HKSAR v. BOCHKOVSKYI BOHDAN

DCCC 321/2019

[2019] HKDC 1255

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 321 OF 2019

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REASONS FOR SENTENCE

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Charges

1.  The defendant pleads guilty to Charge 1, obtaining property by deception; Charge 2, possessing a false instrument, contrary to section 75(1) of the Crimes Ordinance; and Charge 3, possessing a false instrument, contrary to section 75(2) of the Crimes Ordinance.

Facts

2.  The defendant is a Ukrainian.  He was 19 years old when he arrived in Hong Kong on 11 October 2018 as visitor.  He was permitted to stay until 25 October 2018.  He stayed at the Royal Pacific Hotel and Towers in Tsim Sha Tsui between 13 October 2018 and 17 October 2018.

3.  On 14 October 2018, someone purchased online from a technology shop the goods particularised in Charge 1.  The goods were worth $11,220.50, including handling fees.  The goods were to be delivered to one Robert Bloot.

4.  The purchaser provided online the particulars of the credit card particularised in Charge 1 for payment.  The purchase was made at an IP address traceable to the Royal Pacific Hotel and Towers, where the defendant was staying then.

5.  The credit card belonged to a Hong Kong resident.  The card-owner had not lost her card.  She received a message from the bank about the purchase on 15 October 2018.  She made a report to the police on the next day.

6.  On 16 October 2018, someone used the Facebook account of Robert Bloot to instruct the technology shop to deliver the purchased goods to Tsim Sha Tsui. The messages were in simplified Chinese.

7.  The owner of the technology shop called the police.  The police then set up a controlled meeting in the afternoon of 17 October 2018 for someone to pick up the goods.

8.  The defendant appeared.  He confirmed to the owner of the technology shop that he was Robert Bloot.  The owner handed the purchased goods to the defendant.  The defendant signed on the invoice.  The ambush police officers then came out to arrest the defendant.

9.  The police found on the person of the defendant a false Netherlands identity card in the name of “Bloot Robert”.

10.  The police brought the defendant back to his hotel room for a search. They found, among other things, the defendant’s Ukrainian passport, US$8,600, a certificate of posting in the name of “Robert Bloot” and another false Netherlands identity card in the name of “Berger Gerard Isnard”.

11.  The police interviewed the defendant.  The defendant said he was a retail clothing salesman in Ukraine.  He came to Hong Kong alone for sightseeing.  He met an Indian man called “Jay” in Tsim Sha Tsui.  Jay asked him to pick up some goods on 17 October 2018 for a reward of $500.  The defendant was supposed to give Jay the goods on 19 October 2018.  The defendant said Jay had many identity cards.  He gave two to the defendant.  Jay said those cards were not forged but the defendant believed they were.  The defendant told the police that he was not the one who made the purchase from the technology shop.  He said he did not know the Facebook messages received by the shop.  He did not have any Facebook account and he did not know Chinese. The defendant said the US$8,600 were brought by him from Ukraine to Hong Kong. He did not say anything about the certificate of posting in the name of “Robert Bloot” found in his hotel room.

Criminal record

12.  The defendant is a Ukrainian.  He is aged 20 now.  When he was arrested in October 2018, he was 19.  He has no previous criminal record in Hong Kong.

Mitigation

13.  Defence counsel says the defendant had a mother in Ukraine.  His father had long gone.

14.  Counsel says the defendant was a self-employed person dealing in clothing.  He came to Hong Kong for sightseeing and buying goods.  The US$8,600 found in his hotel room was for those purposes.

15.  Counsel says the defendant did not come to Hong Kong to commit crimes. He was only recruited by Jay in the streets of Tsim Sha Tsui.  Jay promised to give the defendant reward for collecting the purchased goods.  The defendant was not the one who made the purchase.  He did not have any Facebook account and he did not know Chinese.  The defendant was only responsible for collecting the goods.

16.  Counsel submits that Charge 1, obtaining property by deception, and Charge 2, possessing a false instrument, were of one integral incident because the identity card in the name of “Robert Bloot” was to be used by the defendant for the purpose of collecting the purchased goods.

17.  Counsel points out that the goods were only worth about HK$11,000 and the goods were not lost.

18.  Counsel also points out that the credit card in question had a credit limit of only HK$20,000.  There was no repeated use of the card and the cardholder was alerted of the unlawful transaction soon enough.  Counsel says the risk of potential loss was low.

19.  Counsel cites the following cases: HKSAR v Tu I Lang, CACC 464/2006; Lam See Chung Stephen, CACC 339/2012; and Li Chi Yat, CACC 189/2018.  He says the starting point of Charge 1 should be lower than 3 years’ imprisonment.  He particularly relies on the case of Li Chi Yat, where the appellant had stolen someone’s credit card and made one purchase with it for goods more than $10,000.  He also made two attempted purchases of over $7,000 each.  The sentencing judge adopted 3 years’ imprisonment as the starting point of the three deception charges.  The sentence upon plea was 2 years’ imprisonment each.  The three terms were to run concurrently.

20.  On appeal, the Court of Appeal reduced the three terms all to 16 months’ imprisonment.

21.  In the present case, counsel says the total starting point for Charge 1 and Charge 2 should be something less than 2 years’ imprisonment.

22.  Counsel accepts Charge 3 is separate and distinct from Charge 1 and Charge 2 because the second forged Netherlands ID card in the name of “Berger Gerard Isnard” is a different false instrument from that false ID card in the name of “Robert Bloot”.  Counsel says the sentence for Charge 3 should be a few months’ imprisonment only.  He submits that possessing a foreign forged ID card is something less severe than possessing a forged Hong Kong ID card, which in the absence of aggravating factors would normally attract a starting point of at least 12 months’ imprisonment.

Sentence

23.  The defendant was aged 19 when he committed Charges 1 to 3.  He came from Ukraine.

24.  I accept the defendant came to Hong Kong for sightseeing and buying goods for his clothing business.  He had quite a sum of money with him in the amount of US$8,600.  I accept the defendant was lured by someone in the street in Hong Kong to commit the crimes in the present case.  That person Jay promised to give the defendant $500 for collecting the goods.  He gave the defendant the two forged ID cards:  one in the name of “Robert Bloot” and the other in the name of “Berger Gerard Isnard”.

25.  I accept the defendant did not know Chinese and he was not the one who made the purchase from the technology shop or instructed the shop later to deliver the goods to Tsim Sha Tsui.  Nevertheless, the defendant knew and was willing to participate in the credit card scam in Charge 1.

26.  Charge 1 involves only one credit card.  Only one purchase was made of that card for goods in the value of about HK$11,000.  The card was not reused and the potential loss was not great.  There was no evidence that a large-scale international crime syndicate was behind the scam.

27.  The starting point of Charge 1 should be 2 years’ imprisonment.  The defendant pleads guilty to the charge.  The sentence upon plea would be 16 months’ imprisonment.

28.  Defence counsel said Charge 1 and Charge 2 should be regarded as one incident.

29.  One might say Charge 1 and Charge 2 are of one incident.  Still, Charge 2 is a separate and distinct offence from Charge 1.  In Charge 2, the defendant possessed the forged Robert Bloot ID card to enable himself to collect the goods already purchased unlawfully in Charge 1.

30.  Charge 2 is made under section 75(1) of the Crimes Ordinance.  Defendant possessed that ID card with intent to use it to induce others to accept it as genuine.  The starting point should be one of 15 months’ imprisonment. The defendant pleads guilty to this charge.  He is entitled to one-third discount.  His sentence upon plea would be one of 10 months’ imprisonment.

31.  Charge 3 is related to another forged Netherlands ID card in the name of “Berger Gerard Isnard”.  The allegation is mere possession.

32.  Counsel says possessing a forged foreign ID card should attract a lesser sentence than possessing a forged Hong Kong ID card.  I do not see the difference.  I will adopt 12 months’ imprisonment as the starting point for Charge 3.  The defendant pleads guilty to this charge.  He is entitled to one-third discount.  The sentence upon plea would be 8 months’ imprisonment.

33.  The total starting point for all the three charges should be 3 years’ imprisonment, which means the total sentence upon plea should be one of 2 years’ imprisonment.

34.  The sentence for Charge 1 is 16 months’ imprisonment.  For Charge 2, it is 10 months’ imprisonment.  For Charge 3, it is 8 months’ imprisonment.  I would order 4 months’ imprisonment for the terms for Charge 2 and Charge 3 to run consecutively to each other and to run consecutively to the 16 months’ imprisonment for Charge 1.  The total sentence upon defendant’s plea on Charges 1 to 3 is 24 months’ imprisonment.