HKSAR v. Ait Benaoumar Yassine

DCCC 725/2022

[2023] HKDC 341

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 725 OF 2022

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REASONS FOR SENTENCE

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1.The defendant pleaded guilty to 21 counts of Theft (Charges 1 to 7, 9 to 21 and 23), contrary to section 9 of the Theft Ordinance, Cap 210, Laws of Hong Kong and 2 counts of Fraud (Charges 8 and 22), contrary to section 16A of the Theft Ordinance, Cap 210.

Summary of facts

2.Between November 2021 and January 2022, Police received reports from various victims who had received fraudulent SMSs embedded with hyperlink of purported website of Hong Kong Post.  The victims were deceived to input their credit card credentials after entering the purported website.  The credit card credentials included the card holder names, card numbers, card verification value and expiration dates. Subsequently these victims discovered that their credit cards were used for making purchases which had not been authorized by them.

3.After investigation, the identity of the defendant surfaced and he was arrested on 25 January 2022. Under caution, the defendant claimed that he found fake credit card details from the internet and he used them to make purchases.  The mobile phone of the defendant was seized and it was found that stored value facilities was registered on the phone with 8 credit cards belonging to others.

4.Subsequently, 5 video recorded interviews were conducted with the defendant.  In essence, the defendant made the following admissions:

(a)  He obtained credit card credentials of others from the internet and Telegram;

(b)  He also obtained some credit card credentials by creating a phishing website which purported to be the website of Hong Kong Post and sending hyperlink to the victims by SMS or email. Once the victims entered their credit card credentials on the fake Hong Kong Post website, the information would be sent to him;

(c)  He used the credit card credentials to make purchase on some online shops including Dyson and Samsung. He then resold the products and used up the proceeds of sale. He also used the credit card credentials to purchase iTune cards from convenience stores and paid the bills at restaurants.

5.Using the credit card credentials he fraudulently obtained from the victims, the defendant admitted that he had made the following purchases:

(a)  Charge 1: 2 Dyson purifiers (total value HK$12,360);

(b)  Charge 2: 4 iTune cards (total value HK$4,000);

(c)  Charges 3 & 4: 7 iTune cards (total value HK$7,000);

(d)  Charges 5 & 6: 6 iTune cards (total value HK$6,000);

(e)  Charge 7: 2 Dyson purifiers (total value HK$12,360);

(f)  Charges 8: payment of a restaurant bill (amount HK$338.8);

(g)  Charges 9 & 10: 2 packs of cigarette (total value HK$120);

(h)  Charge 11: 2 Dyson purifiers (total value HK$13,960);

(i)  Charge 12: 2 Dyson purifiers (total value HK$13,960);

(j)  Charge 13: 2 Samsung mobile phones (total value HK$17,596);

(k)  Charge 14: 2 Dyson purifiers (total value HK$13,960);

(l)  Charge 15: 2 Samsung mobile phones (total value HK$17,596);

(m)  Charge 16: 3 Samsung mobile phones (total value HK$38,794);

(n)  Charge 17: 3 Samsung mobile phones (total value HK$46,194);

(o)  Charges 18 & 19: 4 iTune cards (total value HK$4,000);

(p)  Charges 20 & 21: 4 iTune cards (total value HK$4,000);

(q)  Charge 22: payment of a restaurant bill (amount HK$115);

(r)  Charge 23: 1 iTune card (value HK$1,000).

6.At the material times, the defendant obtained the credit card credentials of the victims to made fraudulent purchases of goods and on two occasions falsely represented to the staff of the restaurants he was the genuine card holder to make payments.  The total amount involved in the 23 charges is HK$213,353.8.  The known total credit limit involved is over HK$1.9 million.

Mitigation

7.The defendant is 30 years old and is married.  He is a person of clear record.  He came to Hong Kong from Morocco in 2017 on a dependent visa for reunion with his wife.  His wife is 30 years old and works as a salesperson.  They have a daughter who is now 3 years old.  The defendant received university education in Morocco but due to his status he is not able to take up any employment in Hong Kong.

8.In mitigation, defence submitted that the defendant is deeply remorseful and he committed the offences out of foolishness and greed.  After his arrest, the defendant was fully co-operative with the Police and made full confession to the offences.  It shows that he is genuinely remorseful.

9.Defence submitted that the defendant is a good and loving husband and father.  He committed the offences to make some money to contribute to his family.  Now he realizes that what he did was very wrong.  He fully understands the seriousness of the offences and he asks the court for forgiveness and leniency.

10.Defence submitted that this case does not involved any syndicate.  The defendant acted completely alone and the manner of committing the offences was unsophisticated and not difficult to detect.  Defence urged the court to consider this case as the less serious kind of credit card fraud case and adopt a lower starting point.  Lastly, as the case involves multiple charges, Defence asked the court to consider the totality principle and pass a lenient sentence.

Sentencing consideration

11.In HKSAR v Lam See Chung Stephen [2013] 5 HKLRD 242, the Court of Appeal stated that in credit card fraud cases involved small unsophisticated operation and where genuine cards were used, a starting point of 3 years’ imprisonment or less would be appropriate.

12.Considered all the circumstances of the case, while the court accepts that the operation involved was small but it cannot be described as totally unsophisticated.  It is not a case where the defendant simply presented credit card of others to make fraudulent transactions.  Obtaining credit card credentials of others from the internet and Telegram and setting up fake website to deceive the victims to provide credit card credentials certainly required special knowledge, skill and preparation.  Further, this case involved a total of 15 known victims and 2 unknown victims and the total credit card limit involved is over HK$1.9 million.  The potential loss of the victims is significant.

13.On the other hand, the court has considered the defendant’s personal background and in particular his clear record.  Further, the court accepts that the amount involved in each charge is not very large.

14.Considered all of the above, the court is of the view that for charges 1 to 7 and 11 to 21, the appropriate starting point should be 30 months’ imprisonment.  For charges 8 to 10, 22 and 23 which involved much smaller amounts, the court will adopt 24 months as the starting point.  The defendant pleaded guilty to all charges and is entitled to one-third discount.  As a result, the sentences of individual charges are as follows:

(a)  Charges 1 to 7 and 11 to 21: 20 months’ imprisonment

(b)  Charges 8 to 10, 22 and 23: 16 months’ imprisonment

15.Lastly, the court has to consider the totality of the sentence.  Considered all the circumstances, the court is of the view that 45 months is sufficient to reflect the overall criminality of the defendant in this case and after one-third discount for the guilty pleas the sentence should be 30 months’ imprisonment.  To achieve this, I order the sentences of all charges to run concurrently except 2 months’ imprisonment of charges 13 to 17 to run consecutively with sentences of other charges.  As a result, the total sentence is 30 months’ imprisonment.