The Queen v. Ajibola Swaju Oyalowo and Another

CACC000090/1985

BETWEEN

Coram: McMullin, V.-P., Li, V.-P. & Yang, J.A.

Date of Hearing: 19 June 1985

Date of Judgment: 19 June 1985

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JUDGMENT

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Li, V.-P. :

1. The applicants are convicted upon a total of eleven charges - one of attempt to obtain property by deception, nine of obtaining property by deception and one of obtaining services by deception.

2. The facts are that between the 19th of December and the 20th of December last year the two applicants arrived in Hong Kong from Nigeria. They checked in to the Furama Hotel on the 19th December, used a mastercard which did not belong to them but in the name of one Jeremy Stockley to obtain accommodation and other services. They lost no time in setting out to obtain goods from various shops and boutiques. Between the 19th and the 20th of December they successfully obtained goods to the value of $49,806. The first applicant Oyalowo as holder of American Express Credit Card in the name of A.D. Ogundipe, whilst Stockley card was used by Ajayi, the 2nd applicant.

3. Eventually, they were found out. On the 21st of December they attempted to obtain a quantity of clothes to the value of yet another $6,530 from the lady Madonna Boutique by the same method, Oyalowo used the American Express Card of A.D. Ogundipe. When the shop assistant checked upon the credit of Ogundipe, the American Express discovered that the credit card had been reported lost and stolen. The police was sent for. Eventually the applicants were caught and searched. On their person were found three credit cards in different names including the Stockley card and the Ogundipe card. There were also two identity cards in the name of Mr. Ogundipe and Mr. Stockley. It was found that they stayed in the Furama Hotel. The police then took them back to their hotel room. There were found the personal passports of the two applicants and yet another American Express Card belonging to another person with the identity card of another person by the name of Cohen-Gilboa. They had their air-tickets in the room and a variety of valuables in the form of necklaces and watches and also the goods that were obtained by them from the various shops by their deception. Thus the eleven counts of attempting to obtain, the nine counts of obtaining property by deception and one count of obtaining services by deception were all substantiated. These cards were subsequently found to have been stolen from abroad. There could only be one object of the applicants coming to Hong Kong which was to defraud various shops.

4. The judge having heard counsel in mitigation sentenced each of the applicants to 18 months imprisonment in respect of each count; the sentences to run concurrently. In his reasons for sentence the judge emphasized that their one and only object in coming to Hong Kong was to defraud our shopkeepers. It was a systematic fraud, well-planned with the use of stolen credit cards. It was a threat to our business activities and a threat to our credit structure. Fortunately, all goods were recovered. The judge also considered the point that they were strangers in prison and therefore would probably find the experience harder.

5. The grounds advanced in support of the applications by both applicants are similar: they had pleaded guilty, they were cooperative with the police and the judge did not give sufficient consideration to their plea in mitigation.

6. As to the pleas of guilty and the cooperation with the police, we observe that they had very little option because the evidence was overwhelming. The police took them to their hotel room where practically all the goods obtained by these foul means were recovered. In the circumstances, one cannot imagine what else they could do but to cooperate and plead guilty. Very little discount could be given.

7. They advance yet another reason to substantiate their allegation that the sentences are excessive. They cite a case where a French person who committed similar offences in the same way was sentenced to only 12 months and on a review by magistrate the sentence was reduced to 10 months imprisonment. That case probably was decided upon humanitarian grounds because the accused in that case, as reported, suffered from epilepsy.

8. Learned counsel for the Crown in his usual fairness directed our attention to yet another case before another division of this Court in which a Philipino came to Hong Kong on an expedition of exactly the same nature. He pleaded guilty to 38 counts of the similar offences by the same method using false American Express Cards in the same way. The total value of the goods he obtained was valued at $17,000. In each offence the goods he obtained was less than $1,000. He was sentenced to 2 years and 9 months imprisonment. This court reduced the sentence to 9 months. That was a case in 1982.

9. With great respect we feel that 18 months imprisonment for an offence of this nature is a proper sentence. Having regard to the prevalence of this type of offence 9 months imprisonment is on the low side. However having regard to the judgment of the court of appeal in 1982 and the sentence then imposed we cannot help feeling that the applicants in this case might well feel a sense of justifiable grievance in relation thereto.

10. For this reason and this reason alone we would allow their applications for leave to appeal against sentence, treat their applications as the appeal proper, set aside the sentence of 18 months imprisonment and substitute a sentence of 12 months imprisonment in respect of each count, the sentences to run concurrently.

11. Perhaps we should add this observation. The 18 months imprisonment is a proper sentence, but for the reason stated above. With the prevalence of this type of offence we suggest that in future the appropriate sentence in similar cases should be not less than 18 months if not more.

Representation:

Appellant in person

Mr. M.J. Hartmann (Crown) for respondent