HKSAR v. KHUMALO PAULOS

CACC 176/2014

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 176 OF 2014

(ON APPEAL FROM DCCC NO. 250 OF 2014)

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J U D G M E N T

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Introduction

1. The applicant, who is a national of the Republic of South Africa, was charged with one count of attempting to use a false instrument, contrary to sections 73 and 159G of the Crimes Ordinance, Cap 200 and section 3(1) of the Aviation Security Ordinance, Cap 494 and one count of possessing a false instrument, contrary to section 75(1) of the Crimes Ordinance, Cap 200.

2. The applicant pleaded guilty to both charges before District Judge Dufton (“the judge”) and on 7 May 2014 he was sentenced to the same punishment of 2 years and 4 months’ imprisonment on both charges. The judge ordered the two sentences to be served concurrently and so the total sentence imposed upon the applicant was 2 years and 4 months’ imprisonment.

3. The applicant now applies for leave to appeal his sentence.

The Background to the Offences

4. It was the prosecution case, which the applicant admitted in a Summary of Facts prepared for sentencing, that on 29 January 2014, in Bangkok, the applicant boarded a Hong Kong-controlled aircraft bearing the flight number HX772 operated by Hong Kong Airlines Limited and registered in Hong Kong.  The flight’s destination was Hong Kong and it departed Bangkok at 12.35 p.m., Hong Kong time.

5. During the flight, at about 2.10 p.m., whilst the plane was in flight elsewhere than in or over Hong Kong, the applicant attempted to use a United Overseas Bank (“UOB”) MasterCard in the name of MR. KHUMALO P., to purchase from a flight attendant of Hong Kong Airlines Limited, Ms Yu Wing-man, a “Montblanc” ball pen and “Estee Lauder” face cream of a total value of HK$4,260.  Suspecting the applicant was using a forged credit card Ms Yu made a report to her superior and security staff.  This credit card is the subject of the first charge.

6. When the plane landed at Hong Kong at around 3.15 p.m., enquiries were made with UOB and it was confirmed that UOB did not possess any information in relation to the MasterCard.  Police were called and the applicant was arrested.

7. When the applicant was taken to the police station he was searched and a Bank of America Visa card, also in the name of the applicant was found and seized from his person.  Also seized from his person were two other cards that did not bear any card holder’s names.  The Visa card is the subject of the second charge.

8. Upon examination by the Forensic Scientist both the MasterCard and the Visa card were found to be forged.

9. The applicant admitted that at all material times he knew or believed the two credit cards were false.

The Reasons for Sentence

10. The judge noted the applicant’s clear record and that the applicant was intending to be in transit only in Hong Kong on his way to Tokyo.  But, he said, this latter matter carried little weight in mitigation.

11. The judge discussed the factors relevant to sentencing for this offence but noted that each case has to be decided on its own facts and circumstances, bearing in mind that deterrent sentences are required for this offence.  He said that sentences of less than 3 years’ imprisonment may be appropriate for a small, unsophisticated operation involving only a few cards that do not link the offender to a larger operation.  But, where a defendant was obviously part of a wider organisation which had caused credit cards to be printed specifically for him, then the Court of Appeal had said that a starting point of 3 years 6 months’ imprisonment was appropriate.

12. He then assessed the appropriate starting point after trial for the applicant as being one of 3 years and 6 months’ imprisonment on each charge which he then discounted by one-third to give credit to the applicant for his guilty plea.  He then sentenced the applicant to 2 years 4 months’ imprisonment in respect of each charge and ordered that both sentences be served concurrently with one another.

The Grounds of Appeal

13. The applicant is unrepresented but in a letter to the court accompanying his Form XI he complained that he is unrepresented and does not have money to hire a lawyer.  The purpose of his appeal, he makes clear, is because he believes his sentence is excessive.

14. Before me today the applicant supplemented what he had written to the court by emphasising that he was alone at the time of his arrest and not in the company of others.  He repeated his request for leniency.

Discussion

15. I have carefully examined the Reasons for Sentence of the trial judge and can find no error in them, either in relation to the judge’s analysis of the facts or his application of legal principles to them.  The judge correctly identified the relevant factors when sentencing for credit card fraud and concluded that the starting point for this applicant’s sentence should reflect the fact that the overall circumstances allow of the inference that the applicant was part of a wider organisation.  Looking at all of the facts of this case I am satisfied that such an inference was available and was the only reasonable inference to be drawn.

16. The starting point which the judge adopted cannot be said to be outside the range of sentences imposed for credit card offences of this level of seriousness.

17. The applicant has written a letter in which he sets out his family circumstances, expresses remorse and pleads for a merciful reduction of sentence.  As sympathetic as this Court may be to his family circumstances, there is nothing in them which could justify the intervention of this Court.

Conclusion

18. For the reasons I have given I find no merit in any of the applicant’s complaints and I dismiss his application for leave to appeal.