HKSAR v. ANIQUE HAMZA

DCCC 279/2021

[2022] HKDC 719

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 279 OF 2021

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REASONS FOR SENTENCE

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1.  The defendant pleads guilty to two charges of conspiracy to steal, contrary to section 9 of the Theft Ordinance and sections 159A and 159C of the Crimes Ordinance (Charges 1 & 5), one charge of obtaining property by deception, contrary to section 17(1)  of the Theft Ordinance (Charge 2), one charge of attempting to obtain property by deception, contrary to section 17(1)  of the Theft Ordinance and section 159G of the Crimes Ordinance (Charge 3)  and one charge of conspiracy to obtain property by deception, contrary to section 17(1)  of the Theft Ordinance and sections 159A and 159C of the Crimes Ordinance.

2.  Charge 4 is left on the court file not to be proceeded with without leave of the court or the Court of Appeal.

3.  Full particulars of the offences are set out in the re-amended summary of facts admitted by the defendant.

4.  In summary, Charges 1, 2 and 3 were committed on the 28 December 2019 by the defendant and three other accomplices, namely Mr PRASANSAP Thanakorn (“PRASANSAP”), Mr LEUNG Ming-fung (“LEUNG”)  and Mr PANG Cheuk-yin (“PANG”).  These three accomplices are referred to collectively as (“the 3 Accomplices”). 

5.  Charges 5 and 6 were committed on the 8 January 2020 by the defendant and PANG.

Charge 1

6.  On the 28 December 2019, the defendant and the 3 Accomplices conspired to steal from taxi drivers in the Sheung Wan region.

7.  It was agreed between the four of them that: the defendant would sit in the front whilst the others would sit at the back; one of the 3 Accomplices would distract the driver by showing the driver the GPS of his mobile phone; and the defendant would then steal from the driver.

8.  On 28 December 2019, the CCTV of 196 Hollywood Road, Sheung Wan captured that: at around 10:04 am, a taxi stopped outside 196 Hollywood Road (“the first taxi”); PANG then alighted the first taxi via the rear right door, approached and interacted with the driver of the first taxi; and at 10:06 am, the defendant, PRASANSAP and LEUNG all alighted from the first taxi.  The defendant was seen sitting in the front passenger seat of the first taxi.

9.  CCTV further captured that at 10:07 am, the defendant and the 3 Accomplices stopped and boarded another taxi (“the second taxi”).  The defendant sat in the front passenger’s seat whilst the others sat at the back.

10.  The defendant and the 3 Accomplices carried out their plan and as a result of which the following items were stolen from the driver of the second taxi:-

(a)  HKD 700;

(b)  One wallet worth around HKD 3,000, containing:

(i)  One Citibank Visa card cum Octopus card (“the Citibank Card”);

(ii)  One Standard Chartered bank Visa credit card;

(iii)  One Standard Chartered Bank Master credit card;

(iv)  One HSBC Visa card;

(v)  One Bank of East Asia Mastercard;

(vi)  One Hong Kong identity card;

(vii)  One driving licence; and

(viii)  HKD 900

Charge 2

11.  At 10:15 am on 28 December 2019, the defendant and the 3 Accomplices went to a 7-eleven convenience store in Sheung Wan where the Citibank Card was used to purchase good(s)  valued at HKD 11.

Charge 3

12.  About 25 minutes later, the defendant and the 3 Accomplices entered into a fashion boutique shop in Tsim Sha Tsui (“the Shop”).

13.  There the defendant approached the staff of the Shop for purchasing a jacket worth HKD 1,360. The defendant presented a credit card in the name of the driver of the second taxi for payment.

14.  The staff of the Shop felt suspicious and thus made enquires of the defendant.  The defendant explained that the card belonged to his father.  When the defendant was asked to sign, the staff of the Shop discovered that the signature which the defendant affixed was different to the one at the back of the credit card.  The credit card transaction was eventually terminated.  The defendant subsequently paid for the jacket in cash.  The 3 Accomplices were not around at the cashier in the transaction, but they had interacted with the defendant before and after the transaction.

Charge 5

15.  At around 6 am on the 8 January 2020, the defendant, PRASANSAP and PANG got onboard yet another taxi (“the third taxi”)  in Causeway Bay.  This time PRASANSAP was sitting at the front whereas the other two sat at the back.

16.  The defendant took up the role of distracting the driver of the third taxi. Subsequently the defendant signaled to the others that the stealing was successful and thus they all alighted rom the third taxi.

Charge 6

17.  At around 6:15 am on the 8 January 2020, the defendant brought PRASANSAP and PANG to a 7-eleven convenience store in Causeway Bay and purchased four HKD 1,000 iTunes gift cards and one HKD 1,000 Google Play gift card by using a credit card in the name of the driver of the third taxi.

Mitigation

18.  Mr Trevor Beel, who appears for the defendant, told this court that the defendant, a 20-year-old man, came to Hong Kong with his family members at the age of two.  He ranked fourth amongst the six other siblings of his.

19.  The defendant was educated up to Form 3.  He had to cease his studying in order to take care of his father − who suffered a heart attack during a journey in Pakistan − as the defendant was the only one in the family who was able to fulfill that role and leave Hong Kong at that time.  After his return to Hong Kong, the defendant worked at the DHL sorting office at the airport and subsequently worked as a transportation worker.  At the time of the offences, he was unemployed.

20.  The defendant had previously been sentenced on 18 August 2021 to a total of 24 months’ imprisonment in DCCC 834/2020 for five separate incidents of theft in which the modus operandi in relation to stealing from taxi drivers was identical to that of Charges 1 & 5 in the present case.  Those offences took place between October 2019 and February 2020 at various locations in Kowloon.  The defendant had already served his sentence in DCCC 834/2020 and was released on 12 February 2022.

21.  It was urged upon by Mr Beel that the defendant is now very much a changed person as a result of his incarceration in DCCC 834/2020.  The defendant went back to work at the DHL sorting office at the airport after the said release from prison in February 2022.  He is currently undergoing a 12 months’ supervision programme monitored by the Correctional Services Department.

22.  Mr Beel submitted that the course of conduct in the present case took place within the dates of the offences in DCCC 834/2020 and the criminality involved was similar.  Had the two cases been consolidated, the sentence of the present case would have been consumed within DCCC 834/2020.

23.  Mr Beel thus urged this court to consider suspending the imprisonment term which this court is minded to pass.

24.  Further, this court has also been told that a voluntary restitution of HKD 3,100 had been made by the defendant concerning Charges 5 and 6.

25.  Regarding the sentencing discount, Mr Beel told this court that it was on the 30 June 2022 that the defence gave notice to the prosecution about the defendant’s intention to plead guilty.  It was urged upon by Mr Beel that a 25% sentencing discount should be warranted.

Sentence

26.  I have considered the oral and written submissions of Mr Beel together with the authorities he referred to.

27.  The modus operandi of Charges 1 & 5 were akin to pickpocketing.

28.  The Court of Appeal laid down the sentencing guidelines for pickpocketing offences in HKSAR v Ngo Van Huy [2005] 2 HKLRD 1 in that a starting point of 12 to 15 months’ imprisonment is appropriate for a first offender where no aggravating feature is involved.

29.  Taxi drivers were targeted by the defendant and his accomplices in Charges 1 & 5.  Drivers as such are vulnerable people.  These two charges were committed by a group of people and involved an element of planning.

30.  I will take 15 months’ imprisonment as the starting point for Charges 1 & 5.

31.  I am prepared to exercise my discretion and give him 25% of sentencing discount due to the defendant’s indication of his guilty pleas, albeit just 4 days before the scheduled trial date.

32.  The defendant is sentenced to 11 months and 1 week’s imprisonment for each of Charges 1 & 5.

33.  Charges 2, 3 and 6 are offences related to the obtaining of property by deception by using stolen credit card(s).

34.  I have considered the principles enunciated in R v Chan Sui To and anor [1996] 2 HKCLR 128, HKSAR v Tu I Lang, CACC 464/2006, HKSAR v LAM See-chung, Stephen, [2013] 5 HKLRD 242 and HKSAR v LI Chi-yat,CACC 189/2018.

35.  Charges 2 and 3 took place on the same day.  The former was designed as a testing-of the-water move whilst the latter being the substantial purchase, albeit it did not materialize at the end.  The defendant took a leading role in both Charges 2 and 3.  There were certainly planning involved but the operation as a whole cannot be said to be a large-scale one or of a sophisticated nature.  I was informed by the prosecution that the credit limit of the Citibank Card was HKD 64,000.

36.  Having considered all the factors, I will take 30 months’ imprisonment as the starting point for each of Charges 2 and 3.

37.  In view of the defendant’s pleas in Charges 2 and 3, I will reduce his sentence by 25%.

38.  For each of Charges 2 and 3, the defendant is sentenced to 22 months and 2 weeks’ imprisonment.

39.  As to Charge 6, again it was the defendant who took a leading role.  There was also an element of planning but the operation as a whole was not a large-scale one nor was it of a sophisticated nature.  I was informed by the prosecution that the credit limit of the credit card involved was HKD 75,000.

40.  Having considered all the factors, I will take 30 months’ imprisonment as the starting point for Charge 6.

41.  In view of the defendant’s plea, I will give him a 25% sentencing discount.

42.  For Charge 6, the defendant is sentenced to 22 months and two weeks’ imprisonment.

43.  I have taken into account the totality principle. I also bear in mind the fact that the defendant had been sentenced to a total term of 24 months’ imprisonment in DCCC 834/2020 for 5 offences of theft committed between the months of October 2019 and February 2020, with their respective modus operandi identical to that of Charges 1 & 5.

44.  In order to reflect the aforesaid, I will order sentences in each of Charges 1, 2, 3, 5 and 6 all to run concurrently.

45.  There exists no special circumstance to enable me to suspend such sentences.

Order

46.  The defendant is sentenced to:-

Charge 1: 11 months and 1 week’s imprisonment.

Charge 2: 22 months and 2 weeks’ imprisonment.

Charge 3: 22 months and 2 weeks’ imprisonment.

Charge 5: 11 months and 1 week’s imprisonment.

Charge 6: 22 months and 2 weeks’ imprisonment.

47.  Sentences in each of Charges 1, 2, 3, 5 and 6 are to run concurrently with each other.

48.  The total sentence is 22 months and 2 weeks’ imprisonment.