HKSAR v. Egina Samson Samson

DCCC 928/2018

[2019] HKDC 897

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 928 OF 2018

--------------------------

--------------------------

-----------------------------------------

REASONS FOR SENTENCE

-----------------------------------------

Charges

1.The 2^nd defendant, D2, pleads guilty to a single count of conspiracy to steal.  It is Charge 1 in the present case.  There are two named co-conspirators in the charge, namely the 1^st defendant, Khalifa, and a person called “Lei Chong Fung”.

Facts

2.Between 4 am and 5 am on 18 March 2018, a lady found her credit card missing.  She did not know how she lost the card.

3.Two hours later, D2 used the said card to purchase two packets of cigarettes and some game cards at a convenience store in Tsim Sha Tsui.  The total spending was $1,394.

4.Lei Chong Fung was the shop assistant who handled the transaction at the convenience store.  He knew the credit card used by D2 did not belong to D2.

5.D1 and D2 had frequented that convenience store.  Lei noticed D1 used different credit cards to make purchase.  D1 and D2 told Lei that the credit cards were stolen properties.

6.In early March 2018, D1 instructed Lei to test some credit cards with the card terminal in his convenience store to see if those cards could be used to make purchase there.  D1 promised to reward Lei and Lei promised to help.

7.Pursuant to the aforesaid agreement, Lei processed the transaction at 7:30 am on 18 March 2018 for D2.  He knew D2 was not the cardholder.

8.D2 was arrested two months later on 18 May 2018.  Under caution, he admitted he did not hold any credit card.

Record

9.D2 is now aged 23.  He came from Tanzania to Hong Kong in September 2017.  He has raised a torture claim here, which is still being processed.  He has no previous conviction here.

Mitigation

10.Mr Raffell, acting for D2, asks the court not to hold against D2’s status as an asylum-seeker.  He says that should not be an aggravating factor in the present case.

11.Mr Raffell says D2 picked up the credit card in Lan Kwai Fong hours before he used it on 18 March 2018.

12.Mr Raffell correctly points out that there is no sentencing guideline for the present offence.  He submits D2’s misdeed was simply using one credit card belonging to another person to make a purchase of only $1,394 at a convenience store, with the shop assistant Lei and D1 as co-conspirators. Counsel submits the correct starting point for sentence should be one of 18 months’ imprisonment.

13.D2 has written a mitigation letter to the court.  He says life in Hong Kong was hard.  He is remorseful and promises not to re-offend.

Sentence

14.There is no evidence to rebut D2’s saying that he picked up the credit card rather than stealing it from the owner’s person.

15.D2 is an asylum-seeker.  I agree with Mr Raffell that fact should not be taken as an aggravating factor.  D2 has no previous conviction here.

16.Charge 1 is a conspiracy involving D2 and two co-conspirators, namely D1, Khalifa, and the shop assistant Lei.  Pursuant to their conspiracy, D2 executed that purchase on 18 March 2018.

17.The purchase was only in the value of $1,394.  There is no evidence that D2 and his co-conspirators had further mishandling of the card.  I have to sentence D2 for what he did.

18.I agree with Mr Raffell that the correct starting point for D2 in Charge 1 should be one of 18 months’ imprisonment.  D2 pleads guilty at the earliest opportunity.  He is entitled to the normal one-third discount.  D2 is thus sentenced to 12 months’ imprisonment upon his plea on Charge 1.