HKSAR v. Nahar Sayela

DCCC 1366/2024

[2025] HKDC 1468

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 1366 OF 2024

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REASONS FOR SENTENCE

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1.The defendant is convicted on her own pleas of the following charges: Charge 1, theft of a Hong Kong ID card belonging to a lady called Ale Gam Maya; Charge 2, theft of a cheque and a mobile phone on the same day; Charge 3, breach of condition of stay; Charge 4, using an ID card relating to another person on 18 June 2024; and Charge 5, attempted fraud, which was committed on the same day.

The Facts

2.The facts are quite straightforward.  On 18 June 2024, the defendant presented a cash cheque issued by Enterpriser International Limited T/A Sweet 19 for the amount of HK$19,760 to a bank manager at a branch of the Hongkong and Shanghai Banking Corporation on Nathan Road, Yau Ma Tei, Hong Kong. 

3.The defendant presented the cheque as if she was the owner of it and stating that she wanted to make a cash withdrawal therewith.  The manager asked the defendant for her ID card, which she did by producing the Hong Kong ID card of the said Ale Gam Maya.  Noticing a discrepancy between the defendant’s appearance and the photo on Ms Maya’s HKID card, the case was reported by the manager to the police.

4.When the police arrived, the defendant claimed that she had lost her own HKID card and was yet to obtain a replacement.  She also stated that on 15 June 2024, she found a bag containing the above cheque, the HKID card of Maya, and a Samsung mobile phone somewhere in Yau Ma Tei.  She kept the three items and discarded the bag afterwards. 

5.When the defendant was subsequently interviewed by a police officer, she made admissions to the offences. According to the immigration records, the defendant’s employment contract with her former employer was prematurely terminated on 8 January 2019. There is no record of any further extension of stay at the Foreign Domestic Helpers Section of the Immigration Department since.  As such, under existing immigration policy, she must leave Hong Kong upon expiry of the limit of her stay or within 2 weeks from the date of termination of her contract, whichever is earlier.  On this basis, the defendant has overstayed in Hong Kong for over 5 years. 

Defendant’s Background

6.The defendant is a Bangladesh national by birth.  She is 36 years old and single.  Her aged mother still resides in Bangladesh.  So are her two siblings.  Defendant herself was educated to high school level.  She came to Hong Kong to work as a domestic helper in June 2014, but her contract of employment was prematurely terminated on 8 January 2019.  Instead of leaving Hong Kong on or before 22 January 2019, which was the due date according to the policy, she chose to stay on and had been an overstayer since.  She has, however, a clear record in Hong Kong. 

Mitigations

7.Now, defendant’s counsel, Mr Turnbull, has essentially put forward the following points in mitigation: (1)  the defendant’s timely guilty pleas to the charges; (2)  the defendant’s clear record; (3)  the two thefts in the present case were no more than thefts by finding; (4)  the fraud here was committed in an amateurish way; (5)  there is no financial loss to the bank; and (6)  the defendant is unlikely to commit any further offence in Hong Kong. 

Sentencing Principles

8.Now, except for Charge 4, namely, the charge of using a Hong Kong ID card belonging to another person, for which the Court of Appeal has set down a guideline on sentence in the case of HKSAR v Li Chang Li [2005] 1 HKLRD 864, there is no tariff or guideline for the other four charges. 

9.In Mr Turnbull’s submission, it is suggested that for the two thefts and the fraud, namely, Charges 1, 2 and 5, a starting point of 15 months is about right.  For this, reliance is placed on the Court of Appeal case of Secretary of Justice v Wong Che Ping [2020] 5 HKLRD 220.  As for Charge 3, it is submitted that a starting point of 6 months would have been the proper choice.

10.Now having considered all the matters put before me by the defence, whilst I am prepared to accept some of the suggestions made by defence counsel on sentence, I think one must not lose sight of the fact that the offences under Charges 1, 2, 4 and 5 were all committed whilst the defendant was an overstayer in Hong Kong.  And the offences of fraud and using an ID card belonging to another person have also been regarded all along as serious offences meriting substantive terms of imprisonment. 

11.And lastly, insofar as the fraud is concerned, one should remember that in committing that offence, the defendant made use of not only the stolen cheque, but also the stolen HKID card of Ms Maya. 

12.With these things in mind, I take the following starting points for each of the five charges: Charge 1, 15 months’ imprisonment; Charge 2, 15 months of imprisonment; Charge 3, 6 months’ imprisonment; Charge 4, 22 months’ imprisonment; and Charge 5, 24 months’ imprisonment. 

13.Because of the defendant’s timely pleas, the sentences for each of these charges will be reduced to: in the case of Charges 1 and 2, 10 months’ imprisonment each; Charge 3, 4 months’ imprisonment; Charge 4, 15 months’ imprisonment; and Charge 5, 16 months’ imprisonment. 

14.But of course, given that the five charges were all interconnected, and all committed within a period of 2 to 3 days, I am sure that they should be looked at in the round,  that is, of course, with the exception of Charge 3, which was a continuing offence, and it has been continuing for 5 years, as I said. 

15.Now taking what I hope is a fair and balanced view of the whole picture, I am of the opinion that a global term, before deduction, that is, of 39 months, and after deduction, 26 months, is appropriate and reasonable. 

16.In coming to this decision, on top of the cases helpfully referred to me by Mr Turnbull, I have also found the Court of Appeal’s decision in the cases of HKSAR v Yue Un-Chow CACC 275/1999, and HKSAR v Galvis Silva Paola Andrea CACC 133/2018, useful. 

17.Now to give effect to the global term of 26 months, which I have arrived at after considering totality, I shall order the sentences for Charges 1, 2 and 3 to run concurrently with each other.  And I further order that the sentences for Charges 4 and 5 to likewise run concurrently with each other but consecutively to the terms of imprisonment imposed on Charges 1 to 3, making thus a total term of 26 months’ imprisonment.