HKSAR v. MASIH SUNIL AND ANOTHER

DCCC 374/2019

[2019] HKDC 1381

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 374 OF 2019

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REASONS FOR SENTENCE

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Introduction

1.  D1 is convicted upon his own plea of 11 charges of obtaining property by deception (Charges 1, 2 and 4 to 12) and 1 charge of attempting to obtain property by deception (Charge 3).

2.  D2 is convicted upon his own plea of 5 charges of obtaining property by deception (Charges 4, 5, 10, 11 and 12) and 1 charge of attempting to obtain property by deception (Charge 3).

Facts

3.  At around 1:30 am on 17 August 2018, Ms Tan (“PW1”) and her friends went to a bar in Central for entertainment.  At about 2:00 am, PW1 last checked her handbag containing her wallet which in turn contained PW1’s HKID card, Singapore ID card, Hong Kong driving licence, Singapore driving licence, 5 credit cards, 1 bank card, HK$1,000 and SG$150.  PW1 then left her handbag on a sofa inside the bar.  At about 4 am, PW1 left the bar and returned home with her handbag.

4.  At about 8:30 am on the same day, PW1 received SMS messages indicating that one of her credit cards with UOB (Singapore) numbered 5522-5320-5057-XXXX (“Card 1”) had made two fraudulent transactions in the total sum of HK$27,774 (Charges 1 & 2).  There was also another attempted fraudulent transaction in the amount of HK$15,434 (Charge 3). PW1 then found her wallet missing.  After confirming with the relevant credit card centres, it was found that six more fraudulent transactions in the total sum of HK$64,525.5 had been carried out by two other stolen credit cards with SCB (Hong Kong) numbered 5523-4384-1244-XXXX (“Card 2”) and American Express (Singapore) numbered 3798-557013-XXXXX (“Cards 3”) respectively (Charges 4 to 9).  PW1 therefore made a report to the Police.

5.  At around 1:00 am on 19 August 2018, Ms Lee (“PW2”) last saw her HKID card and credit card with HSB numbered 5408-0620-0676-XXXX (“Card 4”).  She then went to the same bar mentioned in paragraph 3 above with her friends for entertainment.

6.  At about 6:00 pm on 20 August 2018, PW2 found Card 4 and her HKID card missing.  She reported the loss of Card 4 to the relevant credit card centre and found that three fraudulent transactions in the total sum of HK$1,096 had been made by Card 4 in the morning of 19 August 2018 (Charges 10 to 12)  PW2 therefore made a report to the Police.

7.  The relevant details of the incidents are as follows:-

17 August 2018

Card 1
Incident/ Charge	Time	Location	Amount	Purchases
1	7:55 am	Fortress, Shop no. 7T096, Level 7 (Landside), Terminal 1, HKIA	HK$19,776	2 iPhoneX
2	8:01 am	NOBLETIME AV&TELECOM, Shop no. 7T098, Level 7 (Landside), Terminal l, HKIA	HK$7,998	1 Samsung Galaxy S9+
3 (Unsuccess -ful)	8:30 am	Calvin Klein Jeans, Shop no. 7T084, Level 7 (Landside), Terminal 1, HKIA	HK$15,434	2 wallets, 4 handbags, 1 cup, 3 pairs of jeans, 2 pairs of sport trousers, 3 T-shirts

 

Card 2
Incident/ Charge	Time	Location	Amount	Purchases
4	8:30 am	Calvin Klein Jeans, Shop no. 7T084, Level 7 (Landside), Terminal l, HKIA	HK$15,434	2 wallets, 4 handbags, 1 cup, 3 pairs of jeans, 2 pairs of sport trousers, 3 T-shirts
5	10:21 am	Wilson Communications, Shop no. G55, Telford Plaza I, 33 Wai Yip Street, Kowloon Bay	HK$19,176	2 iPhoneX

 

Card 3
Incident/ Charge	Time	Location	Amount	Purchases
6	11:04 am	Marks & Spencer, Shop no. G3, Telford Plaza I, 33 Wai Yip Street, Kowloon Bay	HK$5,833.5	27 pieces of clothing
7	11:05 am	Marks & Spencer, Shop no. G3, Telford Plaza I, 33 Wai Yip Street, Kowloon Bay	HK$l,384	7 pieces of clothing
8	11:06 am	Marks & Spencer, Shop no. G3, Telford Plaza I, 33 Wai Yip Street, Kowloon Bay	HK$2,922	9 pieces of clothing
9	11:54 am	Fortress, Shop no. G45-51, Telford Plaza I, 33 Wai Yip Street, Kowloon Bay	HK$19,776	2 iPhoneX

19 August 2018

Card 4
Incident/ Charge	Time	Location	Amount	Purchases
10	7:18 am	7-Eleven, Shop B1, G/F, 244 Portland Street, Mongkok	HK$40	2 red bulls
11	8:20 am	Calvin Klein Jeans, Shop no. 7T084, Level 7 (Landside), Terminal l, HKIA	HK$894	1 wallet
12	8:38 am	Pacific Coffee, Shop no. 5P118, Level 5 (Landside), Terminal 2, HKIA	HK$162	2 drinks 3 pieces of cakes

8.  At 8:23 am on 19 August 2018, the staff of “Calvin Klein Jeans” in Terminal 1 of the Hong Kong International Airport informed the Police via the taskforce hotline that D1 and D2, who were two of the three suspects that had used Card 2 to make purchase in the shop on 17 August 2018 in Charge 4, had entered the shop again.  This time, D1 and D2 were using Card 4 to make purchase in the shop.

9.  D1 and D2 had left the shop before the police arrived. Subsequently, a staff member of Calvin Klein Jeans positively identified D1 and D2 to the police officers outside a “759 Store” in Terminal 2 of the airport.  D1 and D2 were intercepted.

10.  At about 9:08 am on the same day, police searched D1 and found Card 4 inside D1’s wallet.  At that time, D1 was carrying a paper bag containing a paper box with a wallet.  A staff member of Calvin Klein Jeans positively identified the wallet to be the one purchased by D1 and D2 earlier.

11.  At about 9:25 am on the same day, police searched D2 and found one receipt of “Pacific Coffee” in Terminal 2 of the airport.  Upon enquiry, a staff member of “Pacific Coffee” (“PW12”) confirmed that two South Asian males had used Card 4 to make a transaction at the shop amounting to $162 earlier.

12.  D1 and D2 were arrested.  In the subsequent cautioned interviews with the police, D1 stated inter alia that:-

(a) in Charges 1, 2, 4, 6 to 9 and 10 to 12, he had used the relevant credit cards to make the relevant payments; and

(b) there was a third male person involved in Charges 4, 6, 7 and 8.

13.  Having seen all CCTV evidence from the offence locations, it is noted that:-

(a) in Charges 3 and 4, D1 and D2’s faces were clearly captured. D1 was the person who made the credit card payment;

(b) in Charge 5, D1 and D2’s faces were clearly captured. D2 was the person who made the credit card payment;

(c) in Charge 10, D2 was wearing a shirt with a “GIOROANO” mark at the front. D1’s face was clearly captured and he was the person who made the credit card payment; and

(d) in Charge 11, D1 and D2’s faces were clearly captured. D1 was the person who made the credit card payment.

14.  In a subsequent identification parade, D2 was identified by PW12.

Previous records and antecedents

15.  Prior to the commission of the present offences, D1 had three previous convictions of theft (one being snatching sentenced for 6 months in March 2016), one previous conviction of attempt theft (pickpocket) and one previous conviction of remaining in Hong Kong without the authority of the Director of Immigration after having landed unlawfully in Hong Kong.

16.  D1 is a Form 8 recognizance holder and hence unemployed. He was born in December 1992.  He attained Form 2 schooling in Pakistan.  He was last discharged from prison on 16 April 2018 but his counsel Mr Donald informed me that after that he was under administrative detention by the Immigration Department until shortly before 17 August 2018.

17.  Prior to the commission of the present offences, D2 had one previous conviction of breach of condition of stay (sentenced in July 2013) and four previous convictions of theft (all sentenced in December 2017 with 2 months’ imprisonment for each of the offences, to run concurrently).

18.  D2 is also a Form 8 recognizance holder and hence unemployed.  He was born in February 1991.  He attained Year 10 schooling in Pakistan.  He was last discharged from prison on 28 December 2017.

Circumstances leading to or relating to the commission of the offences

19.  In the written Mitigation dated 11 October 2019 submitted by Mr Donald, it was stated that it was D2 who gave the relevant credit cards to D1 and asked D1 to assist him (D2) in committing the offences.

20.  In the “2^nd Defendant’s Mitigation Submissions” dated 8 October 2019 submitted by D2’s counsel, it was stated that D2 was informed by D1 that the relevant credit cards belonged to D1’s girlfriend.  D2 denied D1’s mitigation submission that the relevant credit cards were given by D2 to D1. 

21.  As the aforesaid mitigation submissions by D1 and D2 respectively were contradictory to each other, I asked counsel for D1 and D2 whether it was necessary to hold a Newton Inquiry to resolve the contradiction.  Both counsel said it was unnecessary.  They agreed that their respective submissions on the circumstances leading to or relating to the commission of the offences bore little significance in terms of sentence, and they submitted that they would not pursue those submissions in mitigation.  Respective mitigations by both counsel were then proceeded on that basis.

D1’s mitigation

22.  Mr Donald’s mitigation is set out in his written Mitigation dated 11 October 2019.  He submitted that the total amount involved in the 11 charges of obtaining property by deception was HK$93,395.50 and the amount involved in the charge of attempt to obtain property by deception (Charge 3) was HK$15,434.  Mr Donald referred this court to HKSAR v Lam See Chung Stephen^[1]and HKSAR v Li Chi-yat^[2] and asked this court to adopt a starting point of around 2 years’ imprisonment.  As D1 is a Form 8 recognizance holder, Mr Donald also referred me to HKSAR v Shah Syed Arif ^[3] and HKSAR v Singh Gursevak^[4].

D2’s mitigation

23.  Ms Zahir adopted her written “2^nd Defendant’s Mitigation Submissions” dated 8 October 2019.  She submitted that D2 did not play an active or key role in the offences he committed.  For that matter, she referred this court to R v Chan Sui To^[5], HKSAR v Lam See Chung Stephen, HKSAR v Tu I Lang^[6]and HKSAR v Cheung Mee Kiu^[7].  The total amount involved in the 5 charges of obtaining property by deception committed by D2 was HK$35,706 and the amount involved in the charge of attempt to obtain property by deception (Charge 3) was HK$15,434.

24.  Ms Zahir also submitted that D2 has numerous skin lumps on different parts of his body but there is no diagnosis yet as to whether those lumps are cancerous or not.  As I discussed with Ms Zahir when she made that submission, given D2’s personal background it appears that the medical care and attention D2 receives will be better when he is in the custody of the Correctional Service Department than when he is not.  With the information currently available regarding D2’s health condition, I do not consider it a valid mitigating factor justifying any reduction in sentence.

25.  Regarding the submission on assistance to authorities, Ms Chan of the prosecution informed the court that the information given by D2 had no evidential value.  Ms Zahir submitted that although the information given by D2 had no evidential value, it showed D2’s remorse.  I told her that the 1/3 discount I am going to give D2 for his guilty plea will take into account D2’s remorse.

Sentence

26.  Ms Chan of the prosecution informed the court that the respective credit limits for Cards 1, 2 and 4 were SG$13,500 (about HK$74,250), HK$91,000 and HK$40,000.  There is no information on the credit limit for Card 3.

27.  HKSAR v Li Chi Yat “was a case of credit card fraud at the low end of the scale of criminality and ... was clearly apparent by the fact that it involved the appellant acting alone in stealing opportunistically a single genuine credit card which he subsequently used or attempted to use on three occasions where the actual loss was a little under $8,000 and the potential loss, as represented by the credit card limit, was $20,000”.^[8]  The facts in the present case, including the number of offenders, number of credit cards involved, the actual loss and the potential loss, are more serious than that of Li Chi Yat.  For each of the 12 charges, I will adopt a starting point of 30 months’ imprisonment.  D1 and D2 committed their respective offences together as a joint enterprise.  I do not consider their respective roles so different to justify adopting different starting points.

28.  Both D1 and D2 are Form 8 recognizance holders.  I will enhance the sentence for each of the 12 charges by 3 months as they committed the offences whilst living in Hong Kong under the benefit of Form 8 recognizance.  The sentence for each of the 12 charges is increased to 33 months’ imprisonment.

29.  One-third discount is given to D1 and D2 for their timely indication of guilty plea.  The sentence for each of the 12 charges is reduced to 22 months’ imprisonment. 

30.  Regarding totality, 4 credit cards were used on 12 occasions on 2 days (17 and 19 August 2018).  The total amount involved in the 11 charges of obtaining property by deception was HK$93,395.50 and the amount involved in the charge of attempt to obtain property by deception (Charge 3) was HK$15,434.  D1 committed the present offences soon after he was discharged from prison (on 16 April 2018) and then administrative detention.  For D1, I order that 2 months in Charge 5 and 2 months in Charge 11 are to run consecutively with 22 months in Charge 1, thus making a total sentence of 26 months’ imprisonment for D1.

31.  D2 was convicted of Charges 3, 4, 5, 10, 11 and 12 involving the use of 3 credit cards on 6 occasions on 2 days (17 and 19 August 2018).  The total amount involved in the 5 charges of obtaining property by deception committed by D2 was HK$35,706 and the amount involved in the charge of attempt to obtain property by deception (Charge 3) was HK$15,434.  D2 committed the present offences within 8½ months after he was discharged from prison on 28 December 2017.  For D2, I order that all sentences in the 6 charges to run concurrently, thus making the total of 22 months’ imprisonment.