HKSAR v. Cabe Lyrma Tuazon and Another
Read the full judgment text of DCCC 463/2016 on BabelCite. This District Court judgment was delivered on 19 December 2016.
1. D1 and D2 both plead guilty to Charge 1, ie fraud. Each defendant also pleads guilty to a count of breaching of condition of stay involving overstaying, ie Charge 2 and Charge 3 respectively.
Cites 3 cases
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DCCC 463/2016 IN THE DISTRICT COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION CRIMINAL CASE NO 463 OF 2016 -----------------
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------------------------------------- REASONS FOR SENTENCE ------------------------------------- Charges 1.D1 and D2 both plead guilty to Charge 1, ie fraud. Each defendant also pleads guilty to a count of breaching of condition of stay involving overstaying, ie Charge 2 and Charge 3 respectively. Facts: Charge 1 2.PW1, Mr Jones, is a 67-year-old businessman. In 2013, he heard from his friend Mr Lopez, PW2, that both defendants were handling an inheritance claim of US$25 million. PW1 was told that D1 was the legal representative of the heir, and the inheritance money was held in an HSBC account. PW1 was also told that D1 required money to process the claim. He knew PW2 had been financing D1 in the belief that PW2 would receive a heavy reward later. 3.In May 2014, PW2 himself had financial problem. He turned to PW1 for help. PW1 believed the inheritance story and started financing the defendants. He was asked by the defendants on various occasions for money on the pretence that the money would be used to pay bank charges. At some stage, D1 had produced documents to PW1 through PW2 to substantiate her false claim. 4.Between May 2014 and October 2015, on different occasions, PW1 paid a total of HK$862,350 and US$11,000 to the defendants who promised to reward PW1 with US$4 million upon success of the inheritance claim. PW1 paid the money into an account, which D1 had borrowed from her friend. 5.PW1 later found out that it was a scam. The matter was reported to the police. Both defendants were arrested on 5 November 2015. 6.Under caution, D1 remained silent while D2 denied she was involved in the scam. Now in court, both defendants admit that they had practised deceit upon PW1 in Charge 1, cheating him out of his pocket HK$862,350 and US$11,000. Charge 2 and Charge 3 7.Both defendants came to Hong Kong on visitors’ status in late November 2012. They were allowed to stay only up to 12 December 2012. Yet both had stayed in Hong Kong thereafter. By the time they were arrested on 5 November 2015, they had overstayed in this territory for more than 2 years and 10 months. Record 8.D1 is now aged 45. D2 is aged 40. Both defendants came from the Philippines. They had clear records here. Mitigation 9.Both defence counsel have helpfully prepared written submission for mitigation and made elaboration in court. 10.Both defendants’ background informations have been clearly set out in their antecedent statements and in counsel’s submission. I do not see any need to repeat any of those informations here. D1 11.Counsel for D1 says D1 was in need of money due to her financial difficulty. Her grandmother in Morocco also pressed her for money. D1 was persuaded by others to come to Hong Kong to perpetrate the inheritance scam. Counsel says the idea was not hers. Counsel also says apart from this fact that she came here to practise fraud, there was no aggravating factor in the case. 12.Counsel cites CACC 486/2006 Pike James Edward, CACC 196 of 2007 Ho Ka Keung (No 2) and DCCC 104/2014 Tsang Mei Yuk, Sylvia. Counsel says 2 to 3 years’ imprisonment is the right band to be considered as the starting point for Charge 1. He asks me to go for the lower end of the scale. 13.As to Charge 2, counsel says 3 months’ imprisonment is the right starting point. However, he says this sentence should be made to run concurrently with that imposed for Charge 1, the reason being that D1 overstayed in Hong Kong only for the purpose of perpetrating the fraud in Charge 1. D2 14.Counsel for D2 says D2 had been acquainted with D1 in the Philippines. She was lured by D1 to assist the latter in Hong Kong on the inheritance matter. D2 claims she did not know it was a scam in the first place. She was only so aware after having come here for two weeks. On this, D2 elects not to testify in the witness-box. The background information reveals that D2 was an experienced paralegal in Manila between the years of 2004 and 2011. In the absence of any credible evidence, I reject D2’s claim that she was innocent until having landed in this territory for about two weeks. I am sure D1 would not bring an innocent assistant with her all the way from the Philippines to Hong Kong to perpetrate the inheritance scam. I am sure that D2 must have known something about the scam, if not all, from the outset. Therefore, D2 also entered this territory with the purpose of committing fraud here. As in D1’s case, that is an aggravating factor as far as Charge 1 is concerned. D2 is just as culpable as D1. 15.Counsel for D2 relying on the same two Court of Appeal cases submitted by the other counsel. He persuades me to adopt the 2 to 3 years’ band as the starting point for Charge 1 and asks me to be lenient towards D2. 16.As to Charge 3, counsel for D2 also says 3 months’ imprisonment would be an appropriate starting point. While he agrees that the overstaying offence was different from the fraud, he asks me to consider making both sentences wholly concurrent or partly concurrent. Sentence Charge 1 17.For the offence of fraud, there is no sentencing guideline or tariff. Each case depends on its own facts. The amount of money cheated out of PW1 and the duration of the fraud practised upon him would be most significant considerations. 18.Charge 1 took place between May 2014 and October 2015. During that period of one year and five months, both defendants deceived PW1 of HK$862,350 and US$11,000. The total was around HK$940,000. 19.The fraud practised by both defendants was not a sophisticated one. Nevertheless, it was carried out by them with some plan and persistence. It took place in the period of one year and five months. The aged gentleman, PW1, was deceived of a significant sum equivalent to about HK$940,000. Not a single cent was recovered, and both defendants are not in a position to pay any compensation to PW1. 20.Both defendants are foreigners. They came to Hong Kong for the purpose of committing the said fraud. This by itself is an aggravating factor. The fact that both overstayed here would be dealt with separately in Charge 2 and Charge 3. 21.On Charge 1, in each defendant’s case, I adopt 3 years’ imprisonment as the starting point. They plead guilty. So they are entitled to one-third discount. Each is sentenced to 2 years’ imprisonment on Charge 1. Charge 2 22.D1 overstayed in Hong Kong for no good reason for more than 2 years and 10 months. I adopt 3 months’ imprisonment as the starting point. After one-third discount for her plea, D1 is sentenced to 2 months’ imprisonment on Charge 2. Charge 3 23.D2 also overstayed in Hong Kong for no good reasons for more than 2 years and 10 months. I adopt 3 months’ imprisonment as the starting point. After her plea, D2 is sentenced to 2 months’ imprisonment on Charge 3. Consecutive Sentences 24.D1 and D2’s overstaying in Hong Kong are separate and distinct acts from their commission of fraud in Charge 1. In D1’s case, I order her sentence for Charge 1 and Charge 2 to run consecutively. Thus, D1 is given a total of 2 years and 2 months’ imprisonment for her plea to Charge 1 and Charge 2. In D2’s case, I also order her sentence for Charge 1 and Charge 3 to run consecutively. So D2 is given a total of 2 years and 2 months’ imprisonment for her plea to Charge 1 and Charge 3.
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