HKSAR v. BEN SALEM HASSEN also known as HASSEN BEN SALEM and BEN SALEM BEN ABDERRAHMAN

CACC 45/2017

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO 45 OF 2017

(ON APPEAL FROM DCCC 685 OF 2016)

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REASONS FOR JUDGMENT

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1.  The applicant appeared in the District Court charged with 8 charges. The 1^st charge was theft of two credit cards, contrary to section 9 of the Theft Ordinance, Cap 210. The 2^nd to 6^th charges were obtaining property by deception, contrary to section 17(1) of the Theft Ordinance, Cap 210 and involved the use of the stolen credit cards that were the subject of the 1^st charge, to fraudulently purchase goods. The 7^th and 8^th charges were attempting to obtain property by deception, contrary to section 17(1) of the Theft Ordinance, Cap 210 and section 159G of the Crimes Ordinance, Cap 200. These two charges also involved the use of the stolen credit cards in an attempt to fraudulently purchase property with them. All the offences took place on the same day, namely, 15 May 2016.

2.  On 2 February 2017 the applicant appeared before District Judge Dufton (“the judge”) and pleaded guilty to charges 2 to 8.  In respect of the 1^st charge the judge ordered that it should be left on the file and not be proceeded with without the leave of the court.

3.  On 7 February 2017 the judge sentenced the applicant to a total of 2 years and 6 months’ imprisonment for all these charges. 

4.  The applicant subsequently filed a Notice of Application for Leave to Appeal (Form XI) against his sentence.

5.  The first hearing of the application on 24 August 2017 was adjourned in order to obtain the details of two magistracy cases on which the applicant relied for the purpose of demonstrating that the sentence imposed on him was excessive.  The second hearing of the application on 14 September 2017 was adjourned to enable the applicant to provide a statement to the police which would assist them in identifying and locating his female accomplice.

6.  At the hearing of the application I refused it and I said I would hand down my reasons for doing so at a later date.  These are my reasons.

The background to the offences

7.  The Amended Summary of Facts which the applicant admitted and which was used for the purpose of his sentencing revealed that two Korean men who were working in Hong Kong were drinking at a bar in Central on 15 May 2016 at 4 am.  They went to their respective homes to sleep and when they woke up later that afternoon they found their wallets were missing.  The two victims were Mr Choi and Mr Chang. 

8.  The credit card of Mr Choi was used that day in a number of different transactions by either the applicant alone or together with a female accomplice with all the transactions taking place in Tsim Sha Tsui.  On one occasion there was an unsuccessful attempt to use the credit card of Mr Chang.  All the successfully completed transactions were the subject of a joint enterprise charge which alleged that the applicant committed the offence together with an unknown other.

9.  At 3:01 pm Mr Choi’s card was used to purchase two mobile phones and two tablet computers amounting in value to $16,100 from a shop in Mody Road. This fraudulent transaction is the subject of the 2^nd charge.  The person who actually presented Mr Choi’s credit card was a Caucasian female. 

10.  At 3:32 pm Mr Choi’s card was again used at a 7-Eleven Convenience Store in Kimberley Road to purchase two packets of cigarettes. CCTV footage at this store captured the applicant and another female entering the shop and making purchases using cash.  Eight minutes later the applicant re-entered the shop whilst the female waited outside and it was then that he made the purchase using Mr Choi’s credit card.  This transaction is the subject of the 3^rd charge.

11.  At 3:37 pm Mr Choi’s card was used at another shop in Kimberley Road to purchase two iPhone 6S Plus mobile phones for a total amount of $14,376.  This transaction is the subject of the 4^th charge.

12.  At 3:46 pm Mr Choi’s card was again used at another convenience store in Kimberley Road to purchase 20 packets of cigarettes and snacks at a total cost of $1,186.80.  CCTV footage at this convenience store captured the applicant and a female in the shop together.  This transaction is the subject of the 5^th charge.

13.  At 4:17 pm Mr Choi’s card was again used at a shop in Cameron Road to purchase two headphones, 3 mobile phones and a shaver for the total amount of $20,000.  The applicant and a female were identified as having entered the shop at the relevant time and it was the applicant who signed on the transaction receipt. This transaction is the subject of the 6^th charge.

14.  At 5:52 pm Mr Choi’s card was again used in a transaction at iSquare in an attempt to purchase a shirt, shoes and a cap costing a total of $1,517.  However, for an unknown reason this transaction was cancelled. This transaction is the subject of the 7^th charge.

15.  At about 6:14 pm the applicant attempted to purchase a pair of shoes and a pair of socks at a total cost of $632 from a shop in Granville Road, with the card belonging to Mr Chang.  When the applicant was queried by a staff member as to whether he was the holder of the card the applicant claimed that it belonged to his wife and then left the shop with the card. This attempted transaction is the subject of the 8^th charge.

16.  At about 6:21 pm police officers intercepted the applicant at the junction of Bristol Avenue and Carnarvon Road in Tsim Sha Tsui.  Upon searching his person they found the two stolen credit cards of Mr Choi and Mr Chang located in his waist area.  When asked about these cards the applicant said he picked them up at about 4 pm at the junction of Kimberly Road and Nathan Road.

17.  In the applicant’s rucksack the police found a tablet computer and two mobile phones and 12 packets of cigarettes.  It was later confirmed that the tablet computer and the two mobile phones were the subject of the transaction particularized in the 2^nd charge.

The mitigation

18.  Mr Donald, who appeared for the applicant at the sentencing hearing, filed a written submission with the court together with copies of 8 case authorities.  In his oral address in mitigation he indicated to the court that the total value of the successful transactions was just over $50,000.  He also told the court the applicant was born in Tunisia and was 50 years of age.  He was educated to university level in business studies.  He arrived in Hong Kong in 2011 for business reasons and then, due to the political situation in Tunisia, he was unable to return and he applied for asylum.  He is a Convention Against Torture (“CAT”) claimant whose claim was being processed at the time of the offence.  He was at the stage of waiting for his screening interview.  He was provided with a Form 8 recognizance which allowed him to live in the Hong Kong community pending the processing of his CAT claim and was receiving an allowance of $1,400 per month from International Social Service. 

19.  Mr Donald submitted on the applicant’s behalf that there was no premeditation in the commission of the offences.  He claimed that the applicant had met a Russian woman with whom he was previously acquainted and this lady told him that she had a credit card given to her by her boyfriend and if the applicant helped her then she would share with him whatever they received from the use of the card.  As the applicant was in need of money he agreed to assist this Russian woman.  Mr Donald said the applicant accepted that there was no excuse for his conduct and that he had committed the offence out of greed. 

20.  The applicant’s share of the proceeds was the tablet computer and the two mobile phones which were found in his possession at the time of his arrest.  This, it was claimed, was all the applicant obtained from these offences. He obtained no monetary gain as he did not have the opportunity to convert these items into cash.

21.  As to the seriousness of the offence Mr Donald submitted that the applicant was not part of a gang and his criminal activity simply involved himself and the Russian lady in an opportunistic adventure that was carried out on a single day. 

22.  There were 7 offences but as they were all committed on the same day Mr Donald submitted that they should be regarded as part and parcel of a single one-day operation.  He asked the court to apply the totality principle. After taking the judge through the sentencing cases on which he relied he submitted that in respect of the offences a starting point of around 3 years was appropriate.  He also submitted that any enhancement of starting point to allow for the aggravating feature of the applicant’s CAT claimant status should not be as great as in those cases when the offence committed by the CAT claimant was trafficking in dangerous drugs.

23.  In the course of Mr Donald’s address the judge queried him in respect of the explanation the applicant gave to the police at the time of his arrest as to how he found the credit cards in the street.  Mr Donald replied that it was just “a spur-of-the-moment, impetuous explanation” which the applicant now admitted was wrong.  This led to the following exchange between the judge and Mr Donald:

“COURT: So is there anything you wish to say why -- so why? Is there any reason why I should accept what he says today as to the nature of the way he has come into the card save and except of course the prosecution are not proceeding with that he is deceived but within 12 hours of the card going missing, he is using that card?

MR DONALD: Now, we just try and make -- try and explain the police have downplayed his role and to exonerate himself and not involve the other lady involved in the case.

COURT:  I’ll tell you now, Mr Donald.  I don’t accept that from the Bar table.  If the defendant wishes to explain how he came in possession of the cards, then it’s a matter for him.  I don’t accept the circumstances he is left with.  I don’t know how he got into possession other than that he has given two explanations because, frankly, I don’t accept from the Bar table or from his assertions that simply it’s just meet someone by chance who says, ‘Come along and use a forged credit -- use a stolen credit card’ or equally that someone has stolen these cards and they just drop them in Central, and then they drop them in Tsim Sha Tsui.  I don’t accept those from the Bar table.  If he wishes to support his case as to how he came into possession, that’s a matter for him.  You’ll have to take instructions.”

24.  The court then addressed the question of the potential for loss from the fraudulent use of these credit cards by enquiring of the prosecutor the credit limits on the credit cards.  He was told that each card had a credit limit of $78,000 and that the applicant could have used the whole of this credit limit on both cards.  Mr Donald accepted that this was so but submitted that given the unsuccessful attempts to use the cards in the transactions that are the subject of charges 7 and 8 the judge should assume that it was unlikely the applicant would attempt to make any further use of these credit cards. 

25.  The judge then indicated he would stand the case down so that Mr Donald could take instructions on whether the applicant would wish to give evidence in support of his explanation as to how he came to commit these offences.  In so doing the judge said:

“COURT: Well, what I’ll do is I will stand down. … Mr Donald can then address me on the other matter that I’ve raised and so, yes, I am aware, Mr Donald, from the facts that a lady was seen on some of the CCTVs.

MR DONALD: Three...

COURT: I’m also aware that the Charges 1 to 5 -- 2 to 6 are with another person.

MR DONALD: Yes.

COURT:  And therefore it’s what I said is I don’t accept that suddenly he is approached by a Russian lady by chance who says she has got a card which she asks this person, asks the defendant to use, and that’s why I say that I’m not prepared to accept those assertions from the Bar table as to how he came into possession of a card which had been stolen earlier that day.”

When the court resumed the following exchange took place:

“COURT: Is there anything you wish to say with the matters raised with regard to how he came into possession of the cards?

MR DONALD: No, no, I’ll have to say leave it as that. That’s my mitigation and...

COURT: The defendant doesn’t wish to support...

MR DONALD: No.

COURT: ...his account as to how he says now he says he came into...

MR DONALD: We rely on the Summary of Facts and what I’ve said from the...

COURT: Well, the Summary of Facts is different...

MR DONALD: Summary of Facts...

COURT: ...as to how he came into possession.

MR DONALD: No, about the three women who paid him...

COURT: As to how he came into possession of the card.

MR DONALD: Now, he just stands by what he says, your Honour.

COURT:  All right, but he doesn’t want to support that.  All right.”

26.  The court later went on to address the goods recovered from the applicant and this led to the following exchange:

“COURT: Is there anything you wish to say?

MR DONALD: Now, I just have two offenders.

COURT: Yes.

MR DONALD: The Russian girl was seen in relation to three different counts, would accompany the defendant, and that would support his case that he was helping out the Russian girl and she took half and he got -- that his share was from Count 2, and she...

COURT: She took the rest of them and they are no longer recoverable.

MR DONALD: She provided the ID card -- the credit cards.

COURT: And that’s basically what you’ve said.

MR DONALD: Yes.

COURT:  All right.  Yes, thank you very much.  Thank you.”

The court then adjourned.

The judge’s Reasons for Sentence

27.  After setting out the circumstances behind the commission of the charges and the mitigation advanced on behalf of the applicant by Mr Donald the judge said:

“8.  Mr Donald submits that the use of the cards was opportunistic and not premeditated. You met a Russian lady you had seen previously who told you she had a credit card given by her boyfriend and if you helped her she would share the proceeds with you. Desperate for money you agreed. This explanation is different to what you told the police that you picked up the cards at the junction of Kimberley Road and Nathan Road at about 4 p.m. that afternoon. 

9.  As indicated in court, notwithstanding the CCTV of some of the shops shows you acting together with a female, I do not accept the assertions that you just happened to see a Russian lady again who asked you to use the cards. Nor do I accept the claim you made to the police that you picked up the cards. You have elected not to give evidence in support of your claim as to how you came into possession of the two stolen MasterCards.

10.  The two cards were used the same day they were stolen. On arrest, about three hours after you began using the cards, you were still in possession of the cards but most of the goods obtained were no longer in your possession.  Although the prosecution do not proceed with the charge of theft of the cards, the only inference to draw from your use of the cards within a short period of time after they were stolen and that you were no longer in possession of most of the goods, is that you were closely linked to a larger operation that stole credit cards and disposed of the goods obtained with those cards.”

28.  The judge did, however, take into account in the applicant’s favour that he had not come to Hong Kong to commit crime and had not previously been involved in credit card fraud notwithstanding he had previous convictions, mostly for shoplifting.

29.  The judge then referred to the decisions of R v Chan Siu To[1]and HKSAR v Wong Wan Shan[2] and then said:

“17.   Taking into account you used one card five times to obtain goods valued at $51,776.80, most of which have not been recovered; a sixth transaction with the same card for the purchase of goods valued at $1,517 was cancelled; you attempted to use the second card to buy goods valued at $632; the credit limit on both cards was HK$78,000; and you were not acting alone, I am satisfied a starting point of 3 years and 6 months imprisonment is appropriate on each charge.”

30.  The judge then turned to the question of whether the fact that the applicant was a CAT claimant living within the Hong Kong community on a Form 8 recognizance was an aggravating factor for the purpose of sentence.  He referred to a number of decisions of the Court of Appeal on this issue and then said:

“20.  I am satisfied credit card fraud affects the community and reputation of Hong Kong. The persons directly affected were two Koreans, who were working in Hong Kong. I enhance the starting point by 3 months to 3 years and 9 months imprisonment.”

31.  From his final starting point of 3 years and 9 months’ imprisonment the judge then allowed a discount of one third for the applicant’s plea of guilty.  This resulted in a final sentence of 2 years and 6 months’ imprisonment on each charge.  As the offences all arose after the same facts and were committed on the same day the judge decided that concurrent sentences were appropriate.  The total sentence that he imposed for all of the offences was therefore 2 years and 6 months’ imprisonment.

The grounds of appeal

32.  In a document attached to his Form XI the applicant set out his grounds of appeal.  They are:

(i)   even though he pleaded guilty to all the charges some of the charges may have been committed by the woman who was not arrested;

(ii)  the loss of $5,130 (sic) alleged by the prosecution did not take into account the use of the card by another person and this accounted for about $4,000 odd;

(iii)  the sentence is too high given the sentences imposed in other cases; and

(iv)  he wanted to assist the police to arrest the woman but they ignored him and treated him badly.

33.  In a submission dated 15 May 2017 the applicant wrote that:

(i)   he wrote to the police two weeks after his arrest offering to help them arrest his female accomplice;

(ii)  he was wrongly regarded as part of a larger international syndicate with the consequence that an erroneous and more serious view was taken as to his culpability;

(iii)  his case should have been tried in the magistracy and a lower sentence imposed;

(iv)  he would have liked to be able to speak to the judge directly but was unable to do so;

(v)  the statement in the Amended Summary of Facts that he told the police he picked up the cards on the road is false and he never said this to the police;

(vi)  the judge was wrong not to believe his counsel’s submission that he had a Russian friend who asked him to use the cards;

(vii)   the prosecutor misled the court by not revealing that the cards had been used by a person before the applicant used them and $2,000 loss was incurred which the prosecutor added to the applicant’s losses.  These earlier uses of the cards were by the person who stole them;

(viii)  the judge wrongly applied the sentencing principles relating to forged credit cards;

(ix)  his lawyer relied on sentencing authorities which had no relevance to his case;

(x)  the judge was wrong to regard his CAT claimant status as an aggravating factor; and

(xi)  lower sentences were imposed in two cases, namely WKCC 788/2017 and KCCC 3582/2016.

The respondent’s submissions

34.  Mr Pierre Lui, Senior Public Prosecutor (Ag), for the respondent, informed the court that, contrary to the claim by the applicant, the police were not able to locate any letter written to them by the applicant.  He also informed the court that, contrary to what the applicant believed, there were no other fraudulent uses by anyone of the credit cards of Mr Choi and Mr Chang.

35.  In respect of the cases relied on by the applicant he submitted that the Kowloon City case was irrelevant as it involved different offences with different facts.  The West Kowloon case, though factually relevant, was an example of a manifestly inadequate sentence that was contrary to appellate authority and should not be followed.

36.  Finally, Mr Lui addressed the issue of the applicant’s assistance to the police since the last hearing of this application.  He informed the court that on 26 September 2017 the applicant made a non-prejudicial statement in which he identified his female accomplice.  However, he had no way of contacting or locating her.  The respondent accepts that the woman the applicant identified fits the general appearance of the woman captured by CCTV footage from the premises in which some of the offences took place.

37.  The police have since unsuccessfully sought to locate the female accomplice.  The Immigration Department records suggest she is still in Hong Kong and so the police have put her on the Immigration Department’s wanted and stop list.  It is impossible at this stage to determine if and when this person will be apprehended and in this respect it should be noted that the applicant will have served his sentence and will be released from custody on 16 January 2018.

38.  The respondent’s position is that it cannot be said that the applicant’s statement has borne fruit or led to a tangible result and so he should not be entitled to any additional reduction in sentence.  The applicant relies on statements by the Court of Appeal which support this position in HKSAR v Y[3], HKSAR v W[4], and HKSAR v Bin Kei Chi & anor.[5]

Discussion

39.  I have considered all the complaints of the applicant and can find no reasonably arguable ground of appeal in any of them other than the question of whether the applicant is entitled to a discount for his assistance to the authorities.

40.  The judge accepted that charges 2-6 were joint enterprise offences committed with a woman whose identity was unknown.  What he rejected was the explanation advanced from the bar table as to how the applicant came into possession of the credit cards and how he and this unknown woman came to be accomplices in this joint enterprise. 

41.  He indicated his view of the explanation being advanced and the position he was inclined to adopt in respect of it to the applicant’s counsel but a considered decision was made not to call any evidence.  The judge acted entirely properly and cannot be criticized for the stance he adopted.  The judge was entitled to reject the explanation advanced and to require that evidence be called to substantiate it.

42.  Likewise, the inferences the judge drew as to the access the applicant had to a larger syndicate were, in the circumstances, inferences he was entitled to draw.

43.  Having drawn those inferences, which were relevant to his assessment of the applicant’s culpability, he adopted a starting point of 3 years 6 months’ imprisonment.  The applicant complains this starting point is excessive and refers the court to two magistracy case.  I have obtained the cases from Kowloon City Magistracy and West Kowloon Magistracy on which the applicant relies in order to show his sentence is excessive.  The Kowloon City case, KCCC 3582/2016 involved charges of theft by finding of another person’s identity card and VISA credit card and possession, without lawful authority or reasonable excuse, of an identity card relating to another person.  The total sentence imposed for these offences was 12 months’ imprisonment.  This case has no relevance to the applicant’s criminal conduct.

44.  The West Kowloon case involved charges of theft, by finding, of a credit card and eight further charges relating to the use of the card.  These were seven charges of obtaining property by deception and one charge of attempting to obtain property by deception.  The total sentence imposed in respect of all charges was 6 months’ imprisonment from a starting point of 9 months’ imprisonment.  The total loss from the fraudulent use of the credit card was only $16,580 but, nevertheless, it has to be said that this is an extraordinarily lenient sentence for such serious criminal conduct.  It is not in accordance with appellate authority or sentencing patterns for credit card offences.

45.  The Court of Appeal has said on many occasions that it will not usually be assisted by being referred to sentences that are imposed by other courts in totally unrelated cases.  It is concerned with whether the sentence imposed on the offender before it was just for him.  The adoption by other courts of lower starting points for similar offences does not mean that the starting point adopted by the judge in the case under appeal was wrong or in any way excessive. 

46.  In respect of this applicant it is clear from the judge’s references to established authority that he was aware of the relevant sentencing principles and determined his starting point by correctly applying them to the facts of the case before him.  There is nothing excessive in this starting point. 

47.  The judge’s decision to enhance his starting point by 3 months was because he treated the fact that the applicant committed the offences whilst living in the Hong Kong community under the benefit of a Form 8 recognizance as an aggravating factor.  This was consistent with Court of Appeal authority. There was no error by him in so treating this fact and the amount by which he enhanced the starting point was not excessive.

48.  Whatever may have been the intentions of the applicant in regard to assisting the police, the reality is that no assistance was in fact provided until this application was before me.  The statement provided by the applicant incriminates a person whom he claims was his accomplice.  There is no reason to doubt the truthfulness of his statement. 

49.  Prior to the applicant giving this statement the police knew that he was committing the offences together with a female accomplice but did not know the identity of that accomplice.  Now they do, and it is not just based upon the word of the applicant.  Other evidence, such as the CCTV footage, supports the applicant’s claim.  With the information provided by the applicant they can carry forward their investigations, for example, by conducting a photo-identification of the suspect with their merchant witnesses.  Furthermore, now that the police know the identity of the accomplice and have determined that she should still be in Hong Kong they have a real prospect of apprehending her.

50.  In order to determine whether the applicant’s post-sentence assistance would afford him a reasonably arguable ground of appeal I asked him if he was willing to be a prosecution witness should his accomplice be located and charged.  At first he said he would and then he changed his mind.  He said he no longer wished to rely on his assistance to the authorities as a ground of appeal and he would rather complete his sentence.  He adverted to possible problems he might encounter after his discharge from prison should he become a prosecution witness. 

51.  In these circumstances, I am not persuaded that the applicant has any reasonably arguable ground of appeal.

Conclusion

52.  For these reasons I refused the application for leave to appeal against sentence.

[1] [1996] 2 HKCLR 128

[2] CACC 9 & 10/2002, unreported.

[3] [2005] 3 HKC 337

[4] [2014] 2 HKC 459

[5] CACC 181/2005, unreported, 23 September 2005.