HKSAR v. Ben Salem Hassen (also known as Hassen Ben Salem and Ben Salem Ben Abderrahman)

DCCC 685/2016

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 685 OF 2016

____________

REASONS FOR SENTENCE

1.Ben Salem Hassen you have pleaded guilty to five charges of obtaining property by deception and two charges of attempting to obtain property by deception[1].

2.Full particulars of the offences are set out in the facts admitted by you on 2 February 2017.  In summary in the early hours of 15 May last year Mr Choi and Mr Chang, two Koreans working in Hong Kong, were out drinking in Central.  Mr Chang went home first at 4 a.m. whereas Mr Choi left at 7 a.m.

3.When they woke up in the afternoon both Mr Choi and Mr Chang discovered their wallets were missing.  Both wallets contained a JP Morgan MasterCard card issued by the United Overseas Bank.

4.Meanwhile that same afternoon between 3:01 and 5:52 p.m. you used Mr Choi’s MasterCard on six occasions, in different shops in Tsim Sha Tsui, to purchase various goods including mobile phones, tablet computers, clothes and cigarettes.  The sixth transaction at Marks & Spencer, for the purchase of some clothing valued at $1,517, was cancelled.  The total value of the goods obtained was $51,776.80. 

5.At 6:14 p.m. the same day you attempted to use Mr Chang’s MasterCard to buy some shoes and socks valued at $632.  On noticing your nationality was different to the card holder, the shop staff requested for proof of your identification. After telling the shop staff the card belonged to your wife you left the shop taking the card with you.

6.A few minutes later you were intercepted by the police.  The police found the two stolen credit cards hidden in the waist band of your trousers.  You told the police you had picked up the cards earlier that afternoon.  Inside your rucksack the police recovered a tablet computer and two telephones obtained from one of the shops CyberRich Electronics, together with 12 packets of cigarettes. 

Mitigation

7.I take into account everything said on your behalf by Mr Donald as particularised in his written submission. 

8.Mr Donald submits that the use of the cards was opportunistic and not premeditated[2].  You met a Russian lady you had seen previously who told you she had a credit card given by her boyfriend and if you helped her she would share the proceeds with you. Desperate for money you agreed.  This explanation is different to what you told the police that you picked up the cards at the junction of Kimberley Road and Nathan Road at about 4 p.m. that afternoon. 

9.As indicated in court, notwithstanding the CCTV of some of the shops shows you acting together with a female, I do not accept the assertions that you just happened to see a Russian lady again who asked you to use the cards.  Nor do I accept the claim you made to the police that you picked up the cards.  You have elected not to give evidence in support of your claim as to how you came into possession of the two stolen MasterCards. 

10.The two cards were used the same day they were stolen.  On arrest, about three hours after you began using the cards, you were still in possession of the cards but most of the goods obtained were no longer in your possession.  Although the prosecution do not proceed with the charge of theft of the cards, the only inference to draw from your use of the cards within a short period of time after they were stolen and that you were no longer in possession of most of the goods, is that you were closely linked to a larger operation that stole credit cards and disposed of the goods obtained with those cards. 

11.I do however accept the submission of Mr Donald that while you have previous convictions, mostly for shoplifting, there is no evidence before the court that you came to Hong Kong to commit crime.  I take into account you have not previously been involved in credit card fraud.

Sentence

12.In passing sentence, I take into account the factors which a sentencing judge will need to consider in credit card frauds as set out by the Court of Appeal in R v Chan Siu To[3], including the size of the operation; the planning that had gone into perpetrating the fraud; whether there is an international dimension; and whether the accused played a major role.  The factors were not intended however to be exhaustive but provide valuable assistance to the court.  The courts have repeatedly stressed that deterrent sentences are to be imposed. 

13.Whilst Chan Sui To was a case concerning forged credit cards the factors apply to credit card frauds generally and are not restricted to forged credit cards[4].  Using a stolen credit card, just like using a forged credit card, undermines the integrity of the credit card system.  As was said in HKSAR v Wong Wan Shan[5], a case concerning stolen credit cards:

“This court has said, on many occasions, that credit card frauds are an insidious poison in the community; one which affects a large number of citizens and erodes the credit card system, and also damages Hong Kong's standing in the international community. This court has also said that those who engage in it can expect to be dealt with severely by the courts.”

14.Where the facts of the offence point to a small unsophisticated operation, involving one or a few forged cards uncomplicated by other evidence materially linking the offender to a larger operation, a starting point of 3 years or less would be appropriate[6].

15.Higher sentences have been held appropriate for example where the defendant was obviously part of a wider organisation that had caused cards to be printed specifically for him[7]; where forged credit cards are used together with forged identity cards or travel documents[8]; and where visitors come to Hong Kong armed with forged credit cards[9]. 

16.In submitting that a starting point of around 3 years would be appropriate Mr Donald refers the court to a number of authorities[10].   I have carefully considered these authorities.  The circumstances of each case and the antecedents of every defendant are however different.   

17.Taking into account you used one card five times to obtain goods valued at $51,776.80, most of which have not been recovered; a sixth transaction with the same card for the purchase of goods valued at $1,517 was cancelled; you attempted to use the second card to buy goods valued at $632; the credit limit on both cards was HK$78,000[11]; and you were not acting alone, I am satisfied a starting point of 3 years and 6 months imprisonment is appropriate on each charge.

18.Mr Donald tells the court that you first came to Hong Kong in 2011 for business and that due to the political situation in Tunisia you were unable to return home.  You therefore filed a claim for asylum which claim is still being processed[12].

19.The commission of offences by refugees or torture claimants is capable of aggravating sentence where the offence affects the community at large and has a significant impact on Hong Kong’s reputation (see for example HKSAR v Sandagdorj Altankhuyag & another[13]; HKSAR v Anees Khiyam[14]; HKSAR v Shah Syed Arif[15]and HKSAR v Londono Montealegre Maritza Yaneth[16]). 

20.I am satisfied credit card fraud affects the community and reputation of Hong Kong. The persons directly affected were two Koreans, who were working in Hong Kong. I enhance the starting point by 3 months to 3 years and 9 months imprisonment.

21.Giving you full credit for your pleas of guilty you are convicted and sentenced to 2 years and 6 months imprisonment on each charge.  All offences arising out of the same facts and committed on the same day, I am satisfied that concurrent sentences are appropriate.  I am satisfied a total sentence of 2 years and 6 months properly reflects your criminality on the seven charges.

[1] Contrary to section 17 of the Theft Ordinance Cap 210 and section 159G of the Crimes Ordinance, Cap 200.

[2] See §§3-5 of the written submission of Mr Donald. 

[3] [1996] 2 HKCLR 128.

[4] See HKSAR v Lam See Chung, Stephen [2013] 5 HKLRD 242 at §§35-40.

[5] CACC 9 &10/2002.

[6] See HKSAR v Tu I Lang CACC 464/2006 at §10.  The appellant in that case used one card to buy a mobile phone and two other cards were found on his person.

[7] See for example HKSAR v Au Yeung Shu Sang CACC 474/2006.

[8] See for example HKSAR v Poon Cho Shu [2000] 3 HKLRD 110.

[9] See for example HKSAR v Terahara Yoshio CACC 495/2000.

[10] As particularised on page 3 of the written submission of Mr Donald.

[11] This information was provided by Mr Shiu when the court enquired as to the potential loss.  Mr Shiu was only able to inform the court that Mr Choi notified the bank at 9 p.m. the same day.  On the basis that Mr Chang would most likely have also notified the bank the card had been stolen, the potential loss would have been limited.  I also noted Mr Donald’s submission that the last two transactions having been unsuccessful the defendant was unlikely to use the cards again.   

[12] See §2 of the written submission of Mr Donald.

[13] [2014] 1 HKC 206.

[14] CACC 326/2013.

[15] CACC 298/2015. 

[16] CACC 80/2016.  This case was submitted by Mr Shiu for the assistance of the court as to the correct approach with regard to enhancement by treating the immigration status as an aggravating feature.