HKSAR v. POSTNIKOV SVYATOSLAV

DCCC522/2012

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 522 OF 2012

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Reasons for Sentence

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1.  The defendant pleads guilty to 5 charges. Charge 1 is for the offence of theft, contrary to section 9 of the Theft Ordinance (Chapter 210). Charges 2 to 4 are each for the offence of attempting to obtain property by deception, contrary to section 17(1) of the Theft Ordinance (Chapter 210) and section 159G of the Crimes Ordinance (Chapter 200). Charge 5 is for the offence of breach of condition of stay, contrary to section 41 of the Immigration Ordinance (Chapter 115). Particulars of each offence can be found in the charge sheet.

Facts

2.  The defendant is a Russian.  He arrived at Hong Kong on 24 November 2011.  He was permitted to enter and remain in Hong Kong as a visitor for 14 days from the date of entry.  However, he did not leave as required.  His unlawful stay in Hong Kong was terminated only on 8 April 2012 when he was arrested for the offences that form the subject matters of Charges 1 to 4.  He had therefore stayed in Hong Kong unlawfully for about 4 months during which his mother and friends provided him with living expenses (Charge 5).

3.  In the early hours of 8 April 2012, the victim of Charge 1 Mr. Gorden Leung went to a nightclub.  He got drunk and fell asleep in the street.  When he woke up at around 4:30 a.m., he took a taxi home.  Later he found that he had lost his mobile phone and wallet.  Inside his wallet, there was a Cathay Pacific American Express credit card in his name.  Mr. Leung reported the loss to the police.

4.  The defendant picked up Mr. Leung’s lost credit card in a park and kept it for his own use (Charge 1).

5.  On 8 April 2012, the defendant attempted to use Mr. Leung’s lost credit card to make purchases in 3 jewellery shops in Nathan Road within an hour or so from around 12 noon to 1 p.m.  In the first shop, he tried to buy a gold bar worth HK$51,000 (Charge 2).  In the second shop, he tried again to buy a gold bar but on this occasion, the gold bar was with a lower value of HK$13,797 (Charge 3).  In the third shop, he tried to buy a gold ornament worth HK$5,330 (Charge 4). 

6.  On each occasion, the defendant presented Mr. Leung’s lost credit card to the shopkeeper for payment. He pretended to be the genuine holder of credit card with full authority to use it to make payment.  However, on each occasion, the shopkeeper could not successfully complete the credit card transaction.  When the defendant was making the purchase in the third shop, staff of the credit card centre discovered that Mr. Leung’s lost credit card was being misused.  He therefore made a report to the police, and the defendant was arrested by the police while he was still inside the third shop.

Criminal record

7.  The defendant has a clear criminal record.

Personal and family background

8.  The defendant is 29 years old.  He was born in Russia and had undertaken but had not yet completed tertiary education there. He was a technician by occupation in Russia until 2003.  He remains unemployed since then.  His parents have divorced.  They are still living in Russia.  The defendant has also a younger sister who is still studying and a half-brother.

Mitigation

9.  Mr. Tang, the learned solicitor for the defendant, emphasizes that the defendant is very remorseful for his offences.  Not only was he cooperative in the police investigation by making full admission, he has also pleaded guilty in Court, and saved considerable court time and public money that may incur in a trial. 

10.  As far as the offences are concerned, Mr. Tang points out that the theft committed by the defendant was only a theft by finding.  He asks me to consider the other charges relating to use of the credit card together because they were all committed within a short period of time.  He tells me that the defendant committed these offences because he needed money for living in Hong Kong.  He stresses that the defendant was not using a forged credit card and that nobody had suffered any loss.  He refers me to the case of HKSAR v Tu I Lang, CACC464/2006 and submits that this court should adopt a starting point of less than 3 years imprisonment for these 4 charges.  He also refers me to the case of HKSAR v Liana, HCMA385/2004 on the appropriate sentence to be imposed on Charge 5.

Reasons for sentence

11.  I shall deal with the sentences for Charges 1 to 4 first.  I agree that these charges should be dealt with together because they formed part and parcel of the same criminal activity.  It is quite clear that the defendant picked up Mr. Leung’s credit card and kept it because he intended to use the card to make purchases, and all these offences including the theft offence took place within the same morning, and the three attempts to make use of the credit card took place within just an hour or so.

12.  Had the defendant just picked up and pocketed Mr. Leung’s credit card and had not attempted to use it to make purchases, it might not be necessary to consider imposing a prison term, but the serious feature of this case is that he actually made use of the credit card to make purchases.  A prison term is therefore warranted.

13.  As far as Charges 2 to 4 are concerned, it must be emphasized at the outset that credit card fraud is a serious offence.  The Courts in Hong Kong have on many occasions observed that severe sentences should be imposed on those who engaged in credit card fraud in order to protect the integrity of the credit card system and the confidence which people were entitled to place on this aspect of modern commercial life:  HKSAR v Chen Wing Hong, CACC40/2005, HKSAR v Chau Yiu Cheong, CACC363/2008.

14.  In the present case, the defendant was well aware that he was not entitled to use Mr. Leung’s lost credit card to make any purchase.  Yet, he attempted to use the card consecutively on 3 occasions to obtain goods although all of them took place within an hour or so on the same day.  He tried to obtain goods worth a total of $78,594.  While the defendant obtained no benefit and nobody suffered any loss as a result of his crimes, it was just because Mr. Leung had reported loss of his credit card and had therefore prevented the card from being misused, but the defendant’s culpability in these offences has not been diminished to any extent.  Having considered the facts of this case, I find no reason to depart from the usual sentencing practice, and conclude that imprisonment is the only appropriate sentencing option.

15.  As to the length of the prison term, the Court of Appeal has not laid down any sentencing tariff.  The sentence must therefore depend on facts of each case.

16.  In the present case, the defendant used only one credit card.  He did not forge the credit card or obtain the use of a forged credit card.  He came into possession of the card in question by chance. Although he is a foreigner, the offences committed by him have no international dimension.  It is also obvious that he acted alone and that the offences were not syndicated or organized.

17.  In TU I Lang, the Court of Appeal stated in paragraph 10 of the judgment as follows: “Where the facts of the offence point to a small unsophisticated operation, involving one or a few forged cards uncomplicated by other evidence materially linking the offender to a larger operation, then a starting point of three years’ imprisonment or less would be appropriate.”

18.  In Tu I Liang, the appellant used a forged credit card to purchase a mobile phone with its value not specified in the judgment.  He also possessed two forged credit cards.  The Court of Appeal considered that the proper starting point of the prison term for these two offences was 3 years’ imprisonment.

19.  While it is correct for Mr. Tang to point out that the defendant here did not use a forged credit card, I find little distinction with Tu I Iang.  Whether he was using a forged credit card or a credit card belonging to another person, the defendant was still pretending to be someone who had the full and genuine authority to use the credit card to make purchases.

20.  Furthermore, the defendant had stolen the card, albeit in the course of a theft by finding, and this factor would not be present if someone was using a forged credit card prepared by him or given to him by someone else.  In considering the appropriate sentence for this defendant, the overall criminality of all offences must be considered.

21.  Besides, the property that the defendant had attempted to obtain had a total value of over $78,000, which must be much higher than the mobile phone in Tu I Iang’s case.  Having said that, I am well aware that the value of the property involved is only a factor, and not the most important factor, in sentencing of offences of this kind.

22.  In HKSAR v Kwan Po Keung, CACC79/2011, one of the offences committed by the appellant was obtaining property by deception. The offence involved the unauthorized use of a credit card belonging to another person on a single occasion to obtain property worth around $56,000.  The Court of Appeal considered that a starting point of 3 years’ imprisonment appropriate.

23.  Having considered the facts of this case and the authorities, I do not agree with Mr. Tang that the proper starting point of the prison term for Charges 1 to 4 should be less than 3 years.  I am of the view that the proper starting point should be 3 years imprisonment.

24.  As far as mitigating factors are concerned, the defendant pleads guilty.  He is entitled to the usual one-third discount.  I have also considered all other factors urged upon me by Mr. Tang.  The fact that the defendant needed money to live in Hong Kong is not a mitigating factor, especially when his need was generated by his unlawful stay in Hong Kong.  I find there is no other factor that reduces the sentences further.  I shall sentence the defendant for Charges 1 to 4 as follows.

25.  In respect of Charge 1, I adopt 3 months’ imprisonment as the starting point and discounted it by one third to reflect the defendant’s guilty plea.  He is sentenced to 2 months’ imprisonment for this offence.

26.  For each of Charges 2, 3 and 4, I adopt three years’ imprisonment as the starting point for each charge, and giving the defendant the appropriate discount to reflect his guilty plea, I sentence the defendant to 2 years’ imprisonment for Charge 2, 2 years’ imprisonment for Charges 3, and 2 years’ imprisonment for Charge 4.

27.  I order the sentences for Charges 1 to 4 to run concurrently.

28.  I now deal with the sentence for Charge 5.

29.  The defendant is a visitor.  He stayed in Hong Kong beyond his permitted period of stay for about 4 months.  There is no sentencing tariff for this offence.  Generally speaking, the sentence depends on the length of the period of his unlawful stay.  The case of Liana is not helpful because the appellant there had overstayed for 2 ½ years, which was of course a much longer period of overstaying than the defendant’s case here.

30.  As I understand it, in the magistracy level, the usual sentence for an overstayer who has overstayed for 4 months with no prior criminal record will only be given a suspended sentence, which is usually a term of one month imprisonment suspended for 2 years.  However, it will not be correct in principle to impose a suspended sentence on the defendant for this offence when he was at the same time given an immediate term of imprisonment for the other offences.

31.  I rule therefore that imprisonment is the only appropriate sentencing option. 

32.  Having considered the length of his overstaying, I fix the prison term after plea at 14 days imprisonment.

33.  The offence in Charge 5 differs totally in nature from the other offences in Charges 1 to 4.  For this reason, it is open to this Court to order the sentence for this charge to run consecutively either in whole or in part to the sentences imposed for the other charges, subject always to the principle of totality.  However, since the defendant will not normally receive an immediate custodial sentence but for the fact that he was sentenced to a term of immediate imprisonment for his other offences, I order that the sentence imposed in respect of Charge 5 is to run concurrently with the sentences imposed for the other charges.

34.  In other words, the total prison term that the defendant has to serve for these 5 charges is 2 years’ imprisonment.