HKSAR v. Kwok Wai Ki

DCCC 1174/2016

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 1174 OF 2016

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REASONS FOR SENTENCE

The defendant pleaded guilty to 2 charges of "Fraud" (Charges 1 and 2). He and some other person(s) pretended to bid for electronic goods through e-auctions and took possession of the goods without paying. The value of the goods involved amounted to an aggregate sum of $19,000.

Summary of Facts

Charge 1

2.In December 2014, Mr. HT LO (PW1) posted an advertisement on an internet auction site for the sale of a MacBook.

3.On 6 January 2015, someone of phone number 5105 6580 contacted PW1.  After discussion, PW1 agreed to sell his MacBook at the price of $11,500.  PW1 and the purchaser agreed to meet at 11:45 a.m. on 8 January 2015 at Kowloon Tong MTR Station.

4.At the scheduled time and location, the defendant, claiming to be the purchaser's brother, and another male approached PW1.  The defendant inspected the MacBook and asked PW1 to give him his bank account details to arrange for transfer of funds.  PW1 agreed.

5.After making several phone calls, the defendant informed PW1 that the sum had been transferred to PW1's bank account.  PW1 checked the balance of his account by phone and found a credit entry in the sum of $11,500.  On this basis, PW1 handed his MacBook to the defendant.

6.PW1 later discovered that the credit entry was created by depositing a stolen cheque into his bank account.  PW1 failed to receive any payment and the culprits were out of contact.  He alerted the Police.

7.The stolen cheque (of Citibank) was deposited into PW1's bank account through an ATM.  The checking account was opened in October 2012, but the registered account holder did not receive any cheque book.

Charge 2

8.In December 2014, Mr. CH LO (PW2) posted an advertisement on an internet auction site for the sale of an iPhone.

9.On 6 January 2015, someone of phone number 5105 6580 contacted PW2.  After discussion, PW2 agreed to sell his iPhone at the price of $7,500.  PW2 and the purchaser agreed to meet at 1:45 p.m. on 8 January 2015 at Kwai Fong MTR Station.

10.At the scheduled time and location, the defendant and another male approached PW2.  Claiming that he did not have sufficient cash with him, the defendant requested to pay PW2 by bank transfer.  PW2 agreed.

11.After making some phone calls, the defendant informed PW2 that the sum had been transferred to PW2's bank account.  PW2 checked the balance of his account by phone and found a credit entry in the sum of $7,500.  On this basis, PW2 handed his iPhone to the defendant.  PW2 made a video record of the transaction, which contains the appearance of the defendant and the unknown male.

12.PW2 later discovered that the credit entry was created by depositing a stolen cheque into his bank account.  PW2 failed to receive any payment and the culprits were out of contact.  He alerted the Police.

13.The stolen cheque (of Standard Chartered Bank) was deposited into PW2's bank account through an ATM.  The registered holder of the checking account had reported loss of his cheque book in November 2014.

Admissions

14.The Police arrested the defendant on 5 February 2015.  Under caution, he admitted that he had worked for someone named "Ah Fat" in relation to the offences.  The defendant was responsible for collecting the goods only; he would receive $400-$500 for each transaction as a reward.

15.In his record of interview, the defendant described in details how he and at least 3 other persons committed the offences.  Someone named "Elder Sister" was responsible for contacting the victims.  Ah Fat was responsible for creating the credit entries.  After collecting the goods, the defendant would deliver them to an unknown male.

Identification Parades

16.On 30 June 2015, PWs 1 and 2 positively identified the defendant in the respective ID parades.

Mitigation & Sentence

17.The defendant will be 21 in 9 days and has a clear record.  He is single and resides with his mother and younger sister in a public housing unit.  His parents had a divorce in March 2010.  Defence counsel Mr. LAU informed me that after completing F.4, the defendant began to work as a beverage station attendant in a fast food restaurant.  He makes financial contribution to his family.

18.In mitigation, Mr. LAU submitted that the defendant was only 18 at the time of both offences.  The evidence against him came primarily from his admissions[1], without which the prosecution could at most prove that he was present at the crime scenes. Furthermore, despite having other culprits involved, the defendant has decided to pay into court the sum of $19,000 in full as compensation for PWs 1 and 2 and has done so already.

19.I am fully aware of the prosecution's application for an enhanced sentence under the Organized and Serious Crimes Ordinance (Cap.455) on the basis of prevalence of e-auction fraud. I have also borne in mind the length of the prison term the defendant is likely to receive had he been over 21. On the other hand, I cannot overlook his need for rehabilitation. I have reminded myself that correctional institutions such as Detention Centres exist for the benefit of young offenders. These institutions play an important role in our penal system.

20.The defendant's pre-sentencing report reveals that he is mentally and physically fit for detention in a Rehabilitation Centre, Detention Centre or Training Centre.  The officer who wrote the report considers Detention Centre more suitable for the defendant.

21.Based on the information before me, I accept there is a possibility that the defendant was only a pawn in the e-auction scam in this case.  I would not hide the fact that the defendant's age and clear record played a determining role which spared him the punishment of immediate imprisonment.  After careful consideration, I, with some reluctance, have decided to make a Detention Centre Order, which will be the sentence for both charges.  I believe a Detention Centre Order will benefit the defendant most in terms of disciplinary training, reformation and punishment.  In the circumstances, I make no order in respect of the application for enhancement of the sentences.