DCCC141/2023 HKSAR v. ABDUL SAMEER AND ANOTHER - LawHero
DCCC141/2023
區域法院（刑事）Deputy District Judge Terence Wai4/10/2023[2023] HKDC 1416
DCCC141/2023
A A
B B
DCCC 141/2023
C [2023] HKDC 1416 C
D D
IN THE DISTRICT COURT OF THE
E HONG KONG SPECIAL ADMINISTRATIVE REGION E
CRIMINAL CASE NO 141 OF 2023
F F
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HKSAR
H H
v
I ABDUL SAMEER (D1) I
MULLICK ABDUL DAYAN (D2)
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K K
Before: Deputy District Judge Terence Wai
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Date: 5 October 2023
M Present: Ms Chung Wing Sze, Natalie, Public Prosecutor for M
HKSAR/Director of Public Prosecutions
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Mr Hingorani Jeevan, instructed by SY Fung, Solicitors,
O assigned by the Director of Legal Aid, for the 1st defendant O
Mr Delaney A Michael, instructed by Chin & Associates,
P P
nd
assigned by the Director of Legal Aid, for the 2 defendant
Q Offences: [1] Robbery（搶劫罪） - D2 Q
R
[2]-[8] Obtaining property by deception （以欺騙手段取得 R
財產）– D1&D2
S S
T T
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V V
-2-
A A
B B
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C REASONS FOR SENTENCE C
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E 1. D1 pleaded guilty to 7 counts of obtaining property by E
deception (2nd to 8th Charges), contrary to section 17(1) of the Theft
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Ordinance, Cap 210.
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2. D2 pleaded guilty to one count of robbery (1st Charge),
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contrary to section 10 of the Theft Ordinance, and 5 counts of obtaining
I property by deception (4th to 8th Charges). I
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FACTS
K K
2nd Charge
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M 3. Around 5:37 am on 26 August 2017, D1 entered the 7-Eleven M
Convenience Store at Ground Floor, No 3 Lan Kwai Fong, Central and
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bought 4 packets of cigarettes for $228 with an HSBC credit card
O numbered xxxx-xxxx-xxxx-4758 in the name of Flament Antonin Guy O
Gerard (the Credit Card).
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Q 3rd Charge Q
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4. Around 5:40 am on the same day, D1 entered the same
S convenience store at Lan Kwai Fong and bought a packet of cigarettes and S
a lighter for $68 with the Credit Card.
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B B
4th Charge
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5. Around 6:47 am on the same day, D1 and D2 entered the 7-
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Eleven Convenience Store at Ground Floor, No 23 Lock Road, Tsim Sha
E Tsui and bought 2 cans of drink for $53. D1 used the Credit Card to pay E
for the drinks.
F F
G 5th Charge G
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6. Around 7 am on the same day, D1 went into the same
I convenience store at Lock Road and bought a can of drink for $11 with the I
Credit Card while D2 waited outside.
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K 6th Charge K
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7. Around 7:37 am on the same day, D1 entered the 7-Eleven
M Convenience Store at Ground floor, No 6 Ichang Street, Tsim Sha Tsui and M
bought a packet of cigarettes and 2 cans of drink for $110 with the Credit
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Card while D2 waited outside.
O O
7th Charge
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Q 8. Around 10:07 am on the same day, D1 and D2 entered the 7- Q
Eleven Convenience Store at Shop No S18, Sham Shui Po MTR Station
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and bought a bottle of water and a mask for $11. D1 used the Credit Card
S to pay for these items. S
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B B
8th Charge
C C
9. Around 10:19 am on the same day, D1 and D2 entered a shop
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called Xin Hui at Ground Floor, No 232A Apliu Street, Sham Shui Po and
E bought 3 iPhones for $19,570. D2 used the Credit Card to pay for the E
phones.
F F
G D1’S ARREST AND ADMISSION G
H H
10. D1 was arrested on 23 October 2017. Under caution, he said
I the Credit Card had been acquired by D2 during a fight. D2 then gave him I
the Credit Card and told him that he could use it to buy things. He admitted
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using the Credit Card to make the purchases at the abovementioned
K convenience stores. It was D2 who used the Credit Card to pay for the K
iPhones at Xin Hui.
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M D2’S ARREST AND ADMISSIONS M
N N
11. D2 was arrested on 30 October 2017. Under caution, he
O admitted that:- O
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(i) Between 3:45 am and 4:15 am on 26 August 2017, the
Q holder of the Credit Card Flament (the Victim) had a Q
dispute and a fight with his friends D1, Michael,
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Nathaniel and Soda. After the fight broke up, Soda
S found her mobile phone missing. His friends S
discovered that the phone had been taken by the Victim,
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who demanded payment for the return of the phone. D2
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and his friends were able to locate the Victim in Wing
C Lok Street. When the Victim refused to return the C
phone, they started attacking him until he handed over
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the phone. During this attack, D2 kicked the Victim’s
E thigh a few times. E
F F
(ii) Just as they were leaving after the attack, someone
G suggested taking the Victim’s wallet. As a result, their G
group approached the Victim and beat him again.
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During the process, D2 lifted up the Victim’s legs. He
I saw D1 taking the Victim’s wallet from his pocket. I
They then left the scene. D2 and his friends took the
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$200 cash and the Credit Card out of the wallet and
K threw away the wallet and its contents. K
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(iii) He did go to the convenience stores mentioned in the
M 4th, 5th, 6th and 7th Charges with D1 and was either in M
the store with D1 or waiting outside. He was aware that
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D1 made the purchases at those stores with the Credit
O Card. O
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(iv) He went with D1 to Xin Hui and bought 3 iPhone and
Q accessories with the Credit Card. It was he who signed Q
the credit card receipt. He and D1 later sold the iPhones
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for HK$14,000 and shared the proceeds.
S S
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12. The Loss Prevention Officer of 7-Eleven and the salesperson
C of Xin Hui confirmed that they will not accept payment if the buyer C
presenting a credit card for payment is not the genuine cardholder.
D D
E THE DEFENDANTS’ BACKGROUND E
F F
13. D1 is 22 years old. He was born in Hong Kong on 4 January
G 2001 and was educated here up to Form 6 and was studying HKU Space G
Community College before his arrest for the dangerous drugs case. His
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family consists of his parents who are both 52 years old, a 30-year-old elder
I sister who is married and living in Pakistan, a 25-year-old elder brother and I
an 18-year-old younger sister.
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K 14. He has 4 previous convictions, all drug-related and all were K
committed after the present offences. He is currently serving a 49-month
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sentence imposed on 5 October 2022 for drug trafficking and possession
M of Part I poison. M
N N
15. D2 is 22 years old. He was born in Kolkata, India on 8
O December 2000. He came to Hong Kong when he was 1 or 2 years old. O
He was educated in Hong Kong and finished his secondary schooling in
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2019. His family consists of his parents and an elder sister. He had been
Q working in the food and beverage business since his graduation until his Q
re-arrest in December 2022.
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S 16. He has a previous conviction for possession of a dangerous S
drug and was fined $2,000 on 2 July 2019.
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MITIGATION
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17. D1 was only 16 years old and a Form 4 student when he
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committed the present offences. At that time, he had a clear record.
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18. D1’s counsel Mr Hingorani pointed out that the items
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purchased by D1 with the use of the Credit Card were small items. He was
G young and stupid, and easily influenced by others. Nonetheless, he is G
remorseful for having committed those offences.
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I 19. In prison, he is trying to be a better person, follow a better I
path and become a law-abiding citizen with the hope of integrating in the
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community.
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20. Mr. Hingorani referred to two District Court1 cases not only
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for the actual sentence imposed in those cases but also for the starting
M points adopted by the courts with regard to “small credit card fraud”. I M
shall deal with those cases later.
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O 21. In his supplemental mitigation submission, Mr Hingorani, O
having had sight of the mitigation submissions advanced by D2’s counsel
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Mr Delaney, expressed his agreement with the views expressed therein and
Q submitted that s 109A of the Criminal Procedure Ordinance (s 109A) Q
would have applied to D1 had he been timely prosecuted and sentenced
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between the ages of 16 and 21, and that he would have been an ideal
S candidate for a Community Service Order (CSO) given his age, his clear S
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1
HKSAR v Lam Lai Tak DCCC 361/2016; HKSAR v Masih Sunil & Ali Raza DCCC 374/2019.
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record, the circumstances of the offences, his admission and cooperation
C with the police, and his admission of guilt. C
D D
22. However, by reason of the inexcusable delay in the
E prosecution of this case, D1 is now over 21 and is serving a prison sentence, E
having been deprived of the chance to benefit from the rehabilitative effect
F F
of a CSO. While acknowledging that sentencing options such as Probation
G and CSO may not be available to D1 now that he is already serving a term G
of imprisonment, nevertheless Mr Hingorani submitted that the fact that
H H
they would have been suitable calls for a sentence that is not more serious
I than the ones such Orders represent. I
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23. In his letter to the court, D1 said he is truly sorry for having
K broken the law. He was young and stupid and was easily influenced by his K
friends. In prison, he is trying to be a smarter and better person, and is
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studying a course by the Hong Kong Metropolitan University, in the hope
M that he will be able to integrate into the community and become a law- M
abiding and civilised person upon his release.
N N
O 24. As for D2, regarding the circumstances of the offence, Mr O
Delaney submitted that the clashes with the Victim which eventually led to
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his being robbed had been instigated by the Victim himself. According to
Q D2, the Victim had approached him and his friends to offer them drugs and Q
he continued to harass them when they ignored his offer. The Victim then
R R
got into a fight with his friends, during which he snatched Soda’s phone.
S Subsequently when he refused to return the phone unless money was given S
to him, D2 and his friends sought him out and, in the midst of this encounter,
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st
the 1 Charge of robbery was committed. D2 claimed that he was slightly
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drunk and was acting under the influence of D1 and Michael, both of whom
C he wanted to befriend. D2 only joined in the robbery after the others had C
started assaulting the Victim. He himself had kicked the Victim’s thigh a
D D
few times.
E E
25. As for the 4th to 7th Charges, it was D1 who used the Credit
F F
Card for the purchases while he was either standing around in the store or
G waiting outside. As for the 8th Charge, D1 was nearby overseeing D2 who G
was persuaded to sign for the illicit purchase. All the purchases were made
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in one day.
I I
26. Mr Delaney pointed out that, apart from D2’s remorse as
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evidenced by his frank admissions to the police and his present pleas of
K guilty, there are exceptional circumstances in this case. D2 was 16 years K
old when he committed these offences. As a result of unreasonable and
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inordinate delay in prosecution, he is facing sentencing by the court 6 years
M after the offence. During these 6 years, he has rehabilitated himself. He M
had been in steady and continuous employment since leaving school up to
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the time of his re-arrest in December 2012.
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27. Given those exceptional circumstances, D2 should be
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considered as possibly suitable for a CSO or at least a Detention Centre
Q Order. However, if the court is minded to impose a custodial sentence, the Q
sentence for individual charges should be made concurrent or partly
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concurrent.
S S
28. In his letter to the court, D2 recounts the hardship he faces by
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reason of his being re-arrested and charged some 5 years after the offences
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were committed. The re-opening of the case against him after such a long
C time through no fault of his has affected his career, his personal life, his C
confidence and his mental health. He asks for the court’s understanding of
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his situation and due consideration of the question of delay.
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29. The authorities relied on by Mr Delaney will be dealt with in
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due course.
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SENTENCING CONSIDERATIONS
H H
I Effect of s 109A I
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30. As both defence counsel pointed out, the two defendants were
K both 16 years old at the time they committed these offences, which was K
slightly over 6 years ago. Leaving aside the question of delay in
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prosecution, which will be dealt with later, had the defendants been
M timeously brought to court and dealt with, it is likely that they would be M
dealt with before they turned 21, and s 109A, which stipulates that “No
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court shall sentence a person of or over 16 and under 21 years of age to
O imprisonment unless the court is of opinion that no other method of dealing O
with such person is appropriate…” would have applied.
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Q 31. Counsel submitted that the fact that a defendant has turned 21 Q
years old between the date of the offence and the date of sentence is a
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powerful factor in sentencing and the defendant should be treated as if
S s 109A still applied. S
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32. The Court of Final Appeal in HKSAR v Leung Hiu Yeung
C (2018) HKCFAR 43 pointed out that:- C
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“…in practical terms, this will mean that a young offender who
has turned 21 by the time of sentencing should only be sent to
E prison as a matter of last resort and, for that purpose, the court E
will have to be alive to the possibility it may need to obtain
reports on the young person in question…”
F F
G
33. Since D1 is already in prison serving a sentence of 49 months, G
the application of s 109A to the charges of obtaining property by deception
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to which he pleaded guilty is more academic than real. In practical terms,
I prison sentence is the only viable alternative for this defendant. In light of I
his present situation, to use the wordings of s 109A, this court “is of opinion
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that no other method of dealing with such person is appropriate”.
K K
34. Regarding D2, Mr Delaney concedes that while s 109A
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applies to the charges of obtaining property by deception, it does not apply
M to the 1st Charge of robbery as it is an excepted offence. M
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35. The court might add that of s 109A, the Court of Final Appeal
O said in Secretary for Justice v Wong Chee Fung [2018] 21 HKCFAR 35, O
at [86]:-
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Q “It is clear that the purpose of the provision is to ensure that, Q
save in respect of certain offences, the imprisonment of young
persons between the ages of 16 and 21 is a sentencing measure
R of last resort.” R
S S
36. Nevertheless, Mr Delaney asked the court to give due
T consideration to D2’s age when he committed the offences and to the T
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provisions of s 109A enjoining the courts to consider sentence of
C imprisonment as a last resort for such a young person. C
D D
37. Mr Delaney then pointed out that there are most exceptional
E circumstances in the case of D2. Such circumstances have arisen E
principally from the fact that he was 16 when he committed the present
F F
offences and is 22 now when he is being sentenced by the court. Due to
G inactivity by the prosecuting authorities, he fully expected that the case had G
been closed. To sentence him to prison now would be, in Mr Delaney
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words, “excessive and/or too remote” and would serve little purpose given
I the circumstances. I
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38. A CSO, on the other hand, would strike the right balance,
K since such orders serve the dual purpose of “both punishment and K
deterrence”, as pointed out by the court in HKSAR v Ogawa Shuichi
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HCMA 174/1999, and should be considered as a sentencing option where
M there are very “exceptional circumstances”, even for serious offences M
involving bribery and corruption, as the Court of Appeal pointed out in the
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case of HKSAR v Li Cheuk Ming CAAR 2/1998; [1990] 1 HKLRD 63.
O O
39. Having regard to the fact that one of the offences D2 pleaded
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guilty to was robbery, which was excepted from the operation of s 109A
Q and is a serious offence not only by reason of its nature but also because of Q
the way it was committed in this case, this court does not agree that CSO
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would be an appropriate sentence for this offence, even given what Mr
S Delaney called “the exceptional circumstances” of this case. S
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DELAY IN PROSECUTION
C C
40. There has been a delay of over 5 years between the
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commission of the offences and the charging of the defendants. Both
E defence counsel submitted that through no fault of either of the defendants, E
there has been unreasonable and inexcusable delay in prosecution, and the
F F
delay is primarily the result of the Department of Justice’s (DOJ) slow
G response in providing legal advice to the police. G
H H
41. Paragraph 32 of Mr Delaney’s Mitigation Submissions says:-
I I
“According to the Pol 155 reports:
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(a) Police had already stopped conducting further
investigations on this case after 4th January 2018 and
K were awaiting legal advice from the Department of K
Justice [DPC 9161 Pol. 155]
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(b) As at 6 August 2019, 18 months later, the Department of
Justice had not even started preparing the legal advice
M [DPC 19632 Pol.155]. This is approximately 1 year and M
6 months after police stopped investigating the case and
N
passed it on to the Department of Justice for legal advice. N
(c) It was approximately 5 years, between 4th January 2018
O and 16th December 2022 (when police re-arrested the O
second Defendant and laid charges against him). Over
the period, the police contacted the Department of
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Justice approximately 69 times to enquire about the
progress of the legal advice.
Q Q
(d) With regard to these 69 police enquiries, the Department
of Justice, among other responses:-
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(i) Did not answer the phone and did not call back
S on over 38 occasions. S
(ii) Stated that the legal advice would be done within
T the month on 5 occasions. T
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A A
B (iii) Stated that they are still in the midst of preparing B
the legal advice on 25 occasions.
C C
(iv) Stated that the legal advice was pending approval
on one occasion.”
D D
42. Mr Delaney submitted that this is a relatively simple case and
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the police had already obtained sufficient evidence by 30 October 2017
F F
from interviews with the victims and other relevant personnel, the various
G
CCTV footage capturing the commission of the offences, and admissions G
from the defendants. The police ceased to conduct further investigation by
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4 January 2018.
I I
43. Reference was made to the case of HKSAR v Chan Chun Ming
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HCCC 221/2020, where DHCJ Bruce, SC referred to various authorities
K dealing with the question of inordinate or unreasonable delay and the K
rationale for reduction of sentence on account of such delay. One of the
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cases referred to was HKSAR v Lau Kin Yu HCMA 391/2002 where DHCJ
M Barnes (as Barnes J then was) said, “In my view, significant and M
unexplained delay, per se, is a ground to pass a more lenient sentence on a
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defendant than what would otherwise have been a proper sentence.”
O Another case referred to is HKSAR v Chan Chun Chuen CACC 233/2015 O
where Stuart-Moore VP held that the delay must be unreasonable and
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through no fault of the defendant.
Q Q
44. In light of those circumstances and legal principles, it was
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submitted that there had been inordinate and inexcusable delay in the
S prosecution of the defendants. S
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B B
45. A Chronology of Events was submitted to assist the court in
C assessing the question of prosecutorial delay. This chronology consists of C
13 pages, with a timeline starting from 26 August 2017 when the offences
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were committed to 22 December 2022 when D2 was granted police bail
E after his second arrest. E
F F
46. It is not clear from this chronology when the police sought
G legal advice from the DOJ. The first entry about legal advice is one dated G
26 August 2018 which says, “DOJ faxed memo to police stating that the
H H
legal advice will be provided as soon as possible.” The entry immediately
I preceding this one is dated 4 January 2018 which says, “Police interviewed I
the victim.” The prosecution informed the court that the case file was
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submitted to DOJ for advice on 13 April 2018.
K K
47. It is most unfortunate and regrettable that the DOJ had failed
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to live up to their promise of providing their advice as soon as possible.
M The last entry about such advice is dated 7 September 2022 which says M
“Police contacted DOJ. DOJ informed the police that legal advice was
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complete but pending approval.”
O O
48. It has thus taken the DOJ close to 4½ years to furnish their
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legal advice to the police. In the meantime, the police had been untiringly
Q chasing the DOJ for progress regarding the legal advice. The police had Q
contacted the DOJ for this purpose close to 70 times. For about half of
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those 70 times, their phone calls to the DOJ were unanswered. The Police
S were told over 20 times that the DOJ were preparing the advice. What is S
more shocking is that despite the DOJ’s assurances that the advice would
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be ready within a month, as evidenced by the two entries dated 12 and 28
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November 2018 and an entry dated 4 February 2019, they told the Police
C on 30 June 2019, 16 July 2019 and 6 August 2019 that “they have not C
started on the legal advice yet”.
D D
E 49. This is a simple case involving just a handful of witnesses 2 E
and probably very few documentary exhibits. The factual and the legal
F F
issues are relatively straight forward. Taking 4 years to advice on this case
G is undoubtedly unreasonable and unjustifiable. The Chronology of Events G
shows that DOJ had been procrastinating and was dilatory in the provision
H H
of legal advice to the police, who had been acting with due diligence in
I both their investigation and their pursuit of such advice. I
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50. I hold that there has been unreasonable and inordinate delay
K in prosecution. K
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IMPACT OF DELAY ON SENTENCING
M M
51. Reference was made Mr Delaney to HKSAR v Chu On Chi
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CACC 484/2006, where the Court of Appeal said, at paragraph 10 if its
O judgment:- O
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“Where there has been a delay in prosecution, the sentencing
court must take it into account. In particular, where the
Q defendant rehabilitated, resumed work or repaid debts during the Q
period of delay, the court will consider reducing the term of
R imprisonment, passing a suspended sentence or imposing a R
punishment other than an immediate custodial sentence such as
community service order.”
S S
T T
2
Only 6 witnesses appear on the Schedule of Prosecution Witnesses.
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B B
52. It was submitted that D2 had been rehabilitated and reformed
C during the delay. Since his graduation from secondary school in 2019, he C
had been gainfully and continuously employed up until his re-arrest in
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December 2022. Mr Delaney urged the court to consider CSO, as
E punishment in the form of imprisonment now would be “excessive and/or E
too remote” and would serve little purpose.
F F
G 53. The court does not agree that imprisonment would serve little G
purpose, at least insofar as the robbery charge is concerned. In HKSAR v
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Wu Yee Ki CACC 513/2005, the Court of Appeal, in paragraph 26 of its
I judgment, said:- I
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“[26] One starts from the principle that no young person should
be sentenced to imprisonment if he or she can suitably be dealt
K with in another way: section 11 Juvenile Offenders Ordinance, K
Cap. 226. But as this Court pointed out in HKSAR v Law Ka-kit
[2003] 2 HKC 178, the nature or prevalence of an offence may
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be such as to demand an immediate custodial sentence despite
the youth of the offender. Robbery has for long been recognised
M as an offence within that category. It is within a band of cases M
where youth is not a strong mitigating factor…”
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54. This is a serious case of robbery involving more than a single
O culprit beating up and robbing the Victim shortly after he suffered another O
beating by them. D2 admitted to kicking the Victim a few times on his
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thigh after the others had initiated the assault. He may not have suggested
Q robbing the Victim, or started the assault on him, but he certainly made Q
matters worse for the Victim by joining in the attack and taking away the
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Victim’s wallet.
S S
55. This court takes the view that the need for deterrence and
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retribution outweighs the need for the defendant’s reformation, and the
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only appropriate method of dealing with D2 which fits the crime of robbery
C is by way of imprisonment. C
D D
56. Since robbery is an excepted offence for which a prison
E sentence cannot be suspended, the court will reduce the term of E
imprisonment on account of the undue delay in prosecution.
F F
G ROBBERY G
H H
57. The robbery in this case did not involve the use of weapons.
I In HKSAR v Ting Chiu [2003] 3 HKLRD 378, 4 years’ imprisonment was I
considered appropriate for an unarmed robbery committed on a hiking
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couple by 4 culprits with the use of little physical violence and involved
K relatively minor loss of property. K
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58. The Court of Appeal in HKSAR v Tam Ping Wo Angus [2020]
M HKCA 1012 said:- M
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“[16] For unarmed robbery the starting point will generally be
no more than 4 years’ imprisonment. However, 4 years is not to
O be regarded as the ‘normal’ sentence for an unarmed robbery. In O
HKSAR v Thapa Min Bahadur the Court of Appeal said:
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‘…We do take issue with the Judge when he said ‘the
normal sentence for offences of this kind where no
Q weapon is used is a sentence of 4 years’ imprisonment… Q
There is a range of sentence within which the sentence
appropriate to the particular circumstances of the
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individual case is to be chosen…’”
S S
59. In HKSAR v Yeung Chi Wai [2019] HKDC 1046, the judge
T adopted a starting point of 3 years and 3 months for an unarmed robbery T
involving a lone robber preying on a lone lady walking in the street at night
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and injuring the victim who suffered abrasions from being dragged on the
C ground for 5 metres. C
D D
60. According to D2’s admission to the police, the robbery in this
E case involved some 4 or 5 culprits including himself assaulting the Victim E
and robbing him of his wallet after the Victim had just been beaten up by
F F
them for refusing to hand over the mobile phone that he had taken from
G one of the defendants’ friends. G
H H
61. One thing for certain is that, despite what the Victim is alleged
I to have done to D2 and his friends and his friend Soda’s mobile phone, it I
was wrong for D2 and his friends to have taking the law into their own
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hands by beating the Victim up in order to get the phone back. It was an
K even greater wrong that shortly after the Victim had been subjected to their K
beating and was in all probabilities in a weak and defenceless state that D2
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and his friends saw it fit to exploit the Victim’s vulnerability by giving the
M Victim another beating and robbing him. M
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62. The circumstances of the offence are more serious than those
O in the Yeung Chi Wai case. D2 was not acting alone in the commission of O
the robbery. The Victim was subjected to a deliberate beating and not just
P P
a simple push or shove.
Q Q
63. Given the gravity of the offence, an appropriate starting point
R R
would be 3 years and 8 months’ imprisonment.
S S
T T
U U
V V
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A A
B B
OBTAINING PROPERTY BY DECEPTION/CREDIT CARD FRAUD
C C
64. This is a simple case of credit card fraud. With the exception
D D
of the purchase of the iPhones for $19,570, the card was used to pay for
E consumable items ranging from $11 to $228 in various convenience stores. E
The Credit Card had been used in 7 fraudulent purchases, all made in one
F F
day, resulting in a total value of $20,051 for all the items purchased. The
G prosecution informed the court that the credit limit of the Credit Card was G
$180,000.
H H
I 65. The frauds were perpetuated in a simple, straight-forward I
manner involving one of the defendants using the Credit Card for the
J J
purchase and the other defendant staying close by. The frauds did not
K involve any elaborate planning or operation. Although there existed a huge K
potential for loss by reason of the card’s credit limit, Mr. Delaney informed
L L
the court that the Credit Card was discarded shortly after the purchase of
M the iPhones. The potential for loss was therefore curtailed by the M
defendant’s own act. The court is prepared to accept this submission.
N N
There are no other aggravating features.
O O
66. Various Court of Appeal decisions were referred to in Mr
P P
Hingorani’s submissions. One was the case of R v Chan Sui To & Another
Q [1996] 2 HKCLR 128 where it was held that in ascertaining the sentence Q
for credit card fraud, a sentencing judge will need to consider various
R R
factors including (a) the size of the operation, eg whether it involved large
S sums of money, whether it concerned a large number of persons or forged S
credit cards; (b) the planning that had gone into in perpetuating the fraud,
T T
whether it was elaborate or simple, whether technical skills were used, and
U U
V V
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A A
B B
to what extent; (c) whether there was an international dimension; (d)
C whether the accused played a major role, eg running a syndicate, engaging C
in actual manufacture, organising the use of forged credit cards, or whether
D D
he was a mere “cog in the wheel” as a courier or a custodian or keeper; and
E (e) whether there was a plea of guilty. These factors are, however, not E
intended to be exhaustive.
F F
G 67. Another decision referred to is HKSAR v Lam See Chung G
Stephen [2013] 5 HKLRD 242 where the Court of Appeal held that the 3-
H H
year starting point for simple cases of counterfeit credit card fraud also
I applied to the fraudulent use of stolen genuine credit cards. Many of the I
aggravating features of using counterfeit credit cards were peculiar to
J J
syndicated fraud, and were absent in the simple small-scale use of forged
K credit cards for which a sentence of 3 years’ imprisonment or less was K
appropriate. The same sentencing principles, of which the most important
L L
consideration was the potential for loss which often exceeded the actual
M loss, applied to both types of offences. M
N N
68. Both Mr Hingorani and Mr Delaney referred to HKSAR v Li
O Chi Yat [2019] HKCA 458, where the Court of Appeal held that a starting O
point of 2 years was appropriate in the case, pointing out that while such
P P
offences “require deterrent sentences in order to protect the integrity of the
Q credit card system and to punish the offender for the loss and Q
inconvenience to the credit card company and the cardholder”, the case
R R
before the court was “a case of credit card fraud at the lower end of the
S scale of criminality and this was clearly apparent by the fact that it involved S
the appellant acting alone in stealing opportunistically a single genuine
T T
credit card which he subsequently used or attempted to use on three
U U
V V
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A A
B B
occasions where the actual loss was a little under $8,000 and the potential
C loss, as represented by the credit card limit, was $20,000. There was no C
planning or elaborate operation, or any other aggravating factors that
D D
would elevate the criminality to a higher level of seriousness.”3
E E
69. Mr Delaney also referred to a District Court sentencing case
F F
of HKSAR v Ho Hing Pan [2021] HKDC 1367 where a starting point of 2
G years was considered appropriate where the defendant had used a credit G
card he had stolen to make 3 unauthorised transactions of $8,000 each at a
H H
shopping centre within one day.
I I
70. Having considered the facts of our case and the sentencing
J J
cases referred to above, a starting point of 2 years’ imprisonment would be
K appropriate for each of the credit card fraud charges. K
L L
71. In view of this court concluding that imprisonment is the
M suitable sentence for the robbery charge, it would serve no useful purpose M
for a CSO report to be called for just in respect of the credit card fraud
N N
charges, if that was possible at all.
O O
72. For the obtaining property by deception charges, I would
P P
adopt a starting point of 2 years’ imprisonment on each charge for both
Q defendants. Q
R R
S S
T T
3
Paragraph 22 of the judgment.
U U
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A A
B B
REDUCTION IN SENTENCE
C C
73. For their pleas of guilty, there will be a one-third discount in
D D
sentence for both defendants on all the charges.
E E
74. For the stress and the uncertain suspense that the defendants
F F
must have suffered during the delay, the sentences will be further reduced
G on top of the one-third discount, so that combined with the discount for G
their pleas, the sentence on each charge will be discounted by a total of
H H
50%.
I I
75. The discounted sentence will be 22 months’ imprisonment for
J J
the robbery charge, and 12 months’ imprisonment for each of the credit
K card fraud charges. K
L L
TOTALITY
M M
D1’s sentence
N N
O 76. Treating each fraudulent purchase as part and parcel of a O
single transaction, the sentences on all the obtaining property by deception
P P
charges are to run concurrently with each other, giving rise to a combined
Q total sentence of 12 months for all the charges that D1 admitted. Q
R R
77. 5 months of this combined total are to run consecutively to the
S term of 49 months that D1 is currently serving. S
T T
U U
V V
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A A
B B
78. This court is satisfied that the total of 54 months justly reflects
C D1’s overall criminality in both the present case and the case for which he C
is serving sentence.
D D
E D2’s sentence E
F F
79. Similarly, I order that the sentences on all the obtaining
G property by deception charges that D2 admitted are to run concurrently G
with each other, giving rise to a combined total sentence of 12 months for
H H
these charges.
I I
80. This combined total of 12 months is to run concurrently with
J J
the sentence of 22 months for the robbery charge, giving rise to a final
K sentence of 22 months’ imprisonment for all the charges that D2 admitted. K
L L
M M
( Terence Wai )
N N
Deputy District Judge
O O
P P
Q Q
R R
S S
T T
U U
V V
A A
B B
DCCC 141/2023
C [2023] HKDC 1416 C
D D
IN THE DISTRICT COURT OF THE
E HONG KONG SPECIAL ADMINISTRATIVE REGION E
CRIMINAL CASE NO 141 OF 2023
F F
G -------------------------------- G
HKSAR
H H
v
I ABDUL SAMEER (D1) I
MULLICK ABDUL DAYAN (D2)
J J
--------------------------------
K K
Before: Deputy District Judge Terence Wai
L L
Date: 5 October 2023
M Present: Ms Chung Wing Sze, Natalie, Public Prosecutor for M
HKSAR/Director of Public Prosecutions
N N
Mr Hingorani Jeevan, instructed by SY Fung, Solicitors,
O assigned by the Director of Legal Aid, for the 1st defendant O
Mr Delaney A Michael, instructed by Chin & Associates,
P P
nd
assigned by the Director of Legal Aid, for the 2 defendant
Q Offences: [1] Robbery（搶劫罪） - D2 Q
R
[2]-[8] Obtaining property by deception （以欺騙手段取得 R
財產）– D1&D2
S S
T T
U U
V V
-2-
A A
B B
--------------------------------------
C REASONS FOR SENTENCE C
--------------------------------------
D D
E 1. D1 pleaded guilty to 7 counts of obtaining property by E
deception (2nd to 8th Charges), contrary to section 17(1) of the Theft
F F
Ordinance, Cap 210.
G G
2. D2 pleaded guilty to one count of robbery (1st Charge),
H H
contrary to section 10 of the Theft Ordinance, and 5 counts of obtaining
I property by deception (4th to 8th Charges). I
J J
FACTS
K K
2nd Charge
L L
M 3. Around 5:37 am on 26 August 2017, D1 entered the 7-Eleven M
Convenience Store at Ground Floor, No 3 Lan Kwai Fong, Central and
N N
bought 4 packets of cigarettes for $228 with an HSBC credit card
O numbered xxxx-xxxx-xxxx-4758 in the name of Flament Antonin Guy O
Gerard (the Credit Card).
P P
Q 3rd Charge Q
R R
4. Around 5:40 am on the same day, D1 entered the same
S convenience store at Lan Kwai Fong and bought a packet of cigarettes and S
a lighter for $68 with the Credit Card.
T T
U U
V V
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A A
B B
4th Charge
C C
5. Around 6:47 am on the same day, D1 and D2 entered the 7-
D D
Eleven Convenience Store at Ground Floor, No 23 Lock Road, Tsim Sha
E Tsui and bought 2 cans of drink for $53. D1 used the Credit Card to pay E
for the drinks.
F F
G 5th Charge G
H H
6. Around 7 am on the same day, D1 went into the same
I convenience store at Lock Road and bought a can of drink for $11 with the I
Credit Card while D2 waited outside.
J J
K 6th Charge K
L L
7. Around 7:37 am on the same day, D1 entered the 7-Eleven
M Convenience Store at Ground floor, No 6 Ichang Street, Tsim Sha Tsui and M
bought a packet of cigarettes and 2 cans of drink for $110 with the Credit
N N
Card while D2 waited outside.
O O
7th Charge
P P
Q 8. Around 10:07 am on the same day, D1 and D2 entered the 7- Q
Eleven Convenience Store at Shop No S18, Sham Shui Po MTR Station
R R
and bought a bottle of water and a mask for $11. D1 used the Credit Card
S to pay for these items. S
T T
U U
V V
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A A
B B
8th Charge
C C
9. Around 10:19 am on the same day, D1 and D2 entered a shop
D D
called Xin Hui at Ground Floor, No 232A Apliu Street, Sham Shui Po and
E bought 3 iPhones for $19,570. D2 used the Credit Card to pay for the E
phones.
F F
G D1’S ARREST AND ADMISSION G
H H
10. D1 was arrested on 23 October 2017. Under caution, he said
I the Credit Card had been acquired by D2 during a fight. D2 then gave him I
the Credit Card and told him that he could use it to buy things. He admitted
J J
using the Credit Card to make the purchases at the abovementioned
K convenience stores. It was D2 who used the Credit Card to pay for the K
iPhones at Xin Hui.
L L
M D2’S ARREST AND ADMISSIONS M
N N
11. D2 was arrested on 30 October 2017. Under caution, he
O admitted that:- O
P P
(i) Between 3:45 am and 4:15 am on 26 August 2017, the
Q holder of the Credit Card Flament (the Victim) had a Q
dispute and a fight with his friends D1, Michael,
R R
Nathaniel and Soda. After the fight broke up, Soda
S found her mobile phone missing. His friends S
discovered that the phone had been taken by the Victim,
T T
who demanded payment for the return of the phone. D2
U U
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A A
B B
and his friends were able to locate the Victim in Wing
C Lok Street. When the Victim refused to return the C
phone, they started attacking him until he handed over
D D
the phone. During this attack, D2 kicked the Victim’s
E thigh a few times. E
F F
(ii) Just as they were leaving after the attack, someone
G suggested taking the Victim’s wallet. As a result, their G
group approached the Victim and beat him again.
H H
During the process, D2 lifted up the Victim’s legs. He
I saw D1 taking the Victim’s wallet from his pocket. I
They then left the scene. D2 and his friends took the
J J
$200 cash and the Credit Card out of the wallet and
K threw away the wallet and its contents. K
L L
(iii) He did go to the convenience stores mentioned in the
M 4th, 5th, 6th and 7th Charges with D1 and was either in M
the store with D1 or waiting outside. He was aware that
N N
D1 made the purchases at those stores with the Credit
O Card. O
P P
(iv) He went with D1 to Xin Hui and bought 3 iPhone and
Q accessories with the Credit Card. It was he who signed Q
the credit card receipt. He and D1 later sold the iPhones
R R
for HK$14,000 and shared the proceeds.
S S
T T
U U
V V
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A A
B B
12. The Loss Prevention Officer of 7-Eleven and the salesperson
C of Xin Hui confirmed that they will not accept payment if the buyer C
presenting a credit card for payment is not the genuine cardholder.
D D
E THE DEFENDANTS’ BACKGROUND E
F F
13. D1 is 22 years old. He was born in Hong Kong on 4 January
G 2001 and was educated here up to Form 6 and was studying HKU Space G
Community College before his arrest for the dangerous drugs case. His
H H
family consists of his parents who are both 52 years old, a 30-year-old elder
I sister who is married and living in Pakistan, a 25-year-old elder brother and I
an 18-year-old younger sister.
J J
K 14. He has 4 previous convictions, all drug-related and all were K
committed after the present offences. He is currently serving a 49-month
L L
sentence imposed on 5 October 2022 for drug trafficking and possession
M of Part I poison. M
N N
15. D2 is 22 years old. He was born in Kolkata, India on 8
O December 2000. He came to Hong Kong when he was 1 or 2 years old. O
He was educated in Hong Kong and finished his secondary schooling in
P P
2019. His family consists of his parents and an elder sister. He had been
Q working in the food and beverage business since his graduation until his Q
re-arrest in December 2022.
R R
S 16. He has a previous conviction for possession of a dangerous S
drug and was fined $2,000 on 2 July 2019.
T T
U U
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A A
B B
MITIGATION
C C
17. D1 was only 16 years old and a Form 4 student when he
D D
committed the present offences. At that time, he had a clear record.
E E
18. D1’s counsel Mr Hingorani pointed out that the items
F F
purchased by D1 with the use of the Credit Card were small items. He was
G young and stupid, and easily influenced by others. Nonetheless, he is G
remorseful for having committed those offences.
H H
I 19. In prison, he is trying to be a better person, follow a better I
path and become a law-abiding citizen with the hope of integrating in the
J J
community.
K K
20. Mr. Hingorani referred to two District Court1 cases not only
L L
for the actual sentence imposed in those cases but also for the starting
M points adopted by the courts with regard to “small credit card fraud”. I M
shall deal with those cases later.
N N
O 21. In his supplemental mitigation submission, Mr Hingorani, O
having had sight of the mitigation submissions advanced by D2’s counsel
P P
Mr Delaney, expressed his agreement with the views expressed therein and
Q submitted that s 109A of the Criminal Procedure Ordinance (s 109A) Q
would have applied to D1 had he been timely prosecuted and sentenced
R R
between the ages of 16 and 21, and that he would have been an ideal
S candidate for a Community Service Order (CSO) given his age, his clear S
T T
1
HKSAR v Lam Lai Tak DCCC 361/2016; HKSAR v Masih Sunil & Ali Raza DCCC 374/2019.
U U
V V
-8-
A A
B B
record, the circumstances of the offences, his admission and cooperation
C with the police, and his admission of guilt. C
D D
22. However, by reason of the inexcusable delay in the
E prosecution of this case, D1 is now over 21 and is serving a prison sentence, E
having been deprived of the chance to benefit from the rehabilitative effect
F F
of a CSO. While acknowledging that sentencing options such as Probation
G and CSO may not be available to D1 now that he is already serving a term G
of imprisonment, nevertheless Mr Hingorani submitted that the fact that
H H
they would have been suitable calls for a sentence that is not more serious
I than the ones such Orders represent. I
J J
23. In his letter to the court, D1 said he is truly sorry for having
K broken the law. He was young and stupid and was easily influenced by his K
friends. In prison, he is trying to be a smarter and better person, and is
L L
studying a course by the Hong Kong Metropolitan University, in the hope
M that he will be able to integrate into the community and become a law- M
abiding and civilised person upon his release.
N N
O 24. As for D2, regarding the circumstances of the offence, Mr O
Delaney submitted that the clashes with the Victim which eventually led to
P P
his being robbed had been instigated by the Victim himself. According to
Q D2, the Victim had approached him and his friends to offer them drugs and Q
he continued to harass them when they ignored his offer. The Victim then
R R
got into a fight with his friends, during which he snatched Soda’s phone.
S Subsequently when he refused to return the phone unless money was given S
to him, D2 and his friends sought him out and, in the midst of this encounter,
T T
st
the 1 Charge of robbery was committed. D2 claimed that he was slightly
U U
V V
-9-
A A
B B
drunk and was acting under the influence of D1 and Michael, both of whom
C he wanted to befriend. D2 only joined in the robbery after the others had C
started assaulting the Victim. He himself had kicked the Victim’s thigh a
D D
few times.
E E
25. As for the 4th to 7th Charges, it was D1 who used the Credit
F F
Card for the purchases while he was either standing around in the store or
G waiting outside. As for the 8th Charge, D1 was nearby overseeing D2 who G
was persuaded to sign for the illicit purchase. All the purchases were made
H H
in one day.
I I
26. Mr Delaney pointed out that, apart from D2’s remorse as
J J
evidenced by his frank admissions to the police and his present pleas of
K guilty, there are exceptional circumstances in this case. D2 was 16 years K
old when he committed these offences. As a result of unreasonable and
L L
inordinate delay in prosecution, he is facing sentencing by the court 6 years
M after the offence. During these 6 years, he has rehabilitated himself. He M
had been in steady and continuous employment since leaving school up to
N N
the time of his re-arrest in December 2012.
O O
27. Given those exceptional circumstances, D2 should be
P P
considered as possibly suitable for a CSO or at least a Detention Centre
Q Order. However, if the court is minded to impose a custodial sentence, the Q
sentence for individual charges should be made concurrent or partly
R R
concurrent.
S S
28. In his letter to the court, D2 recounts the hardship he faces by
T T
reason of his being re-arrested and charged some 5 years after the offences
U U
V V
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A A
B B
were committed. The re-opening of the case against him after such a long
C time through no fault of his has affected his career, his personal life, his C
confidence and his mental health. He asks for the court’s understanding of
D D
his situation and due consideration of the question of delay.
E E
29. The authorities relied on by Mr Delaney will be dealt with in
F F
due course.
G G
SENTENCING CONSIDERATIONS
H H
I Effect of s 109A I
J J
30. As both defence counsel pointed out, the two defendants were
K both 16 years old at the time they committed these offences, which was K
slightly over 6 years ago. Leaving aside the question of delay in
L L
prosecution, which will be dealt with later, had the defendants been
M timeously brought to court and dealt with, it is likely that they would be M
dealt with before they turned 21, and s 109A, which stipulates that “No
N N
court shall sentence a person of or over 16 and under 21 years of age to
O imprisonment unless the court is of opinion that no other method of dealing O
with such person is appropriate…” would have applied.
P P
Q 31. Counsel submitted that the fact that a defendant has turned 21 Q
years old between the date of the offence and the date of sentence is a
R R
powerful factor in sentencing and the defendant should be treated as if
S s 109A still applied. S
T T
U U
V V
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A A
B B
32. The Court of Final Appeal in HKSAR v Leung Hiu Yeung
C (2018) HKCFAR 43 pointed out that:- C
D D
“…in practical terms, this will mean that a young offender who
has turned 21 by the time of sentencing should only be sent to
E prison as a matter of last resort and, for that purpose, the court E
will have to be alive to the possibility it may need to obtain
reports on the young person in question…”
F F
G
33. Since D1 is already in prison serving a sentence of 49 months, G
the application of s 109A to the charges of obtaining property by deception
H H
to which he pleaded guilty is more academic than real. In practical terms,
I prison sentence is the only viable alternative for this defendant. In light of I
his present situation, to use the wordings of s 109A, this court “is of opinion
J J
that no other method of dealing with such person is appropriate”.
K K
34. Regarding D2, Mr Delaney concedes that while s 109A
L L
applies to the charges of obtaining property by deception, it does not apply
M to the 1st Charge of robbery as it is an excepted offence. M
N N
35. The court might add that of s 109A, the Court of Final Appeal
O said in Secretary for Justice v Wong Chee Fung [2018] 21 HKCFAR 35, O
at [86]:-
P P
Q “It is clear that the purpose of the provision is to ensure that, Q
save in respect of certain offences, the imprisonment of young
persons between the ages of 16 and 21 is a sentencing measure
R of last resort.” R
S S
36. Nevertheless, Mr Delaney asked the court to give due
T consideration to D2’s age when he committed the offences and to the T
U U
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A A
B B
provisions of s 109A enjoining the courts to consider sentence of
C imprisonment as a last resort for such a young person. C
D D
37. Mr Delaney then pointed out that there are most exceptional
E circumstances in the case of D2. Such circumstances have arisen E
principally from the fact that he was 16 when he committed the present
F F
offences and is 22 now when he is being sentenced by the court. Due to
G inactivity by the prosecuting authorities, he fully expected that the case had G
been closed. To sentence him to prison now would be, in Mr Delaney
H H
words, “excessive and/or too remote” and would serve little purpose given
I the circumstances. I
J J
38. A CSO, on the other hand, would strike the right balance,
K since such orders serve the dual purpose of “both punishment and K
deterrence”, as pointed out by the court in HKSAR v Ogawa Shuichi
L L
HCMA 174/1999, and should be considered as a sentencing option where
M there are very “exceptional circumstances”, even for serious offences M
involving bribery and corruption, as the Court of Appeal pointed out in the
N N
case of HKSAR v Li Cheuk Ming CAAR 2/1998; [1990] 1 HKLRD 63.
O O
39. Having regard to the fact that one of the offences D2 pleaded
P P
guilty to was robbery, which was excepted from the operation of s 109A
Q and is a serious offence not only by reason of its nature but also because of Q
the way it was committed in this case, this court does not agree that CSO
R R
would be an appropriate sentence for this offence, even given what Mr
S Delaney called “the exceptional circumstances” of this case. S
T T
U U
V V
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A A
B B
DELAY IN PROSECUTION
C C
40. There has been a delay of over 5 years between the
D D
commission of the offences and the charging of the defendants. Both
E defence counsel submitted that through no fault of either of the defendants, E
there has been unreasonable and inexcusable delay in prosecution, and the
F F
delay is primarily the result of the Department of Justice’s (DOJ) slow
G response in providing legal advice to the police. G
H H
41. Paragraph 32 of Mr Delaney’s Mitigation Submissions says:-
I I
“According to the Pol 155 reports:
J J
(a) Police had already stopped conducting further
investigations on this case after 4th January 2018 and
K were awaiting legal advice from the Department of K
Justice [DPC 9161 Pol. 155]
L L
(b) As at 6 August 2019, 18 months later, the Department of
Justice had not even started preparing the legal advice
M [DPC 19632 Pol.155]. This is approximately 1 year and M
6 months after police stopped investigating the case and
N
passed it on to the Department of Justice for legal advice. N
(c) It was approximately 5 years, between 4th January 2018
O and 16th December 2022 (when police re-arrested the O
second Defendant and laid charges against him). Over
the period, the police contacted the Department of
P P
Justice approximately 69 times to enquire about the
progress of the legal advice.
Q Q
(d) With regard to these 69 police enquiries, the Department
of Justice, among other responses:-
R R
(i) Did not answer the phone and did not call back
S on over 38 occasions. S
(ii) Stated that the legal advice would be done within
T the month on 5 occasions. T
U U
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A A
B (iii) Stated that they are still in the midst of preparing B
the legal advice on 25 occasions.
C C
(iv) Stated that the legal advice was pending approval
on one occasion.”
D D
42. Mr Delaney submitted that this is a relatively simple case and
E E
the police had already obtained sufficient evidence by 30 October 2017
F F
from interviews with the victims and other relevant personnel, the various
G
CCTV footage capturing the commission of the offences, and admissions G
from the defendants. The police ceased to conduct further investigation by
H H
4 January 2018.
I I
43. Reference was made to the case of HKSAR v Chan Chun Ming
J J
HCCC 221/2020, where DHCJ Bruce, SC referred to various authorities
K dealing with the question of inordinate or unreasonable delay and the K
rationale for reduction of sentence on account of such delay. One of the
L L
cases referred to was HKSAR v Lau Kin Yu HCMA 391/2002 where DHCJ
M Barnes (as Barnes J then was) said, “In my view, significant and M
unexplained delay, per se, is a ground to pass a more lenient sentence on a
N N
defendant than what would otherwise have been a proper sentence.”
O Another case referred to is HKSAR v Chan Chun Chuen CACC 233/2015 O
where Stuart-Moore VP held that the delay must be unreasonable and
P P
through no fault of the defendant.
Q Q
44. In light of those circumstances and legal principles, it was
R R
submitted that there had been inordinate and inexcusable delay in the
S prosecution of the defendants. S
T T
U U
V V
- 15 -
A A
B B
45. A Chronology of Events was submitted to assist the court in
C assessing the question of prosecutorial delay. This chronology consists of C
13 pages, with a timeline starting from 26 August 2017 when the offences
D D
were committed to 22 December 2022 when D2 was granted police bail
E after his second arrest. E
F F
46. It is not clear from this chronology when the police sought
G legal advice from the DOJ. The first entry about legal advice is one dated G
26 August 2018 which says, “DOJ faxed memo to police stating that the
H H
legal advice will be provided as soon as possible.” The entry immediately
I preceding this one is dated 4 January 2018 which says, “Police interviewed I
the victim.” The prosecution informed the court that the case file was
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submitted to DOJ for advice on 13 April 2018.
K K
47. It is most unfortunate and regrettable that the DOJ had failed
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to live up to their promise of providing their advice as soon as possible.
M The last entry about such advice is dated 7 September 2022 which says M
“Police contacted DOJ. DOJ informed the police that legal advice was
N N
complete but pending approval.”
O O
48. It has thus taken the DOJ close to 4½ years to furnish their
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legal advice to the police. In the meantime, the police had been untiringly
Q chasing the DOJ for progress regarding the legal advice. The police had Q
contacted the DOJ for this purpose close to 70 times. For about half of
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those 70 times, their phone calls to the DOJ were unanswered. The Police
S were told over 20 times that the DOJ were preparing the advice. What is S
more shocking is that despite the DOJ’s assurances that the advice would
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be ready within a month, as evidenced by the two entries dated 12 and 28
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November 2018 and an entry dated 4 February 2019, they told the Police
C on 30 June 2019, 16 July 2019 and 6 August 2019 that “they have not C
started on the legal advice yet”.
D D
E 49. This is a simple case involving just a handful of witnesses 2 E
and probably very few documentary exhibits. The factual and the legal
F F
issues are relatively straight forward. Taking 4 years to advice on this case
G is undoubtedly unreasonable and unjustifiable. The Chronology of Events G
shows that DOJ had been procrastinating and was dilatory in the provision
H H
of legal advice to the police, who had been acting with due diligence in
I both their investigation and their pursuit of such advice. I
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50. I hold that there has been unreasonable and inordinate delay
K in prosecution. K
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IMPACT OF DELAY ON SENTENCING
M M
51. Reference was made Mr Delaney to HKSAR v Chu On Chi
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CACC 484/2006, where the Court of Appeal said, at paragraph 10 if its
O judgment:- O
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“Where there has been a delay in prosecution, the sentencing
court must take it into account. In particular, where the
Q defendant rehabilitated, resumed work or repaid debts during the Q
period of delay, the court will consider reducing the term of
R imprisonment, passing a suspended sentence or imposing a R
punishment other than an immediate custodial sentence such as
community service order.”
S S
T T
2
Only 6 witnesses appear on the Schedule of Prosecution Witnesses.
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52. It was submitted that D2 had been rehabilitated and reformed
C during the delay. Since his graduation from secondary school in 2019, he C
had been gainfully and continuously employed up until his re-arrest in
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December 2022. Mr Delaney urged the court to consider CSO, as
E punishment in the form of imprisonment now would be “excessive and/or E
too remote” and would serve little purpose.
F F
G 53. The court does not agree that imprisonment would serve little G
purpose, at least insofar as the robbery charge is concerned. In HKSAR v
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Wu Yee Ki CACC 513/2005, the Court of Appeal, in paragraph 26 of its
I judgment, said:- I
J J
“[26] One starts from the principle that no young person should
be sentenced to imprisonment if he or she can suitably be dealt
K with in another way: section 11 Juvenile Offenders Ordinance, K
Cap. 226. But as this Court pointed out in HKSAR v Law Ka-kit
[2003] 2 HKC 178, the nature or prevalence of an offence may
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be such as to demand an immediate custodial sentence despite
the youth of the offender. Robbery has for long been recognised
M as an offence within that category. It is within a band of cases M
where youth is not a strong mitigating factor…”
N N
54. This is a serious case of robbery involving more than a single
O culprit beating up and robbing the Victim shortly after he suffered another O
beating by them. D2 admitted to kicking the Victim a few times on his
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thigh after the others had initiated the assault. He may not have suggested
Q robbing the Victim, or started the assault on him, but he certainly made Q
matters worse for the Victim by joining in the attack and taking away the
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Victim’s wallet.
S S
55. This court takes the view that the need for deterrence and
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retribution outweighs the need for the defendant’s reformation, and the
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only appropriate method of dealing with D2 which fits the crime of robbery
C is by way of imprisonment. C
D D
56. Since robbery is an excepted offence for which a prison
E sentence cannot be suspended, the court will reduce the term of E
imprisonment on account of the undue delay in prosecution.
F F
G ROBBERY G
H H
57. The robbery in this case did not involve the use of weapons.
I In HKSAR v Ting Chiu [2003] 3 HKLRD 378, 4 years’ imprisonment was I
considered appropriate for an unarmed robbery committed on a hiking
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couple by 4 culprits with the use of little physical violence and involved
K relatively minor loss of property. K
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58. The Court of Appeal in HKSAR v Tam Ping Wo Angus [2020]
M HKCA 1012 said:- M
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“[16] For unarmed robbery the starting point will generally be
no more than 4 years’ imprisonment. However, 4 years is not to
O be regarded as the ‘normal’ sentence for an unarmed robbery. In O
HKSAR v Thapa Min Bahadur the Court of Appeal said:
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‘…We do take issue with the Judge when he said ‘the
normal sentence for offences of this kind where no
Q weapon is used is a sentence of 4 years’ imprisonment… Q
There is a range of sentence within which the sentence
appropriate to the particular circumstances of the
R R
individual case is to be chosen…’”
S S
59. In HKSAR v Yeung Chi Wai [2019] HKDC 1046, the judge
T adopted a starting point of 3 years and 3 months for an unarmed robbery T
involving a lone robber preying on a lone lady walking in the street at night
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and injuring the victim who suffered abrasions from being dragged on the
C ground for 5 metres. C
D D
60. According to D2’s admission to the police, the robbery in this
E case involved some 4 or 5 culprits including himself assaulting the Victim E
and robbing him of his wallet after the Victim had just been beaten up by
F F
them for refusing to hand over the mobile phone that he had taken from
G one of the defendants’ friends. G
H H
61. One thing for certain is that, despite what the Victim is alleged
I to have done to D2 and his friends and his friend Soda’s mobile phone, it I
was wrong for D2 and his friends to have taking the law into their own
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hands by beating the Victim up in order to get the phone back. It was an
K even greater wrong that shortly after the Victim had been subjected to their K
beating and was in all probabilities in a weak and defenceless state that D2
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and his friends saw it fit to exploit the Victim’s vulnerability by giving the
M Victim another beating and robbing him. M
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62. The circumstances of the offence are more serious than those
O in the Yeung Chi Wai case. D2 was not acting alone in the commission of O
the robbery. The Victim was subjected to a deliberate beating and not just
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a simple push or shove.
Q Q
63. Given the gravity of the offence, an appropriate starting point
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would be 3 years and 8 months’ imprisonment.
S S
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OBTAINING PROPERTY BY DECEPTION/CREDIT CARD FRAUD
C C
64. This is a simple case of credit card fraud. With the exception
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of the purchase of the iPhones for $19,570, the card was used to pay for
E consumable items ranging from $11 to $228 in various convenience stores. E
The Credit Card had been used in 7 fraudulent purchases, all made in one
F F
day, resulting in a total value of $20,051 for all the items purchased. The
G prosecution informed the court that the credit limit of the Credit Card was G
$180,000.
H H
I 65. The frauds were perpetuated in a simple, straight-forward I
manner involving one of the defendants using the Credit Card for the
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purchase and the other defendant staying close by. The frauds did not
K involve any elaborate planning or operation. Although there existed a huge K
potential for loss by reason of the card’s credit limit, Mr. Delaney informed
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the court that the Credit Card was discarded shortly after the purchase of
M the iPhones. The potential for loss was therefore curtailed by the M
defendant’s own act. The court is prepared to accept this submission.
N N
There are no other aggravating features.
O O
66. Various Court of Appeal decisions were referred to in Mr
P P
Hingorani’s submissions. One was the case of R v Chan Sui To & Another
Q [1996] 2 HKCLR 128 where it was held that in ascertaining the sentence Q
for credit card fraud, a sentencing judge will need to consider various
R R
factors including (a) the size of the operation, eg whether it involved large
S sums of money, whether it concerned a large number of persons or forged S
credit cards; (b) the planning that had gone into in perpetuating the fraud,
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whether it was elaborate or simple, whether technical skills were used, and
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to what extent; (c) whether there was an international dimension; (d)
C whether the accused played a major role, eg running a syndicate, engaging C
in actual manufacture, organising the use of forged credit cards, or whether
D D
he was a mere “cog in the wheel” as a courier or a custodian or keeper; and
E (e) whether there was a plea of guilty. These factors are, however, not E
intended to be exhaustive.
F F
G 67. Another decision referred to is HKSAR v Lam See Chung G
Stephen [2013] 5 HKLRD 242 where the Court of Appeal held that the 3-
H H
year starting point for simple cases of counterfeit credit card fraud also
I applied to the fraudulent use of stolen genuine credit cards. Many of the I
aggravating features of using counterfeit credit cards were peculiar to
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syndicated fraud, and were absent in the simple small-scale use of forged
K credit cards for which a sentence of 3 years’ imprisonment or less was K
appropriate. The same sentencing principles, of which the most important
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consideration was the potential for loss which often exceeded the actual
M loss, applied to both types of offences. M
N N
68. Both Mr Hingorani and Mr Delaney referred to HKSAR v Li
O Chi Yat [2019] HKCA 458, where the Court of Appeal held that a starting O
point of 2 years was appropriate in the case, pointing out that while such
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offences “require deterrent sentences in order to protect the integrity of the
Q credit card system and to punish the offender for the loss and Q
inconvenience to the credit card company and the cardholder”, the case
R R
before the court was “a case of credit card fraud at the lower end of the
S scale of criminality and this was clearly apparent by the fact that it involved S
the appellant acting alone in stealing opportunistically a single genuine
T T
credit card which he subsequently used or attempted to use on three
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occasions where the actual loss was a little under $8,000 and the potential
C loss, as represented by the credit card limit, was $20,000. There was no C
planning or elaborate operation, or any other aggravating factors that
D D
would elevate the criminality to a higher level of seriousness.”3
E E
69. Mr Delaney also referred to a District Court sentencing case
F F
of HKSAR v Ho Hing Pan [2021] HKDC 1367 where a starting point of 2
G years was considered appropriate where the defendant had used a credit G
card he had stolen to make 3 unauthorised transactions of $8,000 each at a
H H
shopping centre within one day.
I I
70. Having considered the facts of our case and the sentencing
J J
cases referred to above, a starting point of 2 years’ imprisonment would be
K appropriate for each of the credit card fraud charges. K
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71. In view of this court concluding that imprisonment is the
M suitable sentence for the robbery charge, it would serve no useful purpose M
for a CSO report to be called for just in respect of the credit card fraud
N N
charges, if that was possible at all.
O O
72. For the obtaining property by deception charges, I would
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adopt a starting point of 2 years’ imprisonment on each charge for both
Q defendants. Q
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S S
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3
Paragraph 22 of the judgment.
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B B
REDUCTION IN SENTENCE
C C
73. For their pleas of guilty, there will be a one-third discount in
D D
sentence for both defendants on all the charges.
E E
74. For the stress and the uncertain suspense that the defendants
F F
must have suffered during the delay, the sentences will be further reduced
G on top of the one-third discount, so that combined with the discount for G
their pleas, the sentence on each charge will be discounted by a total of
H H
50%.
I I
75. The discounted sentence will be 22 months’ imprisonment for
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the robbery charge, and 12 months’ imprisonment for each of the credit
K card fraud charges. K
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TOTALITY
M M
D1’s sentence
N N
O 76. Treating each fraudulent purchase as part and parcel of a O
single transaction, the sentences on all the obtaining property by deception
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charges are to run concurrently with each other, giving rise to a combined
Q total sentence of 12 months for all the charges that D1 admitted. Q
R R
77. 5 months of this combined total are to run consecutively to the
S term of 49 months that D1 is currently serving. S
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78. This court is satisfied that the total of 54 months justly reflects
C D1’s overall criminality in both the present case and the case for which he C
is serving sentence.
D D
E D2’s sentence E
F F
79. Similarly, I order that the sentences on all the obtaining
G property by deception charges that D2 admitted are to run concurrently G
with each other, giving rise to a combined total sentence of 12 months for
H H
these charges.
I I
80. This combined total of 12 months is to run concurrently with
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the sentence of 22 months for the robbery charge, giving rise to a final
K sentence of 22 months’ imprisonment for all the charges that D2 admitted. K
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M M
( Terence Wai )
N N
Deputy District Judge
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Q Q
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