HKSAR v. Shkabrov Dmitry

DCCC 264/2019

[2019] HKDC 1182

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 264 OF 2019

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REASONS FOR SENTENCE

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1.The defendant pleaded guilty to six charges of theft.

Facts of the case

2.At all material times, Mr Chan Tsz Pang (“PW1”) had a Visa card issued by Hang Seng Bank numbered 4548-XXXX-XXXX-XXXX (“the Subject Card”).  He had not lent it to anyone.  The last time he used the card was on 17 November 2018 around 0100 hours, when he was having a drink in Central.

Charge 1

3.At around 1700 hours on 17 November 2018, while PC 19237 (“PW2”) and his teammates were on patrol outside No 1H Shiu Fai Terrace, he saw the defendant walking down a staircase. When the defendant saw the police officers, he turned round and walked up the stairs.  Feeling suspicious, PW2 intercepted the defendant and conducted a search on him.

4.The Subject Card was found on the defendant.  PW2 noticed that the name of the cardholder appearing on the Subject Card was not the defendant’s name.  PW2 arrested the defendant for theft.

5.Under caution, the defendant admitted that he picked up the Subject Card in Lan Kwai Fong, Central on 17 November 2018 and used it to pay for food at a 7-Eleven Convenience Store and a McDonald’s restaurant in Central on the same day.  He also admitted that he did not know the owner of the Subject Card.

Charge 2

6.At around 0208 hours on 17 November 2018, the Subject Card was used at the 7-Eleven Convenience Store located on the ground floor at No 8 D’Aguilar Street, Central (“Shop 1”) to purchase one bottle of “Somersby” cider and two cans of “Monster” energy drink for HK$61 (“the First Purchase”).

7.The CCTV installed in Shop 1 captured the defendant entering the shop and making the First Purchase.  The receipt printed by Shop 1 showed that the First Purchase was made with a HASE Visa card with numbers ending 0216 at 0208 hours on 17 November 2018.

Charge 3

8.At around 0338 hours on 17 November 2018, the Subject Card was used at the 7-Eleven Convenience Store located on the ground floor at No 41 Wyndham Street, Central (“Shop 2”) to purchase three Nestle ice-cream drumsticks for HK$21 (“the Second Purchase”).

9.The receipt printed by Shop 2 showed that the Second Purchase was made with a HASE Visa card with numbers ending 0216.

Charge 4

10.At around 0429 hours on 17 November 2018, the Subject Card was used at a restaurant known as “Pho Boozer” located at Shop 16, Ground Floor, Block B, Winner Building, Nos 8-16 Wing Wah Lane, Central to pay a bill of HK$220 for smoking water pipe tobacco (“the Restaurant Bill”).

11.The defendant appeared at the restaurant around 0430 hours on 17 November 2018, which was captured by the CCTV.

Charge 5

12.At around 0500 hours on 17 November 2018, the Subject Card was used at Shop 1 to purchase a bottle of Hung Fook Tong yogurt drink, a box of “Trappist Dairy” milk and a bottle of “Nestle” yogurt drink for HK$31.50 (“the Third Purchase”).

13.The receipt printed by Shop 1 showed the Third Purchase was made with a HASE Visa card with numbers ending 0216.

Charge 6

14.At around 0555 hours on 17 November 2018, the Subject Card was used at the McDonald’s Restaurant located on the Upper Ground Floor and Lower Ground Floor of Chuang’s Tower at Nos 30‑32 Connaught Road, Central to purchase a medium-sized hot drink known as “Red Bean Matcha” for about $30.50 (“the Fourth Purchase”).

15.The defendant was captured by CCTV to be present inside the McDonald’s Restaurant between 0610 hours and 0619 hours on 17 November 2018.

16.Under caution, the defendant admitted that he used the Subject Card to make the said four purchases and to pay the restaurant bill.

17.The statement of the Subject Card dated 21 November 2018 showed the debit amounts of HK$61, HK$31.50, HK$21, HK$220 and HK$30.50 for the five transactions carried out at Shop 1, Shop 2, the Pho Boozer restaurant and McDonald’s Restaurant on 17 November 2018 respectively.

18.At around 1437 hours on 18 November 2018, PW1 learned that the Subject Card was used to make five transactions on 17 November 2018.  None of the transactions were made by him nor authorised by him.

Criminal record

19.The defendant has a clear record.

Mitigation

20.The defendant, aged 30, was born in Russia and holds a degree in hospitality.  He has a brother and enjoys a good relationship with his family.  He has a spinal problem caused by a fall during hiking and still suffers from it.  He requires intensive physiotherapy treatments for his spinal problem.

21.He came to Hong Kong as a visitor on 8 November 2018 and was permitted to stay here until 22 November 2018.  He lived with his girlfriend in Kazakhstan before coming to Hong Kong.  He had access to funding from his girlfriend and his own credit card to finance his expenses in Hong Kong.  His plan was to leave Hong Kong on 20 November 2018 for Macau and thereafter for Thailand and India.

22.He made full admissions under caution in respect of all the six charges and indicated a guilty plea at the earliest opportunity.  He picked up the Subject Card which was lying on the pavement in Lan Kwai Fong.  This is consistent with the statement of the cardholder who last used the Subject Card at a club in Lan Kwai Fong on the material day.  He was acting alone and did not come to Hong Kong to commit crimes.  The finding of the card was opportunistic.  The maximum potential loss was HK$10,000.  There is no likelihood of his reoffending.

23.It is submitted that he had some alcohol prior to the offences and the alcohol had an effect on him.  However, the defence accepts that the defendant was dishonest and fully aware of his actions at the time of the offences.

24.All the purchases in question were made in a relatively small area, that is, Central, and within a relatively short period of time.  The total value of the purchases was HK$364.  The present case can be distinguished from other credit card cases involving the purchase of high value electronic goods or attempts being made to purchase with a view to either using them or reselling them. 

25.No attempt by the defendant to use the card in the intervening 11 hours from its use for the last purchase until his arrest.  This showed that the defendant had no intention to use the Subject Card anymore.

26.The defence has submitted HKSAR v Li Chi Yat CACC 189/2018 and HKSAR v Lam See Chung Stephen [2013] 5 HKLRD 242 for my consideration, and invited me to consider passing concurrent sentences on all the six charges.

Sentence

27.I have carefully considered everything said by Mr Kelly on behalf of the defendant in mitigation. 

28.In Li Chi Yat, the appellant pleaded guilty to a total of four charges involving an offence of theft of a credit card, an offence of obtaining property by deception by use of the credit card and two offences of attempting to obtain property by deception by use of the credit card.  He was sentenced to 2 years and 3 months’ imprisonment.  As revealed in the facts of that case, the appellant worked as a dispatcher for a transportation company.  On the material day, one of the owners of the company left his wallet in the vehicle which would later be used by the appellant for delivery.  The appellant stole the owner’s credit card and used it to make three attempts to purchase certain items.  He only succeeded once in purchasing a mobile phone in the sum of HK$7,917.  The other two attempts involving goods at a total value of HK$17,752 were unsuccessful as the appellant was requested to produce his identity card for verification of identity and the owner informed the bank that the said mobile phone transaction was not made by him respectively.  All the offences occurred on one day.  The credit limit on the card was HK$20,000.  He admitted his wrongdoing to the police during the investigation and that he had sold the mobile phone and spent the proceeds on food and mah-jong game.

29.The case of Lam See Chung Stephen was considered by the Court of Appeal.  The Court of Appeal took the view that credit card fraud offences required deterrent sentences in order to protect the integrity of the credit card system and to punish the offender for the loss and inconvenience to the credit card company and cardholder. Small-scale credit card offences could not be subject to strict guidelines as they could vary significantly in a number of ways.  A starting point of 3 years’ imprisonment or less would be appropriate.

30.On the facts of the case, a starting point of 3 years’ imprisonment for the offences relating to obtaining property by deception was considered manifestly excessive.  The appropriate starting point should be 2 years.  The sentencing judge was correct in ordering the sentences for the three offences to run concurrently.  The Court of Appeal was of the view that the theft of the credit card was a separate and distinct criminal act on the part of the appellant from his subsequent fraudulent use of the credit card.  A partially consecutive sentence was warranted to reflect the culpability of the appellant.  The starting point of 9 months adopted by the sentencing judge and the order of 3 months of the sentence to run consecutively to the concurrent sentences on the other three offences were considered correct and affirmed by the Court of Appeal.

31.The prosecution relies on the case Lam See Chung Stephen but accepts that Li Chi Yat is the most recent case on credit card fraud.  In Lam See Chung Stephen, the Court of Appeal was of the view that the 3-years starting point for simple cases of counterfeit credit card fraud also applied to the fraudulent use of stolen genuine credit cards.  Many of the aggravating features of using counterfeit credit cards peculiar to syndicate fraud were absent in the simple small-scale use of forged credit cards for which a sentence of 3 years’ imprisonment or less was appropriate.  The same sentencing principles, of which the most important consideration was potential for loss which often exceeded the actual loss, applied to both types of offence.

32.As revealed in the facts of the Lam See Chung Stephen case, the appellant pleaded guilty to one offence of theft and three offences of obtaining property by deception.  In January 2011, the victim was the post-natal carer hired by the appellant and his wife to look after their baby.  The appellant stole the victim’s credit card from her handbag and used it on three occasions to purchase three smartphones valued at HK$15,420. The appellant admitted the offences on arrest.  He had also committed offences against 15 victims involving a total of HK$612,851 between September 2008 and December 2011.  He was a persistent offender and had committed offences while on bail and within months of his last sentence, and committed the last of three offences over a two-day period.  At the time of sentence, he was serving 44 months’ imprisonment for other cases.  On the assumption that all the cases were dealt with by one single judge and after taking into account the totality principle, the court ordered 16 months of the 32 months’ sentence to run consecutively to the 44 months’ term the appellant was serving.  The appellant’s appeal against sentence was allowed for a number of reasons.  I would not go into the details here as they were relevant to the particular facts of that case and the particular circumstances of the appellant.

33.The facts of the present case involve the theft of a single genuine credit card by the defendant.  The defendant successfully used it for five transactions on one day within a span of three-odd hours.  The total value involved was HK$364.  The defendant was acting alone.  There is no evidence to suggest or show that he came to Hong Kong with the intention to commit crime.  I do not see that there are any aggravating features such as planning or elaborate operation.

34.In my view, the facts of Lam See Chung Stephen are far more serious than the present case.  The present case of credit card fraud is at the low end of the scale of criminality.

35.In view of the defendant’s clear record and the facts of the present case are less serious than those of Li Chi Yat, I am prepared to deal with him leniently and adopt a lower starting point of 21 months’ imprisonment on each of the theft offences involving the use of the Subject Card, that is Charge 2 to Charge 6.

36.As to Charge 1, the prosecution accepts that it was a theft by finding case.  I find that the appropriate starting point should be 9 months’ imprisonment.

37.Apart from his guilty plea, I do not see any other mitigating factors which justify any further reduction.  I sentence the defendant to 6 months’ imprisonment for Charge 1, 14 months’ imprisonment for each of the five offences, that is Charge 2 to Charge 6.

38.In light of Li Chi Yat, I find that Charge 1 was a separate and distinct criminal act on the part of the defendant from his subsequent use of the Subject Card, therefore a partially consecutive sentence is warranted.

39.Taking into account the totality principle, I order the sentences on Charge 2 to 6 to run concurrently and 3 months of the sentence of Charge 1 to run consecutively to the concurrent sentences on Charges 2 to 6, making a total of 17 months’ imprisonment.