HKSAR v. Umar Farooq

DCCC 569/2021

[2022] HKDC 652

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 569 OF 2021

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REASONS FOR SENTENCE

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Introduction

1.The defendant (D)  is convicted on his own plea of 6 Charges, Charges 1, 2 & 6 being “Theft”, contrary to section 9 of the Theft Ordinance, Cap 210, Charges 3, 4 & 5 being “Obtaining property by deception”, contrary to section 17(1)  of the same Ordinance.  He now stands to be sentenced.

Facts of Case

2.The Summary of Facts admitted by D reveals the following facts:

Charge 1

3.At around 10:20 am on 29 January 2021, a cleaning lady of Mirador Mansion in Tsim Sha Tsui, Mdm GURUNG Gayan Kumari (Mdm GURUNG), left her mobile phone with a phone case containing her Hong Kong Identity Card, Octopus card and HSBC ATM card unattended on a cabinet outside the management office, 1/F, Mirador Mansion.  Shortly afterwards she returned to the location and found the properties missing.  A report was made to the police.  CCTV of the building captured D taking the said properties at 10:21 am on the same day.

Charges 2 to 5

4.At around 11 am on 7 February 2021, when Mr LAM Hong-ching (Mr LAM)  was doing exercise in Kowloon Park, he found his jacket containing a coin bag, a wallet, his Home Visit Permit and Hong Kong Identity Card, 2 credit cards, one of them being a HSBC VISA Card numbered 4966-0405-0882-2640 in the name of LAM (the said VISA Card), an Octopus card, cash HK$1,800 and a mobile phone missing.  He made a report to the police.

5.On the same day, D used the said VISA Card to obtain a packet of cigarette valued HK$ 60 at each of the 7-Eleven Convenience Stores as particularized in Charges 3 & 4 respectively.  He also used the said VISA Card to purchase a pair of shoes valued at HK$1,145 at the shop as particularized in Charge 5.  The last transaction was captured by the CCTV of the shop, showing D completing the transaction at 2:06 pm.

6.D was arrested on 22 March 2021.  Under caution, D admitted the offences. So far as Charge 1 is concerned, he admitted to have sold Mdm.  GURUNG’s phone for HK$200 and had used up all the money; and had thrown away the other items into a rubbish bin.  For Charges 2 to 5, he admitted to have picked up Mr LAM’s jacket from a bench.  He then used the said VISA Card to make purchases as particularized in Charges 3 to 5.  He had consumed the cigarettes and thrown away the pair of shoes as they were too tight for him.  He had also thrown away the said VISA Card and LAM’s mobile phone.

Charge 6

7.On 26 April 2021 the owners of the jewelry shop as particularized in Charge 6 found a chain with a jade pendant (E1), valued at HK$12,800, missing during stock check.  A report was made to the police.  CCTV of the shop captured D taking away E1 from a display cabinet at 3:22 pm on 25 April 2021.

8.D was arrested for this offence on 27 April 2021.  E1 was recovered from D.  Under caution, D admitted to have stolen E1 for his own use.

Background of D

9.D is 39 years old, born in Pakistan on 8 August 1982.  He came to Hong Kong in 1992 and is now a HKID card holder.  He is married but his family stays in Pakistan while he lives in Hong Kong alone.  He had completed Form 5 level education in Hong Kong.  He told the police that he was a construction site worker with a monthly salary of around HK$10,000.

10.D has 6 previous convictions, all relating to Possession of Dangerous Drugs.  He was last released from Hei Ling Chau Addiction Treatment Centre on 13 January 2021, just over 2 weeks before he committed the offence in Charge 1.

11.I was informed by the Prosecution that after his arrest on 22 March 2021 for Charges 1 to 5, D was charged and appeared in the Magistrates’ Court 2 days later.  He was granted bail by the court, one of the conditions being cash bail of HK$2,000.  However, D did not pay in the bail money.  A warrant of arrest was issued by the court on 15 April 2021.  It was executed when D was arrested for Charge 6 on 27 April 2021.  D was remanded in custody since then.

Mitigation

12.In mitigation, Ms Alva who represented D, submitted that D last worked as a renovation worker earning around HK$15,000 per month.  D would travel to Pakistan from time to time to visit his wife and 3 children.

13.Ms Alva submitted that this was the first time D had committed acts of dishonesty.  He acted out of greed and now feels very shameful and remorseful. He begs for forgiveness and apologizes to the victims involved.  Accepting D committed the offence in Charge 6 while on bail for the other 5 offences, Ms Alva urged the court to take into consideration relevant mitigating factors including:-

(i)  there was no planning and D acted alone;

(ii)  Charges 1 & 2 were basically Theft by finding;

(iii)  for Charges 3 to 5, they were the result of Theft in Charge 2;

(iv)  Mr LAM cancelled the said VISA Card about 4 hours after the loss of his jacket, thus limiting the loss to a total of HK$1,265 when D disposed of the Card after the 3 transactions;

(v)  there was no international element involved;

(vi)  the most expensive item (in Charge 6)  was recovered;

(vii)  D had been co-operative with the police upon arrest and had indicated his guilty pleas at the earliest opportunity; and

(viii)  D has no previous record for offences involving dishonesty.

14.Ms Alva submitted that the criminality involved in the present case, being opportunistic theft followed by fraudulent transactions to obtain properties using 1 single credit card, falls at the low end of the scale.  She cited HKSAR v Li Chi Yat, unrep [2019] HKCA 458 in support of her submissions.  She further submitted that the facts in the present case was less serious than those in Li Chi Yat, which, according to her, involved a breach of trust and the value of the properties involved (including the attempts)  were much higher than the present case.  Ms Alva also suggested that in a normal Theft by finding case in the Magistrates’ Courts, the starting point usually would be 3 months imprisonment.  She accepted that Charge 6 should attract a higher starting point as the value involved is higher and that it was committed by D while on bail.  She suggested a 8 months starting point for this Charge.

15.On the totality principle, Ms Alva urged the Court to pass concurrent sentences for Charges 2 to 5 under the “one transaction” rule while she accepted that partial consecutive sentences are warranted for Charges 1 & 6, as they involved separate and distinct criminal conducts.  In the final analysis, Ms Alva suggested a final overall sentence of 18 months would be appropriate in the present case.

Assessment of Sentence

16.D, through his counsel, expresses remorse and apologizes to the victims involved in the case.  There can be little doubt that the source of all evils for D was his association with dangerous drugs.  If he does have the determination to turn a new leaf, he must first find a way to get rid of his drug addiction and dissociate himself completely with dangerous drugs.

17.He committed the offence in Charge 1 just about 2 weeks after his release from DATC.  It is a typical case of Theft by finding.  The value of the properties lost by the victim in that Charge may not be too great but it must have caused her much inconvenience, or even hardship depending on her means.  This is a very mean and selfish act on the part of D.  I consider a starting point of 6 months appropriate for this Charge.

18.In relation to Charges 2 to 5, the CA in Li Chi Yat, the case cited by Ms Alva, re-affirmed the principles applicable in assessing sentences for cases involving credit card fraud, stating that “credit card fraud offences require 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 the cardholder, as the case maybe.” (paragraph 22).  The CA also pointed out that in appropriate cases of this nature where the criminality involved falls at the low end of the scale, the starting point can be lower than the 3 years as indicated in previous authorities.

19.The facts of Li Chi Yat is similar to the present case.  Having stolen the wallet of a co-worker which was left unattended in the company’s vehicle, the appellant used, or attempted to use, a genuine credit card found inside the wallet belonging to his colleague on 3 occasions where the actual loss was a little under HK$8,000.  The said credit card had a credit limit of HK$20,000, which set the value of the potential loss.  The CA considered that to be at the low end of the scale of criminality for a case of credit card fraud and a starting point of 2 years was appropriate for each count on the use, or attempted to use, the credit card, all sentences to run concurrently.  I do not agree with Ms.  Alva that breach of trust was involved in that case, this was not mentioned in the judgment.  The CA also agreed with the learned trial Judge that the offence of Theft which led to the dishonest use of the credit card is a separate and distinct criminal conduct warranting at least partial consecutive sentence.  The 9 months starting point was not disturbed and the 3 months’ consecutive sentence was considered appropriate in that case.

20.The total value of properties involved in Charges 3 to 5 in the present case is HK$1,265.  Although the credit limit of the said VISA card was HK$85,000, there was no evidence to suggest that D had attempted to use the said VISA Card apart from these 3 transactions.  There may well be some difference in the facts of this case with Li Chi Yat but I do not consider them to be substantially different so far as criminality is concerned. I accept that the criminality involved in the present case falls at the low end of the scale, as stated by the CA in Li Chi Yat.

21.The value of the property involved in Charge 6 is higher but it was recovered from D so that the owner did not suffer any loss.  This charge warrants a higher starting point not only because of the value of the property involved, but the fact that it was committed while D was on court bail for similar offences, and did not obey the bail terms leading to an outstanding warrant of arrest having be issued against him.

Sentence

22.Having considered all relevant factors, for the individual charges D is sentenced as follows:-

Charge 1: 6 months as the starting point, reduced by 1/3 for the timely guilty plea to 4 months.

Charge 2: 9 months as the starting point, reduced by 1/3 for the timely guilty plea to 6 months.

Charge 3: 2 years as the starting point, reduced by 1/3 for the timely guilty plea to 16 months.

Charge 4: 2 years as the starting point, reduced by 1/3 for the timely guilty plea to 16 months.

Charge 5: 2 years as the starting point, reduced by 1/3 for the timely guilty plea to 16 months.

Charge 6: 12 months as the starting point, reduced by 1/3 for the timely guilty plea to 8 months.

23.On the totality principle, I order that the sentences for Charges 3 to 5 to run concurrently, 2 months of Charge 2 to run consecutively to Charge 3, 3 months of Charge 1 to run consecutively to Charge 3 and 6 months of Charge 6 to run consecutively to Charge 3.  For the 6 offences D is facing, he is sentenced to a total of 27 months’ imprisonment.