HKSAR v. ZULU SBUSISO AND ANOTHER

DCCC1192/2008

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 1192 OF 2008

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

Reasons for Sentence

1.  Defendants, you have both pleaded guilty to a charge of conspiracy to steal, contrary to section 9 of the Theft Ordinance, Cap.210 and sections 159A and 159C of the Crimes Ordinance, Cap.200.

2.  You have admitted that between 11 September 2008 and 14 September 2008, in Hong Kong, you conspired together to steal moneys, the property belonging to another.

3.  The case concerns both of you defendants being observed by undercover surveillance officers in disturbing or distracting people whilst they were withdrawing cash from ATM machines in Hong Kong and then stealing their credit cards or taking credit cards and then storing the data from that credit card in a skimmer.

4.  It was observed that the 1st defendant, you then used the credit card to which was stolen in attempting to withdraw or withdrew from the ATM soon after you stole the credit card.  Eventually, the police had intercepted you both and two skimmers were found in your possession, and the skimmers contained data from some of the stolen credit cards.  That, in a nutshell, is the basis of the facts, but I shall go into them in slightly more detail now.

5.  On 12 September at about 1745 hours, a lady went into the ATM at the Star Ferry Pier, she had inserted her HSBC ATM card and pressed her PIN number.  At this juncture, the 1st defendant appeared and kept talking to her, you distracted her.  And when she turned her back, she found that she did not see her ATM card thereanymore.  She noticed the 1st defendant was holding a stack of things in his left hand, and with his right hand he swiped PW1’s ATM card through something that was in the stack in his hand.  PW1 immediately asked D1 why he took her ATM card.  She retrieved her ATM card from D1.  She went to another ATM machine and she was again distracted by D2.  But she did not pay heed to D2. 

6.  In respect of another victim, PW2, on the same day, at 6 o’clock, in the same ATM Centre, she went with her husband to withdraw cash.  She had inserted her card and she was approached again by D1.  Soon she found her credit card was longer in the ATMmachine.

7.  As regards PW3, another victim, he went to use his ATM card on 13 September at about 2015 hours at the HSBC ATM Centre in Hennessy Road, Wan Chai.  He again inserted his card to withdraw cash and he noticed the 1st and 2nd defendants flanking him on both sides.  D1 and D2 again disturbed him.  He keyed in the wrong PIN number and attempted to key the correct PIN number again.  Again he was disturbed, causing him to turn his head, and when he turned back he realized that his credit card was missing but the cash and the transaction slip was still there.  The defendants left the scene. The 1st defendant ran away and D2 had gone back to the hotel. 

8.  The disturbances by the 1st and 2nd defendants were observed by police officers as they were under surveillance.  Police officers then observed the 2nd defendant going back to the hotel, and the 1st defendant had got into a taxi, the taxi took him to the HSBC Main Branch in Queen’s Road Central.

9.  There is evidence that whilst at the HSBC, the 1st defendant had attempted to withdraw from that ATM on approximately nine occasions cash from the ATM machines.  Two withdrawals were from  PW2’s credit card.  One withdrawal was successful in withdrawing $5,000, the other was using PW3’s credit card, making eight attempts of withdrawal of money ranging between $7,000 to $1,000 on PW3’s credit card. All attempts of these withdrawals were rejected.

10.  Police officers eventually intercepted the 1st and 2nd defendants at the hotel lobby. D1 had attempted to run away but was soon stopped and subdued.  They were searched and no suspicious items were found on the 1st defendant.  In the 2nd defendant’s bag, they found inside the pocket of a pair of trousers a white bag containing two black skimmers.  One of the skimmers contained bank and credit card account numbers including that of PW1 and PW2.

11.  It is recorded in the Amended Summary of Facts a skimmer is an electronic device comprising of a magnetic strip card reader and/or a data storage component and is capable of compromising the full magnetic strip data encoded in a genuine credit card or bank card, followed by the transfer of the data to the data storage component of the skimmer and/or other external storage device, e.g., a computer.

12.  Inside the luggage was found various clothing of which matched the clothing worn by the 1st defendant captured on  CCTV on 12 September 2008 at the HSBC ATM Centre of Star Ferry Pier and also the clothing worn by the 2nd defendant at the same ATM captured on CCTV.

13.  Inside the taxi to which the 1st defendant was travelling in, underneath the front passenger seat was found the credit card of the victim PW3 and the eight ATM transaction slips of the HSBC from PW3’s card.  The 1st defendant’s fingerprints were on the transaction slips.

14.  There were CCTV tapes capturing the 1st and 2nd defendants disturbing PW1 to PW3 and of D1 attempting to withdraw and/or withdrawing cash from PW2 and PW3’s card.

15.  D1 remained silent under caution.  D2 in effect said that in the hotel room on 11 September D1 showed him the two skimmers and told him that they could use them had they been given chances.  He said the skimmers found in his luggage belonged to D1 -- that it was D1 who asked him to pack them in his luggage as D1’s luggage was full.  He became agitated and cried in the second video-recorded interview when asked about the skimmers.  He stressed that it was the first time he saw the skimmers and had not used it. On 13 September D1 told him to check out of the hotel as D1 had to leave Hong Kong very soon because of family problems.  He took down their luggage to the hotel lobby. He knew D1 in June or July in 2008 in South Africa.

16.  Mr Finch and Mr Mak, solicitor, appear for the 1st and 2nd defendants respectively and they have made full mitigation on their behalf.  I have taken into consideration everything they have had to say for the 1st and 2nd defendants.

17.  The 1st defendant is of clear record.  He is 35, married with no ties in Hong Kong.  He comes from South Africa.  He is the sole breadwinner of his family as well as extended family.  He has submitted to me various character reference letters which speak highly of his character and assistance he has given to those back in South Africa.  And I have taken those matters into account. 

18.  I am also aware that the 1st defendant is a sufferer of HIV.  I am informed that he is a self-made man without education and he has made a life for himself in South Africa.  He ran a transport business and in view of the downturn of the business, as a result of this, he came to Hong Kong.

19.  Mr Finch has submitted that there was no degree of sophistication here in these offences that the defendants committed.  Everything was recorded on CCTV.  All the withdrawals were traceable electronically by CCTV, and the defendants were amateurs in committing these offences.  More importantly, they were under surveillance ever since they entered into Hong Kong.

20.  In respect of the 2nd defendant, he is also of clear record.  He is 50 years of age, also from South Africa, again the sole breadwinner of his family.  It was his first time to come to Hong Kong.  He had suffered severe injuries when involved in a road traffic accident in 2005 and had various operations and was in intensive care for approximately a month, and this has greatly affected his ability to move.  I have also received letters of character references from various people and I have taken those matters into account in respect of his good character and the assistance he has given to those back in South Africa.

21.  In respect of the 2nd defendant, Mr Mak has asked that the 2nd defendant be distinguished from the 1st defendant in that the 2nd defendant did not use the card to attempt to withdraw the monies from the machine, that he never used the skimmer and did not know how to use it and that his role was just there really to disturb the victims. 

22.  As all counsel in this case have pointed out, there are no guidelines for this offence.  I have been referred to the case of R v Chan Shui To and another [1996] 2 HKCLR 128 by Mr Finch in assisting the court in sentencing and also the case of HKSAR v Shum Chung Wai CACC516/2001 from the Senior Public Prosecutor in this case, Mr Ned Lai.  This case involves the two defendants acting together and I make no distinctions between their roles in the commission of this offence.

23.  In using the words of Mr Finch, the defendants’ modus operandi was similar to a street con with a bit of trick and a bit of sleight of hand.  They would use their skills to try to distract the victims when they were using credit cards at the ATM machines and then steal the credit cards from right under their noses.  They would then remember the PIN number of these credit cards and thereafter go and use these ATM cards or credit cards to withdraw cash.  I accept only one transaction was successful and the amount was $5,000.  Although that amount is small, the amount of money is only but one factor to be taken into account in sentencing.

24.  The two defendants came to Hong Kong to commit a crime.  They had in two days been observed to target victims in the ATM centres withdrawing cash.  I accept that there was no threat or violence used.  The most aggravating factor in this case is the skimmers that were found in possession of the defendants.  These skimmers must be looked at at the potential for losses in the future had they not been discovered.

25.  In addressing this matter of potential loss, the Court of Appeal in Shum Chung Wai at paragraph 13 states that:

“There can be little doubt that the seriousness of the appellant’s offences lies in the potential for losses in the future had they not been discovered.”

26.  In this case the defendants had equipment that was able to tamper with the data on the stolen credit cards.  With that data, obviously further forged credit cards could have been made.  There was therefore that potential for future loss, this type of offence must be deterred.  There can be no doubt that with those credit card information on that equipment, that the potential loss was to those victims of monetary amounts.

27.  I have taken into account the fact that the defendants are of clear record and have pleaded guilty, and they will get the one-third discount from the starting point to which I will arrive at.  I consider for this offence, a starting point of 3 years’ imprisonment to be appropriate and giving you both your full one-third discount, I reduce that term to one of 2 years’ imprisonment to which you will be so sentenced.

28.  Please stand up.  Yes, you will be sentenced to 2 years' imprisonment.