HKSAR v. Wong Hei Yin

DCCC 1072/2020

[2021] HKDC 1660

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 1072 OF 2020

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REASONS FOR SENTENCE

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1.The defendant pleaded guilty to 22 charges of theft. The prosecution applied to leave Charge 13 and 24 on the court’s file. This court orders that these two charges are not to be proceeded with without leave of the court.

Summary of facts

2.The defendant used more or less the same modus operandi in committing each of these offences.  I consider that it is unnecessary to repeat the facts of each charge.

3.In essence, between 7 August 2019 to 31 March 2020, the victims came to meet the defendant through Facebook, WhatsApp groups or through referral by friends that the defendant had jobs offer to them.  When the defendant met all these victims, he used various excuses and misrepresentations to ask them for money, such as his employer needed money to pay wages to his workers, to clear debts and etc. 

4.Those victims either pawned their phones as suggested by the defendant and/or withdrew cash from the ATM.  In either scenarios, they gave money to the defendant except in Charge 12 that PW12 withdrew $3,500 and put the money into his bags.  The defendant stole the $3,500 from PW12’s bag. 

5.While in Charge 18, the defendant took away $310 and also an iPhone from PW18.

6.The defendant used five different phone numbers to commit the 22 offences.  The phone numbers are as follow: -

(1)  55713518 (phone 1);

(2)  65753224 (phone 2);

(3)  53080502 (phone 3);

(4)  53042654 (phone 4); and

(5)  60971115 (phone 5).

7.Summaries of the date of the offences, the total sum involved, the age of the victims and other remarks are now listed in a table below.  This information was derived from the Summary of Facts.

Charges	The Sum involved	Date	Victim Pawned i-Phone	Victim paid Cash To Defendant	Age of Victim	Status Of victims	Phone Used by Defendant
1	$4,000	07/11/2019	pawned for $3,500	$500	20	Self-employed	1
2	$600	07/08/2019	pawned for $1,100. Defendant gave PW2 $500		15	Student	2
3	$3,000	07/08/2019	pawned for $3,000		14	Student	2
4	$3,400	26/08/2019	Pawned for $3,400		16	Student	*
5	$3,600	26/08/2019	Pawned for $3,600		18	Student	*
6	$2,100	26/08/2019	$1,600	$500	18	Student	3
7	$1,800	17/10/2019	pawned for $2,000, Defendant gave PW7 $200		18	Unemployed	1
8	$1,000	17/10/2019		$1,000	18	Unemployed	4
9	$1,930	21/10/2019		$800	27	Employed	4
		28/10/2019		$1,130
10	$1,300	24/10/2019		$1,300	24	Employed	4
11	$1,050	30/10/2019		$1,050	21	Unemployed	4
12	$3,500	13/08/2019		$3,500	16	Student	3
14	$3,500	30/08/2019	pawned for $4,000, Defendant gave PW14 $500		15	Student	*
15	$3,700	10/09/2019	pawned for $4,000, D gave PW15 $300		17	Unemployed	4
16	$4,000	13/09/2019		$4,000	17	Student	*
17	$100	03/11/2019		$100	15	Student	4
18	iPhone + $310	03/11/2019		$310 and took PW18’s iPhone	15	Student	4
19	$4,700	13/08/2019		$4,700	16	Student	3
20	$9,300	15/08/2019		$9,300	16	Student	3
21	$4,500	30/03/2020		$4,500	22	Student	5
22	$4,000	31/03/2020		$4,000	17	Student	5
23	$11,500	31/03/2020		$11,500	20	Student	5

8.However, there was no information of the telephone number being used by the defendant in Charge 4, 5, 14 and 16.

9.The defendant managed to get away on each occasion by telling the victims to wait for him or by sending them to different places to look for fruit stalls and employers, but they were all lies and the defendant did not return back to them.  As he kept delaying payment, those victims reported him to the police.

10.On 7 October 2019, he was arrested. 

11.He was arrested again on 31 March 2020 when he approached PW23 in Charge 23 to ask her to lend him money, a total of $11,500 on four occasions within a day. 

12.The total sum of the 22 charges were $72,890.  There was also an iPhone took away by the defendant in Charge 18.

Criminal record

13.The defendant had one previous in 2012 that he was sentenced to 18 months’ probation order for an offence of passing, tendering counterfeit of currency notes.

Mitigation

14.The defendant is now aged 26 and resided with his parents and siblings prior to his arrest.  He used to work as “a porter” earning an income of $10,000 per month.

Sentence

15.In mitigation, the defence referred this court to three cases:-

(1)  HKSAR v 呂源舜HCMA 185/2016. The learned judge pointed out that street deception for small value should be in the region of 9 to 12 months.

(2)  HKSAR v Li Wai Hung CACC 40/2009. The appellant pleaded guilty to 31 charges of obtaining property by deception from various young people with a total value of $64,000 within a period of 3 months. He received a sentence of 3 years’ imprisonment.

(3)  HKSAR v Leung Yiu Fai CACC 100/2014. The appellant by false misrepresentation to 36 victims that he had tickets to sell for the Ocean Park Halloween Night. The total sum was $63,180. The appellant had a previous record of 16 counts of theft and three counts of fraud. A sentence of 30 months was imposed after trial.

16.There is no sentencing guideline for this nature of offence.  Each case has to be decided on its own facts.  By looking at one charge in isolation, it can be dealt with in the Magistrates’ Court.  However, when the defendant committed a series of multiple offences over a period of 7 months, it is clear that this is a very serious case.

17.The first group of offences took place from August to November 2019 as he was arrested in November 2019. 

(i)  In August 2019, nine counts of theft, Charge 2 to 6, 12 and 14, 19 and 20.

(ii)  In September 2019, two counts of theft, Charge 15 and 16.

(iii)  In October, five counts of theft, Charge 7 to 11.

(iv)  In November 2019, three counts of theft, Charge 1, 17, and 18.

18.The defendant then committed three further offences in March 2020 while he was on bail.  This is an aggravating factor to be taken into account when passing sentence for Charge 21 to 23. 

19.Among the 22 victims, 16 of them were students from age 14 to 18, the other two were 20 and 22.  The rest of the victims were also young people.

20.The defendant preyed on these young, inexperienced youngsters and took advantage of their immaturity as well as those who were not sufficiently streetwise to be alerted to the tricks being played on them such as PW23 in Charge 23.  She was told by the defendant in four different occasions in one day to lend him money, a total of $11,500. 

21.Money came into his hand easily and he was obviously a greedy man.  To prey on young and inexperienced youngsters is no doubt an aggravating factor. On the other hand, this money means a lot to those young victims.

22.In some occasions, when the defendant could not squeeze any money from those young victims, he told them to pawn their iPhones.  In each occasion he was successful to bring them to the shops or pawnshops to sell or pawn their iPhones because they have resale value. 

23.On one occasion, he simply took away PW18’s iPhone.  It has been said in many occasions in different appeal cases that iPhone is an important item in modern daily life.  To take away those victims’ iPhones to satisfy his own personal need is indeed a very selfish behavior.  In my view, it is also an aggravating factor.

24.The defendant also used five different telephone numbers to commit the 22 offences.  This is a calculated move.  Those victims could not find him when he switched to use other phone numbers.

25.He used Facebook, WhatsApp and other social media to post untrue information that he had jobs to offer and he knew there were a lot of people out there to look for jobs to earn some spare money.  The defendant was successful in making these victims to fall into his traps.

26.In sentencing, I have considered the whole circumstances of the present case, that the defendant acted alone, there was no evidence to suggest that he conspired with others to commit the present offences.  The victims were not subject to any kind of threat, intimidation or use of violence. 

27.However, I am of the view that there was some degree of planning and premeditation on the part of the defendant.  He had thought about how to get away from those victims when he successfully got the money from them.

28.There was a consistent, regular and repeated pattern to use lies to cheat money from those victims and they were successful on each occasion. 

(i)  By August 2019, he had already deceived nine victims.

(ii)  He went on to deceive another two victims in September.

(iii)  five victims in October and

(iv)  three victims in November.

(v)  He was granted bail from the High Court in March 2020, but he was simply dauntless.

(vi)  He used the same tricks and modus operandi to commit three further offences in 30^th and 31^st March 2020.

(vii)  A total sum of $72,890 for the 22 offences together with an iPhone in Charge 18.

29.There is no doubt in my mind that there is a need to impose a deterrent sentence for these 22 charges. 

30.When I pass sentence on the defendant, I also note that there were four sets of charges arose from the same incident.  They are: -

(i)  Charge 2 and 3,

(ii)  Charge 4 and 5,

(iii)  Charge 17 and 18,

(iv)  Charge 19 and 20.

31.Although Charge 6 also occurred on the same day of Charge 4 and 5, it was a different incident. 

32.As to Charge 7 and 8, they were committed on the same day, but they were separate incidents as the defendant used two different phone numbers to contact two different victims in two different locations at two different times.  Same as Charge 22 and 23, they were two different and separate incidents.

33.To this end, I consider that Charge 1 to 7, 12 to 20, the starting point for each charge should be 12 months reduced to 8 months after one-third discount. 

34.Applying the principle of totality, the four sets of charges, namely: -

(i)	Charge 2 and 3,
(ii)	Charge 4 and 5,
(iii)	Charge 17 and 18,
(iv)	Charge 19 and 20,
(v)	each set of these charges are ordered to run concurrently with each other.  2 months from each set is ordered to run consecutively to Charge 1.  That means a total of 8 months ( 2 months x 4 sets)  from these four sets of charges to run consecutively to Charge 1.

35.The remaining charges in this group, that is Charge 6, 7, 12, 14, 15 and 16, 1 month from each charge, a total of 6 months, to run consecutively to Charge 1.

36.Charge 8 to 11, the starting point is 9 months reduced to 6 months after one-third discount.  1 month from each charge, a total of 4 months, to run consecutively to Charge 1.

37.Charge 21 to 23, the starting point is 15 months reduced to 10 months after one-third discount.  3 months from each charge, a total of 9 months, to run consecutively to Charge 1.

Conclusion

38.The defendant is to serve a total of 35 months.