HKSAR v. Syed Rizal Bin Syed Ahmad Al Attas and Another

DCCC 621/2014

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 621 OF 2014

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REASONS FOR SENTENCE

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1.D1, a Malaysian male, has pleaded guilty to one charge of theft, contrary to section 9 of the Theft Ordinance, Chapter 210 (charge 1) and three charges of obtaining property by deception, contrary to section 17 of the Theft Ordinance, Chapter 210 (charges 2-4).

2.In summary between 4:03 and 4:28 p.m. on the 26 April this year you used a stolen credit card to obtain goods from two shops in Pacific Place.  The first shop was DG Lifestyle where you obtained Apple computer products to the value of $52,728 (charge 2). 

3.You then went to Balmain Paris where you selected clothing to the value of $10,288 which you paid for using the same stolen credit card (charge 3).  D2 then selected a scarf valued at $4,350 which he gave to you and again you paid with the same stolen credit card (charge 4).

4.In the meantime the owner of the card used by you had reported the loss of his card.  Balmain was notified of the suspicious transactions and alerted the police.  You were arrested shortly after whilst still in the vicinity of Pacific Place. 

5.On a search the police found on you the two receipts from Balmain.  Under caution you said you had picked up the card in Causeway Bay and tried your luck.  Notwithstanding the card had been used by you shortly after being reported lost the prosecution proceed on the theft charge on the basis of your admission you picked up the card (charge 1).

6.In passing sentence I take into account the factors which a sentencing judge will need to consider in credit card frauds as set out by the Court of Appeal in R v Chan Siu To [1996] 2 HKCLR 128, including the size of the operation; the planning that had gone into perpetrating the fraud; whether there is an international dimension; and whether the accused played a major role.  The factors were not intended however to be exhaustive but provide valuable assistance to the court.  The courts have repeatedly stressed that deterrent sentences are to be imposed. 

7.Where the facts of the offence point to a small unsophisticated operation, involving one or a few forged cards uncomplicated by other evidence materially linking the offender to a larger operation, a starting point of 3 years or less may be appropriate (see for example HKSAR v Tu I Lang CACC 464/2006).  A 3 year starting point was also held to be appropriate in HKSAR v Kwan Po Keung [2012] 2 HKLRD 12 for obtaining goods on a single occasion to the value of $56,116.

8.Higher sentences have been held appropriate for example where the defendant was obviously part of a wider organisation that had caused cards to be printed specifically for him (see for example HKSAR v Au Yeung Shu Sang CACC 474/2006); where forged credit cards are used together with forged identity cards or travel documents (see for example HKSAR v Poon Cho Shu [2000] 3 HKLRD 110); and where visitors come to Hong Kong armed with forged credit cards (see for example HKSAR v Terahara Yoshio CACC 495/2000). 

9.I take into account you have a clear record in Hong Kong.  This however carries little weight where the offender is a visitor who has been in Hong Kong only a few days before committing serious crime.  You arrived in Hong Kong on the 23 April this year three days before you were arrested.  The commission of offences by a visitor is an aggravating feature of sentence (see HKSAR v Aguilar Garcia Milner Javier CACC485/2012).

10.I have carefully considered everything said on your behalf by Mr Dosani together with your mitigation letter and medical reports as to your mother’s health.  The medical reports show that your mother was diagnosed with cancer in 2006.  Whilst sympathetic you clearly came to Hong Kong in full knowledge of your mother’s ill health and therefore this carries little weight in mitigation.  

11.Although surprised the prosecution are not proceeding on the basis you are closely linked to the theft of the credit card from the owner I am nevertheless satisfied you are materially linked to a larger operation.  On arrest less than two hours after obtaining the Apple computer products and just over an hour after obtaining the clothing subject of charge 3 these valuable items (total value $63,016) together with the stolen card were no longer in your possession or the possession of D2. 

12.In the written submission of Mr Dosani you say that they were left under a tree while you were having a smoke.  Feeling that you were being followed you left the goods behind and boarded a bus at which time you were arrested.   This was not accepted by the prosecution who pointed out that the CCTV footage of Balmain showed that when you entered Balmain you were no longer carrying the computer products. Further after your arrest the police could not find any of the goods when searching the area.

13.After Mr Dosani took further instructions you say that before going to shop in Balmain you gave the computer products for safe keeping to a Chinese girl you had met the night before in a bar. 

14.As indicated in court I do not accept these assertions.  You have elected not to give evidence in support of your claim.   I am satisfied the only inference to draw, from the fact you were no longer in possession of the goods and the card shortly after the goods were obtained, is that you were part of a larger operation who disposed of the goods. 

15.For the theft of the credit card (charge 1) I am satisfied a starting point of 12 months imprisonment is appropriate.  Taking into account that you used the card three times to obtain high value goods; your link to a larger operation and that you are a visitor who committed offences within three days of arriving in Hong Kong I am satisfied a starting point of 3 years and 9 months imprisonment is appropriate on each of charges 2-4.

Sentence

16.Giving you full credit for your pleas of guilty you are convicted and sentenced as follows:

Charge 1 - 8 months imprisonment;

Charges 2 - 4 – 2 years and 6 months imprisonment on each charge

All offences arising out of the same facts I am satisfied that concurrent sentences are appropriate. You will serve a total sentence of 2 years and 6 months imprisonment, which I am satisfied properly reflects your criminality on the four charges.