HKSAR v. KHALIFA ABDUL NASSOR

DCCC 733/2019

[2019] HKDC 1673

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 733 OF 2019

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Reasons for Sentence

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1.  The charge sheet contains a total of 10 charges. The defendant now pleaded guilty to Charges 2 to 10 (eight counts of obtaining property by deception and one count of breach of condition of stay). He was convicted accordingly. The remaining Charge 1 is left on court file.

The Prosecution Case

2.  Mr Verma had a Citibank Visa credit card numbered 4617-2670-0628-xxxx and he found the credit card missing.

3.  On 6 May 2018, the defendant was found using the said credit card on 3 occasions in the shop Zara at Level 2, Gateway Arcade, Harbour City, Tsim Sha Tsui. The CCTV in the shop captured the conduct of the defendant.

4.  At about 11 am on the day, the defendant used the said credit card to purchase a pair of sandals, 2 pairs of trousers, one handbag, a pair of shorts and a blazer jacket valued at a total of $3,014 (Charge 2).

5.  At about 12:18 pm, the defendant used the said credit card to buy 2 pairs of shoes, 2 shirts, 3 pairs of trousers, one T-shirt and one windbreaker jacket at a total value of $3,251 (Charge 3).

6.  At about 12:29 pm, the defendant used the said credit card to buy 2 pairs of shoes, 3 pairs of shorts, one dress, one handbag and a blazer jacket valued at a total of $2,822 (Charge 4).

7.  On the same day, the defendant used the said credit card on 5 occasions to make purchases in Nike shop situated at Level 3, Gateway Arcade, Harbour City, Tsim Sha Tsui. Again the CCTV in the shop captured the conduct of the defendant.

8.  At about 12:46 pm, the defendant used the said credit card to buy a pair of shoes and a basketball jersey with a total value of $1,898 (Charge 5).

9.  At about 12:54 pm, the defendant used the said credit card to buy a pair of shoes, a cap and 2 basketball jerseys with a total value of $3,996 (Charge 6).

10.  At about 12:57 pm, the defendant used the said credit card to buy 2 T-shirts, 2 pairs of trousers and 5 pairs of shoes with a total value of $5,445.9 (Charge 7).

11.  At about 1:11 pm, the defendant used the said credit card to buy 2 T-shirts and 5 pairs of shoes with a total value of $1,005.3 (Charge 8).

12.  At about 1:12 pm, the defendant used the said credit card to buy 2 pairs of shoes with a total value of $488 (Charge 9).

13.  In the video recorded interview, the defendant admitted that he had shopped in Zara and Nike. He also identified himself in the CCTV footage provided by Nike.

14.  The police searched the placed the defendant stayed in Tsim Sha Tsui and recovered 3 pairs of trousers (stolen from Zara) and one jersey (stolen from Nike).

15.  The total value of the goods bought with the credit card from Charges 2 to 9 was $21,900 odd.

16.  The defendant is a Tanzanian national who entered Hong Kong legally on 12 February 2018 and was permitted to stay in Hong Kong until 13 May 2018. When the defendant was arrested on 15 May 2018, he had overstayed in Hong Kong for 2 days.

Mitigation

17.  Mr Percy, defence counsel, said the defendant is aged 37 and a divorced man with a young son. He worked as a part-time container operator in Tanzania over a year. The defendant had a clear record in Hong Kong. The defendant had the intention to set up a small business in gem stones which was one of the reasons for the defendant to come to Hong Kong.

18.  Defence counsel also referred to 2 credit cards in the defendant’s name and one bank card which were in the defendant’s possession at the time of his arrest (MFI-1). It was submitted that the defendant had sufficient financial means to support his three-month stay in Hong Kong. The defendant said he picked up the said credit card in the street, and opportunistically used the card to make the purchases within about 2 hours on the same day. The items that were bought were mainly garments and shoes, some for the defendant’s child. Some items were recovered from the defendant’s room in Chung King Mansion.

19.  It was submitted that there is no international element in this case as the credit card was stolen in Hong Kong. Only one credit card was involved and the defendant acted alone without any syndicate element.

20.  Defence counsel also referred to cases like HKSAR v Lam See Chung Stephen [2013] 5 HKLRD 242, HKSAR v Tu I Lang CACC 464/2006, HKSAR v Loh Joo Hooi CACC 129/2013 and HKSAR v Li Chi Yat CACC 189/2018.

21.  It is submitted that this case was a small scale credit card offence and the sentencing guidelines are not so strict. There is no evidence to show the potential loss of the bank which issued the credit card. The defendant did not steal the credit card and the case comes to the less serious end of culpability without any aggravating factors. Defence counsel urged the court to consider the one transaction rule.

22.  As regards the overstaying offence, it is accepted that given the nature of the offence, the sentence so imposed will have to be consecutive to the other charges. The defendant is entitled to have one-third discount in sentence, given his indication of pleas early this year.

Sentence

23.  The defendant had a clear record in Hong Kong. He entered Hong Kong legally on 12 February 2018, and overstayed in Hong Kong for two days when he was arrested. I would not speculate whether the defendant would overstay longer had he not been arrested. I have to sentence him based on the facts that the defendant admitted to.

24.  The most important mitigating factor is the defendant’s guilty pleas to 9 charges. The trial originally was concerned with the first charge only. As such, I would still give the defendant one-third discount in sentence.

25.  The culpability of using stolen credit cards can be regarded as similar to those of using forged credit card. In the present case, I accept that there was no international element as far as the use of the stolen credit card is concerned, but the defendant, being a visitor, did commit offences in Hong Kong. I am doubtful as to how did the defendant get hold of the credit card in question, and would not accept that the defendant so happened picked the credit card up in the street on 6 May, as it was revealed by the Prosecution that the credit card was stolen from Mr Verma after he had one night stand with a girl.

26.  The defendant used the credit card in two shops in Harbour City within a short period of time. The total value of the goods so stolen amounted to about $21,000 odd. The defendant did not use the card to buy valuable goods like smart phones or watches. There is no criminality to a higher level of seriousness. As said by the Court of Appeal repeatedly, credit card fraud offences require deterrent sentences in order to protect the integrity of the credit card system and to punish the offenders for the loss and inconvenience to the credit card company and the cardholder.

27.  Taking all factors into consideration, I would adopt a starting point of 2½ years (30 months) for Charges 2 to 9. I will give the defendant one-third discount for his pleas. As such, I will sentence the defendant an imprisonment of 20 months for each of these 8 counts, to be served concurrently.

28.  As regards Charge 10, as the defendant entered Hong Kong lawfully and just overstayed in Hong Kong for two days. I would use 3 weeks as the starting point and with his plea, reduce it to 2 weeks. Given the nature of the offence, I order that this sentence is to run consecutively to the other sentences. That is to say, I sentence the defendant to a total imprisonment term of 20 months and 2 weeks.