HKSAR v. POP LASZLO ELEMER

DCCC 1085/2025

[2026] HKDC 778

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 1085 OF 2025

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REASONS FOR SENTENCE

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1.  D1 pleaded guilty to 4 charges of Theft and one charge of Breach of Condition of Stay.

FACTS

Charges 1 to 3

2.  On 17 July 2024 around 11:45 pm, Chan Hui Wing (V1)  visited Carnegies Bar at Nos 53-55 Lockhart Road (Carnegies). Around 11:55 pm, she found missing from her handbag her wallet (W1)  containing a credit card (CC1), an Octopus card (OC1)  and HK$2,910 cash. Around 12:20 am on 18 July 2024, she instructed the bank to disable CC1. About 25 minutes later, she found her wallet in Carnegies. Apart from the cash, nothing was missing.

3.  CC1’s transaction records show 9 unauthorised transactions totalling HK$3,050. Most of these transactions were purchases made at various convenience stores, one of which was a 7-Eleven Convenience Store in Cochrane Street. CCTV footage of this store captured D1 purchasing cigarettes with a card at 12:13 am on 18 July 2024.

4.  OC1’s transaction records show 2 unauthorised transactions totalling HK$306 with the use of OC1.

Charge 5

5.  Rodiger Clara Philippa (V2)  visited Carnegies in the early hours of 5 September 2024. She entered the bar at 12:30 am, and left around 2 am to return home. Around 7 am, she found her wallet which contained, among other things, a credit card (CC2), missing. V2 instructed the bank to disable her card.

6.  CC2’s transaction records show 14 unauthorised transactions totalling HK$3,162.5 were made between 1:13 am and 2:11 am on 5 September 2024. CCTV footage from a number of convenience stores captured D1 and D2 making purchases with a card during that period of time.

D1’S ARREST AND ADMISSIONS

7.  On 3 October 2024, D1 was intercepted and arrested in Wan Chai for offences relating to Charges 1-3. Under caution, he said, “No money, I found the credit card on the floor and buy the cigarette.”

8.  In his subsequent video-recorded interview, D1 admitted that he found W1 in Carnegies at 11:45 pm on 17 July 2024. W1 contained around HK$2,900 cash, an Octopus card and a credit card which he took and used in Lan Kwai Fong. He bought food with the cash and the credit card without the owner’s consent. He then returned the credit card and the Octopus card. He recognised himself as the man appearing in the relevant CCTV screen captures. He knew he was not allowed to stay in Hong Kong.

Charge 6

9.  D1 entered Hong Kong as a visitor with a Romanian passport on 7 August 2020. By a letter dated 14 September 2022, the Director of Immigration informed him that his application for extension of stay was rejected, and that he was required to leave Hong Kong on or before 21 September 2022.

D1’S BACKGROUND

10.  He is a 47-year-old Romanian national with a clear record in Hong Kong. He was educated to Class 10 in Romania. He claims that he has been divorced twice, with 2 children in their teens from his first marriage in Romania. He also claims that his second ex-wife is a Hong Kong citizen who is still financially supporting him.

MITIGATION

11.  Defence counsel Elizabeth Herbert said D1 committed the thefts out of greed. According to D1, his decision to use the cards and the cash was made on the spur of the moment. He is now remorseful, as reflected by his timely plea and as expressed in his letter in mitigation.

12.  With reference to authorities such as R v Chan Sui To [1996] 2 HKCLR 128, HKSAR v Wong Chin Hang [2009] 4 HKLRD H4, HKSAR v Tu I Lang [2007] HKLRD (Yrbk)  403, HKSAR v Kwan Po Keung [2012] 2 HKLRD 12, HKSAR v Tandon William Chaing CACC 404/2012 and HKSAR v Wan Ka Ling CACC 318/2012, counsel submitted that an appropriate starting point for a small, unsophisticated credit card fraud operation is 3 years’ imprisonment. The present case is a simple and unsophisticated operation.

13.  Citing HKSAR v Cheung Ka Wo Johnny [2002] 2 HKC 517, counsel submitted that in assessing the quantum of sentence, the focus is not so much on the actual amount lost as on the potential loss that could have been caused. Here, the credit limits of the two stolen credit cards were both slightly over $3,000 and can be said to be at the lower end of the scale.

14.  D1 had not come to Hong Kong to commit offences. The present offences were committed after he had been in Hong Kong for nearly 4 years. There are no factors indicating an international element.

15.  Regarding the breach of condition of stay by overstaying, counsel referred to HKSAR v Tiongson Patricia Manalad [2002] 1 HKLRD 681 and submitted that there is no tariff for this kind of offence, and that the court should look at the length of overstay and whether employment was taken up during the overstay. She pointed out that in present case, D1 had overstayed for around 2 years and there is no evidence of employment.

16.  Counsel submitted in conclusion that the appropriate overall starting point for Charges 1, 2, 3 and 5 is around 3 years’ imprisonment, and that 2 months’ imprisonment for Charge 6 reflects the criminality involved.

SENTENCING CONSIDERATIONS

17.  Both Charges 2 and 5 involve credit card frauds. In the case of Tu I Lang, paragraph 10 of the judgment says:

“Where the facts of the offence points to a small unsophisticated operation involving only one or a few forged cards uncomplicated by other evidence materially linking the offender to a larger operation, then a starting point of three years’ imprisonment or less would be appropriate.”

18.  In HKSAR v Lam See Chung Stephen [2013] 5 HKLRD 242, McWalters J, giving the judgment of the Court of Appeal, said there is no reason why the above starting point for simple cases of counterfeit credit card fraud should not also apply to simple cases of credit card fraud where stolen genuine credit cards are used to commit the offence[1].

19.  One of the offences in HKSAR v Li Chi Yat [2019] HKCA 458 was Obtaining Property by Deception with the use of a stolen credit card. Having been referred to the cases of Tu I Lang and Lam See Chung Stephen in the course of counsel’s submission, Zervos JA, giving the judgment of the Court, said:

“21. …It is important to emphasise that the sentencing authorities in relation to credit card fraud cases recognise 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.”

20.  The appellant in that case was a dispatcher for a transportation company. One of the company’s owners left his wallet containing among other things a credit card in the vehicle. The appellant later used this vehicle to do a delivery job. He stole the owner’s credit card on that day and used it to purchase a mobile phone for $7,917. In the circumstances of that case, which involved no planning or elaborate operation, the Court of Appeal considered that the credit card fraud involved was at the lower end of the scale of criminality, and that the 3 years’ imprisonment starting point adopted by the trial judge was manifestly excessive. The Court of Appeal replaced it with a starting point of 2 years’ imprisonment.

21.  Each of Charges 2 and 5 in our case involves simple and unsophisticated credit card fraud with the use of a stolen credit card. There were no suggestions of any syndicated operation or international element. Charge 2 was committed by D1 alone, whereas Charge 5 was committed by D1 and his co-accused who, according to counsel, was then in a relationship with D1. The actual loss in either case was slightly over 3,000. There was little or no risk of potential loss as both card owners had promptly instructed the bank to disable the cards.

22.  I will adopt a starting point of 2 years’ imprisonment for each of Charges 2 and 5.

23.  I will adopt a starting point of 12 months’ imprisonment for Charge 1, which must have involved the picking of V1’s wallet from her handbag.

24.  A starting point of 3 months’ imprisonment will be adopted for Charge 3, which involves stealing the balance of $306 available in V1’s Octopus card.

25.  Charge 6 is an Overstaying offence. As the Court of Appeal in Tiongson Patricia Manalad pointed out, there is no sentencing tariff for this offence; the court would look at the length of the overstay; taking up employment during the overstay is an aggravating factor. In that case, the appellant had overstayed for about 2½ years, and had taken up employment in the meantime. In all the circumstances of that case, the Court adopted 4½ months’ imprisonment as the appropriate starting point.

26.  In our case, up to the time of his arrest, D1 had overstayed for 2 years. There is no evidence of his having taken up employment during that time. I will adopt a starting point of 3 months’ imprisonment for Charge 6.

27.  D1’s guilty plea is the only mitigating factor, for which he will receive a one-third discount in sentence. The discounted sentence is 16 months’ imprisonment for each of Charges 2 and 5, 8 months’ imprisonment for Charge 1, 2 months’ imprisonment for each of Charges 3 and 6.

28.  Sentences for Charges 1, 2 and 3 are to run concurrently with one another, resulting in a combined sentence of 16 months’ imprisonment for these 3 charges. As Charge 5 involves a separate credit card fraud committed about 1½ months after the Charges 1-3 offences, I order that 6 months of the sentence for Charge 5 are to run consecutively to the combined sentence for those 3 charges. This results in an overall sentence of 22 months’ imprisonment for Charges 1, 2, 3 and 5. The 2-month sentence for Charge 6 is to run consecutively to this overall sentence of 22 months, resulting in a total sentence of 24 months’ imprisonment for all the charges.