HKSAR v. Achbboukh Jamal

DCCC 234/2017

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 234 OF 2017

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Reasons for Sentence

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Charge

1.The Defendant pleads guilty to a charge of obtaining property by deception. 

Facts

2.He was a visitor to Hong Kong between 10/9/2016 and 8/10/2016.  Whilst in Hong Kong, on 3/10/2016, he used a credit card, which was reported loss, to buy a wristwatch from a CityChain branch in Mong Kok in the sum of HK$1,558.  His image, being alone then, was captured by the CCTV camera in the shop.   

3.He was arrested on 9/11/2016 when he entered Hong Kong via the Macau Ferry Terminal.  In a video-recorded interview, he said he had received the said credit card from a friend who told him to buy things with it, so he bought the wristwatch. 

4.The police seized the wristwatch from him. 

Personal background and mitigation

5.He is 22 years of age, of a clear record in Hong Kong.  He is a Moroccan citizen.  His parents and three sisters are in Morocco.  He left high school uncompleted to assist his father’s electronics business before arrest.  He claims to suffer from lung sub-function as he had a lung removed in a surgical operation due to his tuberculosis.  Updated medical reports of him by arrangement of CSD state that his physical condition is normal and stable despite his surgical operation. 

Sentencing considerations

6.In HKSAR v Cheng Sui-to [1996] 2 HKCLR 128, Yang CJ stated that a sentencing judge had to consider at least the following 5 factors before deciding the level of sentence for credit card fraud: 

(1) The size of the operation e.g. whether it involves large sums of money, whether it concerned a large number of persons or forged credit cards.

(2) The planning that has gone into perpetrating the fraud, whether it is elaborate or simple, whether technical skills were used, and to what extent.

(3) Whether there is an international dimension.

(4) Whether the accused played a major role, e.g. running a syndicate, engaging in actual manufacture, organising the use of forged cards, or whether he is a mere ‘cog in the wheel’ as a courier or a custodian or keeper.

(5) Whether there is a plea of guilty.

7.In HKSAR v Tu I Lang CACC 464/2006, the Court of Appeal observes that:

10. Where the facts of the offence point to a small unsophisticated operation, involving only one or a few forged cards uncomplicated by other evidence materially linking the offender to a larger operation, then a starting point of three years’ imprisonment or less would be appropriate.

8.These observations are echoed in HKSAR v Lam See Chung Stephen [2013] 5 HKLRD 242.

Sentencing this Defendant

9.As this fraud involves a single transaction with no aggravating features, I take a starting point of 30 months.  I give a one-third discount for the timely plea of guilty.  There are no other mitigating factors.  The sentence is 20 months.