HKSAR v. Syed Rashid Aslam

DCCC 895/2016

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 895 OF 2016

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Reasons for Sentence

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1.The defendant has been convicted after trial of a single offence of obtaining by deception, involving the use of a credit card belonging to another person. The goods themselves were a watch of fairly low value, not a high-value watch, and I do not propose to go any further into the facts of the case, which I have just set out in the reasons for verdict.

2.The defendant is aged 40 years old.  He is a torture claimant in Hong Kong, originally from Pakistan.  He has a number of previous convictions dating back to 2006, and are of convictions for dishonesty, such as theft - on the face of it, petty offences of theft earning sentences of between 3 to 4 months’ imprisonment.  The most serious offence of dishonesty would be one of burglary in 2013, which was a sentence of 10 months’ imprisonment.  The defendant also has convictions for assault and possession of a dangerous drug.

3.As far as the other details of the defendant are concerned, he was released from prison on 13 May 2016 and then committed this offence in September of 2016.  I believe he has been remanded since then.

(Clarification from counsel re offence date)

4.The offence was 2014, yes.  That is right, yes. He was last discharged from prison on 13 May 2016.

(Clarification from defendant)

5.The defendant has been in custody since then.

(Further clarification from defendant)

6.The defendant has been custody since 2016.

7.The offence involves the use of a credit card and there are guideline sentences for offences that do involve the use of credit cards and in the case of HKSAR v Lam See Chung Stephen, 339/2012, Court of Appeal case, the sentencing principles in relation to the use of forged or fraudulently obtained credit cards were looked at and it said at paragraph 40 that:

“The sentencing principles and considerations are equally applicable to credit card fraud offences in which genuine credit cards are used and we can see no good reason why the 3-year starting point for simple cases of counterfeit credit card fraud should not also apply to simple cases of credit card fraud where stolen genuine credit cards are used to commit the offence.”

8.The 3-year starting point appears to apply to what is described as a small-scale operation, which envisages the use of credit cards in the plural.  Sentences can be, as it were, less than that where presumably a smaller kind of operation is in operation.  This, of course, is the smallest of all operations, involving just one card on one occasion.

9.What I shall do in respect of adopting a starting point for this case, because there are a number of factors to consider here -- firstly, there is the starting point for the case; secondly, any aggravating features that might exist.  What I shall do is adopt a starting point of 24 months’ imprisonment, because this offence involved one card. 

10.I shall enhance that by 2 months’ imprisonment for the defendant’s previous poor record of dishonesty offences and a further month for the fact the defendant is a torture claimant and has, of course, abused the hospitality of the Hong Kong public, and that leads to an overall sentence of 27 months’ imprisonment for this offence, so that is the sentence I will impose.