HKSAR v. AJAY KUMAR AND ANOTHER

DCCC 220/2018

[2018] HKDC 923

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 220 OF 2018

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REASONS FOR SENTENCE

            D1 alone faces 1 charge of "Theft" (Charge 1). D1 and D2 are jointly charged with 2 offences of "Obtaining property by deception" (Charges 2 and 3) and 1 offence of "Attempting to obtain property by deception" (Charge 4). They both pleaded guilty to the respective charges.

Summary of Facts

Charge 1 (against D1 only)

2.  In the early hours on 8 November 2017, Mr. LAW (PW1) were drinking with his friends in Yau Ma Tei.  He last checked his wallet around 1:00 a.m. and it was intact.  The wallet contained 2 credit cards which belonged to him, namely 1 HSBC Visa card (Card 1) and 1 HSBC MasterCard (Card 2).

3.  PW1 later fell asleep on Chatham Road in Tsim Sha Tsui.  He woke up around 4:00 a.m. and found his wallet missing.  He reported the matter to the Police.

4.  About 5 hours later, Card 1 and Card 2 were found in D1's possession.  He had also used Card 1 in 4 unauthorized transactions.

Charge 2 (against D1 and D2)

5.  About 8:40 a.m. on 8 November 2017, D1 and D2 entered a "PARKnSHOP" supermarket located at Austin Tower, Austin Road, Tsim Sha Tsui (Shop 1).  D1 requested 1 bottle of "Hennessy XO" cognac and 1 bottle of "Martel XO" cognac from the shelf; whereas D2 requested for 1 reusable shopping bag.  The total value of all 3 items was $3,899.90.

6.  D1 presented Card 1 to Madam YIP (PW2), a cashier of Shop 1, to pay for the goods.  At PW2's request, D1 signed on the credit card slip.  PW2 found D1's signature similar to the sample which appeared on Card 1.  D1 and D2 then left Shop 1 with the goods.

Charge 3 (against D1 and D2)

7.  About 8:50 a.m. on the same day, D1 and D2 entered a "Market Place by Jasons" supermarket located at Surson Commercial Building, Austin Road, Tsim Sha Tsui (Shop 2).  D1 requested 2 bottles of "Hennessy XO" cognac from the shelf, a pack of fruit, a pack of sanitizing wipes and 1 plastic bag.  The total value of all 4 items was $3,637.40.

8.  D1 presented Card 1 to Mr. FUNG (PW3), manager of Shop 2, to pay for the goods.  D1 signed on the credit card slip. PW3 found D1's signature similar to the sample which appeared on Card 1.

9.  About 9:00 a.m. on the same day, D1 and D2 were still in Shop 2.  D1 further requested 4 bottles of "Hennessy XO" cognac from the shelf and 3 plastic bags.  The total value of all 4 items was $7,201.50.  D1 presented Card 1 to PW3 to pay for the goods.  D1 signed on the credit card slip.  D2 helped D1 carry the goods and they left Shop 2.

Charge 4 (against D1 and D2)

10.  About 9:10 a.m. on the same day, D1 and D2 entered a "Wellcome" supermarket located at Far East Consortium Building, Nathan Road, Yau Ma Tei (Shop 3).  D1 requested 2 bottles of "Hennessy XO" cognac from the shelf.  The total value of the 2 items was $3,600.

11.  D1 presented Card 1 to Madam CHAN (PW4), a cashier of Shop 3, to pay for the goods.  D1 signed on the credit card slip and the transaction was successful, except the 2 bottles of cognac were not yet handed to D1 or D2.

12.  At that moment, PW4 discovered that Card 1 might have expired.  She therefore sought approval from Mr. TSE (PW5), manager of Shop 3.  PW5 examined Card 1 and found the name printed on it being a Chinese name, which did not match the ethnicity of D1 or D2.  PW5 then reported the matter to the Police.

Police Investigation

13.  Police officers arrived at Shop 3 and examined Card 1, which bears the name of PW1.  They checked D1's wallet and found Card 2, which also bears PW1's name.  The credit card payment slips of the 2 transactions in relation to Charge 3 at Shop 2 were also found in D1's wallet.

14.  Visual inspection of the 4 credit card payment slips in relation to Charges 2 to 4 revealed that the 4 signatures appear thereon strongly resemble each other.

15.  CCTV footage of Shops 1 and 2 captured D1 and D2 entering and leaving the premises together; whereas the footage of Shop 3 captured D1 and D2 entering the premises together and being arrested.

16.  In respect of Charges 3 and 4, D1 admitted under caution that a friend named Junny gave Card 1 to him and D2.  He and D2 then went to Shops 2 and 3 to buy goods using Card 1.

Mitigation

D1

17.  He is 29, single and has 4 conviction records, all of which were "Shoplifting".  D1 came to Hong Kong from India in 2016 and currently remains in the territory as a Form 8 holder.  He was last sentenced to 8 weeks' imprisonment in May 2017.

18.  Sentencing was adjourned at the request of D1's counsel, Mr. Percy, in order to enable D1 to provide more information to the Police about the person named "Junny".

19.  This afternoon, prosecuting counsel Mr. CHENG reported that an NPS was obtained from D1 on 26 July 2018.  Based on the information provided by D1, the Police confirmed that there is such a person named "Junny" as described by D1.  However, other than confirming that "Junny" has been wanted by the Immigration Department since 2015, there seems to be no reasonable prospect of apprehending that person.

20.  In mitigation, Mr. Percy submitted that D1 is willing to assist the Police if "Junny" is picked up any time during his prison term.  On the other hand, Mr. Percy has rightly and fairly accepted that D1 would not be entitled to any further discount at this stage, except for the usual one-third.  Mr. Percy further submitted that D1 was used by "Junny" and he gained practically nothing since all the goods, apart from the items related to Charge 4, were handed over to Junny outside the respective shops.

D2

21.  He is 33, single and has 11 conviction records, which included 11 "Shoplifting" offences and 6 other offences such as "Criminal damage" and "simple possession".  D2 came to Hong Kong from India in 2007 and currently remains in the territory as a Form 8 holder.  He was last sentenced to 2 weeks' imprisonment in August 2017.

22.  In mitigation, D2's counsel Mr. Parry submitted that as far as D2 is concerned, only 1 credit card was involved.  Mr. Parry described Charges 2 to 4 as "opportunistic low level" offences, which all took place within a short period of time.  No international element was involved either.

Sentence

Charges 2 to 4

23.  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."[1]

24.  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[2].

25.  "Junny" might have been the principal perpetrator in this case, but D1 and D2, being adults of sound mind, should have had no trouble in appreciating the fact that shopping with someone else's credit card is a serious crime, whether or not they stood to gain any tangible benefits (monetary or otherwise) for doing so. They have no one but themselves to blame.  They could have easily turned down "Junny".

26.  In the present case, D1 and D2 used the same credit card on the same day at 3 different shops to obtain high-end liquor with an approximate value of $18,000. I have also borne in mind that only the bottles of cognac in Charge 4 were recovered.  Both defendants are no fresh offenders of crimes related to dishonesty.  I consider 33 months' imprisonment to be the appropriate starting point for each charge.

27.  Both defendants are Form 8 holders.  I have borne in mind the principles set out by the Court of Appeal in HKSAR v Norena Gutierrez Cristhian Andres CACC 319/2014 on sentencing criminals with similar immigration status[3]. By their nature as well as the circumstances of their commission, Charges 2 to 4 clearly have a serious detrimental effect on the community at large.  Both Mr. Percy and Mr. Parry accepted that D1's and D2's Form 8 holder status constitutes an aggravating feature in terms of sentencing.  Hence, I would increase the starting point to 36 months based on their immigration status.  With the guilty plea, the sentence is reduced to 24 months.  Apart from this, I see no other mitigating factors which warrant any further reduction.  I sentence each defendant to 24 months' imprisonment for each charge.

Charge 1

28.  Apart from his own account, there is no evidence showing how D1 came into possession of Card 1 and Card 2.  Assuming that he did tell the truth, Charge 1 is part and parcel to the overall credit card fraud plan.  I adopt a starting point of 9 months' imprisonment.  With the guilty plea, the sentence is reduced to 6 months.  I sentence D1 to 6 months' imprisonment for this charge.

Overall Sentence

29.  Although it was D1 who used Card 1, D2 certainly played his own role on each "shopping" occasion.  I do not see the need to apportion their criminality.  In my view, their culpability is equal.

30.  Bearing in mind the totality principle, I consider a global starting point of 42 months to be appropriate for Charges 2 to 4.  With the guilty pleas, the overall sentence is reduced to 28 months.

31.  For D2, I order 2 months in Charge 3 to run consecutive to Charge 2; and 2 months in Charge 4 to run consecutive to Charges 2 and 3.

32.  For D1, I order Charges 1 and 2 to run concurrently; 2 months in Charge 3 to run consecutive to Charges 1 and 2; and 2 months in Charge 4 to run consecutive to Charges 1 to 3.