HKSAR v. Aktas Alim and Another

DCCC1061/2009

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 1061 OF 2009

--------------------

--------------------

---------------------

Reasons for Sentence

---------------------

1.Defendants, please remain seated whilst I give my reasons for sentence.

2.D1 and D2, you have both pleaded guilty to a single offence of Conspiracy to steal, contrary to sections 159A and C of the Crimes Ordinance, Cap. 200 and section 9 of the Theft Ordinance.

3.You admitted the brief facts and I convicted you.

4.The brief facts were as follows. The charge of conspiracy to steal resulted from your agreement and subsequent execution of withdrawals of cash from ATMs of various banks in Hong Kong by inserting plastic cards with “MiGROS Club” printed on the front, and a magnetic strip on the back. The magnetic strip contained account details of Visa cards, MasterCards, or payment cards issued by foreign banks. You were both arrested on 5 July of this year whilst in the course of withdrawing money from the ATM of Fubon Bank on Hennessy Road.

5.You had arrived in Hong Kong from Istanbul at 1720 hours on 4 July this year. You brought with you numerous MiGROS Club cards. You withdrew cash from the Hongkong and Shanghai Bank ATM at the airport by repeated by using the card. You withdrew $1,500, $2,500 and $5,000 between 1823 and 1833 hours.

6.You then checked into the Regal Kowloon Hotel in Tsim Sha Tsui.

7.From 0006 hours on 5 July 2009, you attempted to withdraw cash from various ATMs in Hong Kong at 13 different locations, the last was the Fubon Bank on Hennessy Road.

8.The police had placed you under observation when you, D2, had withdrew cash from the Bank of China ATM at Hennessy Road while you, D1, kept look-out. Thereafter, you went to the ATM of the Hang Seng Bank, the Standard Chartered Bank and finally, the Fubon Bank, all on Hennessy Road.

9.You were intercepted by the police, and you, D2, threw away a black cardholder into a rubbish bin. It was found to contain 15 MiGROS Club cards and two pieces of paper, each with identical PIN numbers for the cards. You attempted to flee, but you were caught by a police officer.

10.D1, you were searched and in your possession were found the following: (a) a cardholder containing nine MiGROS Club cards; (b) a wallet with 11 MiGROS Club cards and a piece of paper with PIN numbers; and (c) cash of $51,000.

11.D2, you were found in possession of HK$78,600 and US$624.

12.A search of your hotel room found in the safe $72,000, and inside D2’s luggage bag, two HSBC ATM advices dated 4 July showing withdrawals of $1,500 and $5,000, respectively. There was also a piece of paper with the MiGROS Club card numbers and the PIN numbers.

13.Under caution you both admitted to using the MiGROS cards and to withdrawing money, but you could not recall the exact locations.

14.ATM records of various banks showed 32 successful withdrawals, netting a total of $87,000, and 33 unsuccessful attempts, which would potentially have netted $124,000. Potential total loss had therefore been $211,000.

15.Each of you are of clear record in Hong Kong. Very helpfully, Miss Wong, for the prosecution provided the details of two similar cases that she had dealt with in the District Court. It seemed to me that the second case was of more relevance. That is the case of HKSAR v Darren Cavanagh and James Edward Gilhooly(?), that is DCCC572/2008. In that case the two defendants were sentenced to 32 months’ imprisonment after pleading guilty and to effecting full restoration of the money taken in that case totalling $450,000 approximately.

16.Mrs Panesar, on your behalf, entered mitigation. She told me that you are each self-employed. In fact, you are partners in an electronic business and your purpose in coming to Hong Kong was to purchase goods to sell in your shop. You each earned the equivalent of about HK$12,000 per month by way of profit.

17.She stressed your clear records whilst conceding that you were visitors. She told me that her instructions were that you had clear records in Turkey also.

18.D1, you are 32 years of age. You are married with two children and you are the sole breadwinner of the family. You have parents in Turkey and one elder sister and one elder brother.

19.D2, you are 23 years of age and single. You have your parents and five sisters. Four of the sisters are married and live apart, but one sister lives at home and is unemployed. You therefore provide for your parents and one sister.

20.There was common mitigation in this case. Mrs Panesar, on your behalf, has stressed your pleas of guilty and your cooperation with the police upon arrest. Mrs Panesar said that you found the cards on the aeroplane, along with their PIN numbers and foolishly resolved to use them in this criminal enterprise. This was not a case where you had come armed with these cards as part of a criminal syndicate.

21.The whole enterprise was limited in time to one day. That, of course, is due to the vigilance of our police. However, your total stay was to be one of four days. She also said that the amount of damage you could have done was limited by the credit limit on each of the cards and that you both agreed to full compensation being made to the victims. I was told you agreed to the whole amount found in your possession being taken. However, that does not seem to me to be fair.

22.Mrs Panesar urged I take a lower starting point than the 48 months adopted in the case I have referred to in view of the fact that the amount of money taken was much lower. As I have said in that case it involved two offences, two periods of time and the total amount taken was some $450,000, whereas in the present case it is some $87,000 and limited to one charge.

23.I turn now to the sentence. In sentencing you I took of course into account the nature of the charge involving as it did numerous illegal credit cards. Also the number of attempted transactions, which were 65, 32 being successful and netting some $87,000. This meant that approximately 50 per cent of those attempts were successful. The potential damage was some $211,000.

24.That you are of clear record is of little relevance as you are visitors to Hong Kong. Whilst the explanation of how you came into ownership of these cards is somewhat strange, I am prepared to stretch the point and accept that. I accept also that you were extremely cooperative with the police, making full admissions upon arrest and that you are offering full compensation to the victims. But of course that means the victims who can be located.

25.In all the circumstances I take a starting point of 3 years’ imprisonment, reduced to 2 for your plea of guilty. You will each go to prison for 2 years.

26.Additionally, I make an order for compensation in the sum of $87,000, that to be taken from the cash in your possession in the following way: the $72,000 found in the hotel safe will be taken towards this compensation. And from the cash found in each of your possessions, $7,500 will be also taken. That money is to be held by the police and paid over to those victims that they can locate or make claims. At the end of six months, such money as left over because it has not been claimed, will be confiscated.

27.I am sure that you have been advised that the time you spent on remand will count towards your sentences.

28.And might I finally thank both counsel for their assistance in this case as always.