HKSAR v. ABEID SALUM AHMED

DCCC 339/2019

[2019] HKDC 1233

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 339 OF 2019

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REASONS FOR SENTENCE

1.  The defendant, a Form 8 holder, pleaded guilty to 3 charges of "Theft" (Charges 1 to 3); and 2 charges of "Obtaining property by deception" (Charges 4 and 5). He picked up 2 credit cards which did not belong to him on the street and used them to make purchases at 3 retail shops. The total sum of the goods involved is close to $5,700.

Summary of Facts

Background

2.  Mr. Myall (PW1) held a credit card account with American Express ("Amex").  Upon his request, Amex issued a supplementary card to his girlfriend Madam A. Jull LIM[1] (the "Amex Card").  PW1 was in possession of the Amex Card.  He last saw it in the evening on 19 January 2019 and found it missing in the next afternoon.

Charges 1, 4 and 5

3.  Shortly before noon on 20 January 2019, the defendant and his female friend Madam M (who is also a Form 8 holder) went into a "Ray-Ban" Shop located at iSQUARE in Tsim Sha Tsui.  He first selected a pair of sunglasses (valued at $1,354) and paid for them using the Amex Card.  This is Charge 4.

4.  A few minutes later, Madam M selected a pair of sunglasses (valued at $2,068).  The defendant paid for them also using the Amex Card.  This is Charge 5.

5.  The defendant and Madam M then left the shop. They were stopped by patrolling police officers shortly afterwards.  Upon search, the Police found on the defendant the 2 pairs of sunglasses he had just purchased; the Amex Card; and a Citibank Mastercard in the name of Michael G. Nichols[2].

6.  Under caution, the defendant claimed that he found the 2 credit cards in Wanchai earlier that morning.  This is Charge 1.

Charges 2 and 3

7.  Upon investigation, the Police discovered that the Amex Card was used in 2 more transactions in the same morning.

8.  A purchase in the sum of $30 was made at a Starbucks located at Prince Tower on Peking Road at 11:18 a.m. on that day. This is Charge 2.

9.  A purchase in a total sum of $2,236 (which included 2 shirts, 1 coat and 1 skirt) was made at "Mango" located at iSQUARE at 11:42 a.m. on the same day.  This is Charge 3.

10.  The defendant now admits that he had committed the offences as particularized in Charges 2 and 3.

Mitigation & Sentence

11.  The defendant is 50 and has a clear record.  He came to Hong Kong from Tanzania in 2007.  He is married with 6 children (aged from 2 to 23 years old).  All his family members are residing in Tanzania.

12.  Defence counsel Mr. Surman stressed that the defendant has behaved himself in Hong Kong in the past 12 years.  In fact, he has been stopped and searched by the Police many times in the neighbourhood where he resides, and managed to stay out of trouble until the present offences.

13.  Mr. Surman submitted that the defendant is truly remorseful for what he has done.  He is willing to shoulder the responsibility and would not blame his friend Madam M for luring him into buying things for her.  Mr. Surman said the defendant told him "A darkness came over me", when he found the credit cards on the street.  He then decided to go shopping with Madam M.  Last week, Madam M went up to the office of defence solicitors and presented them cash in the sum of $2,266, being compensation for the goods in relation to Charges 2 and 3.  I have asked parties to settle the compensation issue before I sentence the defendant.

14.  This morning, Mr. Surman informed me that the retail shops, namely Starbucks and "Mango", do not need compensation because they were duly paid by the credit card company.  At the same time, prosecuting counsel Mr. Ho informed me that based on past experience and for reasons unknown, the credit card companies would not accept compensation payments from defendants in criminal cases.

15.  Credit card offences are serious and must be deterred.  In HKSAR v CHEN Wing Hong CACC 40/2005, the Court of Appeal observed that "… in this day and age the integrity of the credit card system is highly important and those who attempt to beat the system by fraudulent methods necessarily erode the confidence which people are entitled to place on this aspect of modern commercial life[3]." A clear message must be conveyed to the general public that "credit card fraud" is a serious crime and that offenders would be punished by a substantial prison term.

16.  In HKSAR v Tandon William CHAING CACC 404/2012, Macrae J (as he then was) endorsed a starting point of 3 years' imprisonment for the unauthorized use of 1 credit card belonging to another person on a single occasion in order to obtain jewellery and watches which valued $56,116 in total[4].

17.  In the present case, the defendant picked up 2 lost credit cards and used one of them on the same day 4 times in 3 different retail shops to obtain goods with a total value of almost $5,700.

18.  For Charge 1, I consider a starting point of 6 months' imprisonment appropriate for "theft by finding".  With the timely guilty plea, the sentence is reduced to 4 months.  I sentence the defendant to 4 months' imprisonment for this charge.

19.  For Charges 2 to 5, in view of the relatively small sums involved, I adopt 2.5 years' imprisonment as the starting point for each charge.  The defendant is a Form 8 holder.  I have borne in mind the principles set out by the Court of Appeal on sentencing criminals with similar immigration status[5]. By their nature as well as the circumstances of their commission, Charges 2 to 5 clearly have a serious detrimental effect on the community at large.  Mr. Surman has fairly accepted that the defendant's immigration status constitutes an aggravating feature in terms of sentencing.  Hence, I would increase the starting point to 3 years.  With the timely guilty pleas, the sentence for each charge is reduced to 24 months.

Overall Sentence

20.  Bearing in mind the totality principle, I consider a global starting point of 42 months appropriate for Charges 1 to 5.  With the timely guilty pleas, the overall sentence is reduced to 28 months.  Since the 2 pairs of sunglasses were recovered right the way and Madam M was ready willing and able to pay compensation to the respective shops, I am prepared to grant a further discount of 1 month to reflect this aspect.

21.  To arrive at an overall prison term of 27 months for all 5 charges, I order the sentences to run in the following manner :-

(i) Charges 2 and 3 concurrent;

(ii) 2 months in Charge 1 consecutive to Charges 2 and 3;

(iii) Charges 4 and 5 concurrent; but 1 month consecutive to Charges 1 to 3.

22.  I have sympathy for people who need to escape from their homeland for various reasons (political, religious or otherwise) to seek refuge in a foreign territory.  Hong Kong owes those people nothing but has generously extended its hospitality to them.  The bottom line is they need to behave themselves and obey the law here.  This is certainly not one bit too much to ask for and is the least those people could do in return for the protection offered to them by Hong Kong.