HKSAR v. Hamed Shady Mohamed Gamal Eldeen

DCCC792/2011

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 792 OF 2011

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Reasons for Sentence

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1.Defendant, you have been convicted on your plea of guilty to two charges, the first of using a false instrument, namely, an American Express card in the name of a Mark Taylor, which you knew to be false, intending it to be accepted as genuine, contrary to section 73 of the Crimes Ordinance, Cap.200, Laws of Hong Kong.

2.The 2nd charge you have admitted is an offence of possession of a false instrument, contrary to section 73(1) of the Crimes Ordinance, Cap.200, Laws of Hong Kong, the particulars being that on the same day as Charge 1 - that is,

3.The facts which you have admitted are very straightforward and establish that on 28 May you entered a retail outlet in Causeway Bay called “Studio A Technology Limited” and attempted to purchase two iPhones valued at HK$11,776 by using the false credit card named in Charge 1.

4.The salesperson suspected the card to be fake due to its poor quality, and caused enquiries to be made with the card centre where its falsity was confirmed.  A report was made to the police.

5.You were intercepted and, on a search of your person, the second false card named in Charge 2 was found on you.

6.You are 32 years of age, an Egyptian national, and arrived in Hong Kong the day before the offences.  You married in 2009 in Australia, where I am told you have been living for the past three years.  You have a background in banking, IT and accounting and have a hitherto clear criminal record.

7.There is no suggestion that you brought these false cards into Hong Kong or were otherwise involved in any forged credit card syndicate, or indeed, involved in their manufacture. I am told, through your counsel, that you were approached by an unknown Indian male in Tsim Sha Tsui, who sold these two cards to you and, on the spur of the moment, you took the opportunity, quite stupidly, not only to buy them but actually to use one of the cards which gives rise to the 1st charge.

8.By your own actions, you have, of course, let down your family and friends, and you have also clearly jeopardised a promising future in accountancy, which I am told you had wished to pursue.  You have no one other than yourself to blame for this.  Whilst I accept that there are no aggravating features in this case, such as those that were considered in the case of R v Chan Sui To & Another [1996] 2 HKCLR 128, I do not accept the mitigation put forward on your behalf that the potential for loss in the circumstances of this case was zero due to the poor quality of the cards.  You cannot use to your advantage in mitigation the alertness of the salesperson who became suspicious once this card was handed to him.  There is always a potential for loss in the use of false credit cards.

9.These types of offences are extremely prevalent in Hong Kong and deterrent sentences must be passed.

10.In arriving at my starting point for the 1st charge, I am bound to say that I am surprised that one of the cases prayed in aid by defence counsel is the case of HKSAR v Suen Tat Yeung Ricky, MA 729/2006.  This was an appeal against the sentence imposed by a magistrate for an offence under section 73.  The learned magistrate adopting a starting point of 2 years’ imprisonment, reducing it to 16 months due to the appellant’s plea of guilty.  The appeal was unsuccessful but I find it to be most unhelpful, bearing in mind that the maximum sentence the magistrate could have imposed was one of 2 years’ imprisonment.  It is quite impossible to speculate whether the starting point would have been the same had the case been heard in the District Court, bearing in mind that the case concerns the attempt purchase of $19,800 worth of jewellery.

11.Of much more assistance is the case of HKSAR v Tu I Lang, that is CA 464/2006, where a starting point of 4 years’ imprisonment was reduced to 3 years’ imprisonment.  The facts of that case were remarkably similar to the facts of the present case and involved the appellant using a forged credit card to attempt to purchase a mobile phone from Fortress. When he was searched, a further two forged cards were found in his possession.

12.In sentencing you, I take all that has been said on your behalf by way of mitigation.  I propose to adopt a starting point of 3 years’ imprisonment in respect of Charge 1.  I will discount this sentence by one-third to take account of your plea of guilty, coming to 2 years’ imprisonment on Charge 1.

13.On Charge 2, I adopt a starting point of 18 months’ imprisonment.  This sentence will be similarly discounted by one-third to reflect your plea of guilty, coming to 12 months’ imprisonment on Charge 2. Due to the question of totality of sentence, and to reflect the overall criminality involved, I order the sentences on both charges to run concurrently with each other, arriving at a total sentence of 2 years’ imprisonment.