HKSAR v. ZAHID

DCCC 985/2016

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 985 OF 2016

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REASONS FOR SENTENCE

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1.  In this case, the defendant, Zahid, is convicted after trial of one count of theft and one count of obtaining property by deception.  My full findings have been set out in my reasons for verdict and I will not repeat them.  Simply put, the defendant had been using a credit card that had been reported lost to obtain three watches at a total value of $5,900.

2.  Since it is not clear how he came to be in possession of the credit card in question, to give him the benefit of the doubt, I had to find that it was a case of theft by finding in respect of the 1st charge.

3.  In this case, I accept the defence counsel’s mitigation in that I find the amount involved was relatively small, there had been no detailed planning, no international element and it was not a case of breach of trust or position.  For the 1st count, it was more of an opportunity crime.  I also note that one of the watches (a Casio) had been recovered, but for the two missing watches, there had not been any offer of restitution.

4.  In respect of the two offences, obviously, the second offence, which involved the use of a credit card, is a more serious one.  There is a consistent line of authority for sentencing in respect of a simple credit card fraud.  The Court of Appeal, in the case of HKSAR v Lam See Chung Stephen [2013] 5 HKLRD 242, has summarised the court’s position on sentencing a simple credit card fraud, in that it has to be a deterrent sentence in view of the need to protect the credit card system and also in view of the potential loss of such crimes.  It has also been pointed out that the actual loss is not a determining factor and for cases of a simple credit card fraud, a starting point of 3 years has been approved by the Court of Appeal ever since.

5.  In the case of Tseveen-Ochir Batjargal, CACC 250/2016, the Court of Appeal reconfirmed its position.  In that case, the defendant had used a credit card in an attempt to make purchases of 12 i-Phones at a total value of $9,500.  The sentencing court also accepted that the card was obtained by chance.  The Court of Appeal approved, for a first offence of theft, a 9‑month starting point on the basis that it was a theft by finding offence.

6.  For the 2^nd count of attempting to obtain property by deception, the Court of Appeal considered a 30-month starting point appropriate.  It should be noted, for that particular case, the sentencing judge considered that the 2nd count of obtaining was an attempt but not the full offence.  Likewise, a similar tenor was adopted by the Court of Appeal in the case of Montenegro, CACC 38/2016.  In the Montenegro case, there had been 12 attempts to use the stolen credit card to make purchases of which, on 11 occasions, it had been successful and the total amount got away was $28,000.

7.  I take the view that although the actual loss was not the determining factor, it nonetheless is a factor this court ought to bear in mind in sentencing.  The amount involved in this case is relatively small and the fact that the defendant had only used it to obtain a relatively small sum of $5,900 is a reflection of a lack of sophistication.

8.  So having considered the facts of the case and the authorities before me, I will use 9 months’ imprisonment for the 1st count and 30 months’ imprisonment for the 2nd count.  Since the two offences arose from the same incident and happened within a short period of time, and taking into consideration the totality principle, it is appropriate to order them to run concurrently.

Mitigation

9.  I turn to consider the mitigation put forward by the defence.  I note the absence of the usual valid mitigating factor, ie, the plea of guilty.  The defendant is aged 32.  He is a Hong Kong resident.  He is married with two children.  All these factors are not exactly valid considerations for mitigation.  For the purpose of the present exercise, I do not consider his two previous convictions relating to dangerous drugs relevant for my consideration.  It is neither mitigating nor aggravating. 

10.  Having considered the mitigation and submission as a whole and also having considered the background information furnished by the prosecution and defence, I do not find any factors which might justify any exercise of leniency.

11.  The defendant, in all, is to serve 30 months’ imprisonment for the two offences.