HKSAR v. Syed Rizal Bin Syed Ahmad Al Attas

DCCC 1072/2015

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 1072 OF 2015

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Reasons for Sentence

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1.The defendant pleads guilty to one charge of theft (Charge 1), and three charges of obtaining property by deception (Charges 2 to 4).

Charge 1

2.At around 5 pm on 25 April 2014, at Hung Hom, Kowloon, a Japanese visitor placed his wallet containing the properties particularised in Charge 1, which included his Japanese passport and four bankcards, inside his luggage.  He then walked around the shopping mall in Hung Hom.  In the morning of 26 April 2014, he discovered that his wallet and the items contained therein were all missing from his luggage.  The case was reported. 

Charges 2 to 4

3.It was later discovered that one of his lost credit cards had been used on 25 April 2014 for three purchases at Festival Walk and Pacific Place respectively for $39,976; $58,768, and $17,200.

4.Subsequent forensic examination showed that a fingerprint lifted from the receipt of one of the transactions positively matched the right thumbprint of the defendant.  The defendant was arrested in June 2015 when he was serving a prison term in Hong Kong.  Under caution, he admitted the present offences.  Immigration records show that the defendant entered into Hong Kong on 23 April 2014 on visitor status.

5.The defendant is a 35-year-old Malaysian.  He has one previous similar criminal record for offences which were committed one day after the commission of offences in the present case.  The Court is told that the defendant has completely served the 2½ years’ imprisonment term imposed in his last case, DCCC 621/2014.

6.In mitigation, the defendant’s solicitor, Mr Nasir, has very helpfully prepared a written submission.  I am told that the defendant, a part-time fish farm worker in Malaysia, has separated from his wife.  His mother, aged 68, has stage three colon cancer and is fully dependent upon the defendant.  His father had abandoned the family, leaving all the responsibility on the defendant.  Mr Nasir refers the court to a few sentencing cases[1] including R v Chan Sui To; HKSAR v Tu I Lang; and HKSAR v Lam See Chung. He asks the court to consider a starting point of 9 to 12 months for Charge 1, and 3 years or less for the other charges.  It is submitted that there is no international dimension or syndicates involvement in the present case.

7.Defence counsel also points out that had the present case been brought to court together with DCCC 621/2014, the defendant would have been given the benefit of totality of sentence. 

8.It is quite settled that in the absence of aggravating features in a case involving simple and small-scale use of forged credit cards, the proper starting point is 3 years’ imprisonment.  The sentencing principles and considerations are equally applicable to credit card fraud cases where genuine credit cards are used: see HKSAR v Lam See Chung Stephen, CACC 339/2012 [2013]5 HKLRD 242.

9.With respect, I cannot agree with Mr Nasir that there was no international dimension in the present case.  The defendant was a visitor from Malaysia.  He entered into Hong Kong on 23 April 2014.  Two days afterwards, he stole the wallet from the luggage of a Japanese visitor and used the stolen credit card to commit fraud on the following day.  Again, as disclosed in the Reasons for Sentence in DCCC 621/2014 which was fairly submitted to this court by Mr Nasir, the defendant committed theft of a credit card which was fraudulently used the next day on 26 April 2014.  The sentencing judge in that case found that the defendant was part of a larger operation (see paragraph 14 of the reasons of sentence). 

10.I also find in all the circumstances that the only reasonable inference is that the defendant came to Hong Kong in order to commit crime and that was an aggravating factor in the present case.

11.For Charge 1, I adopt 12 months’ imprisonment as the starting point, while 3 years and 3 months would be used for each of the remaining charges.  Charges 2 to 4 should be treated as one transaction and, therefore, the sentences of these three charges would run concurrently.

12.The defendant came to Hong Kong with full knowledge of his mother’s illness.  Whilst sympathetic for his mother, I am afraid that his mother’s condition cannot be treated as a mitigating factor.  For his plea of guilty, he should be given a one-third reduction of his sentence.  The principle of totality being considered, the total sentence in the present case should be 2 years and 8 months’ imprisonment. 

13.Whilst accepting that there is nothing improper in the conduct of prosecution, I would agree with the submission of Mr Nasir that I should take into account of the sentences the defendant has served in DCCC 621/2014.  The offences in both cases obviously fall into the same kind of criminal conduct.  They were also committed in close proximity of time.  The defendant has served a total of 2 years and 6 months. 

14.In my judgment, an order of imprisonment for another 12 months would sufficiently reflect the total culpability of defendant’s criminal activities in these two cases.  As the defendant has served all the imprisonment term in the other case, no part of the sentences ordered today can run concurrently with the sentence he has already served.

15.In all the circumstances, in order to achieve a fair and proper total sentence, I would pass an exceptionally low sentence in respect of Charges 2 to 4 in the present case, namely 12 months’ imprisonment on each of the charges.  The sentence on Charge 1 remains 8 months’ imprisonment.  The sentences on Charges 1 to 4 all run concurrently. 

[1] See defence written mitigation submitted on 27 January 2016