HKSAR v. MOHAMMED JAQUB BALOCH

DCCC 70/2022

[2023] HKDC 337

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 70 OF 2022

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REASONS FOR SENTENCE

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1.  The defendant pleaded guilty to 3 charges of Fraud, contrary to section 16A of the Theft Ordinance, Cap 210; 1 charge of Taking employment while being a person in respect of whom a deportation order is in force, contrary to section 38AA(1)(b)  and 38AA(2)  of the Immigration Ordinance, Cap 115; 10 charges of Theft, contrary to section 9 of the Theft Ordinance, Cap 210; 2 charges of Obtaining property by deception, contrary to section 17(1)  of the Theft Ordinance, Cap 210; 3 charges of Using an identity card relating to another person, contrary to section 7A(1A)  of the Registration of Persons Ordinance, Cap 177; and 1 charge of Possession of an identity card relating to another person, contrary to section 7A(1A)  of the Registration of Persons Ordinance, Cap 177.

2.  Charges 6 to 8 and 16 are to be kept on court file and not to proceed without the leave of the court.

3.  The defendant admitted to the facts set out in the Amended Summary of Facts.

Charges 1 to 4 and 24

4.  On 24 December 2020, PC13091 (PW 20)  spotted the defendant whose appearance and attire resembled that of a wanted person. Upon interception, the defendant produced a Hong Kong Identity card bearing the name NAEEM XXXXX (card no. Y266XXX(8))  (“HKID card”). The owner of the HKID card (PW 17)  subsequently confirmed that he had lost the card in around June 2019.  He further confirmed that he had not lent the HKID card to any other person, and he was not acquainted with the defendant. (Charge 24)

5.  PW 17 informed the police that he had received a telephone call from United Asia Finance Limited (“UA Finance”)  on about 7 August 2020 informing him that he had an outstanding loan.  However, PW 17 had no knowledge of the loan.  Upon enquiry with UA Finance, it was found that a person had attended the office of UA Finance on 10 December 2019 and made a loan application by presenting the original HKID card and an Employment Contract between Miapao Investment Limited and NAEEM XXXXX dated 18 November 2019.  As a result, agreements including a loan in the principal amount of HK$5,000 and a revolving loan facility in the principal amount of HK$5,000 were entered into between UA Finance and the person representing to be NAEEM XXXXX.  A cash cheque in the sum of HK$4,950 and a sum of HK$5,000 was transferred to a bank account provided by the applicant. (Charge 3 and 4)

6.  PW19, Operation Director of Miapao Investment Limited confirmed that the person representing to be NAEEM XXXXX was employed as a shop manager by Miapao between 18 November 2019 and 6 January 2020.  A total sum of HK$36,355.05 was paid to the person known as NAEEM XXXXX. (Charge 1 and 2)

Charge 5

7.  On 7 October 2020 at about 17:00 hours, the defendant entered a cosmetic shop “Fresh” in Sha Tin and asked PW1, staff of the shop to show him some products.  PW1 placed an iPhone belonging to the shop at the cashier counter.  The defendant left at 18:00 hours. PW1 discovered the iPhone went missing.  CCTV captured the defendant taking a mobile phone from the cashier counter and leaving the shop.  In a subsequent video-recorded interview, the defendant admitted under caution to have stolen the iPhone.

Charge 9

8.  On 28 October 2020 at about 17:00 hours, the defendant entered a cosmetic shop “Kiehl’s” in Cheung Sha Wan.  PW5, staff of the shop showed him some information on the shop’s iPad.  After the Defendant left at 17:45 hours, PW5 discovered 2 iPads belonging to the shop went missing. In a subsequent video-recorded interview, the defendant admitted under caution to have stolen the 2 iPads.

Charge 10

9.  On 31 October 2020 at about 16:40 hours, PW6, staff of a boutique “Aigle” in Kowloon Bay discovered that an iPhone belonging to the shop was missing. CCTV captured the defendant taking the iPhone from the cashier counter and leaving the shop.  In a subsequent video-recorded interview, the defendant admitted under caution to have stolen the iPhone.

Charge 11

10.  On 31 October 2020 at about 17:30 hours, PW7, staff of the boutique shop “LANCASTER” in Kowloon Tong discovered that a VIVO mobile phone belonging to the shop was missing.  CCTV captured the defendant taking the mobile phone from the cashier counter.  In a subsequent video-recorded interview, the defendant admitted under caution to have stolen the VIVO phone.

Charge 12

11.  On 2 November 2020 at about 15:00 hours, the defendant entered a boutique “MOUSSY” in Causeway Bay and asked PW8, staff of the shop to show him some clothing.  PW8 left for lunch and upon returning to the boutique at about 17:20 hours, PW8 discovered an iPhone belonging to the shop was missing.  CCTV captured the defendant taking a mobile phone from the cashier counter.  In a subsequent video-recorded interview, the defendant admitted under caution to have stolen the iPhone.

Charges 13, 14 and 15

12.  On 26 November 2020 at about 14:30 hours, PW9, staff of the boutique “PPO PPO” and “D2 Fashion” in Wong Tai Sin kept her wallet inside an unsecured drawer at the cashier counter.  The defendant visited the shop and left without making any purchase.  At about 18:40 hours, PW9 received a SMS message informing her that her Hang Seng credit card was used in a transaction at an electronic device shop.  Upon checking, PW9 discovered that her Hang Seng credit card was missing.   CCTV captured the defendant taking something from PW9’s wallet.  In a subsequent video-recorded interview, the defendant admitted under caution that he used PW9’s credit card to purchase 3 iphones for HK$33,200 (Charge 14)  and a Samsung mobile phone for HK$4,680 (Charge 15).

Charge 17

13.  On 8 December 2020 at about 14:45 hours, the defendant entered the shop “Lovintage” in Causeway Bay and subsequently left without making any purchase.  PW15, staff of the shop later discovered that a “Chanel” handbag belonging to the shop was missing. CCTV captured the defendant taking a handbag from a shelf and left without making payment.  In a subsequent video-recorded interview, the defendant admitted under caution to have stolen the “Chanel” handbag.

Charge 18

14.  On 16 December 2020, the defendant entered the shop “Euro Station” in Yau Ma Tei and subsequently left without making any purchase.   PW16, staff of the shop, later discovered that a “LV” wallet, a “Goyard” handbag and a “Prada” handbag belonging to the shop were missing.  CCTV captured the defendant taking the missing items and leaving the shop.  In a subsequent video-recorded interview, the defendant admitted under caution to have stolen the three items.

Charge 19

15.  On 16 December 2020, the defendant attended the shop “Brand Off” in Central.  He sold one “LV” wallet, one “Goyard” handbag and one “Prada” handbag to the shop by producing a Hong Kong Identity Card bearing the name NAEEM XXXXX to the staff.  In return, a sum of HK$6,300 cash was paid to the defendant.  Upon inspection, PW14 confirmed the seized wallet and handbags resembled the items found missing from the shop in Charge 18.

Charge 20

16.  On 19 December 2020 at about 15:10 hours, the defendant entered a boutique “MEMOIRE FLASH” in Tsim Sha Tsui and left the shop without making any purchase.  PW15 subsequently discovered that a “Hermes” diamond wrist chain placed in a white paper bag was missing.  CCTV captured the defendant taking a white paper bag from the shop. In a subsequent video-recorded interview, the defendant admitted under caution to have stolen the diamond wrist chain.

Charge 21

17.  On 19 December 2020, the defendant attended the shop “Brand Off” in Central.  He sold one “Hermes” diamond wrist chain by producing a Hong Kong Identity Card bearing the name NAEEM XXXXX to the staff.  In return, a sum of HK$15,000 cash was paid to the defendant.  Upon inspection, PW15 confirmed the seized diamond wrist chain was the same diamond wrist chain found missing from the shop in Charge 20.

Charge 22

18.  On 22 December 2020 at about 16:00 hours, the defendant entered the shop “Luxurybag Shop” in Causeway Bay and left the shop without making any purchase.  PW16 subsequently discovered that 2 “Hermes” handbags belonging to the shop were missing.  CCTV captured the defendant taking the 2 handbags from the shop.  In a subsequent video-recorded interview, the defendant admitted under caution to have stolen the 2 “Hermes” handbags.

Charge 23

19.  On 22 December 2020, the defendant attended the shop “Brand Off” in Central.  He sold 2 “Hermes” handbags to the shop by producing a Hong Kong Identity Card bearing the name NAEEM XXXXX to the staff.  In return, a sum of HK$25,000 cash was given to the defendant.  Upon inspection, PW16 confirmed the 2 seized handbags were the same handbags found missing from the shop in Charge 22.

Criminal record

20.  The defendant has 21 counts of previous convictions, 18 of which were for the offences of theft and 1 for the offence of attempted theft.  The defendant had been sentenced to Training Centre Detention Order, suspended sentence and imprisonment.  His last conviction was in 2015 for 10 counts of theft.  He was sentenced to 12 months’ imprisonment for the first count and 10 months’ imprisonment for each subsequent count.  2 months’ imprisonment of each of the subsequent counts were ordered to be served consecutively to the first count.

Mitigation

21.  This Court sought a background report before sentencing. 

22.  The background report revealed that the defendant was born in the Philippines as an only child to a Pakistani father and a Filipino mother.  He arrived in Hong Kong in October 1995 to join his step family and was taken care of by his stepmother. The defendant’s father died in 2012 and he had no contact with his birth mother.  He lived with his stepmother and stepbrother and maintained a harmonious relationship with them. In 2008, the defendant entered into an arranged marriage with a Pakistani woman 10 years his senior in Pakistan.  His wife lives in Pakistan and the defendant provides financial support to her with financial assistance from his stepmother.  He completed Form 5 education in Hong Kong.  He was sentenced to Training Centre Detention Order in 2005 but he continued his studies and obtained the Hong Kong Certificate of Education after his release. 

23.  The defendant expressed his remorse and stated that he committed the present offences because his wife in Pakistan was ill, his stepmother became unemployed and his stepbrother underemployed because of the COVID pandemic. 

24.  Defence counsel submitted that the defendant had been a Hong Kong identity card holder, but he failed to obtain permanent residency due to his late father’s failure to lodge a timely application.  Since 2012 he has been given a temporary status as a Recognizance holder in Hong Kong and because of his immigration status he has been prevented from taking up employment.

25.  Mitigation letters written by the defendant, the defendant’s stepmother and stepbrother were considered by the Court.

26.  In respect of the offences of Fraud, defence counsel cited the authorities of Tam Sze Yan Cynthia[1] and Tsai Hung Miu[2] in which the sentencing courts adopted a starting point of 6 months’ imprisonment after trial and was affirmed by the appellate court.

27.  In respect of the charge 2, defence counsel cited the authorities of Nani Ihtianti[3], Winda Agustin[4] and Usman Butt & ors[5].  It was submitted that the usual sentence of taking up employment while a deportation order is in force is 15 months’ imprisonment after plea.

28.  In respect of charges involving the commission of shoplifting, defence counsel cited the authorities of Yang Yan Yun[6], Kong Ching Ha Priscilla[7] and the Chinese judgment of 阮世仲[8]。

Reasons for sentence

29.  In passing sentence, the court has considered the overall facts of the case, the mitigation letters and supporting documents submitted, and the mitigation advanced by defence counsel.

30.  The total value of the stolen properties amounted to HK$240,329.95.  The stolen properties were not recovered. 

Charges 1-4 and 24

31.  Charges 1 and 2 involved the use of the Hong Kong Identity card of another to obtain employment, and of taking up employment while being a person in respect of whom a deportation order is in force.  Charges 3 and 4 involved the false representation of being the genuine holder of the same Hong Kong Identity card in a loan and a revolving credit facility application.  The total amount granted was HK$9,950.  Charge 24 involved the possession of the same Hong Kong Identity card.

32.  The use of identification document to defraud others for the purpose of obtaining employment, loans and credit facilities are serious offences.  I adopt a starting point of 6 months’ imprisonment for each of charges 1, 3 and 4 reduced to 4 months’ imprisonment for the guilty plea.

33.  The Court of Appeal in the case of Usman Butt & another reviewed the authorities and laid down the guideline sentence of 15 months’ imprisonment upon a guilty plea in relation to s.38AA offences. I order a 15 months’ imprisonment term for Charge 2.  I have considered the authority of Li Chang Li[9], the defendant was found in possession of a Hong Kong Identity card of another person.  I consider an imprisonment term of 12 months after plea to be appropriate for Charge 24.

34.  Charges 1 to 4 and 24 involved the use and possession of the same Hong Kong Identity card for obtaining a loan, credit facility and employment, he was subsequently found in possession of the same identity card.  I consider there to be sufficient nexus between the offences to order the imprisonment term of the charges to be served concurrently. (15 months’ imprisonment)

Charges 5, 9, 12 and 17

35.  Charges 5, 9, 12 and 17 relate to the theft of iPhones, iPads, one iPhone case and one handbag on diver days and locations.  The value of the iPhones and iPads ranged from HK$2,000 to HK$8,000, and the handbag was valued at HK$22,000. I adopt a starting point of 9 months’ imprisonment for each of the offences reduced to 6 month’s imprisonment for the guilty plea.  

Charges 10 and 11

36.  Charges 10 and 11 relate to the theft of one iPhone and one mobile phone committed on the same day at different locations.  I adopt a starting point of 9 months’ imprisonment for each of the offences reduced to 6 months’ imprisonment for the guilty plea.

Charges 13, 14 and 15

37.  Charges 13, 14 and 15 relate to the theft of credit card and the commission of credit card fraud.  The maximum sentence for the respective charges is 10 years’ imprisonment.  The court has outlined the approach in sentencing such offences in R v Chan Sui To & Anor [10]. In cases involving small scale credit card fraud, a starting point of 3 years’ imprisonment or less was considered appropriate. 

38.  The defence relied on the authority of Ma Ke Zong[11] in which the sentencing court imposed a 6 months’ imprisonment term for the theft of a credit card and 8 months’ imprisonment term for the use of the credit card to obtain property by deception.  The imprisonment terms were suspended for 2 years by the appellate court on account of personal circumstances of the defendant.  The defendant in the particular case suffered from depression and was of clear record, and the case involved only 2 charges.  The defendant in the present case has 19 previous convictions related to theft and there are no personal circumstances that warrant special consideration. 

39.  The present case involved the theft of one credit card and the use of the said credit card for the payment of three iPhones and one mobile phone at a total cost of HK$37,880. It was a small scale operation committed by the defendant alone.  There was no evidence of any triad affiliation or international element.  I have also considered possible potential loss suffered by the victims.  I adopt a starting point of 9 months’ imprisonment for Charge 13 and a starting point of 24 months’ imprisonment each for Charges 14 and 15.   The defendant is entitled to one-third deduction for his guilty plea.  I sentence him to 6 months’ imprisonment for Charge 13, and 16 month’s imprisonment each for Charges 14 and 15.  There is sufficient nexus between the offences to order the imprisonment terms of Charges 13, 14 and 15 to be served concurrently.

Charges 18 and 19, 20 and 21, 22 and 23

40.  Charges 18 and 19, 20 and 21, and 22 and 23 involved the theft of high value goods that were subsequently sold on the same day.  The same modus operandi were adopted by the defendant on each occasion which reflected a degree of premeditation.  During each transaction, the defendant produced a Hong Kong identity card relating to another person.  The items stolen were branded goods of high value.  They amounted to a value of HK$36,000 for Charge 18, HK$48,000 for Charge 20 and HK$65,600 for Charge 22.

41.  I consider a starting point of 12 months’ imprisonment to be appropriate for each of Charges 18, 20 and 22 reduced to 8 months’ imprisonment for the defendant’s guilty pleas.  Charges 19, 21 and 23 involved the use of an identity card relating to another person.  I have considered the authority of Li Chang Li.  I adopt a starting point of 18 months’ imprisonment term reduced to 12 months’ imprisonment on account of his guilty pleas for each of the Charges 19, 21 and 23.

42.  Charges 18 and 19; 20 and 21; 22 and 23 are 3 distinct transactions that occurred on three separate days involving 3 sets of properties.  I order the sentences of Charges 18 and 19 to be concurrently served. The imprisonment term of Charges of 20 and 21 to be concurrently served and the imprisonment term of Charges of 22 and 23 to be concurrently served.

43.  In mitigation, defence counsel submitted a written supplementary submission listing in comprehensive details the events that led to the present immigration status of the defendant.  It was submitted that the defendant failed to obtain permanent residency in Hong Kong because his father had failed to submit the required documents.  The unfortunate events that led to his Form 8 holder status assists only in so far it distinguishes him from those that entered Hong Kong for the purpose of committing crimes. I agree that his sentence should not be enhanced under the circumstances.

Totality

44.  I have considered the principle of totality. I order:-

45.  The imprisonment terms of Charges 1, 2, 3, 4 and 24 to be served concurrently, i.e. a total imprisonment term of 15 months.

46.  1 month of the 6 months’ imprisonment term for each of Charges 5, 9, 12 and 17 to be served consecutively to one another and to Charges 1 to 4 and 24.

47.  The 6 months’ imprisonment term of each of Charges 10 and 11 to be served concurrently, with 1 month consecutive to Charges 1 to 4 and 24; and Charges 5,9,12 and 17.

48.  The imprisonment terms of Charges 13,14 and 15 be served concurrently arriving at a total imprisonment term of 16 months, with 5 months to be served consecutively to Charges 1 - 4 and 24; Charges 5, 9, 12 and 17; and Charges 10 and 11.

49.  The imprisonment terms of Charges 18 and 19 to be served concurrently arriving at a total imprisonment term of 12 months, with 5 months to be served consecutively to Charges 1 - 4 and 24; Charges 5, 9, 12 and 17; Charges 10 and 11; and Charges 13, 14 and 15.

50.  The imprisonment terms of Charges 20 and 21 to be served concurrently arriving at a total imprisonment term of 12 months with 5 months to be served consecutively to Charges 1 - 4 and 24; Charges 5, 9, 12 and 17; Charges 10 and 11; Charges 13, 14 and 15; and Charges 18 and 19.

51.  The imprisonment terms of Charges 22 and 23 to be served concurrently arriving at a total imprisonment term of 12 months with 5 months to be served consecutively to Charges 1 - 4 and 24; Charges 5, 9, 12 and 17; Charges 10 and 11; Charges 13, 14 and 15; Charges 18 and 19; and Charges 20 and 21.

52.  Total imprisonment term is 15+1+1+1+1+1+5+5+5+5=40 months’ imprisonment.