HKSAR v. OLEG ZAIKOV

DCCC379/2012

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 379 OF 2012

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Reasons for Sentence

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1.  Defendant, you have pleaded guilty to five offences of using a false instrument, contrary to section 73 of the Crimes Ordinance, Cap.200.

2.  You admitted the facts and I convicted you.

3.  The prosecution case as set out in the prosecution opening was as follows.

4.  You used the same forged credit card to shop in the same store on five separate occasions on 31 July 2010.  The total value of the goods obtained by you illegally was some $31,558.

Charge 1

5.  At about 4.11 pm on 31 July 2010, you used a forged credit card which purported to be a Hang Seng Bank Visa card in your name to buy mobile phones worth $8,960 from the UNY Shop, 198 Junction Road, Kowloon.

Charge 2

6.  At or about 4.34 pm that same day you used the same card to purchase two more mobile phones for $7,160.

Charge 3

7.  At about 4.47 pm you used the same card to purchase an Xbox 360 console and a PlayStation 3 console for $4,768.

Charge 4

8.  At about 5.21 pm you used the same card to buy five bottles of SK11 skin care products valued at $5,400.

Charge 5

9.  At about 5.35 pm you used the same card to buy 10 boxes of health supplement for $5,270.

10.  The matter only came to the notice of the police in July 2011.  The card has never been found.  The merchant copies of the credit card invoices were obtained from UNY.  They show your name as the cardholder, CCTV shows you at UNY at the material time.

11.  On 1 December 2011 you were arrested at home for these offences.

12.  The card was forged.  The genuine holder of this credit card was a local Chinese man, Mr Yim.  His card bore the same number, and Hang Seng Bank bore the loss for all the goods.

13.  Mr Chan Wai-ip, an expert on Visa cards, gave the opinion that it was forged for reasons which he explained.

14.  You have four previous convictions.  In fact, they are subsequent convictions and similar.  For those you went to a Detention Centre.

15.  On your behalf, Mr Chung entered extensive mitigation.  I am obliged to him for setting it out in writing and providing it to me prior to the hearing.

16.  The gist of what he said is this.  The offences took place over a short period on the same day using the same credit card which bore your details.  You have pleaded guilty to all offences.

17.  You are 21 years of age, you were born in Russia, coming to Hong Kong with your mother when you were about 4.  You were educated to Form 3 but achieved little as you suffer from attention deficit disorder, attention deficit hyperactivity rating disorder and emotional behaviour disorder.  When you were 17 your mother abandoned you and you were left alone in Hong Kong.  At one stage you were reduced to sleeping on the street but you later found work as a waiter and lived in hostels.  Since May you have been employed as a rigger trainer for a shipping company, earning $280 per day. 

18.  In 2010, you associated with undesirable characters and between July and October that year you committed a number of offences.  On 29 October 2010 you were arrested for four offences relating to credit cards and eventually sent to Detention Centre.  Since your release in August 2011 you have been supervised. 

19.  In February 2011, while awaiting proceedings for the credit card offences you were investigated by the ICAC for corruption and the fraudulent purchase of these goods from UNY.  In July, whilst in custody, you received a letter from ICAC saying that there would be no further proceedings.  In fact, ICAC at that stage referred the credit card matter to the police.  There is no criticism of the ICAC nor of the police for what they did.  It was a misunderstanding it would seem on your part.  You believed the matter would not be proceeded with.

20.  Mr Chung said that you accepted this was a serious matter.  He referred to the case of HKSAR v Tu I Lang, CACC464/2006, where the Court of Appeal said that for small-scale unsophisticated credit card offences sentences of 3 years or less would be appropriate. 

21.  Mr Chung then proceeded to deal with the major points of mitigation.

22.  First of all, he pointed out your plea of guilty. This of course entitles you to an immediate discount of sentence of one-third. He then addressed your background.  You are part of a minority group in Hong Kong; also the hard life that you had led since being abandoned by your mother in 2007. 

23.  He then referred to events subsequent to the present offence, especially your rehabilitation.  During your time in Detention Centre you considered your future and resolved to start afresh, abandoning your bad associates and criminal elements.  Because of the letter from ICAC, you believed that you would be able to do that on release.  Since completing that sentence you have kept away from criminal associates and followed the instructions of your supervisor. 

24.  In April you met a Mr Gerhard Kutt who has befriended you and helped you in your life.  There is a letter from Mr Kutt to which Mr Chung referred and I have considered that letter.  Through Mr Kutt’s help you have obtained a steady job and you are the holder of a Construction Industry Training Certificate. 

25.  Also, you are in contact with your mother once again, who now resides in England, has remarried and has two children.  She has written in your support.  She paints a very positive picture of the way that you have changed.  It is hoped that you will be reunited physically with her soon.  She also takes upon herself a great deal of the blame for the matters that have gone wrong.

26.  There is also a letter from the Chief Executive Officer of the Christian Fellowship of Pastoral Care for Youth Limited, a charitable NGO which is assisting you.

27.  Mr Chung tells me that you are extremely remorseful.  At the time of commission of these offences you were of clear record and had all the offences been dealt with together then the matter would have now been cleared up when you went to Detention Centre.

28.  The court was also referred to the cases of Secretary for Justice v Chan Kit Bing [2001] 1 HKLRD 846, and R v J Myers(?) [1996] 1 Cr App Rep (S) 2409.  The principles of those I will not go into but I accept.

29.  Mr Chung also referred to restitution.  You have made arrangements through your legal representatives to compensate the Hang Seng Bank for the loss of $31,558.  In fact, there is before the court today a banker’s draft to that effect.  You have found it hard to raise this money given your relative poverty.

30.  Mr Chung then concluded by submitting that all sentences for the offences should be concurrent as these were five similar offences committed within close proximity.  Further, given the exceptional circumstances outlined, the court should consider either a Community Service Order or a suspended sentence so as not to jeopardise your future.

31.  I turn now to the sentence.  The misuse of credit cards is always a serious matter and for which the courts have habitually imposed severe prison sentences. 

32.  Mr Chung is to be congratulated on the diligent, clear and persuasive quality of the submissions he has made to me on your behalf. 

33.  This is in truth a sad and unusual and wholly exceptional case.   Here we have a young man with severe learning and behavioural problems standing at the threshold of adulthood when he was abandoned by his mother.  The only family he has leaves him to his own devices in a society in which he is an alien.  That you got into trouble is no great a surprise. 

34.  The reasons that I find this to be wholly exceptional are as follows:

1. Despite your poverty you have made full restitution.

2. At the time of the offences you were of clear record and a teenager of about 19 years.

3. Had all offences been dealt with together, then this matter would now long since have been cleared up. Miss Fung makes the point that you at no stage volunteered the commission of these offences. That is a fair point but perhaps a little optimistic.

4. Since your release you have led a good life and with the aid of Mr Kutt found a steady job and responded well to supervision. You have reconnected with your mother. You have removed yourself from criminal elements and association, and you have now, in my opinion, the potential to be a useful and productive member of society. The letters that are produced are all very supportive.

35.  My conclusion therefore is that given the seriousness and nature of the offences prison is inevitable but there will be a substantial discount given all the facts.

36.  Please stand up.  I therefore take a starting point of 18 months, which is a very low starting point for these offences. That will be reduced to 12 months in respect of each offence; that will be concurrent.  So you will go to prison for 12 months. 

37.  I also make an order that there be compensation to the Hang Seng Bank in the sum of $31,588.  I cannot make such direction but I would be very disappointed if the Hang Seng Bank should contemplate pursuing interest in this case. 

38.  The prison sentence is one of 12 months.