HKSAR v. AU SIN YIN

DCCC 670/2018

[2019] HKDC 885

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 670 OF 2018

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Reasons for Sentence

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1.  The defendant has pleaded guilty here to five charges out of the seven charges that are on the indictment. All the charges relate to obtaining by deception involving the defendant’s use of, three credit cards which had been stolen. She admitted later that she had been given the credit cards to use by another person, and, in mitigation, the defendant is prepared to admit that that resulted out of her debts in relation to what was at that time appeared to be a dependency on cocaine.

2.  As far as the facts that are relevant to sentence are concerned, the first offence, which is Charge 2, was committed in November 2017, related to a smartphone around 7½ thousand dollars.

3.  The Charges 3 and 4 relate to a date in December, 23 December, where there were two purchases made by the defendant with a stolen credit card, the credit card being stolen on the same day, and those purchases were again for smartphones valued at round about 8,000 and 7½ thousand dollars.

4.  The sixth and seventh charge relate to a date of 13 February of last year, 2018, and relate to the purchase of handbags at a store in Wan Chai for $18,000-odd and also $30,000-odd.

5.  Defendant committed all the offences in full view of a CCTV camera.  She was arrested in possession of one of the handbags from Charge 6, and that is the only item that has been recovered.

6.  In her video recorded interview, she denied stealing the cards.  That appears to be accepted, that she did not.  She was given them by a man she called “Ah Long”.  She said she owed “Ah Long” money and she handed goods to him.

7.  The defendant’s mitigation provides a bit more detail about the unfortunate way in which she became involved in these incidents, and she says she was handing over these items in order for the supply of drugs.

8.  The defendant is aged 31 now.  She is single. She is of clear record.  In the past, she was employed in the cosmetics industry; seems to have earned good money as well.  Attributes this offending, which appears totally out of character for her, to a breakdown in a relationship. The relationship ended in what I would describe as a devastating way for this defendant. 

9.  She eased some of the discomforts she received by using cocaine, and she was still taking the drug when she was admitted into custody because it has shown up in a urine test.  It would appear from the way these offences were committed the defendant would inevitably have been arrested eventually. 

10.  She still maintains family support.  Her mother has written a letter of mitigation for her.  She is remorseful.  She seems, other than this incident, to have been generally a sensible young woman and it is to be hoped that, on her release from custody, she can put her life together again and become a useful member of society.

11.  The sentencing in a case such as this is determined largely by guideline sentencing.  The general approach is that they are serious offences.  It does not matter whether it is a genuine credit card or a stolen or a forged credit card, a counterfeited credit card.  The court has to look at a number of factors to see where it lies in the category of seriousness.

12.  I have been referred to a case that appears to cover the facts of this situation, which is HKSAR v Tu I Lang, which is at CACC 464/2006.  It says the facts of the offence point to a small unsophisticated operation, involving only one or a few forged credit cards.  It says the defendant should not be materially linked to a larger operation.  It says then a starting point of 3 years’ imprisonment or less would be appropriate.

13.  The evidence in this case, points towards what you would call a small, unsophisticated operation:  locally stolen cards given to a person such as the defendant to obtain what would be higher value items such as smartphones and handbags.

14.  The defendant was committing the offences over quite a period of time.  The total taken is some 72½ thousand dollars and she is able to offer only some $1,500 in compensation.

15.  Having taken all the facts into consideration, I believe a starting point of 3 years’ imprisonment is appropriate on these charges.

16.  I will adopt that starting point for all five charges and I will reduce that to a figure of 2 years’ imprisonment for her plea of guilty.

17.  I have to got to adopt a figure for the overall totality of offences.  The offences are committed largely separately and could be served consecutively.  To order these sentences to be served consecutively would of course lead to too high a sentence.

18.  Taking into account her fairly young age, her clear record prior to this, and the overall amount of value of the goods taken, I am going to order that all the sentences be served concurrently, to a total of 2 years’ imprisonment.

19.  I also make the compensation order that has been agreed to - that is a total of $1,520 to the victim; I think he is of Charge 1 - and 3 months to make the payment.