HKSAR v. HAMITI ABDENOUR

DCCC 1008/2015

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 1008 OF 2015

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REASONS FOR SENTENCE

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INTRODUCTION

1.  On 7 January 2016, the defendant pleaded guilty to two charges of theft, contrary to section 9 of the Theft Ordinance, Cap 210 (“the Ordinance”) (Charges 1 and 9), seven charges of obtaining property by deception, laid against him pursuant to section 17(1) of the Ordinance (Charges 2 to 8), and one charge of attempting to obtain property by deception, preferred under section 17(1) of the Ordinance and section 159G of the Crimes Ordinance, Cap 200 (Charge 10).

FACTS

2.  The defendant entered Hong Kong on 20 August 2015.  In the early hours of 24 August 2015, he picked up Mr Ross Edward Johnston’s American Express Credit Card under a table in a bar in Wanchai, a card that Mr Johnston had last used at the bar at around 9pm on 23 August 2015.  (Charge 1)  Misrepresenting himself to be Mr Johnston, the defendant used the credit card and made seven purchases at various shops in Terminal 1 of Hong Kong International Airport that morning, details of which were as follows.  At about 8:39am, he bought $80.7-worth of adhesive tapes at Mannings at Shop 7T100. (Charge 2)  Minutes later, at Fortress at Shop 7T096, he bought an “I-phone 6 plus” worth $7,188.  (Charge 3).  Within minutes of that purchase, he showed up at a3 Digital Entertainment at Shop 7T116 and bought another set of I-phone 6 plus at $7,388.  (Charge 4) Next, he went to The Nuance Group – S & V at Shop 5T196 and bought a third I-phone 6 plus at $7,188.  (Charge 5)  Then, he purchased his fourth set of I-phone 6 plus at DG Lifestyle Store at Shop TP022, adding thereby another $6,988 to Mr Johnston’s credit card account. (Charge 6)  The shopping spree continued when he presented himself at Fortress at Shop 5P028A and bought his fifth I-phone 6 plus at $7,188. (Charge 7)  The misuse of Mr Johnston’s card stopped only after the defendant had successfully acquired at around 9:14am a quantity of health products at The Best New Zealand Shop at Shop 5P172, worth $1,312.5. (Charge 8)  He departed from Hong Kong via Lo Wu at around 12:37pm that afternoon.

3.  The defendant next entered Hong Kong on 28 August 2015.  At around 5am on 30 August 2015, he picked up M MICOLAS REYNE’s HSBC VISA Card somewhere on the street in Wanchai. (Charge 9) At about 8:23am that morning, he was seen acting furtively in Hong Kong International Airport.  He entered a3 Digital Entertainment at Shop 7T116 and attempted to buy a headset valued at $498 with the use of the VISA card.  He was unable, however, to provide the necessary pass-code to complete the transaction, and he left the shop without making any purchase. (Charge 10)

4.  A police officer intercepted the defendant near the bus terminus at the airport and found the VISA card in his possession, together with a sales receipt issued in connection with the transaction in Charge 3.  Under caution, the defendant admitted to the ten offences.

MITIGATION

5.  The defendant, an Algerian national, is now 49 years old.  He has attained university standard in France and has had a clear record in Hong Kong prior to his current convictions.  He lives in Shenzhen and conducts a trading business in Hong Kong. 

6.  Mr Littlewood, solicitor appearing on the defendant’s behalf submits in his plea in mitigation that the defendant has previously been a person of good character, he has shown remorse by entering his pleas of guilty at the first available opportunity, he has co-operated with the police by making admission in situation where there was only limited evidence against him, the two thefts that he has committed were in the nature of thefts by finding, the offences did not involve an international element, the value of the goods concerned was about $37,000, and finally, the defendant’s incarceration would cause additional hardship to him as he is a foreigner and a diabetic requiring three injections a day.

7.  According to his background report, the defendant’s wife and son live in Finland while his mother and siblings are in Algeria.  He has studied English in the UK for two to three years.  Prior to his remand, he has been making €2,000 to €4,000 a month.  He attributes the present offences to financial stress, his family being dependent on him.  He has been a Type 1 diabetic since 16 and is, in addition, suffering from poor eye sight arising from his diabetic condition.

8.  The report of Senior Medical Officer Dr N M Kwong of the Lai Chi Kok Reception Centre reveals that the defendant has no remarkable medical history except diabetes mellitus since 1985.  His condition has been managed with insulin medications, and his general health has been stable since his admission to the remand centre.

REASONS FOR SENTENCE

9.  In the recent case of HKSAR v Lam See Chung, Stephen [2013] 5 HKLRD 242, a case of credit card fraud committed with no international element, involving the use of genuine rather than counterfeit credit card,  the Court of Appeal referred to and reviewed a number of previous authorities, including R v Chan Sui To and anor [1996] 2 HKCLR 128, HKSAR v Ng Swee Thiam and ors [2000] 1 HKLRD 772 at 778, HKSAR v Cheung Ka Wo Johnny [2002] 2 HKC 517 and HKSAR v Tu I Lang CACC 464/2006,  and said:

39. Those judgments which lay down a sentence of 3 years’ imprisonment or less for cases of simple credit card fraud are based on a number of sentencing principles and considerations. They are that counterfeit credit card offences require deterrent sentences; there is a need to protect the integrity of the credit card system; and the potential for loss is great and often will be far greater than the actual loss. In fact, it is precisely because of this last consideration that the actual loss will not necessarily be an important factor when it comes to sentencing a credit card offender; rather “it is this potential for losses which is the most important consideration.”

40. These sentencing principles and considerations are equally applicable to credit card fraud offences in which genuine credit cards are used and we can see no good reason why the three year starting point for simple cases of counterfeit credit card fraud should not also apply to simple cases of credit card fraud where stolen genuine credit cards are used to commit the offence.

10.  The defendant’s case falls within the category of simple cases of credit card fraud committed without any marked degree of planning or organization and any international element.  With respect to the latter aspect, the Court of Appeal in HKSAR v Loh Joo Hooi CACC129/2013 said:

18. … We should, however, make clear that it is not, in this case, the fact that the applicant is a foreign national who happens to have committed a crime in Hong Kong, which provides the aggravating international element for sentencing purposes: the aggravation lies in the intentional bringing of the instruments of crime over the border from another jurisdiction for their use or proliferation on the streets of Hong Kong.”

11.  In the instant case, the prosecution have proceeded against the defendant in Charges 1 and 9 on the basis that they were thefts by finding, accepting fairly as they did – in view of the available evidence – that the defendant has only chanced upon the genuine credit and VISA cards in Wanchai.

12.  The defendant in this case has clearly targeted the airport as the location in which to commit as serious a crime as credit card frauds on separate dates.  This kind of focussed criminal conduct must be discouraged as there are obvious public interests in the protection of the airport from criminals.  In addition, there is multiplicity of offences in this case. 

13.  Despite the defendant’s previous good character and the value of the stolen goods concerned not being considerable, there is no reason not to adopt a global starting point of three years’ imprisonment.  The defendant is entitled to the customary one-third discount for his guilty pleas, resulting in an overall term of imprisonment of two years.

14.  To give effect to the overall sentence, a starting point of nine months’ imprisonment is adopted for each of Charges 1 and 9, which is reduced to six months’ imprisonment for the defendant’s guilty pleas.  In respect of Charges 2 to 8 and Charge 10, the proper starting point is one of three years’ imprisonment for each of them, which is reduced, likewise, by one-third, resulting in a term of imprisonment of two years.  Applying the totality principle, it is ordered that all sentences be served concurrently.  Little weight can be attached to the defence submissions on additional hardship by reason of the defendant’s poor health and the language barrier perceived: first, inconvenient as it may be for him to receive the regular injections while serving his prison term, available medical evidence shows that the defendant is adequately provided for in respect of his medical needs; and secondly, he has received education in the UK for two to three years and, judging from his handwritten letter to the court dated 25 December 2015, must be familiar with the English language.

CONCLUSION

14.  For the offences of which he stands convicted, the defendant is sentenced to two years’ imprisonment.