HKSAR v. SIMONY AURELIEN CLAUDE FRANCOIS AND ANOTHER

DCCC 195/2015

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 195 OF 2015

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Reasons for Sentence

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1.  I deal with the 1st defendant. He has pleaded guilty to Charges 3 through to 11 on this indictment and these are charges that relate to the use of a false instrument. He has agreed the facts and I have convicted him of the offences and those offences involved the use of a forged credit card.

2.   All the cards related to a card in the name of a person purporting to be Arthey Olley, or Olly Arthey, and were used to purchase items such as computers and mobile phone accessories and suchlike, electronic equipment, at various stores in Hong Kong between 10 July 2014 and 12 August 2014.

3.  The grand total of value of items obtained is in the region of HK$144,000.  The false information on the cards relates to Hong Kong residents, relates to cards issued in Singapore and Argentina. 

4.  As far as the defendant is concerned, he has also provided assistance to the prosecution which the defence submits should be reflected in the eventual sentence that should be imposed on the defendant.  So we have nine charges relating to $144,000 over the course of a couple of months.  The role of the defendant in this is to make the purchases and I think this role has been described as being a foot-soldier in other cases. 

5.  The defendant has a clear record in Hong Kong. He is a French national.  He worked in Hong Kong as a professional chef and he has a fairly distinguished set of recommendations and previous employments as a chef.  Clearly, at the expiration of any sentence of imprisonment that is imposed, he will no doubt take up his role as a chef again. 

6.  I am informed that he is remorseful and that, of course, is indicated by his pleas of guilty and also his assistance to the court in this case by giving evidence.

7.  The courts are, in cases such as this, enjoined to look at the factors in the leading case on this matter of Chan Siu To(?) and the factors in determining the overall sentence, the court has to look at the size of the operation and the planning that goes into perpetration of the fraud, and if there is an international dimension, what was the accused’s role in this and whether there is a plea of guilty and, of course, additionally, in this case, the assistance the defendant has given to the prosecution.  

8.  It is submitted that the figures in Chan Siu To for determining where a small to medium-sized operation lies may be somewhat dated, given inflation since 1996.  It is said that 50,000 is considered relatively small and amounts from 50,000 to 150,000, medium, and beyond that would be considered as large.  Of course, this case would fall, on Chan Siu To’s estimates, within that medium category, and it is submitted it should fall more towards the cusp of small to medium now, given the general inflation of value since then.  That is a factor I will, of course, take into account.

9.  Of course, the offence involved some planning but not necessarily by the defendant who was a, as I said, foot-soldier, the runner, who would make the purchases.  There does appear to be an international dimension in the fact that, for some of the cards, the details come from overseas.  The defendant cannot be said to have played a major role in the operation and, of course, there is a plea of guilty.

10.  Looking at where the starting point should be taken for these offences, I think it is best to, in this case, to arrive at an overall starting point for the overall criminality shown in the number of charges that the defendant has pleaded guilty to and then discount that by the other facts in the case. 

11.  In the Court of Appeal case of Z v HKSAR, the value of a defendant’s assistance to the prosecution can be seen to be measured as to the extent of discount that the defendant should receive from the original sentence.  The case says that a defendant who has provided assistance to authorities, without evidence, could enjoy a discount of 40 per cent.  Where the defendant has also given truthful and material evidence, the Court of Appeal has given a usual discount of 50 per cent. 

12.  It is said, in mitigation, the defendant here has given truthful and material evidence.  I do not think anyone here demurs from that position, that the defendant has given truthful and material evidence in the course of this trial and, for that reason, will be entitled to a 50 per cent discount from the original figure that I will adopt for the starting point for sentence.

13.  Having regard to the factors in Chan Siu To, I consider that the overall starting point for sentence for this defendant on these charges should be one of 4 years’ imprisonment.  That will be discounted by 50 per cent to a figure of 2 years’ imprisonment.  What I shall do is impose a sentence of 2 years’ imprisonment on each of Charges 3 through to 11, to be served concurrently, an overall sentence of 2 years’ imprisonment.

14.  I now turn to the 3rd defendant who has been convicted after trial of the two charges of conspiracy to make and use false instruments. 

15.  The facts have been rehearsed in the verdict I gave so I do not propose to repeat them.

16.  As far as the defendant’s background is concerned, he is a person of clear record.  He is a national of the Philippines but resident in Hong Kong.  He is married and has two daughters aged 14 and 7. He is a family man.  There were good testimonials of him in the course of the evidence and also of this trial because he worked as an assistant manager in the Play Club and has done up until now, and he is well-spoken of and seems to be a good, hardworking employee, trusted by his employers.  So he has a good working record. 

17.  Obviously, for a man such as this, convicted of an offence such as this, the conviction will be hard on both his wife and his family and will be difficult for them.  As submitted, and appears to be the case, this is a singular fall from grace of what had been an otherwise blameless life.  The defendant is aged 32 years old.

18.  Again, the court must look at the factors outlined in Chan Siu To.  I am also referred to a case of HKSAR v Chiu Yi Lang(?), the case of 464/2006, where the court said where the facts of the offence point to a small, unsophisticated operation involving one or a few forged cards, uncomplicated by other evidence materially linking the offender to a larger operation, then a starting point of 3 years’ imprisonment, or less, would be appropriate.

19.  The submissions of the defence is that the defendant’s role in these conspiracies is limited to the details provided on the WhatsApp and the use of that particular information was limited to the purchase of items valued at $19,988 which would put that into the small category.  The defendant is not linked to the other uses of the card by the evidence in the case.  The defendant cannot be said to be a prime-mover and also, in his case, there would be no international dimension to the production of the card.

20.  Of course, the defendant’s assistance is important and he can be said to have provided an active role in the offence but not necessarily a key role in this operation.

21.  Taking all these factors into account and also the defendant’s personal factors which are, in this case, quite compelling, I shall take a starting point of 3 years’ imprisonment on each charge and pass a sentence of that on each charge, to be served concurrently, giving an overall sentence of 3 years’ imprisonment on the 3rd defendant.