HKSAR v. ZULLU MOHAMED SAIDI

DCCC 1042/2018

[2019] HKDC 302

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 1042 OF 2018

----------------------

----------------------

--------------------------------

Reasons for Sentence

--------------------------------

1.  The defendant has pleaded guilty to a total of seven charges today: five of them are theft, one of them is attempting to obtain property by deception, and the final one is possession of a dangerous drug.

2.  Now, a brief summary is all these offences were committed at the same time and the same place, which is a club called “Play” in Central.  The defendant stole phones from five customers, five ladies, who were at the club.  He tried to use one of their credit cards to get some alcohol. Given that it was in a Chinese name, he was immediately apprehended, and some drugs were found, a small quantity of cocaine was found on him, when he was arrested, and the defendant has, as I understand it, admitted all these matters from an early stage and he was recorded on a CCTV camera doing all of them.

3.  A bit more detail shows it occurred on 29 July 2018.  The defendant and the five victims were at a club called “Play”, which is in Central.  They were all entertaining themselves there.  All the ladies had handbags and they all had phones and Octopus cards and the like and VISA cards, and one of them also had a charger with her.  The defendant stole from all five of these victims and he stole the items that are set out in the particulars of the five charges, and I said that, largely, he stole their phones, but for one lady he also took her credit card and phone charger.

4.  As I said earlier, this was all recorded on the CCTV camera of the club and the defendant could be seen to be reaching into bags and the like, effectively a form of pickpocketing of those items.  He was arrested when he tried to buy a bottle of what is described as a Belvedere Magnum liquor, which is worth over $5,000.  Now, he tried to use a credit card, and the credit card was not in his name, we know that, and the club obviously refused to process the transaction, but did refer the matter to the police. 

5.  They came.  The defendant was arrested, searched.  Mobile phones and the Octopus card, the charger and the charging cord set out in the particulars were all found on the defendant, along with two plastic packets containing 0.7 in total grammes of cocaine, which would have -- the inference being from that there was a small amount for personal consumption.  A small amount for personal consumption is the inference you can draw.

6.  The defendant has admitted all the facts, pleaded guilty at the first available opportunity.  He has, till today, a clear record.  He is aged 32 and is from Tanzania.  He is a Form 8 holder and a removal order was made against him in 2015.  He has family in Tanzania, including wife and children.  Here, obviously he has no employment and is rather dependent on the charity of the state.

7.  His mitigation is that he was treated to go to the club that night, had taken some drink.  His inhibitions were presumably reduced and he took the opportunity to take these items.

8.  Now, turning to the sentence.  I have got to determine a starting point for each of these charges and then credit the defendant with the full one-third discount, then finally determine what should be the overall totality of these seven charges taken together.

9.  There is one aggravating factor that does apply to all the charges and that is the defendant is a Form 8 holder.  It has been clearly decided at appellate level that that is an aggravating factor and will be added to the starting point for sentence.  The extent of the addition is left to the discretion of the court, having regard to the seriousness of the individual offences. 

10.  I will enhance all the starting points by 3 months to reflect that factor.

11.  Now, all the theft charges are the same, committed in the same way and the same place.  They are of a kind with pickpocketing-type offences.  So, for each of them, I will take a starting point -- the normal starting point for a pickpocketing offence will be in the range of 12 to 15 months for a person of clear record, and for this defendant I will take a starting point of 12 months, which will be enhanced by 3 months to 15 months. 

12.  I will then reduce that sentence to one of 10 months, having regard to the defendant’s plea of guilty.

13.  For each of Charges 1 to 5, there will be a sentence of 10 months’ imprisonment.

14.  Charge 6 is the attempt to obtain property by deception.  That is the most serious, because it involves the use of an HSBC VISA credit card, and these are seen as serious offences warranting a higher starting point.  It has been said that even in the simplest of cases where there is no syndicate involved and no international element, that a starting point for sentence can be as high as 36 months’ imprisonment (3 years’ imprisonment).

15.  This clearly is in the least serious category:  there is only one card and the transaction failed.

16.  Taking an initial starting point of 33 months’ imprisonment, enhanced by 3 months to 36 months’ imprisonment for that charge, after deduction for plea of guilty, that leads to a sentence of 24 months’ imprisonment.

17.  Finally, the possession of dangerous drugs. This is defendant’s first offence of that nature.  A simple possession case can lead to a starting point of between 12 to 18 months’ imprisonment.

18.  I shall take a starting point of 12 months, enhance it by 3 months to 15 months.  After deduction for plea of guilty, that leads to a sentence of 10 months’ imprisonment.

19.  The offences are all committed more or less at the same time and the same place.  I have got to look at what I consider to be the right overall total for this particular episode of criminality, and I believe that that can be served by ordering that all these sentences be served concurrently, and so the total sentence will be one of 24 months’ imprisonment.