DCCC70/2022 HKSAR v. MOHAMMED JAQUB BALOCH - LawHero
DCCC70/2022
區域法院（刑事）Deputy District Judge M H Tsui2/3/2023[2023] HKDC 337
DCCC70/2022
A A
B B
DCCC 70/2022
C [2023] HKDC 337 C
D D
IN THE DISTRICT COURT OF THE
E HONG KONG SPECIAL ADMINISTRATIVE REGION E
CRIMINAL CASE NO 70 OF 2022
F F
G ----------------------------- G
HKSAR
H H
v
I MOHAMMED JAQUB BALOCH I
-----------------------------
J J
K Before: Deputy District Judge M H Tsui in court K
Date: 3 March 2023
L L
Present: Mr Tsoi Shun Cheong, Counsel on Fiat, for HKSAR/Director
M of Public Prosecutions M
Mr Chan Wai Shun, Daniel, instructed by Tse Yuen Ting
N N
Wong, assigned by the Director of Legal Aid
O Offence: [1], [3], [4] Fraud（欺詐罪） O
P
[2] Taking employment while being a person in respect of P
whom a deportation order is in force （身為遞解離境令對其
Q Q
有效的人而接受僱傭工作）
R [5] to [13], [16] to [18], [20], [22]Theft （盜竊罪） R
[14], [15] Obtaining property by deception (以欺騙手段取得
S S
財產)
T T
U U
V V
-2-
A A
B B
[19], [21], [23] Using an identity card relating to another
C person （使用他人的身分證） C
[24] Possession of an identity card relating to another person
D D
(管有他人的身分證)
E E
F F
-----------------------------------------
G REASONS FOR SENTENCE G
-----------------------------------------
H H
I I
1. The defendant pleaded guilty to 3 charges of Fraud, contrary
J
to section 16A of the Theft Ordinance, Cap 210; 1 charge of Taking J
employment while being a person in respect of whom a deportation order
K K
is in force, contrary to section 38AA(1)(b) and 38AA(2) of the Immigration
L
Ordinance, Cap 115; 10 charges of Theft, contrary to section 9 of the Theft L
Ordinance, Cap 210; 2 charges of Obtaining property by deception,
M M
contrary to section 17(1) of the Theft Ordinance, Cap 210; 3 charges of
N Using an identity card relating to another person, contrary to section 7A(1A) N
of the Registration of Persons Ordinance, Cap 177; and 1 charge of
O O
Possession of an identity card relating to another person, contrary to section
P 7A(1A) of the Registration of Persons Ordinance, Cap 177. P
Q Q
2. Charges 6 to 8 and 16 are to be kept on court file and not to
R proceed without the leave of the court. R
S S
3. The defendant admitted to the facts set out in the Amended
T Summary of Facts. T
U U
V V
-3-
A A
B B
Charges 1 to 4 and 24
C C
4. On 24 December 2020, PC13091 (PW 20) spotted the
D D
defendant whose appearance and attire resembled that of a wanted person.
E Upon interception, the defendant produced a Hong Kong Identity card E
bearing the name NAEEM XXXXX (card no. Y266XXX(8)) (“HKID
F F
card”). The owner of the HKID card (PW 17) subsequently confirmed that
G he had lost the card in around June 2019. He further confirmed that he had G
not lent the HKID card to any other person, and he was not acquainted with
H H
the defendant. (Charge 24)
I I
5. PW 17 informed the police that he had received a telephone
J J
call from United Asia Finance Limited (“UA Finance”) on about 7 August
K 2020 informing him that he had an outstanding loan. However, PW 17 had K
no knowledge of the loan. Upon enquiry with UA Finance, it was found
L L
that a person had attended the office of UA Finance on 10 December 2019
M and made a loan application by presenting the original HKID card and an M
Employment Contract between Miapao Investment Limited and NAEEM
N N
XXXXX dated 18 November 2019. As a result, agreements including a
O loan in the principal amount of HK$5,000 and a revolving loan facility in O
the principal amount of HK$5,000 were entered into between UA Finance
P P
and the person representing to be NAEEM XXXXX. A cash cheque in the
Q sum of HK$4,950 and a sum of HK$5,000 was transferred to a bank Q
account provided by the applicant. (Charge 3 and 4)
R R
S 6. PW19, Operation Director of Miapao Investment Limited S
confirmed that the person representing to be NAEEM XXXXX was
T T
employed as a shop manager by Miapao between 18 November 2019 and
U U
V V
-4-
A A
B B
6 January 2020. A total sum of HK$36,355.05 was paid to the person
C known as NAEEM XXXXX. (Charge 1 and 2) C
D D
Charge 5
E E
F 7. On 7 October 2020 at about 17:00 hours, the defendant F
entered a cosmetic shop “Fresh” in Sha Tin and asked PW1, staff of the
G G
shop to show him some products. PW1 placed an iPhone belonging to the
H shop at the cashier counter. The defendant left at 18:00 hours. PW1 H
discovered the iPhone went missing. CCTV captured the defendant taking
I I
a mobile phone from the cashier counter and leaving the shop. In a
J subsequent video-recorded interview, the defendant admitted under J
caution to have stolen the iPhone.
K K
L L
Charge 9
M M
8. On 28 October 2020 at about 17:00 hours, the defendant
N entered a cosmetic shop “Kiehl’s” in Cheung Sha Wan. PW5, staff of the N
shop showed him some information on the shop’s iPad. After the
O O
Defendant left at 17:45 hours, PW5 discovered 2 iPads belonging to the
P shop went missing. In a subsequent video-recorded interview, the P
defendant admitted under caution to have stolen the 2 iPads.
Q Q
R R
Charge 10
S S
9. On 31 October 2020 at about 16:40 hours, PW6, staff of a
T T
boutique “Aigle” in Kowloon Bay discovered that an iPhone belonging to
U U
V V
-5-
A A
B B
the shop was missing. CCTV captured the defendant taking the iPhone
C from the cashier counter and leaving the shop. In a subsequent video- C
recorded interview, the defendant admitted under caution to have stolen the
D D
iPhone.
E E
Charge 11
F F
G 10. On 31 October 2020 at about 17:30 hours, PW7, staff of the G
boutique shop “LANCASTER” in Kowloon Tong discovered that a VIVO
H H
mobile phone belonging to the shop was missing. CCTV captured the
I defendant taking the mobile phone from the cashier counter. In a I
subsequent video-recorded interview, the defendant admitted under
J J
caution to have stolen the VIVO phone.
K K
Charge 12
L L
M 11. On 2 November 2020 at about 15:00 hours, the defendant M
entered a boutique “MOUSSY” in Causeway Bay and asked PW8, staff of
N N
the shop to show him some clothing. PW8 left for lunch and upon returning
O to the boutique at about 17:20 hours, PW8 discovered an iPhone belonging O
to the shop was missing. CCTV captured the defendant taking a mobile
P P
phone from the cashier counter. In a subsequent video-recorded interview,
Q the defendant admitted under caution to have stolen the iPhone. Q
R R
Charges 13, 14 and 15
S S
12. On 26 November 2020 at about 14:30 hours, PW9, staff of the
T T
boutique “PPO PPO” and “D2 Fashion” in Wong Tai Sin kept her wallet
U U
V V
-6-
A A
B B
inside an unsecured drawer at the cashier counter. The defendant visited
C the shop and left without making any purchase. At about 18:40 hours, PW9 C
received a SMS message informing her that her Hang Seng credit card was
D D
used in a transaction at an electronic device shop. Upon checking, PW9
E discovered that her Hang Seng credit card was missing. CCTV captured E
the defendant taking something from PW9’s wallet. In a subsequent video-
F F
recorded interview, the defendant admitted under caution that he used
G PW9’s credit card to purchase 3 iphones for HK$33,200 (Charge 14) and G
a Samsung mobile phone for HK$4,680 (Charge 15).
H H
I Charge 17 I
J J
13. On 8 December 2020 at about 14:45 hours, the defendant
K entered the shop “Lovintage” in Causeway Bay and subsequently left K
without making any purchase. PW15, staff of the shop later discovered
L L
that a “Chanel” handbag belonging to the shop was missing. CCTV
M captured the defendant taking a handbag from a shelf and left without M
making payment. In a subsequent video-recorded interview, the defendant
N N
admitted under caution to have stolen the “Chanel” handbag.
O O
Charge 18
P P
Q 14. On 16 December 2020, the defendant entered the shop “Euro Q
Station” in Yau Ma Tei and subsequently left without making any purchase.
R R
PW16, staff of the shop, later discovered that a “LV” wallet, a “Goyard”
S handbag and a “Prada” handbag belonging to the shop were missing. S
CCTV captured the defendant taking the missing items and leaving the
T T
U U
V V
-7-
A A
B B
shop. In a subsequent video-recorded interview, the defendant admitted
C under caution to have stolen the three items. C
D D
Charge 19
E E
15. On 16 December 2020, the defendant attended the shop
F F
“Brand Off” in Central. He sold one “LV” wallet, one “Goyard” handbag
G and one “Prada” handbag to the shop by producing a Hong Kong Identity G
Card bearing the name NAEEM XXXXX to the staff. In return, a sum of
H H
HK$6,300 cash was paid to the defendant. Upon inspection, PW14
I confirmed the seized wallet and handbags resembled the items found I
missing from the shop in Charge 18.
J J
K Charge 20 K
L L
16. On 19 December 2020 at about 15:10 hours, the defendant
M entered a boutique “MEMOIRE FLASH” in Tsim Sha Tsui and left the M
shop without making any purchase. PW15 subsequently discovered that a
N N
“Hermes” diamond wrist chain placed in a white paper bag was missing.
O CCTV captured the defendant taking a white paper bag from the shop. In O
a subsequent video-recorded interview, the defendant admitted under
P P
caution to have stolen the diamond wrist chain.
Q Q
Charge 21
R R
S 17. On 19 December 2020, the defendant attended the shop S
“Brand Off” in Central. He sold one “Hermes” diamond wrist chain by
T T
producing a Hong Kong Identity Card bearing the name NAEEM XXXXX
U U
V V
-8-
A A
B B
to the staff. In return, a sum of HK$15,000 cash was paid to the defendant.
C Upon inspection, PW15 confirmed the seized diamond wrist chain was the C
same diamond wrist chain found missing from the shop in Charge 20.
D D
E Charge 22 E
F F
18. On 22 December 2020 at about 16:00 hours, the defendant
G entered the shop “Luxurybag Shop” in Causeway Bay and left the shop G
without making any purchase. PW16 subsequently discovered that 2
H H
“Hermes” handbags belonging to the shop were missing. CCTV captured
I the defendant taking the 2 handbags from the shop. In a subsequent video- I
recorded interview, the defendant admitted under caution to have stolen the
J J
2 “Hermes” handbags.
K K
Charge 23
L L
M 19. On 22 December 2020, the defendant attended the shop M
“Brand Off” in Central. He sold 2 “Hermes” handbags to the shop by
N N
producing a Hong Kong Identity Card bearing the name NAEEM XXXXX
O to the staff. In return, a sum of HK$25,000 cash was given to the defendant. O
Upon inspection, PW16 confirmed the 2 seized handbags were the same
P P
handbags found missing from the shop in Charge 22.
Q Q
Criminal record
R R
S 20. The defendant has 21 counts of previous convictions, 18 of S
which were for the offences of theft and 1 for the offence of attempted theft.
T T
The defendant had been sentenced to Training Centre Detention Order,
U U
V V
-9-
A A
B B
suspended sentence and imprisonment. His last conviction was in 2015 for
C 10 counts of theft. He was sentenced to 12 months’ imprisonment for the C
first count and 10 months’ imprisonment for each subsequent count. 2
D D
months’ imprisonment of each of the subsequent counts were ordered to be
E served consecutively to the first count. E
F F
Mitigation
G G
21. This Court sought a background report before sentencing.
H H
I 22. The background report revealed that the defendant was born I
in the Philippines as an only child to a Pakistani father and a Filipino
J J
mother. He arrived in Hong Kong in October 1995 to join his step family
K and was taken care of by his stepmother. The defendant’s father died in K
2012 and he had no contact with his birth mother. He lived with his
L L
stepmother and stepbrother and maintained a harmonious relationship with
M them. In 2008, the defendant entered into an arranged marriage with a M
Pakistani woman 10 years his senior in Pakistan. His wife lives in Pakistan
N N
and the defendant provides financial support to her with financial
O assistance from his stepmother. He completed Form 5 education in Hong O
Kong. He was sentenced to Training Centre Detention Order in 2005 but
P P
he continued his studies and obtained the Hong Kong Certificate of
Q Education after his release. Q
R R
23. The defendant expressed his remorse and stated that he
S committed the present offences because his wife in Pakistan was ill, his S
stepmother became unemployed and his stepbrother underemployed
T T
because of the COVID pandemic.
U U
V V
- 10 -
A A
B B
C 24. Defence counsel submitted that the defendant had been a C
Hong Kong identity card holder, but he failed to obtain permanent
D D
residency due to his late father’s failure to lodge a timely application.
E Since 2012 he has been given a temporary status as a Recognizance holder E
in Hong Kong and because of his immigration status he has been prevented
F F
from taking up employment.
G G
25. Mitigation letters written by the defendant, the defendant’s
H H
stepmother and stepbrother were considered by the Court.
I I
26. In respect of the offences of Fraud, defence counsel cited the
J J
authorities of Tam Sze Yan Cynthia1 and Tsai Hung Miu 2 in which the
K sentencing courts adopted a starting point of 6 months’ imprisonment after K
trial and was affirmed by the appellate court.
L L
M 27. In respect of the charge 2, defence counsel cited the M
authorities of Nani Ihtianti3, Winda Agustin4 and Usman Butt & ors5. It
N N
was submitted that the usual sentence of taking up employment while a
O deportation order is in force is 15 months’ imprisonment after plea. O
P P
Q Q
R R
S S
1
HCMA 1003/2002
2
HCMA 420/2003
T 3 T
HKSAR v Nani Ihtianti, HCMA 640/2012
4
HKSAR v Winda Agustin, HCMA 601/2015
5
HKSAR v Usman Butt & Ors, [2011] 1 HKC 12
U U
V V
- 11 -
A A
B B
28. In respect of charges involving the commission of shoplifting,
C defence counsel cited the authorities of Yang Yan Yun6, Kong Ching Ha C
Priscilla7 and the Chinese judgment of 阮世仲8。
D D
E Reasons for sentence E
F F
29. In passing sentence, the court has considered the overall facts
G of the case, the mitigation letters and supporting documents submitted, and G
the mitigation advanced by defence counsel.
H H
I 30. The total value of the stolen properties amounted to I
HK$240,329.95. The stolen properties were not recovered.
J J
K Charges 1-4 and 24 K
L L
31. Charges 1 and 2 involved the use of the Hong Kong Identity
M card of another to obtain employment, and of taking up employment while M
being a person in respect of whom a deportation order is in force. Charges
N N
3 and 4 involved the false representation of being the genuine holder of the
O O
same Hong Kong Identity card in a loan and a revolving credit facility
P
application. The total amount granted was HK$9,950. Charge 24 involved P
the possession of the same Hong Kong Identity card.
Q Q
R
32. The use of identification document to defraud others for the R
purpose of obtaining employment, loans and credit facilities are serious
S S
T 6
HKSAR v Yang Yan Yun [2014] 1 HKLRD 564 T
7
HKSAR v Kong Ching Ha Priscilla HCMA 941/2005
8
香港特別行政區 訴 阮世仲 HCMA 529/2003
U U
V V
- 12 -
A A
B B
offences. I adopt a starting point of 6 months’ imprisonment for each of
C charges 1, 3 and 4 reduced to 4 months’ imprisonment for the guilty plea. C
D D
33. The Court of Appeal in the case of Usman Butt & another
E reviewed the authorities and laid down the guideline sentence of 15 months’ E
imprisonment upon a guilty plea in relation to s.38AA offences. I order a
F F
15 months’ imprisonment term for Charge 2. I have considered the
G authority of Li Chang Li9 , the defendant was found in possession of a Hong G
Kong Identity card of another person. I consider an imprisonment term of
H H
12 months after plea to be appropriate for Charge 24.
I I
34. Charges 1 to 4 and 24 involved the use and possession of the
J J
same Hong Kong Identity card for obtaining a loan, credit facility and
K employment, he was subsequently found in possession of the same identity K
card. I consider there to be sufficient nexus between the offences to order
L L
the imprisonment term of the charges to be served concurrently.
M (15 months’ imprisonment) M
N N
Charges 5, 9, 12 and 17
O O
35. Charges 5, 9, 12 and 17 relate to the theft of iPhones, iPads,
P P
one iPhone case and one handbag on diver days and locations. The value
Q of the iPhones and iPads ranged from HK$2,000 to HK$8,000, and the Q
handbag was valued at HK$22,000. I adopt a starting point of 9 months’
R R
imprisonment for each of the offences reduced to 6 month’s imprisonment
S for the guilty plea. S
T T
9
HKSAR v Li Chang Li, [2005] 1 HKLRD 864
U U
V V
- 13 -
A A
B B
C Charges 10 and 11 C
D D
36. Charges 10 and 11 relate to the theft of one iPhone and one
E mobile phone committed on the same day at different locations. I adopt a E
starting point of 9 months’ imprisonment for each of the offences reduced
F F
to 6 months’ imprisonment for the guilty plea.
G G
Charges 13, 14 and 15
H H
I 37. Charges 13, 14 and 15 relate to the theft of credit card and the I
commission of credit card fraud. The maximum sentence for the respective
J J
charges is 10 years’ imprisonment. The court has outlined the approach in
K sentencing such offences in R v Chan Sui To & Anor 10. In cases involving K
small scale credit card fraud, a starting point of 3 years’ imprisonment or
L L
less was considered appropriate.
M M
38. The defence relied on the authority of Ma Ke Zong11 in which
N N
the sentencing court imposed a 6 months’ imprisonment term for the theft
O of a credit card and 8 months’ imprisonment term for the use of the credit O
card to obtain property by deception. The imprisonment terms were
P P
suspended for 2 years by the appellate court on account of personal
Q circumstances of the defendant. The defendant in the particular case Q
suffered from depression and was of clear record, and the case involved
R R
only 2 charges. The defendant in the present case has 19 previous
S S
T T
10
[1996] 2 HKCLR 128
11
HKSAR v Ma Ke Zong HCMA 534/2013
U U
V V
- 14 -
A A
B B
convictions related to theft and there are no personal circumstances that
C warrant special consideration. C
D D
39. The present case involved the theft of one credit card and the
E use of the said credit card for the payment of three iPhones and one mobile E
phone at a total cost of HK$37,880. It was a small scale operation
F F
committed by the defendant alone. There was no evidence of any triad
G affiliation or international element. I have also considered possible G
potential loss suffered by the victims. I adopt a starting point of 9 months’
H H
imprisonment for Charge 13 and a starting point of 24 months’
I imprisonment each for Charges 14 and 15. The defendant is entitled to I
one-third deduction for his guilty plea. I sentence him to 6 months’
J J
imprisonment for Charge 13, and 16 month’s imprisonment each for
K Charges 14 and 15. There is sufficient nexus between the offences to order K
the imprisonment terms of Charges 13, 14 and 15 to be served concurrently.
L L
M Charges 18 and 19, 20 and 21, 22 and 23 M
N N
40. Charges 18 and 19, 20 and 21, and 22 and 23 involved the
O theft of high value goods that were subsequently sold on the same day. The O
same modus operandi were adopted by the defendant on each occasion
P P
which reflected a degree of premeditation. During each transaction, the
Q defendant produced a Hong Kong identity card relating to another person. Q
The items stolen were branded goods of high value. They amounted to a
R R
value of HK$36,000 for Charge 18, HK$48,000 for Charge 20 and
S HK$65,600 for Charge 22. S
T T
U U
V V
- 15 -
A A
B B
41. I consider a starting point of 12 months’ imprisonment to be
C appropriate for each of Charges 18, 20 and 22 reduced to 8 months’ C
imprisonment for the defendant’s guilty pleas. Charges 19, 21 and 23
D D
involved the use of an identity card relating to another person. I have
E considered the authority of Li Chang Li. I adopt a starting point of 18 E
months’ imprisonment term reduced to 12 months’ imprisonment on
F F
account of his guilty pleas for each of the Charges 19, 21 and 23.
G G
42. Charges 18 and 19; 20 and 21; 22 and 23 are 3 distinct
H H
transactions that occurred on three separate days involving 3 sets of
I properties. I order the sentences of Charges 18 and 19 to be concurrently I
served. The imprisonment term of Charges of 20 and 21 to be concurrently
J J
served and the imprisonment term of Charges of 22 and 23 to be
K concurrently served. K
L L
43. In mitigation, defence counsel submitted a written
M supplementary submission listing in comprehensive details the events that M
led to the present immigration status of the defendant. It was submitted
N N
that the defendant failed to obtain permanent residency in Hong Kong
O because his father had failed to submit the required documents. The O
unfortunate events that led to his Form 8 holder status assists only in so far
P P
it distinguishes him from those that entered Hong Kong for the purpose of
Q committing crimes. I agree that his sentence should not be enhanced under Q
the circumstances.
R R
S Totality S
T T
44. I have considered the principle of totality. I order:-
U U
V V
- 16 -
A A
B B
C 45. The imprisonment terms of Charges 1, 2, 3, 4 and 24 to be C
served concurrently, i.e. a total imprisonment term of 15 months.
D D
E 46. 1 month of the 6 months’ imprisonment term for each of E
Charges 5, 9, 12 and 17 to be served consecutively to one another and to
F F
Charges 1 to 4 and 24.
G G
47. The 6 months’ imprisonment term of each of Charges 10 and
H H
11 to be served concurrently, with 1 month consecutive to Charges 1 to 4
I and 24; and Charges 5,9,12 and 17. I
J J
48. The imprisonment terms of Charges 13,14 and 15 be served
K concurrently arriving at a total imprisonment term of 16 months, with 5 K
months to be served consecutively to Charges 1 - 4 and 24; Charges 5, 9,
L L
12 and 17; and Charges 10 and 11.
M M
49. The imprisonment terms of Charges 18 and 19 to be served
N N
concurrently arriving at a total imprisonment term of 12 months, with 5
O months to be served consecutively to Charges 1 - 4 and 24; Charges 5, 9, O
12 and 17; Charges 10 and 11; and Charges 13, 14 and 15.
P P
Q 50. The imprisonment terms of Charges 20 and 21 to be served Q
concurrently arriving at a total imprisonment term of 12 months with 5
R R
months to be served consecutively to Charges 1 - 4 and 24; Charges 5, 9,
S 12 and 17; Charges 10 and 11; Charges 13, 14 and 15; and Charges 18 and S
19.
T T
U U
V V
- 17 -
A A
B B
51. The imprisonment terms of Charges 22 and 23 to be served
C concurrently arriving at a total imprisonment term of 12 months with 5 C
months to be served consecutively to Charges 1 - 4 and 24; Charges 5, 9,
D D
12 and 17; Charges 10 and 11; Charges 13, 14 and 15; Charges 18 and 19;
E and Charges 20 and 21. E
F F
52. Total imprisonment term is 15+1+1+1+1+1+5+5+5+5=40
G months’ imprisonment. G
H H
I I
J ( M H Tsui ) J
Deputy District Judge
K K
L L
M M
N N
O O
P P
Q Q
R R
S S
T T
U U
V V
A A
B B
DCCC 70/2022
C [2023] HKDC 337 C
D D
IN THE DISTRICT COURT OF THE
E HONG KONG SPECIAL ADMINISTRATIVE REGION E
CRIMINAL CASE NO 70 OF 2022
F F
G ----------------------------- G
HKSAR
H H
v
I MOHAMMED JAQUB BALOCH I
-----------------------------
J J
K Before: Deputy District Judge M H Tsui in court K
Date: 3 March 2023
L L
Present: Mr Tsoi Shun Cheong, Counsel on Fiat, for HKSAR/Director
M of Public Prosecutions M
Mr Chan Wai Shun, Daniel, instructed by Tse Yuen Ting
N N
Wong, assigned by the Director of Legal Aid
O Offence: [1], [3], [4] Fraud（欺詐罪） O
P
[2] Taking employment while being a person in respect of P
whom a deportation order is in force （身為遞解離境令對其
Q Q
有效的人而接受僱傭工作）
R [5] to [13], [16] to [18], [20], [22]Theft （盜竊罪） R
[14], [15] Obtaining property by deception (以欺騙手段取得
S S
財產)
T T
U U
V V
-2-
A A
B B
[19], [21], [23] Using an identity card relating to another
C person （使用他人的身分證） C
[24] Possession of an identity card relating to another person
D D
(管有他人的身分證)
E E
F F
-----------------------------------------
G REASONS FOR SENTENCE G
-----------------------------------------
H H
I I
1. The defendant pleaded guilty to 3 charges of Fraud, contrary
J
to section 16A of the Theft Ordinance, Cap 210; 1 charge of Taking J
employment while being a person in respect of whom a deportation order
K K
is in force, contrary to section 38AA(1)(b) and 38AA(2) of the Immigration
L
Ordinance, Cap 115; 10 charges of Theft, contrary to section 9 of the Theft L
Ordinance, Cap 210; 2 charges of Obtaining property by deception,
M M
contrary to section 17(1) of the Theft Ordinance, Cap 210; 3 charges of
N Using an identity card relating to another person, contrary to section 7A(1A) N
of the Registration of Persons Ordinance, Cap 177; and 1 charge of
O O
Possession of an identity card relating to another person, contrary to section
P 7A(1A) of the Registration of Persons Ordinance, Cap 177. P
Q Q
2. Charges 6 to 8 and 16 are to be kept on court file and not to
R proceed without the leave of the court. R
S S
3. The defendant admitted to the facts set out in the Amended
T Summary of Facts. T
U U
V V
-3-
A A
B B
Charges 1 to 4 and 24
C C
4. On 24 December 2020, PC13091 (PW 20) spotted the
D D
defendant whose appearance and attire resembled that of a wanted person.
E Upon interception, the defendant produced a Hong Kong Identity card E
bearing the name NAEEM XXXXX (card no. Y266XXX(8)) (“HKID
F F
card”). The owner of the HKID card (PW 17) subsequently confirmed that
G he had lost the card in around June 2019. He further confirmed that he had G
not lent the HKID card to any other person, and he was not acquainted with
H H
the defendant. (Charge 24)
I I
5. PW 17 informed the police that he had received a telephone
J J
call from United Asia Finance Limited (“UA Finance”) on about 7 August
K 2020 informing him that he had an outstanding loan. However, PW 17 had K
no knowledge of the loan. Upon enquiry with UA Finance, it was found
L L
that a person had attended the office of UA Finance on 10 December 2019
M and made a loan application by presenting the original HKID card and an M
Employment Contract between Miapao Investment Limited and NAEEM
N N
XXXXX dated 18 November 2019. As a result, agreements including a
O loan in the principal amount of HK$5,000 and a revolving loan facility in O
the principal amount of HK$5,000 were entered into between UA Finance
P P
and the person representing to be NAEEM XXXXX. A cash cheque in the
Q sum of HK$4,950 and a sum of HK$5,000 was transferred to a bank Q
account provided by the applicant. (Charge 3 and 4)
R R
S 6. PW19, Operation Director of Miapao Investment Limited S
confirmed that the person representing to be NAEEM XXXXX was
T T
employed as a shop manager by Miapao between 18 November 2019 and
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B B
6 January 2020. A total sum of HK$36,355.05 was paid to the person
C known as NAEEM XXXXX. (Charge 1 and 2) C
D D
Charge 5
E E
F 7. On 7 October 2020 at about 17:00 hours, the defendant F
entered a cosmetic shop “Fresh” in Sha Tin and asked PW1, staff of the
G G
shop to show him some products. PW1 placed an iPhone belonging to the
H shop at the cashier counter. The defendant left at 18:00 hours. PW1 H
discovered the iPhone went missing. CCTV captured the defendant taking
I I
a mobile phone from the cashier counter and leaving the shop. In a
J subsequent video-recorded interview, the defendant admitted under J
caution to have stolen the iPhone.
K K
L L
Charge 9
M M
8. On 28 October 2020 at about 17:00 hours, the defendant
N entered a cosmetic shop “Kiehl’s” in Cheung Sha Wan. PW5, staff of the N
shop showed him some information on the shop’s iPad. After the
O O
Defendant left at 17:45 hours, PW5 discovered 2 iPads belonging to the
P shop went missing. In a subsequent video-recorded interview, the P
defendant admitted under caution to have stolen the 2 iPads.
Q Q
R R
Charge 10
S S
9. On 31 October 2020 at about 16:40 hours, PW6, staff of a
T T
boutique “Aigle” in Kowloon Bay discovered that an iPhone belonging to
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B B
the shop was missing. CCTV captured the defendant taking the iPhone
C from the cashier counter and leaving the shop. In a subsequent video- C
recorded interview, the defendant admitted under caution to have stolen the
D D
iPhone.
E E
Charge 11
F F
G 10. On 31 October 2020 at about 17:30 hours, PW7, staff of the G
boutique shop “LANCASTER” in Kowloon Tong discovered that a VIVO
H H
mobile phone belonging to the shop was missing. CCTV captured the
I defendant taking the mobile phone from the cashier counter. In a I
subsequent video-recorded interview, the defendant admitted under
J J
caution to have stolen the VIVO phone.
K K
Charge 12
L L
M 11. On 2 November 2020 at about 15:00 hours, the defendant M
entered a boutique “MOUSSY” in Causeway Bay and asked PW8, staff of
N N
the shop to show him some clothing. PW8 left for lunch and upon returning
O to the boutique at about 17:20 hours, PW8 discovered an iPhone belonging O
to the shop was missing. CCTV captured the defendant taking a mobile
P P
phone from the cashier counter. In a subsequent video-recorded interview,
Q the defendant admitted under caution to have stolen the iPhone. Q
R R
Charges 13, 14 and 15
S S
12. On 26 November 2020 at about 14:30 hours, PW9, staff of the
T T
boutique “PPO PPO” and “D2 Fashion” in Wong Tai Sin kept her wallet
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B B
inside an unsecured drawer at the cashier counter. The defendant visited
C the shop and left without making any purchase. At about 18:40 hours, PW9 C
received a SMS message informing her that her Hang Seng credit card was
D D
used in a transaction at an electronic device shop. Upon checking, PW9
E discovered that her Hang Seng credit card was missing. CCTV captured E
the defendant taking something from PW9’s wallet. In a subsequent video-
F F
recorded interview, the defendant admitted under caution that he used
G PW9’s credit card to purchase 3 iphones for HK$33,200 (Charge 14) and G
a Samsung mobile phone for HK$4,680 (Charge 15).
H H
I Charge 17 I
J J
13. On 8 December 2020 at about 14:45 hours, the defendant
K entered the shop “Lovintage” in Causeway Bay and subsequently left K
without making any purchase. PW15, staff of the shop later discovered
L L
that a “Chanel” handbag belonging to the shop was missing. CCTV
M captured the defendant taking a handbag from a shelf and left without M
making payment. In a subsequent video-recorded interview, the defendant
N N
admitted under caution to have stolen the “Chanel” handbag.
O O
Charge 18
P P
Q 14. On 16 December 2020, the defendant entered the shop “Euro Q
Station” in Yau Ma Tei and subsequently left without making any purchase.
R R
PW16, staff of the shop, later discovered that a “LV” wallet, a “Goyard”
S handbag and a “Prada” handbag belonging to the shop were missing. S
CCTV captured the defendant taking the missing items and leaving the
T T
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B B
shop. In a subsequent video-recorded interview, the defendant admitted
C under caution to have stolen the three items. C
D D
Charge 19
E E
15. On 16 December 2020, the defendant attended the shop
F F
“Brand Off” in Central. He sold one “LV” wallet, one “Goyard” handbag
G and one “Prada” handbag to the shop by producing a Hong Kong Identity G
Card bearing the name NAEEM XXXXX to the staff. In return, a sum of
H H
HK$6,300 cash was paid to the defendant. Upon inspection, PW14
I confirmed the seized wallet and handbags resembled the items found I
missing from the shop in Charge 18.
J J
K Charge 20 K
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16. On 19 December 2020 at about 15:10 hours, the defendant
M entered a boutique “MEMOIRE FLASH” in Tsim Sha Tsui and left the M
shop without making any purchase. PW15 subsequently discovered that a
N N
“Hermes” diamond wrist chain placed in a white paper bag was missing.
O CCTV captured the defendant taking a white paper bag from the shop. In O
a subsequent video-recorded interview, the defendant admitted under
P P
caution to have stolen the diamond wrist chain.
Q Q
Charge 21
R R
S 17. On 19 December 2020, the defendant attended the shop S
“Brand Off” in Central. He sold one “Hermes” diamond wrist chain by
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producing a Hong Kong Identity Card bearing the name NAEEM XXXXX
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B B
to the staff. In return, a sum of HK$15,000 cash was paid to the defendant.
C Upon inspection, PW15 confirmed the seized diamond wrist chain was the C
same diamond wrist chain found missing from the shop in Charge 20.
D D
E Charge 22 E
F F
18. On 22 December 2020 at about 16:00 hours, the defendant
G entered the shop “Luxurybag Shop” in Causeway Bay and left the shop G
without making any purchase. PW16 subsequently discovered that 2
H H
“Hermes” handbags belonging to the shop were missing. CCTV captured
I the defendant taking the 2 handbags from the shop. In a subsequent video- I
recorded interview, the defendant admitted under caution to have stolen the
J J
2 “Hermes” handbags.
K K
Charge 23
L L
M 19. On 22 December 2020, the defendant attended the shop M
“Brand Off” in Central. He sold 2 “Hermes” handbags to the shop by
N N
producing a Hong Kong Identity Card bearing the name NAEEM XXXXX
O to the staff. In return, a sum of HK$25,000 cash was given to the defendant. O
Upon inspection, PW16 confirmed the 2 seized handbags were the same
P P
handbags found missing from the shop in Charge 22.
Q Q
Criminal record
R R
S 20. The defendant has 21 counts of previous convictions, 18 of S
which were for the offences of theft and 1 for the offence of attempted theft.
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The defendant had been sentenced to Training Centre Detention Order,
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B B
suspended sentence and imprisonment. His last conviction was in 2015 for
C 10 counts of theft. He was sentenced to 12 months’ imprisonment for the C
first count and 10 months’ imprisonment for each subsequent count. 2
D D
months’ imprisonment of each of the subsequent counts were ordered to be
E served consecutively to the first count. E
F F
Mitigation
G G
21. This Court sought a background report before sentencing.
H H
I 22. The background report revealed that the defendant was born I
in the Philippines as an only child to a Pakistani father and a Filipino
J J
mother. He arrived in Hong Kong in October 1995 to join his step family
K and was taken care of by his stepmother. The defendant’s father died in K
2012 and he had no contact with his birth mother. He lived with his
L L
stepmother and stepbrother and maintained a harmonious relationship with
M them. In 2008, the defendant entered into an arranged marriage with a M
Pakistani woman 10 years his senior in Pakistan. His wife lives in Pakistan
N N
and the defendant provides financial support to her with financial
O assistance from his stepmother. He completed Form 5 education in Hong O
Kong. He was sentenced to Training Centre Detention Order in 2005 but
P P
he continued his studies and obtained the Hong Kong Certificate of
Q Education after his release. Q
R R
23. The defendant expressed his remorse and stated that he
S committed the present offences because his wife in Pakistan was ill, his S
stepmother became unemployed and his stepbrother underemployed
T T
because of the COVID pandemic.
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B B
C 24. Defence counsel submitted that the defendant had been a C
Hong Kong identity card holder, but he failed to obtain permanent
D D
residency due to his late father’s failure to lodge a timely application.
E Since 2012 he has been given a temporary status as a Recognizance holder E
in Hong Kong and because of his immigration status he has been prevented
F F
from taking up employment.
G G
25. Mitigation letters written by the defendant, the defendant’s
H H
stepmother and stepbrother were considered by the Court.
I I
26. In respect of the offences of Fraud, defence counsel cited the
J J
authorities of Tam Sze Yan Cynthia1 and Tsai Hung Miu 2 in which the
K sentencing courts adopted a starting point of 6 months’ imprisonment after K
trial and was affirmed by the appellate court.
L L
M 27. In respect of the charge 2, defence counsel cited the M
authorities of Nani Ihtianti3, Winda Agustin4 and Usman Butt & ors5. It
N N
was submitted that the usual sentence of taking up employment while a
O deportation order is in force is 15 months’ imprisonment after plea. O
P P
Q Q
R R
S S
1
HCMA 1003/2002
2
HCMA 420/2003
T 3 T
HKSAR v Nani Ihtianti, HCMA 640/2012
4
HKSAR v Winda Agustin, HCMA 601/2015
5
HKSAR v Usman Butt & Ors, [2011] 1 HKC 12
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A A
B B
28. In respect of charges involving the commission of shoplifting,
C defence counsel cited the authorities of Yang Yan Yun6, Kong Ching Ha C
Priscilla7 and the Chinese judgment of 阮世仲8。
D D
E Reasons for sentence E
F F
29. In passing sentence, the court has considered the overall facts
G of the case, the mitigation letters and supporting documents submitted, and G
the mitigation advanced by defence counsel.
H H
I 30. The total value of the stolen properties amounted to I
HK$240,329.95. The stolen properties were not recovered.
J J
K Charges 1-4 and 24 K
L L
31. Charges 1 and 2 involved the use of the Hong Kong Identity
M card of another to obtain employment, and of taking up employment while M
being a person in respect of whom a deportation order is in force. Charges
N N
3 and 4 involved the false representation of being the genuine holder of the
O O
same Hong Kong Identity card in a loan and a revolving credit facility
P
application. The total amount granted was HK$9,950. Charge 24 involved P
the possession of the same Hong Kong Identity card.
Q Q
R
32. The use of identification document to defraud others for the R
purpose of obtaining employment, loans and credit facilities are serious
S S
T 6
HKSAR v Yang Yan Yun [2014] 1 HKLRD 564 T
7
HKSAR v Kong Ching Ha Priscilla HCMA 941/2005
8
香港特別行政區 訴 阮世仲 HCMA 529/2003
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A A
B B
offences. I adopt a starting point of 6 months’ imprisonment for each of
C charges 1, 3 and 4 reduced to 4 months’ imprisonment for the guilty plea. C
D D
33. The Court of Appeal in the case of Usman Butt & another
E reviewed the authorities and laid down the guideline sentence of 15 months’ E
imprisonment upon a guilty plea in relation to s.38AA offences. I order a
F F
15 months’ imprisonment term for Charge 2. I have considered the
G authority of Li Chang Li9 , the defendant was found in possession of a Hong G
Kong Identity card of another person. I consider an imprisonment term of
H H
12 months after plea to be appropriate for Charge 24.
I I
34. Charges 1 to 4 and 24 involved the use and possession of the
J J
same Hong Kong Identity card for obtaining a loan, credit facility and
K employment, he was subsequently found in possession of the same identity K
card. I consider there to be sufficient nexus between the offences to order
L L
the imprisonment term of the charges to be served concurrently.
M (15 months’ imprisonment) M
N N
Charges 5, 9, 12 and 17
O O
35. Charges 5, 9, 12 and 17 relate to the theft of iPhones, iPads,
P P
one iPhone case and one handbag on diver days and locations. The value
Q of the iPhones and iPads ranged from HK$2,000 to HK$8,000, and the Q
handbag was valued at HK$22,000. I adopt a starting point of 9 months’
R R
imprisonment for each of the offences reduced to 6 month’s imprisonment
S for the guilty plea. S
T T
9
HKSAR v Li Chang Li, [2005] 1 HKLRD 864
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A A
B B
C Charges 10 and 11 C
D D
36. Charges 10 and 11 relate to the theft of one iPhone and one
E mobile phone committed on the same day at different locations. I adopt a E
starting point of 9 months’ imprisonment for each of the offences reduced
F F
to 6 months’ imprisonment for the guilty plea.
G G
Charges 13, 14 and 15
H H
I 37. Charges 13, 14 and 15 relate to the theft of credit card and the I
commission of credit card fraud. The maximum sentence for the respective
J J
charges is 10 years’ imprisonment. The court has outlined the approach in
K sentencing such offences in R v Chan Sui To & Anor 10. In cases involving K
small scale credit card fraud, a starting point of 3 years’ imprisonment or
L L
less was considered appropriate.
M M
38. The defence relied on the authority of Ma Ke Zong11 in which
N N
the sentencing court imposed a 6 months’ imprisonment term for the theft
O of a credit card and 8 months’ imprisonment term for the use of the credit O
card to obtain property by deception. The imprisonment terms were
P P
suspended for 2 years by the appellate court on account of personal
Q circumstances of the defendant. The defendant in the particular case Q
suffered from depression and was of clear record, and the case involved
R R
only 2 charges. The defendant in the present case has 19 previous
S S
T T
10
[1996] 2 HKCLR 128
11
HKSAR v Ma Ke Zong HCMA 534/2013
U U
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A A
B B
convictions related to theft and there are no personal circumstances that
C warrant special consideration. C
D D
39. The present case involved the theft of one credit card and the
E use of the said credit card for the payment of three iPhones and one mobile E
phone at a total cost of HK$37,880. It was a small scale operation
F F
committed by the defendant alone. There was no evidence of any triad
G affiliation or international element. I have also considered possible G
potential loss suffered by the victims. I adopt a starting point of 9 months’
H H
imprisonment for Charge 13 and a starting point of 24 months’
I imprisonment each for Charges 14 and 15. The defendant is entitled to I
one-third deduction for his guilty plea. I sentence him to 6 months’
J J
imprisonment for Charge 13, and 16 month’s imprisonment each for
K Charges 14 and 15. There is sufficient nexus between the offences to order K
the imprisonment terms of Charges 13, 14 and 15 to be served concurrently.
L L
M Charges 18 and 19, 20 and 21, 22 and 23 M
N N
40. Charges 18 and 19, 20 and 21, and 22 and 23 involved the
O theft of high value goods that were subsequently sold on the same day. The O
same modus operandi were adopted by the defendant on each occasion
P P
which reflected a degree of premeditation. During each transaction, the
Q defendant produced a Hong Kong identity card relating to another person. Q
The items stolen were branded goods of high value. They amounted to a
R R
value of HK$36,000 for Charge 18, HK$48,000 for Charge 20 and
S HK$65,600 for Charge 22. S
T T
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A A
B B
41. I consider a starting point of 12 months’ imprisonment to be
C appropriate for each of Charges 18, 20 and 22 reduced to 8 months’ C
imprisonment for the defendant’s guilty pleas. Charges 19, 21 and 23
D D
involved the use of an identity card relating to another person. I have
E considered the authority of Li Chang Li. I adopt a starting point of 18 E
months’ imprisonment term reduced to 12 months’ imprisonment on
F F
account of his guilty pleas for each of the Charges 19, 21 and 23.
G G
42. Charges 18 and 19; 20 and 21; 22 and 23 are 3 distinct
H H
transactions that occurred on three separate days involving 3 sets of
I properties. I order the sentences of Charges 18 and 19 to be concurrently I
served. The imprisonment term of Charges of 20 and 21 to be concurrently
J J
served and the imprisonment term of Charges of 22 and 23 to be
K concurrently served. K
L L
43. In mitigation, defence counsel submitted a written
M supplementary submission listing in comprehensive details the events that M
led to the present immigration status of the defendant. It was submitted
N N
that the defendant failed to obtain permanent residency in Hong Kong
O because his father had failed to submit the required documents. The O
unfortunate events that led to his Form 8 holder status assists only in so far
P P
it distinguishes him from those that entered Hong Kong for the purpose of
Q committing crimes. I agree that his sentence should not be enhanced under Q
the circumstances.
R R
S Totality S
T T
44. I have considered the principle of totality. I order:-
U U
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A A
B B
C 45. The imprisonment terms of Charges 1, 2, 3, 4 and 24 to be C
served concurrently, i.e. a total imprisonment term of 15 months.
D D
E 46. 1 month of the 6 months’ imprisonment term for each of E
Charges 5, 9, 12 and 17 to be served consecutively to one another and to
F F
Charges 1 to 4 and 24.
G G
47. The 6 months’ imprisonment term of each of Charges 10 and
H H
11 to be served concurrently, with 1 month consecutive to Charges 1 to 4
I and 24; and Charges 5,9,12 and 17. I
J J
48. The imprisonment terms of Charges 13,14 and 15 be served
K concurrently arriving at a total imprisonment term of 16 months, with 5 K
months to be served consecutively to Charges 1 - 4 and 24; Charges 5, 9,
L L
12 and 17; and Charges 10 and 11.
M M
49. The imprisonment terms of Charges 18 and 19 to be served
N N
concurrently arriving at a total imprisonment term of 12 months, with 5
O months to be served consecutively to Charges 1 - 4 and 24; Charges 5, 9, O
12 and 17; Charges 10 and 11; and Charges 13, 14 and 15.
P P
Q 50. The imprisonment terms of Charges 20 and 21 to be served Q
concurrently arriving at a total imprisonment term of 12 months with 5
R R
months to be served consecutively to Charges 1 - 4 and 24; Charges 5, 9,
S 12 and 17; Charges 10 and 11; Charges 13, 14 and 15; and Charges 18 and S
19.
T T
U U
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A A
B B
51. The imprisonment terms of Charges 22 and 23 to be served
C concurrently arriving at a total imprisonment term of 12 months with 5 C
months to be served consecutively to Charges 1 - 4 and 24; Charges 5, 9,
D D
12 and 17; Charges 10 and 11; Charges 13, 14 and 15; Charges 18 and 19;
E and Charges 20 and 21. E
F F
52. Total imprisonment term is 15+1+1+1+1+1+5+5+5+5=40
G months’ imprisonment. G
H H
I I
J ( M H Tsui ) J
Deputy District Judge
K K
L L
M M
N N
O O
P P
Q Q
R R
S S
T T
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