HKSAR v. POKHREL KUSHAL

DCCC 419/2015

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 419 OF 2015

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REASONS FOR SENTENCE

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1. Defendant, you have pleaded guilty before me to four charges of obtaining property by deception (Charge 1 to 4) and one charge of failing to surrender to custody without reasonable cause (Charge 5).

2. In relation to the deception charges, the offences you committed were all in relation to credit card frauds.  The subject matter of the credit card in question was a genuine HSBC credit card stolen by you from your mother, PW1, at home.  On 5 January 2015, PW1 reported loss of the credit card to HSBC and cancelled the credit card after she found out that the credit card was missing.  However, later, on 16 January 2015, PW1 received her monthly statement from HSBC which, to her surprise, showed four suspicious purchases made with her credit card all on 23 December 2014, namely, (i) HK$239 at “D & J Sports Company”; (ii) HK$4,889 at “Broadway Photo Supply”; (iii) HK$9,900 at “Kam Po Shing (Chan’s) Company”; and (iv) HK$869 at “Talk Smart”.

3. PW1 did not make those purchases.  She later enquired with you and you admitted to her that you had in fact taken the credit card from her to make those purchases.  PW1 then reported the case to the police and you became out of reach since then.  Later, you reappeared on 26 January 2015.  PW1 reported to the police and you were arrested.  At the time of the arrest, you were found in possession of the credit card of your mother.

4. In the subsequent investigation and also in a cautioned interview, you admitted to the police that you had in fact used her credit card to make those four purchases as stated above.  Altogether, you had purchased a backpack, an iPhone, a gold bracelet and also another mobile phone.  You have kept one of the items, the black backpack, for your own use while you sold all the other items to an unknown male for HK$14,000.

5. You were later granted court bail at the Tuen Mun Magistrates’ Court on 22 April 2015 but you failed to attend the court on the appointed date on 6 May 2015.  Under caution, you said that you had forgotten the appointed court date and you had no money to travel to court when you remembered it.

6. You are now aged 26 and you have completed year 2 in the Open University in India.  You had previously worked in Hong Kong as a bartender and also a construction site worker before 2014.  You are still single and you are the only son of the family.  You lived together with your father, who is aged 56, and your mother, PW1, aged 46 in a private residence in Yuen Long. 

7. At the time of the offence, you had a clear record.  But whilst on bail and waiting for the disposal of the present case, you have committed an offence of theft, for which you were sentenced to one month imprisonment on 21 May 2015. In other words, before you came before me for this case, you had already served the sentence.

8. Credit card offences are of course serious offences and must be deterred. The occurrence of these kind of credit card offences especially in relation to credit card fraud would threaten the integrity of the economic system in Hong Kong.  In HKSAR v Tu I Lang (unreported, CACC 464/2006), McMahon J has said at paragraph 10 of the judgment as follows:-

“Where the facts of the offence point 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.”

9. The sentencing principles in consideration were that counterfeit credit card offence require deterrent sentence.  Also, the potential for loss is always great for this kind of offence and very often will be far greater than the actual loss.

10. In another case decided by the Court of Appeal, HKSAR v Lam See Chung Stephen [2013] 5 HKLRD 242, the Court of Appeal had expressly said that the above sentencing principles and consideration were equally applicable to genuine credit cards which were stolen and therefore the 3 years’ starting point for a simple case of counterfeit credit card fraud should also apply to simple cases where genuine credit cards are stolen. 

11. In relation to the present case, in Charge 1 to Charge 4, in each charge, it involved the same genuine HSBC credit card stolen by you from your mother.  The total purchases involved, however, were only about $16,000. I therefore concluded that they are simple credit card fraud cases involving a single and genuine stolen credit card.  Although these four purchases involved four different shops, the purchases were made within the same day and I nevertheless still use 3 years as a global starting point for these four charges.

12. You have pleaded guilty which is the most effective mitigation and therefore you will be entitled to the usual one-third discount.  The normal sentence for each charge would be reduced from the 36 months to 24 months in each charge.

13. I was informed by Mr Joseph Li, your solicitor, that since the arrest, you have already borrowed from a female colleague previously working at a bar with you to repay your mother so that she could also repay the credit card company. With the assistance of PW1, your mother, she had also submitted for my consideration her monthly credit card statements from January to July this year. After looking at the statements, I am satisfied that you have already repaid your mother who has also fully repaid to the credit card company.

14. Because of the full restitution so that neither PW1 nor the credit card company HSBC would have suffered any financial loss, in the end, I decided to reduce your sentences for Charge 1 to Charge 4 by a further 2 months.  As a result, for Charge 1 to Charge 4, in each charge, you would only need to serve a sentence of 22 months’ imprisonment.

15. As to the last charge, Charge 5, according to section 9L(3) of the Criminal Procedure Ordinance, Cap 221, after your conviction on indictment, you can be fined to any amount and also to an imprisonment term for as long as 12 months.  Here you had flagrantly breached the bail condition imposed on you by the Tuen Mun Magistracy in this matter.  In my judgment, your explanations to the police were simply incredible.  Those who wilfully disobeyed a court order will normally be expected to be sent to prison.  In this charge, I consider that the most appropriate sentence is one of immediate custodial sentence.

16. However, taking into account the relatively short period between the time you voluntarily absconded and the time that you were re-arrested, I will simply adopt 9 weeks as the starting point.  Because of your plea, this sentence will also be reduced from 9 weeks to 6 weeks’ imprisonment. 

17. Charge 5 is of course a separate and distinct offence from the first four charges.  In principle, I do not see anything wrong to order that this sentence has to be served wholly consecutively to the first four charges. After all, I have only imposed a very short imprisonment in this charge. 

18. Finally, I make the order as follows:

(1) For Charge 1 to Charge 4, I order that you have to serve 22 months’ imprisonment on each charge, the sentences on each charge are to run concurrently.

(2) For Charge 5, you have to serve a prison term for 6 weeks. The sentence has to be served wholly consecutively to the 22 months’ imprisonment that I have ordered in relation to Charge 1 to Charge 4.

19. Your total sentence is therefore 22 months and 6 weeks’ imprisonment.