HKSAR v. A MALE KNOWN AS BOMA AMASO

 DCCC1125/2009

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 1125 OF 2009

--------------------

--------------------

---------------------

Reasons for Sentence

---------------------

1.  Defendant, you have pleaded guilty to one charge of attempting to obtain property by deception, contrary to section 17(1) of the Theft Ordinance and section 159G of the Crimes Ordinance, and also to another charge of obtaining property by deception, contrary to section 17(1) of the Theft Ordinance.

2.  You admitted that on 8 April, at around 7 pm, you entered the Chow Tai Fook Jewellery Company in Hennessy Road and sought to buy gold ornaments in the amount of US$12,000. You used a credit card to purchase these gold bars and paid for them with a Citibank Platinum Master card in the name of one, Chirag Parikh. The credit card transaction was completed. You had been, however, kept under observation by a police officer who was at that time outside of the jewellery shop. It was believe that this credit card that you used was suspected to be false.

3.  The police eventually intercepted you. However, you refused to give your name and address to the police. You also informed the police that you did not know to whom the credit card belonged. There was no identification document found on you, but two mobile phones, an Octopus card and cash of HK$5,900 and US$25 was found in your possession. That was how you were arrested.

4.  The 4th charge to which you have pleaded guilty occurred on the day before your arrest on 7 April whereby you went to the same jewellery shop chain, “Chow Tai Fook”, this time in Nathan Road, Kowloon, and there you purchased gold ornaments for an amount of about HK$12,000. That transaction was approved and you took away the gold ornaments. The very same card as you used on the day of your arrest was also used for purchasing these gold ornaments.

5.  Upon investigation, it was found that the person named on the card was an Indian man working in America. He had in his possession a Citibank Master card of a different number and had not reported loss of his card. However, the Citibank fraud investigator claimed that someone said that someone claimed to be Mr Parikh and reported loss of his credit card on 24 March 2009.

6.  On 31 March 2009, a new credit card bearing the number to which card you had in your possession and which you used was issued and delivered to a Hong Kong address at the King Guest House, Room 201, 4th Floor, Block D, Chungking Mansion, Nathan Road, Kowloon, by courier on 3 April 2009. It was confirmed by the Government Chemist that the credit card you used and had in your possession was a genuine one.

7.  Mr McGowan, your counsel, has mitigated on your behalf today, and I have taken into account all that he has had to say for you. You are 40 years of age and you come from Nigeria. I am informed by Mr McGowan despite the prosecution having no information about you whatsoever, that you arrived in Hong Kong in 2006 and you had applied for refugee status.

8.  Since arriving here in Hong Kong, you have been living on charity from friends. Eventually, one of your friends, after much persuasion, influenced you to commit this crime. It was your friend who gave you this credit card and your reward was that you would receive 2 per cent of the purchase price. On the day before your arrest, on the successful transaction, you had given the gold to your friend but you had not received any reward.

9.  Mr McGowan has referred me to four cases for my consideration when sentencing you, that is, The Queen v Chan Sui To CA No. 115/1996 and HKSAR v Tu I Lang CACC464/2006. Those are two Court of Appeal cases, and also two from my learned brothers here in the District Court, DCCC186/2009 HKSAR v Romano Darwin Lonsaga and DCCC1061/2009 HKSAR v Aktas Alim & Bozkurt Serdal.

10.  In summary, Mr McGowan has urged me to start with a lesser starting point than three years’ imprisonment. The factors to which he has asked me to consider are, of course, your plea of guilty, your clear record, the fact that the loss amount was $12,000 and that you had only one credit card in your possession.

11.  I take into account, when sentencing you, your plea of guilty. You have saved much time. Your plea was indicated early. The loss on the 4th charge was HK$12,000. However, there was a potential loss of US$12,000, which equates to HK$93,600 in respect of the 1st charge. Had the police not been so vigilant in observing and watching and suspecting you, I have no doubt that this transaction would have been successful as was the one on the previous day because this card was in effect genuine.

12.  I accept that this was a small scale operation, only one credit card involved. It was a genuine credit card. However, on the facts of this case, there are clear characteristics of a credit card fraud. It goes beyond doubt that for credit card frauds, as Mr McGowan has submitted in those cases, a sentence of immediate imprisonment is appropriate. You have, a clear record here in Hong Kong and, in Nigeria where you come from.

13.  In those circumstances, I take a starting point of two years’ imprisonment giving you full credit for your plea of guilty that term is reduced to one year four months’ imprisonment. Taking into account the principle of totality that shall be the sentence imposed for both Charges 1 and 4 and those sentences are to run concurrent to each other.