HKSAR v. MTENGA ENOCK MARO

DCCC 1131/2024

[2025] HKDC 382

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 1131 OF 2024

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REASONS FOR SENTENCE

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1.  The defendant was charged with one count of theft, contrary to section 9 of the Theft Ordinance, Cap. 210; three counts of obtaining property by deception, contrary to section 17(1)  of the Theft Ordinance, Cap.210 and one count of attempting to obtain property by deception, contrary to section 17(1)  of Theft Ordinance, Cap.210 and sections 159G and 159J of the Crimes Ordinance, Cap.200. The defendant pleaded guilty, admitted the facts and was convicted accordingly.

FACTS

2.  On 20 January 2024 at around 12:22pm, the defendant was intercepted by Police outside 7/11 Convenience Store at No.5 Paterson Street.  Upon search, the defendant was found in possession of Mr Webb’s Santander Bank MasterCard (Card), one iTunes gift card, 6 unopened boxes of AirPods Pro, receipts related to the purchase of the iTunes gift card and 4 pairs of AirPods (Charge 2, 4 & 5; the value of the goods is $500, $3,698 & $3,398 respectively)  and receipts of an attempted purchase of goods valued at $3,398 (Charge 3)  with the said Card.

3.  D was a Form 8 holder. Upon enquiry, D stated that he picked up the Card at around 9 am in Times Square (Charge 1).  He bought the iTimes gift card and the six pairs of AirPods Pro with the Card.  In subsequent cautioned interview, D confirmed he committed the offences as charged.

MITIGATION

4.  D aged 35, single, a Form 8 holder. He is married with two children in Tanzania.  He has a clear record but is subject to a removal order issued on 2 January 2018.  He has been detained since his arrest on 20 January 2024.

5.  The defendant is deeply remorseful and accepts responsibility for his misdeeds.   There was no planning and no premeditation.  He has been co-operative with the police and made full admissions to all the offences. 

SENTENCE

6.  Any person who commits theft or obtaining property by deception liable on conviction upon indictment to imprisonment for 10 years. 

7.  The defence refers to HKSAR v Li Chi Yat CACC 189/2018, the Court of Appeal stated 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. (Paragraph 21)

we should point out, however, that credit card fraud offences require deterrent sentences in order to protect the integrity of the credit card system and to punish the offender for the loss and inconvenience to the credit card company and the cardholder, as the case may be. (Paragraph 22)”

8.  Li Chi Yat was a case of credit card fraud at the low end of the scale of criminality.  The appellant was acting alone in stealing opportunistically a single genuine credit card with which he subsequently used or attempted to use on three occasions on one single day. Thereafter, there were no further attempts to use the credit card.  He successfully used the card to purchase an item in the sum of a little under $8,000 after two failed attempts to purchase other items, one before the successful transaction in the sum of about $10,000 and one after in the sum of about $7,000.  The potential loss, as represented by the credit card limit, was $20,000.   There was no planning, or any aggravating factors that would elevate the criminality to a higher level of seriousness.  

9.  The Court of Appeal in Li Chi Yat found that a starting point of 2 years’ imprisonment on each of the deception charges would be appropriate, and upheld the sentence of 6 months’ imprisonment (a starting point of 9 months’ imprisonment)  on the theft charge of which 3 months run consecutively to the concurrent sentences of the deception charges.

10.  However, the fact that a person committed an offence whilst awaiting the processing of his immigration claim amounts to an aggravating factor.  In HKSAR v Norena Gutierrez Cristhian Andres CACC 319/2014 the sentence of a clear record defendant was enhanced by 3 months because of his refugee claimant status.  The Court of Appeal before up-holding the enhancement has analysed the reasoning in Sandagdorj Altankhuyag & another [2014] 1 HKC 206 and stated that:-

“Hong Kong does not keep imprisoned a person who remains in Hong Kong pending the processing of his immigration claim. … As a consequence, the immigration claimant will not just be allowed to remain in Hong Kong pending the resolution of his claim, but he will also be given his liberty and permitted to live in the community until his claim has been processed.

By allowing him his freedom, Hong Kong exposes its residents to the risk that this person will not live a law abiding life whilst he awaits the processing of his claim. This is a risk of crime to which the Hong Kong community would not otherwise be exposed. There is also, as Macrae JA pointed out, a risk of reputational damage to Hong Kong as a safe and orderly world class city.

Analysed in this way, punishing this category of offender more heavily than others is not to discriminate against him for being a foreigner. Rather, he is being punished more heavily by virtue of the fact that an element of his culpability is that he has caused harm to Hong Kong to which Hong Kong would not otherwise be exposed but for the fact that it has allowed him to remain in Hong Kong, and at liberty, pending the determination of his immigration claim. Seen in this way, there is nothing discriminatory in treating the circumstances of the offender’s immigration status as a factor aggravating his culpability and there is no infringement of the principle that everyone is equal before the law.”

In the present case, the defendant is a Form 8 holder and is subject to a removal order, he is in similar situation as one awaiting the processing of his immigration claim.

11.  The defendant stealing opportunistically a single genuine credit card with which he subsequently used or attempted to use on four occasions on the same day, three successful purchases and one failed attempt, the total actual loss was a little under $8,000.   The defence also accepts that the fact that the defendant being a Form 8 holder having a removal order at time of the commission of the crime is an aggravating factor but wishes the court could treat him as leniently as possible.

12.  In the circumstances of this case, I consider the appropriate starting point of the theft charge and the deception charges should be 12 months’ and 27 months’ imprisonment respectively.   The defendant is entitled to 1/3 discount for his plea, but I do not consider there to be any further mitigation factor that calls for further deduction.   

13.  The subsequent fraudulent use of the Card could be consider as one transaction, whereas the theft of the Card was a separate and distinct criminal act on the part of the defendant.  Taking into account of the totality principle, I consider the appropriate starting point for the overall criminality is around 32 months’ imprisonment.   That being the case, I order 3 months of Charge 1 to run consecutively to the concurrent sentences of Charge 2 to 5. 

ORDER

Charge 1 8 months’ imprisonment, 3 months consecutive with Charge 2 to 5,

Charge 2 - 5 18 months’ imprisonment, concurrent with each other,

making a total of 21 months.