HKSAR v. IGHODARO OSARETIN DAVID

DCCC 474/2013

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 474 OF 2013

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Reasons for Sentence

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1.  The defendant pleaded guilty to two charges of using a false instrument. This is a case of using false credit cards which occurred in a Hong Kong-controlled aircraft while it was travelling between Hong Kong and Beijing.

The First Offence

2.  The defendant is a Nigerian passport holder. On 9 April 2013, he boarded an aircraft from Hong Kong to Beijing.  On the aeroplane, the defendant used a false Standard Chartered Bank Visa card to purchase three bottles of perfume and one bottle of Lancome cream in a total value of $3,210.  

The Second Offence

3.  On 11 April 2013, the defendant boarded the same aeroplane from Beijing to Hong Kong.  He used the same false Standard Chartered Visa card and another false credit card, a Citibank Visa card, to purchase perfume products in a total sum of $4,930.  The air hostess checked with credit card control centre and confirmed that the cards were invalid.  The case was reported to the police. 

4.  When the aircraft arrived in Hong Kong, the defendant was arrested.  Upon search, six credit cards, including the two used by the defendant, were seized from the defendant.  Part of the stolen properties, ie three bottles of perfume in relation to the first offence and all the stolen properties in relation to the second offence were seized from the defendant’s luggage.

5.  The government chemist confirmed that the two credit cards used by the defendant were forged.  However, the authenticity of the other four credit cards could not be confirmed.

6.  Under caution, the defendant stated that he obtained the said credit cards from a friend called James in Thailand.  He completed the application forms and handed over them to James.  In return, James gave him the cards a few days later.  He purchased the perfume for his wife and himself.  One of the perfumes, which he bought on 9 April 2013, was given to his friend in Beijing.

Personal Background and Mitigation

7.  The defendant is a 35-year-old Nigerian.  He is a businessman running a clothes shop in Thailand.  Although not married, he is living with his partner, a Thai woman, in Thailand.  They have two young children who are now in Nigeria under the care of the defendant’s relatives.  The defendant has another daughter born to him by another Thai woman.  The defendant is the one to support all his children financially.

8.  The defendant only received primary education. He went to Thailand 11 years ago.  Four years ago, he began to go to China to source clothes for his shop in Thailand.  He has no criminal record in Hong Kong.

9.  In mitigation, Mr Cleves, solicitor for the defendant, told the court that he had seen the passport of the defendant and he confirmed that the defendant’s passport bore some visas for China which can support the defendant’s claim that he has made a few business trips to China before to make purchase of clothes.  For the present trip to Beijing, he intended to meet a friend there who would take him to factories to source for clothes.  However, that friend had gone back to Nigeria for urgent reasons. The defendant therefore took the return flight to go home.

10.  It is submitted to the court that as the defendant could not provide proof of permanent address, he could not get his credit cards in Thailand.  He told an acquaintance called James of his inconvenience without a credit card.  James secured the credit cards in question for him in a few days in circumstances that the defendant accepts to be suspicious.  It is submitted that it was the first time that the defendant used the credit cards during the trips.  The other four cards found in the defendant’s possession, as submitted by Mr Cleves, are genuine ATM cards.

11.  Mr Cleves described the use of the two false credit cards as incidental.  The primary purpose of the trip was business.  The offences were not premeditated.  The defendant is now prepared to make full restitution for $1,370.  Defence counsel submitted that it was a small-scale offence and the loss is small.  There is no evidence that any other person or syndicate is involved. 

12.  Mr Cleves referred to me three cases, namely, HKSAR v Tu I Lang CACC464/2006 and two other District Court reasons for sentence: DCCC1100/2011 and DCCC255/2013.  Mr Cleves drew my attention to paragraph 10 of the judgment in Tu I Lang where the court says:

“Where the facts of the offence point to a small unsophisticated operation, involving only one or a few forged cards uncomplicated by other evidence materially linking the offender to a large operation, then a starting point of 3 years’ imprisonment or less would be appropriate.”

13.  It is submitted that the court can take a starting point slightly lower than 3 years.

14.  The two District Court cases referred to me also involved the use of a few false credit cards on aeroplane.  The judge in both cases used 3 years as a starting point for using the false credit cards. And Mr Cleves also asked the court to impose concurrent sentences for the two charges as they were committed very close in time.

Reasons for Sentence

15.  The sentencing guideline in credit card fraud is in R v Chan Sui To [1996] 2 HKCLR 128.  I agree that the operation in this case is a small-scale one.  The total value of the property obtained was also relatively small. 

16.  However, credit card fraud is a very serious offence.  The Court of Appeal in HKSAR v Yau Hoi Shan Shanly CACC209/2006 at paragraph 27 of the judgment says:

“This court has repeatedly emphasised that credit card offences are widespread and prevalent, and must be dealt with severely.”

17.  In HKSAR v Ng Swee Thiam [2000] 1 HKLRD 772, the Court of Appeal emphasised that it is the potential for losses which is the most important consideration. 

18.  In HKSAR v Watt Siu Hung CACC93/2001, the value of the goods obtained by two forged cards was slightly more than $3,000.  The Court of Appeal upheld a starting point for 3 years’ imprisonment.

19.  In HKSAR v Cheung Ka Wo Johnny [2002] 2 HKC 517, the offences related to the fraudulent use of two counterfeit credit cards in purchasing cosmetic worth about $8,000. 

20.  There was no suggestion of an international dimension and syndicated operation in these two cases.  The Court of Appeal upheld a starting point of 3 years’ imprisonment on each offence.

21.  In the present case, two false credit cards were used.  While it is doubtful whether the other four credit cards described as Visa cards and MasterCards are only ATM cards, I will simply ignore them as there is no evidence of falsity of these four cards. 

22.  Mr Cleves has described the use of the two cards as incidental.  I agree that there is no evidence that using the cards is the primary purpose of the defendant’s trip.  However, carrying the false cards with him to Beijing, he no doubt had intention to use them. 

23.  I agree this is a small-scale operation but there is an international element in the case.  Having taken all factors into consideration and after considering the sentencing cases abovenamed, I will take 3 years as the starting point for both offences.   

24.  The family circumstances of the defendant and the financial pressure and hardship caused to the defendant’s girlfriend in Thailand and his children have little weight in this kind of serious offence.  This is something the defendant should appreciate before he committed the offences.  I will give no reduction of sentence to the claimed hardship.

25.  The defendant offered to make restitution for $1,370.  In my judgment, he could have made restitution much earlier if he indeed desired to do so.  While voluntary restitution is to be encouraged, a mere offer to make restitution cannot assist his mitigation.  See HKSAR v Chan Kin CACC126/2005.

26.  The defendant is a foreign national and has been remanded in custody without putting up any bail money.  Given his circumstances, his offer was an empty one.  Moreover, the gravamen of the two offences is the damage caused to the integrity of the credit card system.  The amount of money offered to pay in this case carries little weight in mitigation.  I will therefore give no reduction to the empty offer of the defendant.

27.  The defendant will have one-third reduction for his plea of guilty.  He is therefore sentenced to 2 years’ imprisonment on each of the two offences. 

28.  I now come to the question as to whether the sentences should run concurrently or consecutively.  I cannot agree with Mr Cleves that the sentences for the two charges should run wholly concurrently because the commission of the two offences was close in time. 

29.  Charge 2 was a repetition of the same crime, and the two offences were committed on different dates.  Although similar in nature, the two offences were distinct and separate.  In principle, the sentences should run consecutively.  However, taking into account the principle of totality, I will order only 3 months of the sentence in Charge 2 to run consecutively to the sentence in Charge 1, the rest to run concurrently.  

The Sentence

30.  Charge 1: 2 years’ imprisonment; Charge 2: 2 years’ imprisonment; 3 months to run consecutively to the sentence in Charge 1; the total term of imprisonment: 2 years and 3 months.