HKSAR v. Mehmood Amjad

DCCC 935/2017

[2018] HKDC 189

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 935 OF 2017

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REASONS FOR SENTENCE

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1.Defendant Mehmood Amjad stands convicted on his own plea of with one charge of theft contrary to section 9 of the Theft Ordinance, Cap 210, and one charge of attempted theft contrary to section 9 of the Theft Ordinance, Cap 210, and section 159G of the Crimes Ordinance, Cap 200.

Admitted facts

2.The facts which Mr Mehmood admitted may be summarized as follows.

Charge 1

3.In the evening of one day, PW1, a lady, left her handbag unattended on a bench in the K-11 mall of TST for a while.  When she repossessed it, the wallet inside went missing.  Among the items in the wallet were 13 credit cards.  She immediately caused all the credit cards to be cancelled and reported their loss.

4.In the evening of the following day, Mr Mehmood was intercepted by patrolling police in Sham Shui Po.  He was found to be in possession of 4 of PW1’s missing credit cards.  Among the 4 cards was a DBS Bank (Hong Kong) Limited credit card with the account no 4760-7340-6885-1001.

Charge 2

5.Mr Mehmood was also in possession of 3 receipts from a nearby McDonald’s Restaurant.  All the receipts showed transactions of a HK$42.80 order being declined.  One of them had PW1’s full name on it as the card holder and a partially redacted account no. of the DBS credit card.

6.The manager of the subject McDonald’s Restaurant confirmed that in the morning of the same day that Mr Mehmood was stopped, he saw Mr Mehmood carrying several credit cards with him and trying unsuccessfully to order food at a self-order kiosk.  Mr Mehmood then showed him 3 receipts generated by the machine and asked him why he could not obtain food even though he had made a purchase.

7.On looking at the receipts, the manager understood and told Mr Mehmood that he had made unsuccessful credit card payments.  Mr Mehmood then left.

8.Under caution, Mr Mehmood claimed that he picked up the 4 credit cards near Exit C2 of Sham Shui Po MTR Station in the morning of the day he was stopped.  He admitted that he had tried to buy food with the credit cards but failed.

Criminal record

9.The criminal record is agreed.  It shows that Mr Mehmood has two previous convictions both in 2017 both related to a minor offence.

Personal particulars

10.The antecedents statement is agreed.  It shows that Mr Mehmood is aged 40, born in Pakistan and he is a Form 8 recognizance holder.

Mitigation

11.Mr Solomon Chong assigned by the Director of Legal Aid mitigated on Mr Mehmood’s behalf.

12.The following is a brief summary of the mitigation.

13.Mr Mehmood pleaded guilty at the first available opportunity; he co-operated with the police and made a cautioned statement.  Charge 1 was theft by finding involving only 4 credit cards.  Charge 2 related not to diamonds but food only; that the sentence imposed should be commensurate with the value of the subject matter.  There is no evidence that the other 3 stolen credit cards had been used.  There is little or no tarnishing of international reputation of Hong Kong because of the small amount.  He has no previous credit card related convictions.  Mr Chong asked for concurrent sentences.

Sentence

14.I have considered the mitigation submissions made by Mr Solomon Chung.

15.Prosecution handed up the authority of HKSAR v Londono Montealegre [2017] 1 HKLRD 450 which held that the sentencing judge there when dealing with offences of dangerous drugs was correct to enhance the applicant’s sentence in light of her status as a Form 8 recognizance holder.  The principle appears to be where the crime has the effect of tarnishing Hong Kong’s reputation for order and security, then that is a factor which is capable of aggravating the sentence for the crime.

16.The strongest mitigation is the plea of guilty which was indicated in a timely manner.

17.Charge 1 relates to a theft by finding of 4 credit cards.  Having regard to the authorities of HKSAR v Atienza Richard Montenegro, CACC 38/2016, judgments dated 22 September 2016 (Lunn VP & McWalters JA) and 17 May 2016 (Macrae JA), and HKSAR v Tseveen-Ochir Bat Jargal, CACC 250/2016, I take a starting point of 9 months and reduce it to 6 months on a plea.

18.Charge 2 relates to credit card fraud which is a serious offence and must be deterred.  Having regard to the above authorities, and the authorities of R v Chan Sui To & Anor [1996] 2 HKCLR 128, HKSAR v Tu I Lang, CACC 464/2006, HKSAR v Lam See Chung, Stephen [2013] 5 HKLRD 242, and recognizing there is no international element involved and the amount of the attempted theft is small, I adopt an initial starting point of 15 months.  I add one month to it to recognize the aggravating factor of Mr Mehmood’s immigration status.  That makes 16 months.  I allow a 1/3 discount for plea which reduces the sentence to 10 months and 20 days.

19.Although they are different offences, I am satisfied they were committed shortly one after the other.  As an act of leniency, I am willing to make the final sentences run concurrently with each other.

20.Mr Mehmood please stand.

21.The sentence on Charge 1 is 6 months’ imprisonment.  The sentence on Charge 2 is 10 months and 20 days’ imprisonment.  I order them to run concurrently with each other.