesian accounts with the funds from the TNG accounts.  Despite the case being stood down repeatedly for her to give instructions, the defendant’s answers produced more questions than answers.  The matter had to be adjourned for counsel to take further instructions.

32.  After the adjournment, the defendant changed her story again.  Her present story is that her main modus operandi was to transfer the funds through her BNI or BRI account.  She now says that she only remitted funds to Indonesia through Western Union when there was a promotion.

33.  The defendant’s explanation is wholly inconsistent with her explanations to the police and the admitted facts.  I do not accept her explanation.  Even if what the defendant now says were true, then instead of assisting the police as alleged, she gave the police a completely misleading picture.

34.  The defendant’s explanation as to why she stole the identity of her employer and her family members to open TNG accounts was also inconsistent and self-contradictory.  According to the admitted facts, a SVIP account has no transactions limit.  There was therefore no need for her to open the 3 accounts with her employers’ Identity Cards.

35.  When confronted with the admitted facts, the defendant initially explained that her own TNG account had been suspended and she was not allowed to remit funds overseas.  This proved to be untrue.  The defendant then explained that there was no transaction limit but she was prevented from making overseas remittances.  This was again untrue.

36.  After the adjournment, the defendant now says that there were daily, weekly and monthly limits in her SVIP account.  This has been confirmed by the prosecution.

37.  PW1 to PW3 may not have suffered any monetary loss, they were exposed to criminal liability.  As for TNG, these offences only exposed the risks involved in allowing financial transactions through this digital application.

38.  Counsel submitted that the defendant is very unlikely to be employed in Hong Kong again.  Nor is it likely that she would be able to apply for other working visas in Hong Kong in the future.  It is likely that the defendant would be deported back to Indonesia and she has a very low chance to re-offend in the future.

39.  I agree that those are the consequences of committing a crime in Hong Kong.  The risk of those consequences were obvious and the defendant should have thought about them before she committed the offences.  The chances of her committing the same offences in Hong Kong is low not because she is law abiding but because she will not be able to stay in Hong Kong.

40.  According to the mitigation, the defendant has committed further offences after her arrest.  She now explains that she was not aware that her visa has not been renewed by the employment agency.  This explanation is ridiculous.  Her employment with PW1 had been terminated after the offences were exposed.  She was only allowed to stay in Hong Kong during her employment contract.  She had no basis to believe that her visa would be renewed.  She clearly has no regard for the conditions of her stay and is again in breach of those conditions by working as a casual worker after her arrest.

41.  In conclusion, counsel submitted that the defendant committed Charges 1, 3 and 5 within a short period and asked the court to order the sentence for those charges to run concurrently.  As explained above, far from being a mitigating factor, committing multiple offences within a short period of time is an aggravating factor.

42.  By reason of the matters mentioned above, for Charges 1, 3 and 5, I adopt a notional starting point of 22.5 months.  I take into account the element of breach of trust, the attempt to circumvent banking controls, the international element and the risk of exposing PW1-PW3 to criminal liability, the starting point is increased to 28.5 months.  For Charge 7, taking into account the fact that the defendant operated the alleged remittance service for over a year, amounts involved over 1.2 million and was in breach of condition of stay, I adopt a starting point of 6 months’ imprisonment.

43.  The defendant has pleaded guilty at the first opportunity.  Despite the time spent as a result of the defendant’s convoluted and self-contradictory explanations which resulted in an adjournment, I give her the full one third discount.  Apart from her guilty plea, there are no other mitigating factors.  The sentence for Charges 1, 3 and 5 is reduced to 19 months’ imprisonment.  As for Charge 7, after giving the defendant full credit for her guilty plea, the sentence is reduced to 4 months’ imprisonment.

44.  Charges 1, 3 and 5 occurred on different dates and involved the Identity Cards of different persons.  The sentences of those charges should technically be consecutive.  Further, the defendant committed multiple offences within the space of 1 month.  That aggravating feature has to be reflected in the sentence.  In the light of the totality principle, I am of the view that an overall sentence of 30 months after plea would be appropriate.  I order that 11 months of the sentences in Charges 3 and 5 to run consecutively to the sentence in Charge 1.  The sentence for Charge 7 to be served concurrently with Charges 1, 3 and 5.  In other words, the defendant is sentenced to a total of 30 months’ imprisonment.