HKSAR v. Palevici, Iosif Adrian and Another

CACC 164/2015

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 164 OF 2015

(ON APPEAL FROM DCCC NO. 226 OF 2015)
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BETWEEN

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JUDGMENT
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1.On 5 May 2015, the two applicants appeared before HH Judge CP Pang in the District Court where they each pleaded guilty to a joint charge of conspiracy to steal, contrary to section 9 of the Theft Ordinance, Cap 210 and section 159A and 159C of the Crimes Ordinance, Cap 200 (Charge 1). Further, the 2^nd applicant pleaded guilty to one charge of possession of equipment for making false instruments, contrary to section 76(1) of the Crimes Ordinance (Charge 2), and one charge of possessing false instruments, contrary to section 75(1) of the Crimes Ordinance (Charge 3).

2.On 8 May 2015, the judge sentenced both applicants to a term of imprisonment of 4 years and 4 months on Charge 1.  For each of Charges 2 and 3, he sentenced the 2^nd applicant to 3 years and 4 months’ imprisonment and ordered that all three sentences imposed on the 2^nd applicant be served concurrently.  In the result, the two applicants both received overall sentences of 4 years and 4 months’ imprisonment.  They now seek leave to appeal against those sentences.

The facts

3.The two applicants arrived in Hong Kong on 17 July 2014 and stayed in the same hotel.  They had numerous telephone conversations with each other between 18 and 22 July 2014.

4.In the morning of 23 July 2014, the 1^st applicant was intercepted by police at Hong Kong International Airport when he was about to depart for the United Kingdom via Dubai.  Cash in the sum of €76,500 was found hidden between his trousers and underpants.  Later that afternoon, the 2^nd applicant was seen to discard a shoulder bag in a rubbish bin.  The police found in the bag one magnetic-card encoder with adapter and 481 payment cards with magnetic strips encoded with credit card account data.  In the 2^nd applicant’s immediate possession were also found a notebook computer containing 1712 sets of credit card account data and some HK$50,480.

5.Under caution, the 1^st applicant claimed he had collected the payment cards in the toilet of a Macdonald’s restaurant on the instructions of an unknown male, and that he and the 2^nd applicant had used the payment cards to make withdrawals from ATM machines the €76,500 found in his possession.

6.In his cautioned interviews, the 2^nd applicant admitted that he and the 1^st applicant had arrived in Hong Kong on the same day but by separate flights, and that the 1^st applicant’s purpose in coming to Hong Kong was to steal money from ATM machines using false payment cards in order to settle some debts he had incurred in the United Kingdom.  The 2^nd applicant confessed to the police that he had used about 50 false payment cards to make ATM withdrawals on the instructions of the 1^st applicant, who promised him a reward of €2,000 to €3,000.

7.Police investigations established that the notebook computer seized from the 2^nd applicant’s possession contained a utility programme which could operate the magnetic card-encoder so as to (i) read data from magnetic cards and have the data transferred to computers, and (ii) write data stored in computers onto magnetic cards.  VISA International confirmed that all the payment cards concerned were counterfeit credit cards.  Bank records showed that the 1^st applicant had used 21 false payment cards and conducted 44 transactions, while the 2^nd applicant had used 20 such cards and effected 42 transactions; in total, there had been 86 attempts by the applicants, acting together or alone, to make ATM withdrawals amounting to HK$242,600; of which HK$115,200 was successfully obtained by the applicants.

Mitigation

8.The two applicants were Romanian nationals, aged 25 and 29 respectively; they each had a clear record prior to conviction.  The 1^st applicant used to work as an air-conditioning technician in the United Kingdom, while the 2^nd applicant had been unemployed before he came to Hong Kong.

9.In mitigation, counsel submitted to the judge that neither applicant was the mastermind of the conspiracy.  The judge was urged to take into account the totality principle in respect of the 2^nd applicant’s sentences.

The judge’s reasons for sentence

10.In sentencing the applicants, the judge accepted that the 2^nd applicant’s mother was suffering from cancer.  He noted that there were no sentencing guidelines applicable to the offences for which the applicant stood convicted.  However, he referred to the case of R v Chan Sui To and another[1] in which the Court of Appeal set out relevant sentencing considerations when dealing with cases of credit card frauds, which considerations included the size of the operation; the planning that had gone into perpetrating the fraud; any international dimension involved in the offence; and the role played by the accused.  The Court in Chan Sui To held, at 134A-B:

“We would therefore suggest that an accused who plays an active but not necessarily a key role in a medium size operation involving between $50,000 and $150,000, with no elaborate planning and equipment, and without an international dimension, should receive a sentence of 5 to 6 years after trial.”

11.The judge noted that the amount of money successfully stolen by the applicants in Charge 1 was in the order of HK$700,000, and that the presence of the magnetic card encoder and the computer amounted to an aggravating feature inasmuch as the true account holders of the account data stored in the computer were all potential victims.

12.The judge found that the applicants had come to Hong Kong to commit serious offences and that the presence of the encoder and the computer, in conjunction with the applicants’ admissions, indicated that the offences constituted a syndicated crime which was both sophisticated and well-organised.  He considered that, although the stolen money was recovered and neither applicant was the mastermind, the use of false credit cards to withdraw money from ATM machines was less likely to result in immediate detection and arrest of the offender than making a shop purchase by means of a false credit card.

13.In all the circumstances, the judge adopted a starting point of 6 and a half years’ imprisonment in respect to Charge 1 and, giving both applicants a one-third discount for their guilty pleas, sentenced them to 4 years and 4 months’ imprisonment.  For Charges 2 and 3, he adopted a starting point of 5 years’ imprisonment each, reduced it by one-third on account of the 2^nd applicant’s pleas of guilty, and sentenced him to 3 years and 4 months’ imprisonment.  Bearing in mind the totality of sentence, he ordered that the three sentences imposed on the 2^nd applicant be served concurrently.  In the result, the 1^st and the 2^nd applicants were each sentenced to 4 years and 4 months’ imprisonment.

Ground of appeal against sentence

14.In the applicants’ statements attached to their Notices of application for leave to appeal against sentence both dated 15 May 2015, they complained that the sentences were unfair and too high, and that their lawyer had not helped them and had made many mistakes.  They complained that the sentencing hearing had had to be adjourned several times and that it lasted the whole of 8 May 2015.

15.In their joint letter of 30 June 2015, the applicants made reference to several District Court cases and sought to argue that their sentences were more severe than those cases.  By his letters of 13 and 24 July 2015, the 2^nd applicant supplied the court with documentary proof that his mother was suffering from cancer.

Consideration

16.On any analysis, this was an extremely serious conspiracy involving the multiple use of forged payment cards, resulting in the theft of more than HK$700,000.  The presence of the magnetic card encoder and computer suggested that this was a highly sophisticated, syndicated criminal fraud.  The judge was plainly correct on the figures alone to regard the circumstances of the present case as “significantly more serious that those in Chan Sui To”[2], for which a significant deterrent element was required.[3]

17.Furthermore, there was clearly an international element involved in the offences when the applicants came to Hong Kong for the specific purpose of stealing large quantities of money.  This Court has said on a number of occasions that the coming to Hong Kong for the purpose of committing crime is a very serious aggravating factor in sentence: see, for example, HKSAR v Mazhar Taha Ahmed Elmansouri (unrep., CACC 165/2012), at para 68; HKSAR v Sandagdorj Altankhuyag and another [2014] 1 HKC 206, at para’s 16-19.

18.If a sentence after trial of 5 to 6 years’ imprisonment was deemed appropriate for the “medium size operation” envisaged in Chan Sui To, that is one involving between HK$50,000 and HK$150,000 with no elaborate planning and equipment and without an international dimension, then it does not seem reasonably arguable that for a sophisticated, syndicated operation with an international dimension involving the multiple use of forged payment cards and the loss of over HK$700,000, a starting point of 6 and a half years’ imprisonment is either manifestly excessive or wrong in principle.

19.Other sentencing authorities, at an appellate level, which are not intended as tariff or guideline authorities, may be instructive only in so far if they indicate general principles or, perhaps, the broad range of sentence applied by other courts to similar offences. They do not provide any yardstick by which to judge the quantum of sentence in a different case on different facts.

20.Other first instances decisions, which are not at an appellate level, are of little or no assistance at all.  In relation to a further case cited to me this morning, namely HKSAR v Sorian Gheorghe Ioan and others (DCCC 592/2014), the starting point adopted by the District Court judge seems to have been astonishingly lenient in the circumstances.  Not surprisingly, none of the defendants appealed.  Indeed, I note that in none of the first instance decisions on which the applicants have relied in their submissions by letter of 30 June 2015, namely HKSAR v Kavangh Darren and another (DCCC 572/2008), HKSAR v Ionut Leonard Oancea and others (DCCC 782/2011) and HKSAR v Milos Cosmin and others (DCCC 224/2014), did any of the defendants appeal.

21.So far as the 2^nd applicant’s mother is concerned, whilst this Court is sympathetic to her condition, such extenuating circumstances cannot provide any reason to adjust an otherwise appropriate sentence.

Conclusion

22.I can see no reasonably arguable grounds of appeal against sentence in the case of either applicant.  Their applications for leave to appeal are therefore refused.

23.Each applicant is duly advised of his right to renew his application to the Court of Appeal, but he is also warned of the consequences of so doing, which may 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 for leave.

Mr Raymond Cheng SPP, of the Department of Justice, for the Respondent

The 1^st Applicant appeared in person

The 2^nd Applicant appeared in person

[1] [1996] 2 HKCLR 128

[2] Appeal Bundle, page 10N

[3] Appeal Bundle, page 13I