HKSAR v. Fung Tin Ho, Mickey (also known as Fung Chun Yip)

DCCC 182/2019

[2019] HKDC 1426

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 182 OF 2019

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Reasons for Sentence

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Charges

1.The Defendant pleads guilty to and is convicted of the following charges: -

(1) Charge 1: Theft;

(2) Charge 3: Theft;

(3) Charge 4: Theft;

(4) Charge 7: Theft;

(5) Charge 8: Theft;

(6) Charge 10: Procurement of unlawful sexual acts by false pretences^[1];

(7) Charge 11: Theft;

(8) Charge 13: Theft;

(9) Charge 14: Fraud;

(10) Charge 16: Procurement of unlawful sexual acts by false pretences;

(11) Charge 17: Theft;

(12) Charge 18: Theft;

(13) Charge 19: Theft;

(14) Charge 21: Theft;

(15) Charge 22: Theft;

(16) Charge 24: Procurement of unlawful sexual acts by false pretences;

(17) Charge 25: Theft;

(18) Charge 26: Theft;

(19) Charge 28: Theft.

2.The said offences took place between 24 August and 7 September 2018. 

Facts

3.On 23 August 2018, the Defendant (then aged 39) befriended X (then aged 24), a saleslady at a mobile phone accessories shop which the Defendant often attended.  The Defendant claimed to be a master of Thai Buddhism and he could conduct rituals to reincarnate the spirits of X’s deceased mother and aborted babies.  X trusted the Defendant and believed that he had special powers, so she was willing to proceed with the rituals.

4.Between 24 August 2018 – 7 September 2018, the Defendant had requested X to make various transfers or cash deposits to his bank account numbered 012-588-1-049557-7 held with Bank of China (Hong Kong) Limited; to add value to his “TNG” account, i.e. an electronic wallet; and to surrender various items to him, purportedly for the various items / services which he alleged were required for the rituals: -

(a) on 24 August 2018, HK$12,000 for buying a “Thai baht tree”, i.e. a tree made of “Thai baht” currency (Charge 1);

(b) on 25 August 2018, HK$10,000 and HK$6,000 for buying 2 white gold rings (Charges 3 & 4);

(c) on 26-27 August 2018, HK$2,200 and HK$4,000 for hiring a vehicle from “GOGOVAN” for summoning the “segments of spirits” of X’s aborted babies on the road (Charges 7 & 8);

(d) on 28 August 2018, HK$5,000 for making a golden sculpture of X’s deceased mother (Charge 11);

(e) on 29 August 2018, HK$4,700 for making a larger “Thai baht tree” to strengthen the rituals (Charge 13);

(f) also on 29 August 2018, HK$2,700 for making a larger “Thai baht tree”. X had run out of money and asked her friend Mr. CHOW Chi-fai to make the transfer, who did accordingly (Charge 14);

(g) on 2 September 2018, HK$10,000 for buying 2 “APPLE” iPhone 7 and 1 “APPLE” iPhone 7 plus to temporarily store the spirits of X’s aborted babies and deceased mother (Charge 17);

(h) also on 2 September 2018, HK$3,500 for buying 1 extra “APPLE” iPhone 7 to temporarily store the spirits of X’s aborted babies and deceased mother (Charge 18);

(i) on 3 September 2018, an “APPLE” iPhone 7 plus for 2 days for conducting rituals. X borrowed an “APPLE” iPhone 7 plus in black colour from the shop next door and gave it to the Defendant, who later said that the borrowed phone had too many scratches and was not fit for the rituals. However, the Defendant was unwilling to return the borrowed phone. X had to pay HK$3,700 to the owner for compensation (Charge 19);

(j) on 4-5 September 2018, 4 gold accessories, namely 1 gold ring, 1 gold pendant, 1 gold wrist chain and 1 gold necklace with a gold plate, worth around HK$20,000 in total, used to belong to X’s deceased mother, these being property of sentimental value (Charge 21);

(k) also on 4-5 September 2018, HK$11,000 for buying one more gold accessory for conducting the rituals (Charge 22);

(l) on 7 September 2018, X’s own “APPLE” iPhone 7 plus in black colour (worth HK$3,700) with one SIM card for installing some applications related to the rituals on her phone (Charge 25);

(m) also on 7 September 2018, HK$5,000 as service fees for the rituals (Charge 26); and

(n) also on 7 September 2018, after learning that X had deposited her own savings of coins into the bank account for making the previous transfer of HK$5,000, the Defendant said that it was against the rules as the sum of HK$5,000 must be borrowed from others. As such, X was required to pay a further sum of HK$3,000 to make up for the negative effect (Charge 28).

5.X had made the transfers, cash deposits, top-ups of electronic wallet and surrendered property to the Defendant as requested.  The total sum involved (including value of the stolen goods) was HK$106,500.

6.On 28 August 2018, the Defendant learned that X had sexual intercourse within the last 30 days and claimed that it made her illegible for the planned rituals.  He said the original rituals could only be performed after she was “cleansed” through some rituals by sexual intercourse with him.  Otherwise, the rituals for reincarnation of the spirits of X’s deceased mother and aborted babies would be affected.  X reluctantly agreed.  That evening, the Defendant and X attended Dorsett Hotel at Tsuen Wan and had a number of sexual acts, including oral sex and unlawful sexual intercourse.  At the material time, X was menstruating and the Defendant knew it beforehand.  The Defendant did not use any condom in the process. (Charge 10)

7.On 1 September 2018, the Defendant told X that a further sexual intercourse was necessary.  Otherwise, the spirits of X’s deceased mother and aborted babies would be affected and could not be reincarnated. X reluctantly agreed.  That night, the Defendant and X attended Silka Hotel at Tsuen Wan and had a number of sexual acts, including oral sex and unlawful sexual intercourse.  The Defendant did not use any condom in the process and ejaculated inside X’s vagina.  After the sexual intercourse, X felt her vagina swollen and painful.  The Defendant then assured X that it was normal as he needed to cause an inflammation in her vagina to flush out the “bad things” in X’s body. (Charge 16)

8.On 6 September 2018, the Defendant told X again that a third sexual intercourse was required, in order to draw out “the things put inside her body” during the second intercourse.  X reluctantly agreed.  Past midnight on 7 September 2018, the Defendant and X attended Silka Hotel at Tsuen Wan and had a number of sexual acts, including oral sex, buggery and unlawful sexual intercourse.  The Defendant did not use any condom in the process.  After the sexual intercourse, X found her anus bleeding.  The Defendant claimed that through the penetration to X’s anus, the holy spirits sealed the “bad things” in her anus. (Charge 24)

9.The Defendant was arrested upon identification by X to the Police at a controlled meeting on 19 September 2018.

10.In the subsequent cautioned VRI, the Defendant admitted, inter alia, that:-

(a) he was a broker working in the finance sector. He had claimed to X that he was a master of Thai Buddhism and was able to conduct rituals for X;

(b) he requested from X money, gold accessories and X’s own iPhone purportedly for the rituals, for making a golden sculpture of X’s deceased mother, and for hiring vehicles from “GOGOVAN”, etc. He did receive from X money, gold accessories and X’s own iPhone. The gold accessories included belongings of X’s deceased mother;

(c) he had received a sum of HK$2,700 from X’s friend;

(d) he had sold X’s gold accessories and iPhone;

(e) he had also spent all the proceeds from selling X’s property and the money obtained from X on his daily expenses;

(f) he had obtained from X a total sum of about HK$126,000 odd which he considered not a substantial amount; and

(g) he had attended Dorsett Hotel and Silka Hotel for 3 purported rituals with X on 28 August, 1 September and 7 September 2018 respectively.

11.Thai Buddhism experts Mr. PHUCHUN Phra-sukhee and Mr. LI Siu-chung confirmed that the Defendant’s various representations were contrary to their religious practice, and thus were false. 

12.All along, the Defendant posed, apart from a Thai Buddhist master, also as a brotherly figure to X and claimed that he could communicate with X’s deceased mother.  He gained the trust of X by claiming that X’s deceased mother wanted him to take care of X.

13.All along, the Defendant knew that X was running out of money but he made repeated requests from X for money and property, and defrauded X of all she had. 

14.All along, the Defendant kept telling X not to disclose to anyone what was happening between them, otherwise the rituals would lose effect and bad luck would befall those listeners.  This further delayed X’s asking for help.

15.The Defendant committed the present offences while he had jumped police bail and court bail in other 2 cases.  To be precise, the Defendant was granted police bail in TY/18002721 on 22 April 2018 and due to return to the police station on 29 June 2018.  He failed to so return as appointed.  Besides, he was granted court bail in TMCC 1269/2018 and due to return to court on 3 July 2018.  He failed to so return as appointed. As said beforehand, he was arrested on 19 September 2018. 

16.There is a witness statement by X made on 19 August 2019, ie 11 months after the last offence.  The defence does not dispute its contents.  X found it too embarrassing to share her feelings with other people.  She lost trust on other people.  She had difficulty connecting with males.  She had no financial resource to seek psychological assistance.  She had lost property of sentimental value inherited from her mother.  She had lost over HK$100,000 in monetary and property value.  That represented most of her savings.  It included loans from many friends to repay her insurance premium at the last minute to avoid the scheme being forfeited altogether. Her monthly salary as a mobile phone salesperson was $13,000.  Her performance was ill affected due to her psychological problem as a result of the offences.  She was dismissed from work.  She was the main breadwinner of the family.  

Mitigation

17.The Defendant is now 40 years of age, of F. 1 education level.  He was unemployed at the time of arrest.  He had a lot of criminal records.  Relevant to the present case are as follows:

(1) Theft x 31 (dates of sentence between 30 December 1993 and 13 December 2018);

(2) Fraud x 10 (dates of sentence between 11 October 2013 and 30 November 2018);

(3) Dishonesty offences such as Robbery (date of sentence 13 February 2004), Obtaining property by deception x 2 (dates of sentence between 23 April 2009 and 30 November 2018), Evasion of liability by deception (date of sentence 30 November 2018);

(4) Unlawful sexual intercourse with a girl under age of 16 x 2 (dates of sentence between 23 October 1997 and 16 January 2002), unlawful sexual intercourse with a girl under age of 13 (date of sentence 19 April 2000).

18.He is a persistent offender for dishonesty offences in general and for theft and fraud in particular.  He has not learned to amend his conduct despite the repeat jail terms.  This is an aggravating factor in his sentence. 

19.There are 2 letters written by or on behalf of the Defendant, dated 16 February 2019 and 2 March 2019 respectively, for his pre-existing cases and his present case to be heard together so that he could plead guilty to, and be sentenced for, all charges relating to him together. 

20.His counsel Miss Fung refers me to two cases on the sex charge as sentencing examples.  In HKSAR v Ho Ka Po, Tony DCCC 1169/2012, the defendant was convicted of procuring unlawful sexual intercourse by false pretences (Charge 1) and procuring unlawful sexual intercourse with the same victim by threats or intimidation four days later (Charge 2).  The victim was a domestic helper from Indonesia.  She had recurrent stabbing pain in her back.  The family doctor failed to improve her condition.  She was referred to the defendant by her employment agent.  The defendant took the role of a religious person to advise her that she was cursed.  He professed to cure her by certain rituals including removing her clothes to perform massage on her naked body whilst she had to hold his private parts.  The rituals involved sexual intercourse, oral sex on the defendant and her swallowing his semen.  He told her not to inform others, as this would also harm her family in Indonesia. When her pain did not go away, she went to see the defendant again.  The second offence happened in a similar setting.  The judge took 3 years as the starting point and arrived at an overall starting point of 4 years for the two charges together. 

21.In HKSAR v Au Yeung Kwok Fu 歐陽國富CACC 41/2010 (a Chinese Judgment), the defendant faced 9 charges of procuring unlawful sexual acts by false pretences that spanned over 8 months.  The victim was 18 years old.  She worked as a model.  She was superstitious and wanted to enhance her luck.  She was introduced to the defendant, who professed to be a ritual master able to help her.  The rituals involved oral sex and sexual intercourse.   She later found herself pregnant as no condom had been used.  The defendant asked her to do an abortion, which she did. The Court of Appeal reduced the overall starting point from 6 years 9 months to 5 years.  It must be noted that this sentence has subsequently received adverse comments for its inadequacy by another division of the Court of Appeal in HKSAR v Chow Kam Wah [2013] 1 HKLRD 377, a case referred to me by the prosecutor Miss Lo.   

22.In Chow Kam Wah, the 51-year-old defendant was convicted of three counts of procuring unlawful sexual acts by false pretences happening within 3 months (Charges 1 – 3) and one count of rape (Charge 4).  It was the same victim, aged 19, in each charge.  She was cheated into unprotected sexual intercourse in misbelieving that the defendant was performing a ghost-hunting ritual.  She suffered significant psychological problems after the offences. The sentence for all the three procuring charges was 5 years altogether whereas that of the rape charge was 8 ½ years.  After totality adjustment, the sentence was 11 years in all.  The Court of Appeal regarded that the defendant had posed as a fatherly figure to the young people, including the victim, at his resident estate.  He knew the victim was naïve and vulnerable.  He told the victim not to tell others about the ritual and sex. His exploitation of such vulnerability was a serious aggravating feature in each offence.  The sentences on appeal were affirmed, albeit said to be on the high side but not manifestly excessive.

Sentencing this Defendant

23.The offences took place within two weeks. The Defendant knew the victim was not rich.  He had knowingly depleted the savings and knowingly subjected her to making loans to satisfy his further demands.  The total loss to the victim was (including value of the stolen goods) was HK$106,500, part of which involved items of sentimental value.  On the facts, I consider a starting point of 12 months for each of the 16 charges involving theft or fraud.  Aggravating by his abundantly persistent reoffending for theft and fraud, I take an actual starting point of 1 year 3 months for each.  After the one-third discount for the plea of guilty, the sentence is 10 months.  

24.The Defendant posed as a religious adviser and a brotherly figure to the victim.  On the facts of the sex charges, I consider 3 years as the starting point for each.  Aggravated by the post-traumatic impact on the victim, I add 3 months to it.  Aggravated by his abundantly persistent reoffending for dishonesty offences, relevant to the false pretences he used in procuring sex from the victim herein, I add another 3 months to it.  The actual starting point is 3 years 6 months for each.  After the one-third discount for the plea of guilty, the sentence is 2 years 4 months.  

25.Each of the theft or fraud charges relates to distinct incident that calls for a sentence consecutive to others (Charges 1, 3, 4, 7, 8, 11, 13, 14, 17, 18, 19, 21, 22, 25, 26 and 28).  That is also applicable to each of the sex charges (Charges 10, 16 and 24).  I consider the totality principle and order each of the theft or fraud sentences to be concurrent among themselves but consecutive to the sex charges.  The total sentence is 3 years 2 months.

26.The Defendant now requests for a partly concurrently sentence between his pre-existing sentences and the present sentence on the basis that all charges might well have been heard and sentenced together.  I have considered two aspects relevant this request.  On the one hand, this joint hearing may point to a lower sentence in all.  On the other hand, there may be an aggravation in his present sentence due to his commission of the present offences whilst on court and police bail for his pre-existing charges of theft and fraud (which resulted in conviction and imprisonment).  These two aspects can have a mutually countering effect.  I therefore neither order for a partly concurrent sentence between his pre-existing sentences and the present case due to the first aspect, nor aggravate the present sentence due to the second aspect.  In short, the present sentence shall be consecutive to his pre-existing sentences. 

[1] Contrary to section 120(1) of the Crimes Ordinance, Cap. 200