HKSAR v. Riquelme Alvarado Eduardo Andres

DCCC 583/2016

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 583 OF 2016

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REASONS FOR SENTENCE

The defendant pleaded guilty to 2 charges of "Obtaining property by deception". He used a credit card belonging to another person to purchase consumer goods at 2 retail shops.

Summary of Facts

2.About 1:00 p.m. on 28 April 2016, PCs 16 and 4640 stopped the defendant and another male (Male A) for enquiry on Nathan Road.

3.Upon search, the defendant was found in possession of 2 plastic bags which contained 3 pieces of garment and a pair of sports shoes; whereas Male A, a red plastic bag which contained a brand new iPhone 6 Plus.  A Samsung Galaxy Tab was also found on Male A.  The Police later located the owner of the tablet computer, whose name is KIM, a Korean visiting Hong Kong.

4.After investigation, the Police discovered that the defendant had made purchase at 2 retail stores, namely "APEX" and "Ultimate".

Charge 1

5.About 12:25 p.m. on 28 April 2016, the defendant and Male A entered the APEX sports store (address particularized in the charge).  They selected 3 shirts and a pair of sports shoes.

6.The defendant first presented a Citibank Visa card to the cashier Madam CHAN (PW1) for payment, but the transaction was unsuccessful.  He then presented another Visa card bearing the name "JIN TAE JUN" to PW1.  The transaction was successful and the total sum was $1,405.  The defendant and Male A left the shop after the purchase.

Charge 2

7.About 12:30 p.m. on 28 April 2016, the defendant and Male A entered the Ultimate store (address particularized in the charge).  They selected an iPhone 6 Plus.

8.The defendant presented a Visa card bearing the name "JIN TAE JUN" to the cashier Mr. CHAU (PW2) for payment.  The transaction was successful and the sum was $7,188.  The defendant and Male A left the shop after the purchase.     

Supporting Evidence

9.CCTV footage of both shops captured the defendant presenting a credit card to PW1 and PW2 respectively when he paid for the goods.

Mitigation & Sentence

10.The defendant is 30 and has a clear record.  He is a Chilean national.  Defence solicitor Mr. Middleton informed me that the defendant resides with his female partner and they have 3 sons (aged 10, 8 and 6).  Prior to his trip to Hong Kong, he worked as a bus driver earning US$450 per month.  The defendant came to Hong Kong to look for work.  He stayed at Chungking Mansion in Tsim Sha Tsui, where he met Male A. 

11.In mitigation, Mr. Middleton submitted that the crimes in this case were committed with no sophistication, but rather opportunistic.  The defendant accepts responsibility for what he did.  On the other hand, he had no knowledge of the nature or origin of the subject credit card; it was given to him by Male A, and the charges against Male A were dropped.  Furthermore, there is no evidence of an organized gang controlling from behind.  A letter written by the defendant was placed before me; it was read out in court by the Spanish interpreter.

12.Credit card offences are serious and must be deterred.  In HKSAR v CHEN Wing Hong CACC 40/2005, the Court of Appeal observed that "… in this day and age the integrity of the credit card system is highly important and those who attempt to beat the system by fraudulent methods necessarily erode the confidence which people are entitled to place on this aspect of modern commercial life."[1]  A clear message must be conveyed to the general public that "credit card fraud" is a serious crime and that offenders would be punished by a substantial prison term.

13.In HKSAR v Tandon William CHAING CACC 404/2012, Macrae J (as he then was) endorsed a starting point of 3 years' imprisonment for the unauthorized use of 1 credit card belonging to another person on a single occasion in order to obtain jewellery and watches which valued $56,116 in total[2].

14.I have grave doubts as to the purpose of the defendant's trip to Hong Kong.  The prospect of a bus driver from Chile finding a job in Hong Kong or mainland China, in my view, is next to none; needless to say securing the proper work visa.

15.In the present case, the defendant used the same credit card on the same day twice to obtain consumer goods with an approximate value of $1,400 and $7,200 respectively.  I have also borne in mind that no one has suffered any financial loss[3].  I consider 2.5 years' imprisonment to be the appropriate starting point for each charge.  A one-third discount is given for the guilty plea, reducing the sentence to 20 months.  Apart from this, I see no other mitigating factors which warrant any further reduction. I sentence the defendant to 20 months' imprisonment for each charge.

16.Bearing in mind the totality principle, I order 4 months in Charge 2 to run consecutive to the sentence of Charge 1.  Thus, arriving at a total prison term of 24 months for both charges.