HKSAR v. BEYDOU MAGAGI SEYBOU

DCCC 490 & 604/2018
(Consolidated)

[2018] HKDC 1548

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASES NO 490 AND 604 OF 2018 (CONS)

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Reasons for Sentence

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1.  The defendant has pleaded guilty to two offences of attempting to obtain property by deception.

2.  The offences involve the use of a credit card which had gone missing some time on 22 December 2017.  Mr Law had kept it in his wallet and it had gone missing while he was sleeping in Centenary Gardens in Tsim Sha Tsui in the early morning of 23 December 2017.

3.  The card was later used by the defendant, and that was in a shop which is in Wan Chai Computer Centre.  After the shop had opened, the defendant had tried to buy a total of five mobile phones worth $21,940 with the card.  The credit card was seen to have been signed a number of times.  Three of the phones had to be retrieved from a warehouse, and the defendant was told to return later.  In fact, the defendant returned some 20 minutes later to try and buy a Mac book.  When he did so, the card was rejected.  The defendant again returned to the shop at about 1 o’clock in the afternoon.  By then, the shop owner, which was the person in charge of the shop, had realised the name on the credit card was a Chinese name, and the credit card transaction was then voided.

4.  The police came and arrested the defendant.  He later gave a video-recorded interview and said the card had been given to him by a friend called Meazy, and the card didn’t belong to Meezi, and he had been drunk when he had been given the card.  Meezi had asked him to buy some mobile phones with the card, and he had obliged him in the expectation of something in return.

5.  As far as the defendant’s background is concerned, he is now 31 years old.  He comes from Niger and is a Form 8 holder in Hong Kong.  His antecedents describe him as obviously not employed in Hong Kong and having studied up to secondary level.  I am informed in mitigation that he has a girlfriend and they have had a child recently born to them.

6.  Turning to the approach to sentencing an offence of this nature, there are a number of authorities which deal with the normal starting point for sentence in offences of this nature.  The factors to be taken into account are to be found in R v Chan Siu To Cr App 115/1996. There are also references often made to the case of HKSAR v Tu I Lang Cr App 464/2006, which describes cases involving one or two credit cards where there is a relatively small‑scale operation, what is described as a small, unsophisticated operation, it is said a starting point of 3 years’ imprisonment or less would be appropriate.

7.  As far as both of these offences are concerned, they do certainly fall into the small, unsophisticated category.  It is a genuine card that was lost by its owner.  Very shortly after, it appears to come into the hands of the defendant, who, on the face of what I’ve seen, appears to receive it from somebody else, using it to buy mobile phones and electronic goods, and is unsuccessful in that operation.

8.  This is the kind of operation where the starting point of Tu I Lang of 3 years’ imprisonment or less would be appropriate.

9.  There are two other factors to consider. Firstly, the defendant is what is described as a Form 8 holder, also described as a non-reenfoulement claim.  Refer to the case of HKSAR v Mahabul Alam Khan Cr App 116/2016, where it is said that this factor alone is an aggravating factor in terms of sentencing.  The extent to which that will increase the starting point is not elucidated generally in the case, leaving the court some flexibility as to how they impose the increase in sentence, having regard to the seriousness of the initial offence.  It is described as a serious aggravating feature.

10.  I consider, in the light of this case, that an additional sentence of 3 months’ imprisonment in respect of each charge would be appropriate to enhance the starting point.  That would mean that the starting point on each charge would be one of 39 months’ imprisonment.

11.  The next factor, of course, is the defendant’s plea of guilty which has been indicated from an early stage, so he is entitled to a full one-third discount, leading to a sentence of 26 months’ imprisonment on each charge.

12.  I have to consider the overall totality, to what extent these offences should be served concurrently or consecutively.  The offences were committed at the same shop within a short period of one another, and are properly charged individually, but do seem to form part of an extended transaction.  Having regard to that and the overall nature of the offence, I consider that the offences can properly be served concurrently in this case to an overall total of 26 months’ imprisonment for these two offences.