HKSAR v. BARRY ABOOURAHAMANT

DCCC 431/2016

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 431 OF 2016

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Reasons for Sentence

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1.  The defendant has pleaded guilty to eight charges of obtaining services by deception and one charge of attempting to obtain services by deception.

2.  The facts are as follows.  On 4 February this year, the defendant was sat in the Queen Victoria Pub in Wan Chai from about 6.30pm in the evening.  Between that time and 8.50 pm, the defendant ordered 19 drinks on eight occasions.  Those eight occasions make up Charges 2 to 9.  He presented the bartender with a Chase Sapphire Visa Card to make payment.  The name of the cardholder was a Bhanu Shandilya.  The defendant signed eight pay slips when the payment was processed.  All eight pay slips remained in the defendant’s possession.  At 9 pm he ordered a bottle of champagne, and the bartender became suspicious and asked the defendant for some identification.  When the defendant refused and was about to leave, the police were called.

3.  The defendant was then arrested.  Those eight pay slips were found in his jacket that he had been wearing earlier.

4.  After his arrest, under caution, the defendant did tell the police that a friend had given him the card earlier that day.  He named the friend as the cardholder.  He explained that he had met the cardholder some seven years previously in India.  The cardholder was a diamond trader, and the defendant had traded diamonds with him in the past.  If he had done that some seven years previously, he would have been 12 to 13 years old. Something is dubious, either his age or his story, but the fact is he named the person who gave him the card as the cardholder.

5.  The defendant has been in custody since 4 February.  He was, according to the defendant, 19 years old; now 20.  He is in Hong Kong as a Form 8 holder.  He has claimed asylum.  He arrived in Hong Kong at the end of 2014.  He has been here for two years without getting in trouble.  He had, until now, a clear record.

6.  I have been told in mitigation that he is a national from Guinea who was sent abroad by a political father who was worried about his safety.  He was sent to an uncle in China to study.  He was then, without finishing his studies, told to come to Hong Kong to seek asylum because of a concern for his safety.  The defendant has been living alone since he arrived in Hong Kong.  He has been sent money by his family on a regular basis, but he has no details or proper contact with his family.

7.  The defendant’s explanation is that on the material day he had been drinking all day.  He had been drinking since the morning, and had been drinking all over Wan Chai.  He had met the cardholder and other people who he drank with in several bars.  Those bars included the Typhoon Bar.  The defendant ended up in the Queen Victoria Bar.  He said that the cardholder had given him the card to use as he had to go and do something, but would come back.  The defendant then proceeded to use that card on eight occasions whilst waiting for the cardholder to return.  He admits he presented the card for payment as if it was his own.

8.  The question is whether the explanation is credible.  I have to say it is odd that the defendant stayed in this bar for nearly three hours and used the card on eight occasions for quite small amounts on each occasion.  This is not the usual MO, or modus operandi, of a thief or conman using others’ credit cards or forged credit cards for financial benefit.

9.  I also consider that he then went on to tell the police, under caution, that the cardholder had actually given him the card to use.  It is possible that this explanation is credible, which does make it somewhat different to the usual intention of credit card fraudsters.

10.  There is a usual starting point of about 3 years’ imprisonment where there is small-scale credit card fraud, meaning the amount lost is not high or that the number of credit cards involved is not many.

11.  The prosecution has referred me to an often‑cited authority, HKSAR v Lam See Chung, Stephen CACC 339/2012, where the Court of Appeal approved that starting point as being appropriate.

12.  Miss Crebbin has said all she can on behalf of the defendant and explained his mitigation.  Miss Crebbin has also said that the defence tried to locate the cardholder through Facebook, but has not yet had a response.  She was informed by the police that they in fact contacted the cardholder through Facebook themselves, and they did get a response.  The cardholder told the police that he thinks he lost that credit card on that day in a bar called Typhoon in Wan Chai.  He has since cancelled that card and suffered no financial loss.

13.  Defendant, please stand up.  I do take into account the unusual facts and mitigation in this case.  I take into account the way you used the card and the value of the eight transactions involved.

14.  I do find that a term of imprisonment is still appropriate, but I will depart from the usual starting point of about 3 years, because I find I can in this case.  I will take, for each charge, a starting point of 21 months.

15.  You pleaded guilty.  You are entitled to a discount of one‑third.

16.  After that discount is applied, for Charges 2 through to 10, for each charge, you are sentenced to 14 months’ imprisonment.

17.  I consider the facts, the timing of the offences, and I will order that all charges be served concurrently.

18.  That means a total of 14 months’ imprisonment.  Do you understand that sentence?  That will also mean that, for time served, you will almost be released immediately.