HKSAR v. BOUSEKSOU MOHAMED RAFIK AND OTHERS

DCCC783/2012

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 783 OF 2012

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Reasons for Sentence

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1.  You three defendants have been convicted on your respective pleas of guilty to a charge of conspiracy to steal, contrary to section 9 of the Theft Ordinance, Cap.210 and section 159A of the Crimes Ordinance, Cap.200, Laws of Hong Kong, the particulars being that the three of you between 8 May and 10 May of this year together stole cash of HK$125,000, property belonging to another.

2.  The Summary of Facts which you have each individually agreed are very straightforward and speak of you were together entering Hong Kong on 8 May 2012 and booking a room in the Cosmo Hotel until 11 May.

3.  On 10 May 2012 in the evening D2 and D3, you were both seen to be using magnetic cards to withdraw money from active credit card accounts from two automated teller machines inside Causeway Bay Plaza, whilst you,  D1, were at about the same time arrested as you were boarding the Airport Express in Central.

4.  Each of you was searched and a number of magnetic cards were found on your person together with a quantity of cash. 

5.  In your case, D1, you were found in addition to a magnetic card to have some 3,300 Euros together with HK$26,000 odd on you and a quantity of Egyptian pounds. 

6.  You were all then taken back to the hotel where a search warrant was executed and further magnetic cards were found in the safe together with some 4,000 Euros and a small quantity of Arabian currency.

7.  In all, a total of 43 magnetic cards were found and enquiries revealed that 116 ATM transactions were performed with these cards of which 30 were successful.  The total amount of successful transactions netted HK$125,000 whilst the total amounts that you three had attempted to withdraw from active credit card accounts amounted to $366,000.

8.  The three of you are all of Algerian descent. D1, you migrated to France in 1987, whilst D2 and D3, you were both born in France.  Each of you come from humble backgrounds, are married with children and each of you have clear records in Hong Kong.

9.  In relation to you, D3, I am told and I have accepted you have a clear criminal record in France.

10.  In sentencing each of you, I take account of all that has been said on your respective behalves, in particular, I take account of your pleas of guilty to the charge and the fact that through your counsel you have offered to pay restitution to the extent of HK$125,000.

11.  With regard to the question of restitution, this of course is slightly complicated by the fact that obviously a significant amount of the money found on particularly D1 and to a lesser degree on D2 will no doubt be the proceeds of your illicit behaviour.  However, having said that, I accept from Mr Egan that other cash found on you and/or in the safe of the hotel in the form of Euros may well have legitimately been yours.  In any event, it is the offer to pay restitution that is important, and this will be reflected in the sentence that I intend to impose on each of you.

12.  Clearly, however, these are serious offences, such that it seems to me sentences of sufficient length in order to deter others from similar criminal activity ought to be imposed.  Whilst this was not a highly sophisticated operation, some planning was obviously involved and of course there is an international aspect to your illicit activity. 

13.  There are no sentencing guidelines as such for offences of this nature, but I am grateful to Mr Egan who has supplied me with a number of cases, one of which HKSAR v Aktas

Alim and Bozkurt Serdal DCCC1061/2009 I find to have certain similarities to the present case. In that case my learned brother Judge Tallentire adopted a starting point of 3 years’ imprisonment in a case which involved 32 successful withdrawals from ATMs by using cards with magnetic strips which netted a total of HK$87,000. There were also a further 33 unsuccessful attempts which would potentially have netted $124,000.

14.  Whilst the number of successful withdrawals is remarkably similar, 30 in the present case, there were many more unsuccessful attempts that you three performed, some 86, by my calculation, and you managed to obtain much more money, a sum of HK$125,000.

15.  Turning to sentence, I see no reason to differentiate between the three of you in terms of sentence.  This was clearly a joint enterprise undertaken by the three of you. 

16.  Taking everything into account, I adopt a starting point of 3½ years’ imprisonment in relation to each of you.  This will be discounted by one-third to reflect your respective pleas of guilty to the charge, coming to 28 months’ imprisonment.

17.  I propose to give each of you a further discount of 3 months’ imprisonment to reflect your offer of restitution and the order of restitution that I will make to ensure that no loss is suffered by any of the account holders to the credit cards, coming to 25 months’ imprisonment in all in relation to each of you.