HKSAR v. Bellahcene Mohamed

DCCC 948/2016

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 948 OF 2016

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Reasons for Sentence

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1.The defendant has pleaded guilty to one offence of conspiracy to steal and the particulars of that conspiracy is that it occurred between 1 June and 8 June 2016 and the conspiracy was to steal from automated teller machines, to steal cash from those machines.

2.The defendant has agreed the facts of the case and I have convicted him of the offence.  In summary the facts show that in June 2016 a total of three banks in Hong Kong retrieved from their ATM machines 16 plastic cards and they appear to be gift cards issued by the H&M clothing chain.  It was suspected those cards had been disguised as bank cards to conduct fraudulent ATM transactions.  The bank discovered that between the 1 to 8 June 2016 a series of ATM cash withdrawals using those 16 cards had been conducted by the same person, which is the defendant, at their branches in the Tsim Sha Tsui area. 

3.The defendant who is an Algerian who came to Hong Kong on the strength of a French passport, was arrested on 8 June 2016 as a result of Police ambush activities at a branch of a bank in Nathan Road where he was seen operating the ATM machine.  The defendant was arrested at 12.17 pm on that day on 8 June and a number of items were found from a search of his suitcase.  There were a further 104 purported H&M gift cards that appeared to be the same as the 16 cards retrieved from the ATMs.  There was what is described as a ‘skimmer’ which is a magnetic stripe encoder or reader, a laptop computer, some $10,500 in cash and some clothing which was similar to the clothing worn by the man seen in the CCTV footages from the bank.

4.In a cautioned statement the defendant made various admissions.  He admitted possessing the total of the 120 cards that had been seized and he had used some of those cards in ATMs to obtain cash.  He said that was done to obtain Euros 10,000 to compensate a French person for a car accident that had occurred in France.  He said that after the car accident this man had given him the cards, asked him to use them as genuine bank cards for withdrawing cash from ATMs in Hong Kong and that man was to be given payment for compensation to the man.  The defendant then came to Hong Kong with the cards and conducted fraudulent ATM transaction withdrawals from the banks. He had also been given the skimmer and the computer software programme for activating the device.  He was supposed to have wiped the details from the computer but failed to do so.

5.The facts also show there was an examination by forensic scientists of the cards.  In a 114 out of the 120 cards credit card credit card account data had been encoded in the magnetic strips belonging to three different sources; 83 were Visa accounts in Europe; 27 were MasterCard accounts in various countries and four were Amex cards in France, Germany and Belgium.  The 114 cards which contained the Visa, MasterCard and Amex details were counterfeit.  The investigation showed that the defendant had conducted a total of 78 ATM transactions with him attempting to withdraw $58,600.  Out of those transactions, only five were successful and he had obtained $2,500 in cash and a total of 16 of the cards that had been used had been retained in the ATM machines.

6.There are agreed facts for the potential loss for each counterfeit Visa, Amex and MasterCard credit cards.  The total potential loss on the further 114 cards that were found was potentially US$74,101.75 which is HK$574,288 and of course that is the potential loss.  The actual rate of loss seems to be considerably lower.

7.Turning to the defendant’s antecedents, he is aged 32, he is the holder of both French and Algerian passports.  He is married with a child aged five.  He was born in France and lives in France with his family and had been working as a renovation worker before this incident. 

8.The defendant has written a letter giving some details of his personal circumstances to the court.  He says that when he left France his wife had been pregnant for five months.  As a result of this incident she has had psychological problems.  His family have spent considerable money and are in difficulty.  His son is now six years old.  He regrets what he has done and wishes to return to France as soon as possible to provide assistance to his family.  The defendant also has a clear record in Hong Kong.

9.As far as the starting point for sentence is concerned, it is common ground amongst everybody there is no actual sentencing guideline for these offences.  Theft offences are broadly stated and it would be difficult to create a guideline sentence from this.  I have been referred to the case of R v Chan Sui To & another, that is CACC115/1996.  In other similar cases the approach adopted in Chan Sui To has been adopted as an approach that would be suitable when analysing cases involving these particular kind of offences involving what are effectively fake ATM cards.  Of course the cards in this case differ from a credit card in that they are limited to withdrawing cash on credit card accounts and so they replicate or mimic one of the functions of a credit in relation to the machine that they enter.  However, the general approach in Chan Sui To does provide some assistance to the court in analysing how these should be dealt with. 

10.The relevant sentencing considerations in Chan Sui To revolve around issues such as the size of the operation; the amount of money obtained; the number of persons involved and the amount of forged credit cards that are involved; what planning was involved; is there an international dimension; what was the accused’s role in these matters and of course whether there is a plea of guilty and also what is described as the size of the operation which will depend on the amount of money obtained in the scheme.

11.The analysis in this case would show that this is an operation that involves a total of 120 cards, so there is a large number of cards involved and the details of a large number of credit card accounts. That in itself must involve fairly elaborate planning and information obtaining and involved some technical skill although it would appear the defendant was not entrusted with dealing with that aspect of the operation, he was simply sent to Hong Kong or volunteered to go to Hong Kong to put the cards into machines and also use the skimmer device.  There is an international dimension in that the defendant has come here specifically and only to commit these offences.  His role is that of the person who obtains the money, he takes the greatest risk and of course he has pleaded guilty in this case.

12.I have been referred to other similar District Court cases, particularly HKSAR v Hunt, Perry David and HKSAR v Milos Cosmin which involved multiple defendants and in certainly one of the cases larger sums of money and more gift cards.  In those cases starting points of 4 years’ imprisonment were generally adopted.  It is put in argument that this case is objectively less serious than either of those so a lower starting point should be adopted.

13.I believe that I have already outlined what I consider to be the operative sentencing considerations in this case.  The amount of money obtained in this case is not large, $2,500, in an attempt to obtain $58,600 with an agreed potential loss - if all went well which it clearly had not at that point - if all went well of over half a million Hong Kong dollars.

14.The other aggravating factor in this case would of course be the fact that the defendant has come to Hong Kong to commit these offences.  Taking all these factors into account and second, against the defendant’s plea of guilty and his previous clear record in Hong Kong and his rather depressing personal circumstances, I consider an appropriate starting point sentence in this case is one of 3 years and 6 months’ imprisonment. 

15.The defendant is entitled to a one-third discount from sentence.  By my calculations that will lead to a final sentence of 28 months’ imprisonment for this matter and that is the sentence I will impose.