HKSAR v. Barry Abdourahamane

DCCC 782/2018

[2019] HKDC 533

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 782 OF 2018

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REASONS FOR SENTENCE

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1.The defendant pleaded guilty before me this morning to two charges of obtaining property by deception and one charge of attempting to obtain property by deception.

2.The facts, which the defendant admitted, are as follows.  At around 1:51 am on 23 May 2018, the defendant was drinking at a bar called the China Bar at Nos 38-44 D’Aguilar Street, Central.  He used a credit card in the name of Igor Bazyura to buy 3 glasses of drinks which cost a total of HKD $222.  About half an hour after that, he used the same credit card to purchase a bottle of liquor which cost almost a thousand dollars.

3.Before he finished with his drinks, he tried to purchase a second bottle worth the same price, HKD $998, with the same credit card but this time the bartender felt suspicious and checked the credit card and it revealed that the signatures signed by the defendant on the receipts were different from the one shown on the credit card.  The case was then reported.  After the police arrived, the credit card slips, receipts and so on were also seized from the defendant.

The Defendant’s Background

4.The defendant is a young man who is still only 22½ years old.  He was born in Guinea, where I was told his father was a politician.  According to the defendant, his father, worrying about the defendant’s safety, sent him to Guangzhou for studies.  Later it was decided that Hong Kong was perhaps a safer place for him to be and he came to Hong Kong on a visitor’s visa in late 2014.  After arrival, however, a torture claim was made by him and he was allowed to remain at liberty in Hong Kong by virtue of a Recognizance issued by the Director of Immigration whilst his claim was being processed.

5.According to Mr Slutsky who appeared for the defendant this morning, the defendant’s family and friends had been sending him money for his support here.  Now, what is also clear from what is before me is that a year or so after arriving in Hong Kong, the defendant had got himself into trouble.  In February 2016, whilst drinking at a bar in Wan Chai, he used a card which belonged to another person to pay for the various drinks he had there which resulted in a total of eight charges of obtaining services by deception and one of attempting to obtain services by deception.

6.He was eventually found guilty of these charges on his own plea in November 2016.  By reading the reasons for sentence given by the trial judge, Judge Woodcock, in that case, it appears that the judge accepted that the defendant might well have been given the card by the cardholder for use, and that is in spite of the fact that the cardholder seems to have told the police in his correspondence with them that it was otherwise. In any event, given that, and I quote, “the defendant stayed in this bar for nearly three hours and used the card on eight occasions for quite small amounts on each occasion”, the judge took the view that that was not the usual modus operandi of a thief or conman using others’ credit cards or forged credit cards for financial benefit.  In the circumstances, Judge Woodcock adopted a starting point of 21 months’ imprisonment for each charge which she reduced to 14 months by reason of the defendant’s guilty pleas, and the learned judge also ordered these terms to be served concurrently.

7.The defendant, however, had not really learned much of a lesson there for he got into trouble, if not immediately, then very shortly after he finished serving the term of 14 months of imprisonment for he was arrested and charged with an offence of possession of dangerous drugs for which he was convicted and given a fine on 29 May 2017.  And that is not all; some time prior to the date of the present offences, the defendant committed a theft and was initially put on police bail by police of the Tsim Sha Tsui District pending charge.  This morning I was told by Mr Slutsky that the items stolen were actually laundry which he mistakenly took in the first instance. In any event, that offence was eventually dealt with on 25 June 2018 at the Kowloon City Magistracy where he was sentenced to a term of 4 weeks’ imprisonment.  It can be seen therefore from that that the present offences were committed by the defendant whilst he was on bail for the theft offence for which he was admitted to Recognizance by the police.

8.Now, the circumstances of the present offence. This morning, Mr Slutsky told me that the defendant was, in effect, in a drinking orgy starting from the small hours of 22 May 2018 and it literally went on until the time of the present offences which was at around 2 am in the early morning of 23 May 2018.  The card he used was given to him by an acquaintance for some time, one Mr Bazyura, and it was given by the cardholder for him to buy a sandwich.  Whether the cardholder simply forgot to have the card back or it was for some reasons left with the defendant, it is not very clear on what is before me.  What is clear, however, is that the defendant used the card later to pay first for a drink and then a bottle of liquor costing around a thousand dollars, and, as I have said earlier, it is only when he tried to get a second bottle, that the scam was discovered.

Mitigation

9.In mitigation, I was urged by Mr Slutsky to follow Judge Woodcock’s footstep and to depart from the usual 3 years’ term as suggested in the case of HKSAR v Tu I Lang [2007] 2 HKLRD E8.  My attention was also directed by Mr Slutsky to a decision by my brother, Judge Casewell, in the case of HKSAR v Syed Rashid Aslam, DCCC 895/2016.  Having considered the facts of the present case, I am prepared to do that.  However, given that (1) the defendant was committing the same offence, in fact I would say exactly the same kind of offence, as he did in the case before Judge Woodcock; and (2) that the terms imposed by Judge Woodcock in that case clearly have done little to deter the defendant from recommitting, I am of the view that a higher starting point is clearly called for here.  Taking into account the circumstances and the modus operandi of the defendant, I think a starting point of 25 months is appropriate in the circumstances.

10.However, that is not all.  The defendant, as I have observed earlier, was on bail whilst he committed the present offences. It has been made clear by the Court of Appeal in various decisions that an act like that amounts to a blatant disregard of the law and it is an act which requires a stern response from the courts.  In light of that, I am of the view that an extra month’s term is warranted.

11.The next matter is the fact that the defendant is a torture claimant.  As observed by Macrae J in the case of HKSAR v Sandagdorj Altankhuyag and Another CACC 45/2013, where someone:-

“deliberately sets out to commit a crime which is aimed at the very community which has afforded him the privilege of remaining at liberty while his claim is being considered, and when that crime also has the effect of tarnishing this City’s reputation for order and security, of which he seeks to avail himself, then that is a factor which is capable of aggravating his sentence for the crime.”

12.With that in mind, I shall add another month’s term to the sentence and as a result one would arrive at a total term of 27 months’ imprisonment for each of the three charges.

13.The defendant is of course entitled to the one-third discount given that he had indicated to the court at the earliest opportunity that he was going to plead guilty to the charges.  This will reduce the term to one of 18 months’ imprisonment for each charge.  And bearing in mind that the offences would properly be looked at as offences of the same series, almost in fact part and parcel of the whole thing, I am prepared also to order that the three terms be served concurrently.