HKSAR v. Hui Wing Chi

DCCC 814/2015

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 814 OF 2015

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Reasons for Sentence

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Charges and facts

1.The Defendant pleads guilty to 22 charges of fraud.  In 22 transactions between 22 September 2014 and 9 October 2014, she had misrepresented in Facebook Messenger or WhatsApp account online that she had tickets for Ocean Park, Disneyland, and concerts for sale.  As a result, 19 victims had deposited money into 2 bank accounts designated by her as the purchase price.  Although she had received payments for the tickets, she never made the tickets available to them.  She either sent them photos of the tickets purportedly shown in delivery or told them so orally.  When the victims did not receive the tickets, they tried to contact her but in vain. 

2.On 14 May 2015, one of the victims arranged to meet her.  She was arrested by the police.   

3.In the cautioned interviews by the police, she admitted the offences.  She explained that she had intended to collect sufficient purchase orders for group tickets to satisfy the customers but it turned out that there were not sufficient purchase orders. Consequently she did not buy any tickets for the customers or inform them of the same.  When her online shops faced financial difficulties and could not make the purchase, she deleted the online shops without accounting to the customers.  She had spent the money paid by the customers and changed her phone number. 

4.Among the losses, the low was $480 whereas the high was $2,720.  The total was $22,254. 

5.The prosecution seeks an enhanced sentence by virtue of s. 27(2)(c) of the Organized and Serious Crimes Ordinance, Cap. 455, namely on the ground of the prevalence of the offences. This is supported by WSIP LO Pui-yan’s statement dated 7 September 2015.  The present case is an instance of “e-Auction Fraud” where a buyer paying in full fails to receive the goods from the seller who takes the payment and disappears.  From the annual figure available from 2009 to 2014, there is a trend for steady increase in the number of e-Auction Fraud reported (Annex A).  Although the figure processed for 2015 is only up to June, the number has not relented. From the monthly figure available from June 2014 to June 2015, there are ups and downs in terms of the number of reported cases and amounts lost.  The figures show an increase from May 2015 to June 2015. 

6.Mr. Yuen, who represents the Defendant, does not object to the enhancement but asks the Court to be lenient with it. 

Personal background and mitigation

7.The Defendant is 37 years of age, educated up to F. 5 level.  She had been a saleslady in a decoration light shop since aged 16 until aged 33.  She suffered depressive mood for having to meet sales target.  Acting on medical advice, she stopped working when she was aged 33.  In reliance on the medicine, she was able to do different jobs after one year.  However, the adverse effect began to take toll on her ability to concentrate or remember things.  She could not keep any long-term job.  She has 5 convictions for theft (all sentenced in 2012 and 2013).  For the last 4 of them, she was given prison terms.   

Sentencing considerations

8.Mr. Yuen has submitted 3 cases for comparison.  The first is the Reasons for Sentence in Chinese in HKSAR v Leung Yiu-fai (transliteration) DCCC 912/2013, delivered on 10 March 2014.  In a period of 1 month and 5 days, the defendant committed 36 offences of e-auction fraud.  He received deposits into his bank account for the purchase of Ocean Park tickets advertised by him on the internet.  He did not make the tickets available to his customers afterwards.  His customers suffered losses from $650 to $6,340, as the case may be.  The total was $63,180.  Judge C. P. Pang took 30 months as the starting point.  The sentences were to be concurrent.  A one-third enhancement was ordered due to the prevalence of the offences. 

9.The second case is HKSAR v Chow Wai-yip DCCC 951/2014, delivered on 19 December 2014.  In a period of 6 months, the defendant advertised goods for sale on an internet auction site. In 18 transactions each involving one victim, he received the payment but did not make the goods available.  His customers lost $30,469 in total.  Judge Woodcock took a starting point of 2 years for each of the 18 charges of fraud.  The sentences were to be concurrent.  A 30% enhancement was adopted for the prevalence of the offences. 

10.The third case is HKSAR v Ho Kai-yu DCCC 209/2015, delivered on 30 April 2015.  In a period of about 3 months, the defendant advertised tickets for concerts and shows on the internet.  He received the payment but did not make the goods available.  His customers lost about $28,000 in total.  Judge Casewell took a starting point of 21 months for each of the 12 charges of fraud.  The sentences were to be concurrent.  A 25% enhancement was adopted for the prevalence of the offences.

Sentencing this Defendant

11.It was a simple but effective scam to cheat customers over a short period of time.  For a first offender, I shall take a starting point of 2 years for each of the 22 charges.  Concurrent sentences shall be appropriate.  As the Defendant is a recidivist for dishonesty offences, this factor shall aggravate her present sentence.  I therefore increase the starting point to 2 years and 6 months.  I allow a one-third discount for her pleas of guilty.  The sentence before enhancement is 20 months’ imprisonment. 

12.I am satisfied that the offences have remained prevalent so far.  A 30% enhancement is warranted.  The sentence is to be 26 months for each charge, to be served concurrently.