HKSAR v. Dashpal Singh

DCCC 798/2019

[2021] HKDC 902

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 798 OF 2019

________________________

________________________

________________________

REASONS FOR SENTENCE

________________________

1.D1 stands convicted after trial of three charges of theft, contrary to section 9 of the Theft Ordinance[1] (charges 1, 3 & 7)[2] and one charge of attempted theft, contrary to section 9 of the Theft Ordinance and section 159G of the Crimes Ordinance[3] (charge 4).

2.Full particulars of the offences are set out in my reasons for verdict handed down on 15 July 2021[4]. In summary in the early hours of 3 February 2019 (charge 1), 9 April 2019 (charges 3 & 4)  and 14 April 2019 (charge 7)  credit cards were fraudulently used by D1 in Circle K Convenience Store at No. 7 Davis Street in Kennedy Town. 

3.On each day the owners of the cards had been out drinking the night before.  After drinking too much the owners collapsed in the street.  When they regained consciousness they discovered their wallets containing their credit cards were missing. 

4.The fraudulent use of the cards was charged as theft.  D1 is to be sentenced only for the fraudulent use of the credit cards shortly after they were stolen and not the stealing of the credit cards. 

5.At the commencement of the trial D1 pleaded guilty to one charge of possession of five identity cards relating to other persons, contrary to section 7A (1A)  of the Registration of Persons Ordinance[5] and agreed a summary of facts in respect of this charge (charge 8). 

6.In summary D1 was arrested on 10 May 2019.  During a search of his residence the police found the five Hong Kong identity cards belonging to other persons.

Mitigation

7.I have carefully considered the oral and written submissions of Mr McNamara, including that the defendant who is 31, married with his wife living in India, came to Hong Kong in 2014 and made a non-refoulement claim[6]. 

8.I take into account D1 has no previous convictions for offences of dishonesty having only one conviction for possession of a dangerous drug in 2017 when he was fined $500.

Theft and attempted theft

9.Mr McNamara referring the court to HKSAR v Chan Kai Chung[7] submits that in almost every respect this case is at the very lowest level so far as sentence is concerned[8].

10.Asked by the court whether the proper basis for sentence was that of a credit card fraud, Mr McNamara submitted that the defendant was to be sentenced on the basis he was found guilty of theft and that these are simple thefts.

11.I have no hesitation in rejecting this submission.  To sentence the defendant on the basis these are simple thefts is to ignore the thefts were committed by using stolen credit cards. 

12.Although charged as theft and attempted theft, this was a credit card fraud.  In passing sentence, I take into account the factors which a sentencing judge will need to consider in credit card frauds as set out by the Court of Appeal in R v Chan Sui To, including the size of the operation; the planning that had gone into perpetrating the fraud; whether there is an international dimension and whether the accused played a major role[9]. The factors were not intended however to be exhaustive but provide valuable assistance to the court. 

13.No distinction is to be drawn between using a stolen credit card and a forged credit card[10]. Using a stolen credit card, just like using a forged credit card, undermines the integrity of the credit card system.  As was said in HKSAR v Wong Wan Shan[11], a case concerning stolen credit cards:

“This court has said, on many occasions, that credit card frauds are an insidious poison in the community; one which affects a large number of citizens and erodes the credit card system, and also damages Hong Kong's standing in the international community. This court has also said that those who engage in it can expect to be dealt with severely by the courts.”

14.The courts have repeatedly stressed that deterrent sentences are to be imposed. 

15.Where the facts of the offence point to a small unsophisticated operation, involving one or a few forged cards uncomplicated by other evidence materially linking the offender to a larger operation, a starting point of 3 years or less would be appropriate[12].

16.In R v Chan Sui To the Court of Appeal suggested that amounts up to $50,000 may be considered relatively small.  The amount in charge 1 is $3,164; charge 3 is $15,590; charge 4 is $6,000 and charge 7 is also $6,000.

17.I am satisfied by reason of the amounts involved this is a small operation. However, in passing sentence the court cannot overlook that the fraudulent use of the credit cards on each occasion was shortly after the credit cards had been stolen.  This in my view shows D1 is closely connected to a syndicate involved in stealing credit cards.     

18.I am satisfied a starting point of 2 years and 6 months’ imprisonment is appropriate on each charge.

Possession of identity cards relating to other persons

19.In HKSAR v Li Chang Li the Court of Appeal held that the sentence upon a plea of guilty for possession of a forged identity card or another person’s identity card should ordinarily be 12 months, whether or not the offender was lawfully staying in Hong Kong[13] . 

20.I am satisfied a starting point of 1 year and 9 months’ imprisonment is appropriate for possession of five identity cards relating to other persons. 

Commission of offences by refugees or torture claimants

21.D1 is a Form 8 recognizance holder.  The commission of offences by refugees or torture claimants is capable of aggravating sentence where the offence affects the community at large and has a significant impact on Hong Kong’s reputation for order and security. 

22.I am satisfied offences involving the fraudulent use of credit cards and possession of identity cards relating to other persons affects the community at large and have a significant impact on Hong Kong’s reputation for order and security.  By reason of D1’s Form 8 status I enhance the starting points for charges 1, 3, 4 and 7 by 3 months to 2 years and 9 months’ imprisonment.

23.I also enhance the starting point for charge 8 by 3 months to 2 years’ imprisonment.  D1 having indicated his plea of guilty to this charge at the first available opportunity D1 is given full credit for that plea which reduces the sentence to 1 year and 4 months’ imprisonment.    

Delay

24.Delay in bringing an offender to justice is a mitigating factor which may be taken into account in sentence.  All the circumstances must be looked at including whether the offender has acknowledged guilt; where the delay has given the offender the opportunity to rehabilitate himself; whether restitution has been made; the size of the investigation and whether the time taken to bring the case to court was longer than necessary[14].

25.Mr Hotten has submitted to court a time line of events since the arrest of D1 on 10 May 2019.  I have also looked at the court record. 

26.The time taken to bring the case to trial appears largely due to adjournments during the general adjournment of court proceedings because of the pandemic and the re-fixing of the trial. 

27.In summary D1 first appeared in court on 13 May 2019.  The case was transferred to the District Court on 21 October 2019.  D1 first appeared in the District Court on 7 November 2019.  Hearings fixed for 30 January, 24 March and 15 April 2020 were adjourned because of the pandemic. 

28.On 28 April 2020 D1 indicated his plea to the charges and a trial date was fixed to commence on 5 October 2020.  The trial dates were however vacated when Mr Pannu informed the court his case in the High Court had overrun.  The trial was re-fixed for April this year and commenced before me on 12 April 2021. 

29.I am satisfied some credit should be given in sentence for the time taken to bring the case to trial.  In the circumstances I reduce the sentence on each charge by 1 month to 2 years and 8 months and 1 year and 3 months’ imprisonment respectively. 

Totality

30.I am satisfied that the total sentence must reflect that the thefts were committed on three different days with three different stolen credit cards belonging to three different people. 

31.In HKSAR v Tandon William Chaing the trial judge adopted an initial starting points of 3 years for three offences of obtaining property by deception which was enhanced by 3 months because of previous convictions[15].  Giving a one third discount the sentence on each charge was reduced to 26 months.  The judge then ordered 13 months consecutive making a total sentence of 39 months’ imprisonment.

32.The three offences concerned the use of three different stolen credit cards to purchase goods worth $96,500.  The Court of Appeal dismissing the appeal expressed the view that there could have been no complaint on the facts and the appellant’s antecedents if there had been a higher sentence[16]. 

33.Taking into account the total amount subject of the theft charges is $30,754, I am satisfied a total sentence of 3 years and 8 months’ imprisonment is appropriate for the four charges involving the fraudulent use of the credit cards. 

34.I am satisfied the possession of the identity cards relating to other persons adds to the culpability of D1 for which a consecutive sentence is appropriate.

35.I am satisfied a total sentence of 4 years and 4 months’ imprisonment properly reflects D1’s overall criminal culpability on the five charges and takes into account D1’s personal circumstances and the seriousness of the offences[17].  

Sentence

36.D1 is convicted and sentenced as follows:

Charge 1 - 2 years and 8 months’ imprisonment;

Charges 3 & 4 - 2 years and 8 months’ imprisonment concurrent on each charge with 6 months consecutive to charge 1 and 2 years and 2 months concurrent;

Charge 7 - 2 years and 8 months’ imprisonment with 6 months consecutive to charges 1, 3 & 4 and 2 years and 2 months concurrent; and

Charge 8 – 1 year and 3 months’ imprisonment with 8 months consecutive and 7 months concurrent to charges 1, 3, 4 & 7.

The total sentence to be served by D1 is 4 years and 4 months’ imprisonment.