HKSAR v. KHURELBAATAR NARANBAYAR

CACC 335/2016

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO 335 OF 2016

(ON APPEAL FROM DCCC NO 805 OF 2016)

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J U D G M E N T

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1.  The applicant was sentenced to 2 years and 4 months’ imprisonment by Deputy Judge W H Ko (“the judge”) in the District Court on 19 October 2016, on his own pleas of guilty to two charges of 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.  On 27 October 2016, the applicant filed a Notice of application for leave to appeal against his sentence by way of Form XI.

The facts

3.  The following facts were admitted.  On 27 March 2016, the applicant entered the Luk Fook Jewellery shop in Tsing Yi and selected a gold bar priced at HK$36,000.  He presented an American Express credit card (the “AE card”) in the name of ‘Xavier Saint Olive’ for payment. The sales assistant noticed the applicant acting suspiciously and, having taken the AE card, alerted her manager.  The credit card centre was contacted and the staff at the centre requested to speak with the customer directly.  The applicant, however, terminated the call with the credit card centre after some 10 seconds and walked out of the jewellery shop, without taking back the AE card.  These were the facts relevant to Charge 1.

4.  The applicant’s appearance was captured by CCTV in the shop, whereupon all other Luk Fook outlets in Hong Kong were alerted to the incident, and the applicant’s screenshots circulated among them internally.

5.  On 31 March 2016, the applicant entered another Luk Fook Jewellery shop, this time in Causeway Bay.  He selected a gold bar priced at HK$110,000 and presented a UOB Visa Card (the “UOB card”) in the name of ‘Riabtchenko G’.  While the payment was being processed, the applicant indicated he also wanted to purchase a gold necklace priced at HK$28,000, to be made on the same card.  The salesman found that the applicant was acting suspiciously and alerted other staff members.  The branch manager recognised the applicant from the alert message circulated by Luk Fook Jewellery shop in Tsing Yi and called the police.  A team of police officers quickly appeared and arrested the applicant before he could leave the shop.  These were the facts relevant to Charge 2.

6.  Upon initial enquiries, the applicant told police officers that his name was “Guerguoi Riabtchenko” and that he needed money.  However, under caution the applicant refused to answer any questions.

7.  The travel movement record of the applicant showed he had entered Hong Kong on 25 March 2016.

8.  Upon subsequent enquiries, it was revealed that the AE card was issued in the UK and had been reported lost, while the UOB card was issued in Singapore and had been terminated by the cardholder on 31 March 2016 (about half an hour after the incident particularised in Charge 2).

Mitigation

9.  In mitigation, it was submitted that the applicant was born in Mongolia and was married.  He had studied and worked in the United States before returning to Mongolia to be with his family.  In Mongolia, he had worked in a number of jobs before starting a recycling business.  It was submitted that the applicant committed the offences because he owed money to loan sharks.

10.  Counsel for the applicant below relied on the Court of Appeal decision in HKSAR v Atienza Richard Montenegro[1] to suggest that an overall starting point of 3 years’ imprisonment or less was appropriate for the offences in question.  It was also submitted that a final sentence of 19 months’ imprisonment was imposed in that case where there were nine charges and some restitution made.  However, the facts of the present case were less serious, since no goods were actually obtained; accordingly, the overall sentence should have been less.

11.  Defence counsel acknowledged that the court was entitled to order a consecutive element as between the two offences, rather than making them wholly consecutive or concurrent with each other[2].

12.  Various authorities which approved sentences of 2 years and 6 months’ imprisonment[3]; 2 years’ imprisonment[4]; and a starting point of 12 months’ imprisonment[5] were submitted.  It was also said that the facts showed there was no degree of organisation or sophistication in both attempts.  Mitigation letters from his family were produced to the court.

Reasons for sentence

13.  In his reasons for sentence, the judge considered the case of R v Chan Sui To[6], in which this Court suggested, at 134:

“an operation involving between HK$50,000 and HK$150,000, with no elaborate planning and equipment, and without an international dimension, should receive a sentence of 5 to 6 years after trial. Sentences may be adjusted upwards or downwards according to the circumstances… Where the facts of the offence point to a small unsophisticated operation, involving only one or a few forged cards uncomplicated by other evidence linking the offender to a larger operation, then a starting point of 3 years’ imprisonment or less would be appropriate.”

14.  The judge also referred to HKSAR v Lam See Chung, Stephen[7] and HKSAR v Chen Wing Hong[8].  He held that offences involving credit cards were serious and the applicant had done everything necessary for the completion of the full offence.  He considered that, although the value of the property in Charge 2 was about HK$140,000, the Court in R v Chan Siu To had made clear that the value of the property was only one of the sentencing considerations.

15.  In the result, a starting point of 2 years and 5 months’ imprisonment was adopted in respect of Charge 1, and 2 years and 9 months’ imprisonment in respect of Charge 2.  Both sentences were reduced by one-third for the applicant’s guilty plea, resulting in 1 year and 8 months’ and 1 year and 10 months’ imprisonment respectively for the two charges.  Finally, 6 months of the sentence on Charge 1 was ordered to run consecutively to the sentence on Charge 2, making a total sentence of 2 years and 4 months’ imprisonment.

Grounds of appeal

16.  In his Form XI, the applicant submitted that he had received a long sentence, that he had cooperated with the ‘Hong Kong Justice Department’ and that he wanted to work with the police ‘to stop these (sic) syndicates’.

17.  In his written submissions filed on 29 March 2017, the applicant submitted that the sentences for the two charges should run concurrently.  He averred that in respect of Charge 2, he had only attempted to obtain goods to the value of HK$28,000 not HK$110,000, since he had become “scared” of purchasing the gold bar.  It was also submitted that he had cooperated with the authorities since his arrest so as to bring the proceedings to a speedy conclusion; he had never seen his youngest daughter who was born when he was in custody; and his wife was now left to care for their two children.  The applicant attached a letter from Hong Kong Christian Kun Sun Association stating that he had been a regular attendee at religious classes, and assisted other Mongolian speaking inmates during class.

18.  Mitigation letters written by the applicant’s wife, his elder sister and parents were also attached to the applicant’s submissions.

The respondent’s submissions

19.  Mr Edward Brook, in his submissions on behalf of the respondent, contended that the case of R v Chan Sui To had set out a non-exhaustive list of considerations in respect of sentencing for credit card frauds, including: (i) the size of the operation; (ii) the degree of planning; (iii) any international dimension; (iv) the role played by the accused; and (v) any plea of guilty.  The value of the property involved was one factor to be taken into account, but not the most significant factor.

20.  Mr Brook argued that the starting points in this case were well below the 3 years’ imprisonment deemed appropriate in HKSAR v Lam See Chung, Stephen, and the sentencing judge did not take into account the fact that the applicant had come to Hong Kong to commit crimes using credit cards obtained from outside the jurisdiction.

21.  It was also submitted that the higher starting point taken in respect of Charge 2 was appropriate for the higher value of goods in that charge.  As for the offer of assistance to the authorities, Mr Brook maintained that nothing positive had emerged from the applicant to justify any reduction in his sentence.  He referred me to the applicant’s written statement to police, taken on 1 June 2016, in which the applicant had expressly declined to give any further information to the police, out of fear, it was averred, for his own and his family’s safety.

22.  Since the two charges were distinct offences committed on two separate occasions in different parts of Hong Kong, the partially consecutive element between the two sentences was justified.  In the circumstances, the overall totality of the sentence could not be said to be wrong in principle or manifestly excessive.

Consideration

23.  I agree with Mr Brook that it is startling that the judge appears not to have taken into consideration the obvious aggravating feature that the applicant must have come to Hong Kong for the purpose of using two unlawfully obtained credit cards from another jurisdiction in order to commit crime here.  Indeed, the judge expressly held that[9]:

“No aggravating features, such as evidence pointing to international dimension, are present even though the defendant committed the first offence two days after he arrived in Hong Kong.”

With great respect to the judge, the international element was obvious and capable of significantly aggravating the applicant’s offences.  Judges and magistrates are not expected to abandon their common sense, simply because there is no specific admission from a defendant, if the objective facts point to a foreign national having come to Hong Kong for no other purpose than committing crime in the territory.  Here, the objective evidence was that two days after entering Hong Kong, the applicant had used an unlawfully obtained credit card from another jurisdiction to purchase valuable items of property.  In fact, the applicant’s own counsel had frankly intimated in mitigation that the applicant had come to Hong Kong to use these cards because of his financial difficulties in Mongolia[10].

24.  I can see no arguable ground of appeal against sentence.  The judge was certainly correct to order a consecutive element as between the sentences on the two charges.  However, given the international dimension to which I have just referred, the starting points in respect of each charge could well have been greater, resulting in a higher overall sentence. The applicant’s domestic circumstances provide no basis for interfering with this sentence: he must have realised that his family would suffer if he came to Hong Kong and was imprisoned for committing serious crimes.  Furthermore, there is no tangible evidence that he has provided any assistance to the authorities.

25.  The application is refused.  In view of my remarks about the sentence and how it could well have been higher, I should offer the applicant this warning.  Whilst he is certainly entitled to renew his application for leave to appeal against sentence to the Court of Appeal, he should be warned of the consequences of so doing, which might include a direction for any loss of time spent in custody pending his appeal, if the Court of Appeal were to come to the view that there was no justification for the renewal of the application.