HKSAR v. MATOLA ALLYSAID AND ANOTHER

DCCC 219/2020

[2021] HKDC 246

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 219 OF 2020

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Reasons for Sentence

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1.  The indictment faced by the two defendants contains four charges.  The 1st defendant has pleaded guilty to the 2nd and 3rd charges, and the 2nd defendant to the 1st, 2nd and 4th charges.  The charges involve the use of credit cards to obtain some jewellery and also other credit cards found on the defendants at the time of their arrests and the theft of those cards. 

2.  Briefly stated, the facts that the defendants have agreed show that on 16 November a credit card, an HSBC Premier MasterCard was lost by a Mr Sinclair after an evening of entertainment with three unknown African females.  That card is described as card 1 in the facts.  The card went missing after the evening.  That card was later used in an attempted transaction at the Man Fook Gold and Jewellery Company in Wan Chai on 16 November 2019. 

3.  A second card belonging to a Mr Chan was also lost sometime before 16 November 2019.  That card was also used at the Man Fook jewellery shop around the same time as the card 1.  The two defendants were responsible for the fraudulent use of cards 1 and 2 and face the respective 1st and 2nd charges as a result.

4.  The transactions that are the subject of those charges took place around 10:30 to 11 o’clock in the morning of 16 November 2019.  The defendants came into the shop with another male and picked out various items of jewellery valued at $35,336.  The 2nd defendant attempted to make payment for the values of a blue wallet and what was described as PayWave.  This must be the failed transaction shown on card 1.  After that failed transaction, the 2nd defendant came over to the 1st defendant, took out the second card and passed it over.  The transaction then was successful and the two defendants and the man who accompanied them left the shop with the jewellery. 

5.  The theft charges relate to a different occasion.  The third card, which is the card involved in the 3rd charge against the 1st defendant, was lost by Ms Courtis.  We know that on 23  November 2019, the 1st and the 2nd defendants again appeared at the shop and were recognised as being the people involved in the earlier transaction on 16 November.  The defendants were stopped at that time and the third card was found in the 1st defendant’s wallet.  That is Ms Courtis’card.  Later, a wallet that belonged to the 2nd defendant was searched and two further credit cards were found belonging to a Mr Keren and those are the cards referred to in the 4th charge that the 2nd defendant has pleaded guilty to.  Those are the basic facts that the defendants have admitted. 

6.  As far as the defendants’ backgrounds are concerned, the 1st defendant is described as Tanzanian, a university educated person Tanzanian.  He has a clear record in Hong Kong.  The 2nd defendant is a Zimbabwean aged 23.  He is recorded as having a breach of condition of stay conviction. However, as I understand it, he is a Form 8 holder, which means he is making application as an asylum seeker and so the status of that conviction would be affected by the outcome of those proceedings.  I omitted to mention but both defendants are what is called Form 8 holders in Hong Kong.  I shall treat both of them as people of clear record for the purposes of these proceedings. 

7.  In terms of their mitigation, the 1st defendant puts forward that he has pleaded guilty to the charges he faces, that he is a single man aged 24, with siblings in Tanzania and was a squash coach. He came to Hong Kong in May 2019 on a valid visa and has lodged non-refoulement claim as a Form 8 recognisance holder.  He indicated his plea of guilty to the 2nd charge of fraud by a letter from counsel dated 3 September 2020 and indicated his plea of guilty to the 3rd charge, that is, the theft charge, on 29 July 2020 when the case was listed then.

8.  In respect of those indications of plea, the 1st defendant submits that in respect of the 3rd charge, that is, the theft charge, the 1st defendant is entitled to a full one-third discount because of that.  But in respect to the 2nd charge, because of the later indication of plea, he should be entitled to at least a 25 per cent discount from that plea on that charge and the court is asked to take that into consideration when making a decision as to the initial outcome of sentence. 

9.  As far as the 2nd defendant is concerned, as far as his mitigation is concerned, he is a, again, 24-year-old Zimbabwean national.  He applied for refugee status shortly after arrival in Hong Kong and became a Form 8 holder in Hong Kong.  I am told his application at this stage was rejected in October 2019 but he is pursuing an appeal.  He is married now and since 2019 he has married a teacher who is a permanent resident living in Hong Kong for over three years.  And she writes a supporting letter for him. The 2nd defendant has effectively a clear criminal record in Hong Kong.  He indicated pleas in a timely fashion and will be entitled to a one-third discount of sentence from the three charges that he faces. 

10.  As far as the calculation of the sentences is concerned, the main charges the defendants face relate to the frauds relating to the credit cards that were used.  The normal guideline sentence for the use of credit card fraud starts at 3  years’ imprisonment for a person of clear record after trial.  However, in the case of HKSAR v Li Chi Yat, a different approach is possible for the court in respect of what are called small-scale credit card offences.  The court said in that case that it is important to emphasise that the sentencing authorities in relation to credit card fraud cases recognise the small-scale credit card offences cannot be subject 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 in certain cases.  It is argued by the 1st defendant in this case that the deduction from the normal starting point of 3 years is appropriate, having regard to the fact that this is what could be described as a small-scale credit card fraud in that it occurred on one occasion, involved the use of only two cards and the final amount of money that was obtained was in the region of some $35,000. 

11.  In respect of the other charges that the defendants face, the theft charges, there is no guideline for sentencing in respect of those.  In respect of both defendants, there are conditions or considerations of totality that the court should take into account.  As far as aggravating factors are concerned, in respect of both defendants, they are Form 8 holders.  The Court of Appeal has indicated HKSAR v Norena Gutierrez Cristhian Andres, CACC 319/2014, that an enhancement is appropriate in respect of offences committed by people who are Form 8 holders.  The other basis for enhancement in this case is that in respect of the fraud charges the two defendants acted together, which is another aggravating factor. 

12.  Having regard to all those factors that I outlined, I must determine in respect of these offences the appropriate starting point for the defendants.  The charges in Charge 1 and Charge 2 are effectively mirror charges in that the 1st charge represents an attempt to commit an offence and the 2nd charge represents the completion of that offence.  One card was ineffective, so another card was used.  I consider that having regard to the considerations in HKSAR v Li Chi Yat, that the appropriate starting point for sentence in respect of the fraud charges, which is both Charge 1 and 2, for both defendants should be a starting point of 30 months’ imprisonment.  In respect of both defendants, there are the aggravating factors. Firstly, that they are Form 8 holders.  And that is an aggravating factor in this case.  And also the fact that they acted together.  I would calculate that those two aggravating factors would lead to a further 6 months’ enhancement of the starting point for sentence.  That means that both the 1st and 2nd defendants in respect of Charges 1 and 2 that they face, the starting point for sentence, I will adopt is one of 36 months’ imprisonment. 

13.  For the 2nd defendant on Charge 1, he is entitled to a full one-third discount from that, which leads to a sentence of 24 months’ imprisonment on the first charge for the 2nd defendant. 

14.  On the 2nd charge, both defendants face that charge.  The 1st defendant is entitled to a 25 per cent deduction on that charge, which would, of course, lead to a sentence of 27 months’ imprisonment. The second defendant, again, is entitled to the full one-third discount, which leads to a sentence of 24 months’ imprisonment. 

15.  In respect of the 3rd charge, the 1st defendant is recorded there as being involved in the theft of one credit card. There is no indication how that particular theft was committed.  The defendant says it was theft by finding.  But I shall take a starting point of 6 months’ imprisonment for the 1st defendant on Charge 3.  I do not think it is appropriate for there to be an enhancement in respect of his Form 8 status for this charge.  So the final sentence on the 3rd charge for the 1st defendant will be one of 4 months’ imprisonment. 

16.  I turn to the 4th charge against the 2nd defendant.  Here the 2nd defendant is involved in the theft of two credit cards. I take a starting point in respect of him on that charge of 9 months’ imprisonment, reduced to 6 months’ imprisonment for his plea of guilty. 

17.  And regard the overall totality of sentence, the 1st defendant faces a 1st charge of 27 months and a 2nd charge where the sentence is 4 months.  To achieve the correct overall totality, I will simply order that 2 months of Charge 3 be served consecutively to Charge 2, leading to total overall sentence of 29 months’ imprisonment. 

18.  In respect of the 2nd defendant, I shall order that the 1st and 2nd charges that he faces will be served concurrently to one another, but that 3 months of the 4th charge will be served consecutively to the first and second offences, leading to an overall total of 27 months’ imprisonment for the 2nd defendant.