HKSAR v. CLAASSEN SIPHO DANIEL

DCCC 433/2016

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 433 OF 2016

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Reasons for Sentence

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1.  The defendant is a Mr Daniel Claassen, and he has pleaded guilty to a total of eight charges. Seven of those charges involve the use of a false instrument, which is a forged credit card, and the remaining charge involves the possession of a further 12 false instruments, which are again forged credit cards.

2.  The defendant is a South African national who came to Hong Kong on 24 January 2016.  On the next day he used totally five forged credit cards in a number of transactions for the purchase of goods and services.  During the use of one of the cards he was detected, and when searched, a further 12 forged credit cards were found in his possession.

3.  He obtained goods and services to a value of just under $10,000.  He also was involved in a failed transaction where he tried to obtain just over 108,000 worth of goods from a shop called Porsche Design.

4.  The more detailed rendition of the facts which are the first two charges involve his use of a forged credit card at the Porsche Design Company to try to obtain those $108,500 worth of goods.  As I said earlier, that transaction failed because the credit card could not be recognised.

5.  The 3rd charge involved a booking of a room at a hotel called The Imperial Hotel in Nathan Road in Tsim Sha Tsui.  Originally, the use of the card failed, but when the 16-digit number on the card was inserted, the transaction was successfully made.

6.  The 4th charge involves the Holiday Inn Golden Mile in Nathan Road in Tsim Sha Tsui, where the defendant was able to obtain a $2,000 cash advance by using a forged Chase Mastercard.  Again, the swiping of the card failed, but the insertion of the 16-digit number led to the defendant receiving a cash advance of $2,000.

7.  The 8th charge again involves the Holiday Inn Golden Mile, where the defendant wanted to use again a credit card to withdraw $2,000 as a cash advance.  He produced a Chase Mastercard.  A swipe of the card failed.  The 16-digit number was input into the system, and the $2,000 cash advance was given to the defendant.

8.  The final charges in respect of the use of the credit cards involved Charge 9 and 10 again at the Holiday Inn Golden Mile, and that was the use of cards to attempt to pay for the defendant's bill.  Some part of the bill was paid by the credit card.  A total of 7,700 in cash was paid by him as part-payment of the bill.

9.  The final charge, Charge 11, to which the defendant has pleaded guilty, is the discovery of the further 12 forged credit cards in the defendant's possession.

10.  The defendant is a man of clear record, certainly in Hong Kong, and I am told he has a good education.  He is educated up to post-graduate level at the University of Capetown, having been educated at the University of Capetown's Graduate School of Business, and works in the area of placement initiatives.  Some details of his work environment or his work background has been given to me by way of information, and it seems unfortunate that a man of his education and qualifications should be reduced to acting in this way.

11.  I am told that the defendant is a man who has suffered quite serious illness in the past.  I have letters concerning the fact that the defendant has received a transplanted kidney from his brother in 2012, and I am told in mitigation that as a result of the cost of that operation and the time taken for the operation, the defendant lost his employment and ran himself into debt, and coming to Hong Kong to use forged credit cards was seen as a way in which he could obtain some cash in order to pay off his debts in South Africa.

12.  He has family.  He has children, as I understand.  He is 33 years old, he is married, with a total of three children for which he is responsible, and he has his own 5-year-old daughter.  So any sentence of imprisonment will, of course, impact on his family life and his relationship with his children.

13.  In mitigation, it is said the defendant obviously made an unwise choice in coming to Hong Kong to use these cards.  The goods actually obtained and services actually obtained by the use of the cards would put this into a lower category of seriousness.  The defendant is remorseful.  He has pleaded guilty.  I have a letter from Father John Wotherspoon, who speaks in good terms of the defendant's support for a programme of his to prevent people coming from South Africa carrying drugs.  He has allowed his name to be used in a radio programme that is broadcast in South Africa.  He is, of course, to be commended for this.  It shows, in part, the defendant's remorse for these matters.

14.  I turn to the approach to sentence.  The approach to sentence is governed by, to a certain extent, guideline sentencing, the leading case of which is the case of R v Chan Sui To and Others Court of Appeal Cr App 115/1996, which deals with the question of the sentencing for credit card frauds.  It says:

"When sentencing for credit card frauds, the court needs to consider a number of factors such as the size of the operation; whether it involves large sums of money or a large number of persons; the planning that has gone into perpetuating the fraud - is it elaborate or simple; is there an international dimension; did the defendant play a major role, for example, running the syndicate or engaging in manufacturing the cards, or was he a mere described as cog in the wheel, courier or custodian; and finally, whether there is a plea of guilty."

Those factors are not meant to be exhaustive. It says:

"Considering whether large sums of money are involved, at the present cost of living, amounts up to 50,000 might be considered relatively small, amounts of 50 to 150,000, medium; amounts above that might be considered large."

A note is of course that this case was decided in 1996, so that is some 20 years ago, when we are looking at the figures involved. Of some relevance to this case is it says:

"An accused who played an active but not necessarily a key role in a medium-sized operation involving between $50,000 and $150,000 with no elaborate planning and equipment, without an international dimension, should receive a sentence of 5 or 6 years after trial. Sentences might be adjusted upwards or downwards according to circumstances..."

Those circumstances not being defined in the judgment.

"The sum of money involved is only one of the factors to be taken into account, and so is not even the most significant factor."

15.  Analysing this case in relation to the sort of factors that are set out in Chan Sui To - the size of the operation; did it involve a large sum of money - on the basis of the amount of money obtained by use of the cards it would be, I think, described as a small sum, just under $10,000.  However, one also needs to consider the potential for loss, and there was an application to use the cards to obtain a sum of just over $108,000, although of course that sum was not -- in fact, the goods were not obtained.

16.  So it would seem that this case, in terms of size, lies somewhere between the small and medium category.  It is neither directly inside the medium category nor directly inside the small category.

17.  I look at the factor (b), the planning that had gone into perpetuating the fraud.  Obviously, planning must have gone on to produce the cards and obtain the numbers, and at least two of those cards had what would have been original genuine numbers behind them.  But it does not appear there is anything other than the defendant's use of those cards that involves the defendant in that aspect of the crime.

18.  What if there was an international dimension? There clearly is an international dimension, because the defendant has come here from South Africa to use the cards.  I note that in a lot of these cases there obviously will be an international dimension, because the cards are hardly ever made here.

19.  Whether the accused played a major role in running the syndicate, etc.  The defendant's role in this case is what I think would be perhaps better described as a foot soldier.  He is the man who goes out and uses the card.  He is the man who takes all the risks, really.  He possesses the cards; he uses them; he is the man who is going to get caught if it goes wrong.

20.  Whether there is a plea of guilty is the final consideration.  Of course there is in this case.

21.  I also note the observation of a starting point of 5 to 6 years for a medium-sized operation of between 50 to 150,000. Mr Hotten has also referred me to the case of Stephen Lam, which says in it what would be called a standard case not involving any international dimension involving the use of a few cards and a small amount of money being obtained, then a starting point of 3 years' imprisonment after trial could be taken by the court.

22.  So my assessment of this case is that it will lie somewhere between Stephen Lam's starting point of 3 years and the Chan Sui To starting point for a medium-sized operation of 5 years.  The question is where to place it within that band.

23.  There were, of course, quite a large number of cards involved in this case, but again, there are many cases where many, many more cards come before the court.  The use of the cards related to simply one day, involving what could be described as not a great deal of money obtained, but of course the potential to obtain a much larger sum of money.

24.  I consider that after all those factors are taken into consideration and taking into account the personal factors relating to the defendant, that the overall starting point for sentence in relation to the whole of this episode of criminality should be the starting point of 4 years and 3 months' imprisonment, which is 51 months' imprisonment.

25.  After deduction for the defendant's plea of guilty, that would result in an overall sentence of 34 months' imprisonment.

26.  The question now is how to apportion that sentence within the eight charges to which the defendant has pleaded guilty, as this is an overall figure.  I consider it is somewhat neater to take an approach by which I simply sentence the defendant to 34 months' imprisonment on each of these charges and run all of those sentences concurrently. I think that is the easiest way to achieve that objective in this case.

27.  So what I shall do, on each of Charges 1 to 4, 8 to 11, is impose a sentence of 34 months' imprisonment, and I will order that all those sentences run concurrently to a total of 34 months' imprisonment.