HKSAR v. KHUMALO PAULOS

DCCC 250/2014

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 250 OF 2014

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HKSAR
v
KHUMALO PAULOS
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Before : HH Judge Dufton

Date : 7 May 2014

Present: Ms Janice Cheuk, SPP(Ag.), of the Department of Justice, for HKSAR Ms Ody Lai instructed by Jal N. Karbhari & Co assigned by theDirector of Legal Aid for the defendant

Offences: (1) Attempted using a false instrument (企圖使用虛假文書)
(2) Possessing a false instrument (管有虛假文書)

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REASONS FOR SENTENCE

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1. Paulos Khumalo you have pleaded guilty to one charge of attempting to use a false instrument, contrary to sections 73 and 159G of the Crimes Ordinance, Chapter 200 and section 3(1) of the Aviation Security Ordinance, Chapter 494; and one charge of possessing a false instrument, contrary to section 75(1) of the Crimes Ordinance.

2. In summary on the 29 January 2014 you took flight HX 772 from Bangkok to Hong Kong. At a time when the flight was not in or overHong Kong you attempted to use a forged UOB Mastercard in your name to buy a Montblanc pen and Estee Lauder cream valued at $4,260.The flight attendant however suspected the card was forged and reported the matter to her superior and security staff. On arrivalin Hong Kong you were arrested. A search at the police station revealed you were also carrying a forged Bank of America Visa cardalso in your name.

3. I have carefully considered everything said on your behalf by Ms Lai together with the content of your mitigation letter. I takeinto account you have a clear record in Hong Kong. Noting that you were to be in transit only on your way to Tokyo and have thereforenever been in Hong Kong this fact carries little weight.

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

5. Where the facts of the offence point to a small unsophisticated operation, involving one or a few forged cards uncomplicated byother evidence materially linking the offender to a larger operation, a starting point of 3 years or less may be appropriate (seefor example HKSAR v Tu I Lang CACC 464/2006 cited by Ms Lai).

6. Starting points higher than 3 years have been upheld for similar offending. In HKSAR v Au Yeung Shu Sang CACC 474/2006 a case concerning two forged credit cards the Court of Appeal said where the defendant was obviously part of a widerorganisation that had caused cards to be printed specifically for him the appropriate starting point was one of 3 years and 6 monthsimprisonment.

7. Each case is however to be decided on its own facts and circumstances. Taking into account you were on board a flight to Hong Kongwhilst in possession of two forged credit cards in your name which no doubt would have been used had you not been arrested, I amsatisfied the proper starting point after trial is 3 years and 6 months imprisonment on each charge.

8. Giving you full credit for your pleas of guilty you are convicted and sentenced to 2 years and 4 months imprisonment concurrenton each charge.

(D. J. DUFTON)
District Judge

Please refer to CACC176/2014 for the relevant appeal(s) to the Court of Appeal.