Senior District Judge Bala Reddy:
The accused, Merina Ng Su Yi (the “Accused”), pleaded guilty to one charge of cheating and thereby dishonestly inducing delivery of property under s 420 of the Penal Code (Cap 224, 2008 Rev Ed) (“Penal Code”) and one charge of attempting to cheat under s 420 read with s 511(1) of the Penal Code. The salient parts of the charges are reproduced below:
DAC-908870-2021 (“cheating offence”)
[Y]ou, on 30 April 2021, at about 11.53a.m., at Chanel, #B1-133 of The Shoppes at Marina Bay Sands, 10 Bayfront Avenue, Singapore, did cheat Chanel, to wit, you deceived Chanel into believing that you were authorised to use the Standard Chartered credit card bearing number XXX in the name of one Hong Riwei Patrick, and by such manner of deception, you dishonestly induced Chanel to deliver a handbag valued at $11,210 to you, and you have thereby committed an offence punishable under s 420 of the Penal Code (Cap 224, 2008 Rev Ed).
DAC-910773-2021 (“attempted cheating offence”)
[Y]ou, on 30 April 2021, at or about 12.49pm, at Apple, # B2-06 of The Shoppes at Marina Bay Sands, 2 Bayfront Avenue, Singapore (“Apple”), did attempt to cheat Apple, and in such attempt did an act towards the commission of the offence, to wit, by presenting to Apple one POSB credit card bearing number XXX, in the name of one Hong Riwei Patrick, and thereby deceiving Apple into believing that you were authorised to use the said card, and by such manner of deception, you did attempt to dishonestly induce Apple to deliver an iPhone 12 Pro Max valued at $2,168 to you, and you have thereby committed an offence under s 420 read with s 511(1) of the Penal Code (Cap 224, 2008 Rev Ed).
The Accused consented to have two charges taken into consideration – one similar charge of cheating under s 420 of the Penal Code and one charge of dishonest misappropriation under s 403 of the Penal Code.
I convicted the Accused and sentenced her to seven months’ imprisonment for the cheating offence (DAC-908870-2021) and one month’s imprisonment for the attempted cheating offence (DAC-910773-2021). I ordered the sentences to run consecutively, with a resulting global sentence of eight months’ imprisonment.
Being dissatisfied with my decision, the Accused has filed an appeal against sentence. I now set out the reasons for my decision.
Facts
The Accused admitted to the Statement of Facts (“SOF”) without qualification. Accordingly, the Accused was convicted on the two proceeded charges. The salient facts are as follows: On 30 April 2021, at about 1.35pm, the complainant, Hong Riwei Patrick, filed a police report at Orchard Neighbourhood Police Centre, stating that he had received an SMS from Standard Chartered bank stating that his Standard Chartered card ending with “1933” was charged for a transaction of $11,210 at a Chanel boutique at Marina Bay Sands, Singapore. It was at this juncture that the complainant realised that he had misplaced his wallet. After he received the SMS, the complainant called Standard Chartered bank, and was told by the customer service hotline to lodge a police report. Sometime between 27 and 29 April 2021, the Accused was at Carlton Hotel, Singapore, for a dinner gathering with her friends, when she came across an orange paper bag at the lobby. The Accused opened the paper bag and saw, amongst other things, a wallet containing several credit cards. This paper bag and its contents belonged to the complainant. The Accused then decided to take the paper bag home with her. Facts Pertaining to DAC-908870-2021 The witness is Liu Xiaolan, a 32-year-old Chinese national. At the material time, the witness was working as a Fashion Advisor at the Chanel boutique at The Shoppes at Marina Bay Sands, #B1-133, 10 Bayfront Avenue, Singapore. On the morning of 30 April 2021, the Accused arrived at The Shoppes at Marina Bay Sands, with two of the complainant’s credit cards she had taken with her. These were the Standard Chartered credit card bearing the number XXX (the “Standard Chartered card”), and the POSB credit card bearing the number XXX (the “POSB card”). At about 11.53am, the Accused entered the Chanel boutique, where she was served by the witness. After a few minutes of browsing, the Accused indicated to the witness her intention to purchase a black Chanel handbag that was valued at $11,210. The witness proceeded to obtain a new handbag of the same model from the storeroom for the Accused. At the payment counter, the Accused then produced the complainant’s Standard Chartered card, intending to use it to make payment. The witness saw that the name of the cardholder was male and asked the Accused if that was her name. The Accused replied that her father had let her use the card to buy herself a birthday gift. The Accused, however, knew this fact to be false. Therefore, the Accused had cheated Chanel; to wit, she had deceived Chanel into believing that she was authorised to use the Standard Chartered card, and by such manner of deception, she dishonestly induced Chanel into delivering to her the handbag. The Accused has thereby committed an offence punishable under s 420 of the Penal Code (Cap 224, 2008 Rev Ed) (“Penal Code”). Facts Pertaining to DAC-910773-2021 After the events above, the Accused entered the Apple store at Marina Bay Sands, located at #B2-06, 2 Bayfront Avenue, Singapore, intending to use the complainant’s credit cards to buy herself a new iPhone 12 Pro Max. After a few minutes of browsing, the Accused told the staff at the Apple store that she wanted to purchase an iPhone 12 Pro Max valued at $2,168, upon which the staff then retrieved an unopened box containing the said mobile phone model for her. At the payment counter, the Accused then attempted to cheat Apple, and in such attempt did an act towards the commission of the offence; to wit, the Accused produced the complainant’s Standard Chartered card, intending to use it to make payment for the iPhone using the PayWave function of the card. After the Accused tapped the complainant’s Standard Chartered against the payment terminal, the transaction was declined. At this juncture, the Accused then produced the complainant’s POSB card and tapped it against the payment terminal. However, the transaction was again declined. The Accused then informed the Apple staff that she did not intend to purchase the iPhone anymore, and left the store. By virtue of the foregoing, the Accused had deceived Apple into believing that she was authorised to use the POSB card, and by such manner of deception, she attempted to dishonestly induce Apple to deliver the iPhone 12 Pro Max to her. The Accused has thus committed an offence under s 420 read with s 511(1) of the Penal Code.
Antecedents
The Accused is untraced.
Prosecution’s Address on Sentence
The Prosecution sought a sentence of 8 to 9 months’ imprisonment for the cheating offence, and a sentence of 1 to 2 months’ imprisonment for the attempted cheating offence. The Prosecution submitted that the sentences should run consecutively – i.e. global sentence of 9 to 11 months’ imprisonment.
In support of its sentencing position, the Prosecution cited the decision of Idya Nurhazlyn bte Ahmad Khir v Public Prosecutor and another appeal [2014] 1 SLR 756; [2013] SGHC 238 (“Idya Nurhazlyn”) at [47] to [48] where Menon CJ held that a custodial sentence is generally appropriate as long as the offence causes a victim to part with property that has more than negligible value. The learned CJ further stated that the primary yardstick will often be the value of property involved. He also observed that custodial sentences of four to eight months’ imprisonment are typically imposed for s 417 Penal Code offences involving sums between $1,000 and $15,000.
The Prosecution also cited the decision of Public Prosecutor v Fernando Payagala Waduge Malitha Kumar [2007] 2 SLR(R) 334; [2007] SGHC 23 (“Fernando Payagala”) where V K Rajah J held that cheating offences involving the use of credit cards or other financial instruments threaten to undermine the reliability of credit cards as a mode of payment, and the entire security of our credit infrastructure. A severe stance must be adopted to check the abuse of credit cards, and deterrence should be of equal, if not greater, concern when dealing with such offences.
V K Rajah J in Fernando Payagala highlighted that the following factors are relevant in determining the appropriate sentence: (i) the degree of planning and premeditation, (ii) the sophistication of the offence and measures taken to avoid detection, (iii) the role of the accused, (iv) the number of offences and quantum involved, (v) the extent of actual loss, damage, and adverse consequences to victims and connected parties, (vi) the international dimension, and (vii) any remorse shown by the accused. V K Rajah J observed that the starting point of sentencing tariffs for non-syndicated stolen or misappropriated credit card offences is 12 to 18 months’ imprisonment per charge: at [75].
In the present case, the Prosecution highlighted the following offence-specific factors – applying Fernando Payagala: The degree of planning and premeditation is moderate. The Accused found the complainant’s wallet a few days prior to her offending conduct, and brought the complainant’s credit cards out to spend on big-ticket items for her personal benefit. The offences are not sophisticated. No steps were taken by the Accused to conceal her offending conduct. The Accused played an active role in the offences, as the sole perpetrator. The actual loss to the complainant is...
