HKSAR v. KHAN ABID

DCCC 1044/2016

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 1044 OF 2016

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

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

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

REASONS FOR SENTENCE

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

Charges

1.  The defendant came before me this afternoon facing two charges.  The 1^st charge is theft, contrary to section 9 of the Theft Ordinance, Cap 210, and the 2^nd charge is 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.

2.  The defendant pleaded guilty to the 2nd charge and admitted the amended Summary of Facts.  The subject matter of the 2^nd charge is a credit card belonging to PW1 in this case when the witness was drunk and apparently slept on the street in Tsim Sha Tsui.

3.  As a result of plea bargaining, the prosecution is contended that the 1^st charge be left in court file after the defendant was convicted on the 2^nd charge.

Facts

4.  The facts of the 2^nd charge is straightforward and unremarkable.  According to the amended Summary of Facts, the defendant went to a supermarket at Tsim Sha Tsui at around 5.44 am on 1 September 2016 when he attempted to purchase one plastic bag, some personal care products, some pesticide products, some snacks, some drinks, three packs of cigarettes and one liquor gift set.  Those items totally amounted to HK$3,141.80.

5.  The defendant attempted to purchase those goods when he produced PW1’s credit card for payment to a shop assistant at the supermarket.  As the defendant was a Pakistani, whilst the cardholder’s name was a Chinese name, feeling suspicious, the shopkeeper asked the defendant to produce his Hong Kong identity card for verification.  At that juncture, the defendant immediately went out the shop and left the credit card and the goods behind.

6.  The defendant was subsequently arrested on 2 September 2016.  An ID parade was held on the next day during which the shopkeeper positively identified the defendant.

7.  According to the facts, the credit card had a credit limit of HK$46,000. 

Criminal background and the mitigation

8.  Defendant is now aged 29.  He is single.  He had three similar previous criminal records in Hong Kong starting from 2014 with two similar records in 2015 involving credit card fraud.

9.  In mitigation, his counsel, Mr Charles Chan, informed the court that the defendant is a university graduate in Pakistan with a bachelor degree in Mathematics.  He is single and he lived together with his father and three sisters in Pakistan.  He came to Hong Kong in 2009 via China on the status of an asylum seeker.  In Hong Kong, he was unemployed and used to live on public assistance. 

10.  At the time of the offence, I was told that he was not living on public assistance and his financial situation became severe. Under these circumstances, the defendant was short of money and when he came across PW1’s credit card, he could not resist the temptation for using the credit card to buy some consumer products for his self-consumption. 

11.  Mr Chan reiterated the fact that the defendant had no planning for the offence and therefore this is an opportunistic crime. Mr Chan also referred me to an authority and said that for a simple and unsophisticated credit card fraud, a sentence of 3 years or less may be appropriate.  All in all, he asked the court to be as lenient as possible.

Sentencing considerations

12.  Credit card offences are serious and must be deterred.  Offenders should expect to be punished by a term of imprisonment. This is because it undermines the integrity of the credit card system.

13.  In HKSAR v Tu I Lang CACC 464/2006, the Court of Appeal had referred to the decision of R v Chan Sui To [1996] 2 HKCLR 128 and said that:-

“Where the facts of the offence point to a small unsophisticated operation, involving only one or a few forged credit cards uncomplicated by other evidence materially linking the offender to a larger operation, then a starting point of 3 years’ imprisonment or less would be appropriate.”

14.  In this case the credit card involved is not a forged credit card but a genuine credit card held by PW1.  As the Court of Appeal had also noted in the judgment in HKSAR v Lam See Chung Stephen [2013] 5 HKLRD 242, 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.”

15.  In this case, the money involved is small and no actual loss is caused to the shop because it was a failed attempt.  But often it is the potential loss of the shop which has been taken into consideration. Although the defendant is convicted of an attempted offence rather than a full offence in respect of the 2^nd Charge, the facts which he has admitted clearly show that he had done everything necessary for the commission of the full offence and it is only failed because the shopkeeper was alerted after finding out that the name printed on the credit card was of a Chinese national when the defendant is apparently a foreigner. 

16.  Had the transaction gone through, no doubt the defendant would have obtained all the properties that he purchased and no doubt the chances or the potential for him to use the credit card again to commit further offence cannot be ignored or overlooked.

17.  The only mitigation of weight before me really this time is the defendant’s plea of guilty which reflects his remorse.  On the other hand, I also take into account of what Mr Chan has said on behalf of the defendant that this is not a planned offence.  The amount involved is still small.

18.  After taking into account the facts of this particular case, I consider that a starting point of 30 months’ imprisonment is suitable for this case.  But that is not the end of the matter, the defendant is not a stranger to this offence; he is a recidivist.  Only a year before this present offence, he has been convicted in the District Court for two similar offences for which each was sentenced to 2 years’ imprisonment with apparently a starting point of 3 years’ imprisonment.  Because of this, I consider that I have a duty to increase the sentence to arrive at the necessary deterrent effect on the defendant.  I would therefore increase the sentence by 6 months to 36 months. 

19.  The day when the defendant was arrested was the date when the Court of Appeal had revised the sentencing practice on discount. Previously, when a defendant pleads guilty, he will be afforded a full one-third discount from the starting point.  But since 2 September 2016, for defendants who indicate a plea of guilty between the fixing of a trial date at the plea day and the first day of trial, those defendants will be afforded a discount of between only 25% and 20% of the starting point.

20.  In this case, I would afford the defendant 25% as a discount.  Therefore, reducing the sentence by 9 months, in the end, I sentence the defendant to 27 months’ imprisonment.