HKSAR v. Chan Ka Chun

DCCC 812/2015

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 812 OF 2015

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Reasons for Sentence

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1.The defendant pleaded guilty to 30 charges of fraud contrary to Section 16A of the Theft Ordinance, Cap 210.  These charges involved 30 individual victims.  These victims are all players of an online football game called “Barcode Footballer”.  It is a virtual online football league.  If you are a team owner, the aim is for your team to win the league. Each victim owned footballers and they can buy and sell players to improve their team.   

2.In this league, players can also buy and sell virtual training supplements to improve the ability of their players.  The trading of these virtual commodities is done between players on a regular basis, as part of the game.  The victims would post messages on either Facebook or Uwants to buy and sell footballers and training supplements. 

3.Here, the defendant falsely represented to all 30 victims that he had either footballers or training supplements to sell. Once contact was established, a price would be negotiated.  Once a price was negotiated, the victim would first deposit the money into an account designated by the defendant.  Once money was paid, the defendant was supposed to transfer the player or the training supplement to each victim. 

4.In reality, the defendant had nothing to transfer.  All victims was successfully deceived by the defendant.  All victims were subject to his fraud. 

5.As a result of these 30 frauds, the total loss suffered was $52,090.  Individual loss suffered ranged between $800 and $4,900.  All these offences took place between May 2014 and May 2015. Paragraph 6 of the Summary of Facts particularises each offence succinctly. There is no need for me to repeat the facts of each fraud. 

6.I will say here that the defendant was first arrested on 1 August 2014.  For the offences relating to the 8th and 9th victim, the victims of Charges 8 and 9.  The defendant was given police bail. However, he failed to report to the police as directed.  The defendant was not rearrested until 1 June 2015.

7.Despite his arrest on 1 August 2014, he went on to commit 22 of these 30 offences.  This fact is an aggravating factor. 

8.I have been told in mitigation that the defendant was unemployed at the material time.  The defendant’s girlfriend was pregnant with his child.  Their child is now three months old.  At that time, he desperately needed money because of her pregnancy, which led to him committing these offences.  I have had a letter of mitigation written by the defendant expressing his remorse and explaining his actions.

9.The defendant is 29 years old, and although he is married, he is separated from his wife.  He has a new relationship, which as I have just said, has resulted in a child.  His girlfriend and child do not live with the defendant.  He does live with his mother and his elder brother. I have been told his mother is 60 and is in poor health. 

10.The defendant is not a man with a clear record. He has six previous convictions.  Four relates to managing a vice establishment.  The defendant has been sentenced to terms of imprisonment on several occasions.  The defendant’s last conviction was on 18 July 2014, less than two weeks before his arrest for two of these 30 offences.  For that theft offence, he was sentenced to 4 weeks’ imprisonment, but the sentence was suspended for 18 months.  He is in breach of that suspended sentence.

11.These frauds are not sophisticated frauds, but they are serious because there is an element of trust between online gamers. Online gamers cannot verify the representations made by a vendor before they make payments.  Therefore it’s all too easy to defraud such players.  This modus operandi should be discouraged. 

12.Defence counsel has referred me to a magistracy appeal case, HCMA 364/2015.  It is a Chinese appeal, and has not been translated into English.  I have been told that the facts of that appeal are similar to the facts of this case.  There were six charges, where between $300 and $1,150 losses were suffered.  The appellate court was of the view that a 12 week starting point for a charge was deemed appropriate. 

13.There are no guidelines for offences of this nature.  Any sentence will depend on the facts of each case, the loss suffered by victims, and mitigation put forward.  It would also depend on whether any aggravating factors exist. 

14.I have already said that there is an aggravating factor in this case.  22 of the 30 offences were committed after the defendant was first arrested and released on police bail.  What is also relevant to consider is the number of charges and number of victims, as well as the fact the defendant pocketed over $52,000. 

15.Defendant, please stand up.  After considering those factors I have just referred to and the mitigation I have heard, I intend to take a starting point of 15 weeks’ imprisonment for all offences committed before the defendant was first arrested on August 1 2014, and a starting point of 21 weeks’ imprisonment for all offences committed whilst on police bail and after he failed to report to the police according to that bail. 

16.Defendant plead guilty, and is entitled to a discount of one-third.  Once that discount is applied, the sentences will either be a 10 week sentence or a 14 week sentence. 

17.Therefore, for Charges 1, 2, 3 and 4, the defendant is sentenced to 10 weeks’ imprisonment, each charge.  For Charges 5, 6, and 7, the defendant is sentenced to 14 weeks’ imprisonment for each charge.  For Charges 8 and 9, the defendant is sentenced to 10 weeks’ imprisonment for each charge.  For Charges 10 through to Charge 27, the defendant is sentenced to 14 weeks’ imprisonment for each charge.  For Charges 28, the defendant is sentenced to 10 weeks’ imprisonment.  For Charge 29 and 30, the defendant is sentenced to 14 weeks’ imprisonment.

18.I will take into account the totality principle.  And because of that principle, I will make some of each sentence partly consecutive and partly concurrent. 

19.I will take 2 weeks of Charges 1 to 4 and 6 to 30, and make that 2 weeks consecutive to the 14 weeks of Charge 5, as well as 2 weeks of Charges 6 through to Charge 30 consecutive to Charge 5.  That, in effect, is 58 weeks added to the 14 weeks of Charge 5.  That is, 72 weeks.  In total, the defendant is sentenced to 18 months’ imprisonment. 

20.I have to deal with the breach of the suspended sentence.  I see no reason not to activate that suspended sentence.  I will order that the defendant serve an additional 1 month for the breach of suspended sentence of Tsuen Wan 1493/2014.  That 1 month will be served consecutively to the sentence of 18 months for this case.  Sorry, I am going to amend that, it will be 4 weeks, because there is a slight difference between 4 weeks and 1 month.  That suspended sentence was exactly 4 weeks, so I will activate 4 weeks, so it will be 18 months plus 4 weeks, to be accurate. 

21.Before I add up the total, let me correct myself.  I sentence you to 72 weeks’ imprisonment, which should be 18 months, but for calculation purposes, I am not going to convert that to months.  It will be 72 weeks.  So it will be a 72 weeks sentence, plus the breach of suspended sentence of 4 weeks, served consecutively, makes 76 weeks.