HKSAR v. BATBAYAR TUGULDUR

CACC 73/2015

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 73 OF 2015

(ON APPEAL FROM DCCC NO. 1083 OF 2014)

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J U D G M E N T

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1.  The applicant seeks leave to appeal against the total sentence of 26 months’ imprisonment imposed on him by District Court Judge A. Kwok on 5 February 2015 on his conviction, on his own pleas of guilty, to three charges of obtaining property by deception, contrary to section 17(1) of the Theft Ordinance, Cap. 210.

The facts

2.  The applicant accepted that he had used an American Express credit card in order to make three purchases from three different vendors in Causeway Bay on 25 May 2014, by falsely representing that he was the genuine holder of the credit card, namely GBAGUIDI FREDDY.  The three transactions occurred in the period 16:27 to 17:13 hours on 25 May 2014 and involved the purchase of : beauty and cosmetic products from Sasa in Percival Street; two Samsung smart phones from a branch of Fortress in Yee Woo Street; and an i-Phone from Sunion Telecom in the same street.  The three transactions concerned $2,661.50, $11,996 and $6,188 respectively.

3.  The applicant’s fingerprints were discerned and lifted from each of the transaction slips used for processing the credit card purchases.  Furthermore, each of the shops had CCTV depicting the applicant in the course of the respective purchases.

4.  The credit card, together with other personal possessions, had gone missing from the rucksack of its owner.  At 15:00 hours on 25 May 2014 the owner had been a passenger on a PLB to Stanley, where he alighted and had a meal.  He only became aware that his personal possessions were missing from the rucksack at 16:30 hours.  Having searched in the vicinity for the missing property, he made a report to the police that day.

Reasons for sentence

5.  In sentencing the applicant, the judge noted that he was a 25-year-old, single Mongolian man who had arrived in Hong Kong on 23 May 2014.  Having noted that the applicant was convicted in the magistracy for an offence of theft by pick-pocketing on 1 June 2014, for which he was sentenced to eight months’ imprisonment, the judge determined “it’s clear to me that he came to Hong Kong to commit criminal offences”.  The judge said that the applicant had served his sentence for the latter offence before he came before the District Court.

6.  Having adverted to the judgment of this Court in HKSAR v Lam See Chung, Stephen[1], the judge said that this Court had said that the sentencing principles identified in the earlier judgment of this Court in HKSAR v Tu I Lang[2] in respect of small unsophisticated operations concerning one or a few forged credit cards were equally applicable to credit card fraud offences in which genuine cards are used.  In the judgment of this Court in Tu I Lang, McMahon J said that a starting point of three years’ imprisonment or less would be appropriate.[3]

Starting point for sentence

7.  The judge said that he took a starting point for sentence of three years’ imprisonment on each of the three charges.

Aggravating factors

8.  However, the judge went on to say that “the fact that the defendant came to Hong Kong for the purpose of committing offences” was an aggravating factor in the commission of the offences in respect of which the increase of a starting point for sentence by three months’ imprisonment to 39 months’ imprisonment.

Discount

9.  The judge stated that he afforded the applicant a discount of one-third of that taken as the starting point for sentence to reflect his pleas of guilty.

Sentence

10.  In the result, the judge sentenced the applicant to 26 months’ imprisonment on each of the three charges, which sentences he ordered to be served concurrently.

Grounds of appeal against sentence

11.  In his home-made grounds of appeal against sentence attached to Form XI, by which the applicant gave notice on 27 February 2015 of his application for leave to appeal against sentence, the applicant said that he regretted having committed the offences and asked the court to reduce his sentence.

A consideration of the submissions

12.  The applicant succeeded in obtaining property valued at over $20,000 in the three false transactions that he committed in less than one hour in the afternoon of 25 May 2015.  None of that property has been recovered.  However, as this Court has said on many occasions it is the potential loss that is the most important consideration.  In that context, the credit card limit of this genuine credit card to is not known.

13.  Given that the applicant had clearly embarked on a spree of offences in which he was using the credit card falsely to purchase high-value, readily disposable items you judge was the appropriate starting point for sentence as being three years’ imprisonment.  This Court has acknowledged repeatedly that it is necessary to protect the integrity of the credit card system and that to do so requires the imposition of deterrent sentences.  As McWalters JA noted in the judgment of this Court in HKSAR v Lam See Chung Stephen, the sentencing principles identified in respect of the use of counterfeit credit cards are “equally applicable to credit card offences in which genuine credit cards are used”.[4]

14.  Similarly, this Court has said frequently that it is a serious factor of aggravation and the commission of an offence that the offender has come to Hong Kong in order to commit crime.  Yeung JA, as Yeung VP was then, said as much in the judgment of this Court in HKSAR v Tan Hong Sheng, in which the applicant and his co-defendant at trial were convicted of pick-pocketing the day after they had arrived in Hong Kong from the Mainland.[5]  That principle was re-affirmed in the more recent judgment of this Court in HKSAR v Sandagdorj Altankhuyag & Another[6], in which the applicant and his co-applicant, Mongolian nationals, were convicted of a charge of theft from the handbag of a customer in a bar in the early hours of the morning.  For his part, the 1^st applicant had entered Hong Kong less than five and a half hours before the theft.

15.  In all the circumstances, I am satisfied that the judge was entitled to determine that the applicant had come to Hong Kong in order to commit crime and find that was an aggravating factor in the commission of the offence.  The enhancement of sentence of three months’ imprisonment that the judge imposed for that aggravating factor was entirely justified.

Conclusion

16.  In the result, I am satisfied that there is no merit whatsoever in the proposed grounds of appeal.  Accordingly I refuse the application for leave to appeal against sentence.

17.  The applicant is advised that, following the refusal of his application by the single judge, he may renew his application for leave to appeal against sentence, if he wishes to do so, by filing Form XIII of the Criminal Appeal Rules, Cap. 221 within 14 days.  However, he is informed that if the Court of Appeal comes to the conclusion that there was no justification for the renewal, it has power to make a direction for the loss of time, namely in respect of some or all of the time that the applicant has served in custody for these offences since he filed his notice of his application for leave to appeal pending the hearing of his application.

[1] HKSAR v Lam See Chung, Stephen [2013] 5 HKLRD 242.

[2] HKSAR v Tu I Lang (CACC 464/2006; unreported, 18 May 2007).

[3] HKSAR v Tu I Lang, paragraph 10.

[4] HKSAR v Lam See Chung, Stephen; page 252, paragraph 40.

[5] HKSAR v Tan Hong Sheng (CACC 238/2005; unreported, 10 February 2006).

[6] HKSAR v Sandagdorj Altankhuyag & Another (CACC45/2013; unreported, 23August 2013).