HKSAR v. Yeung Sum Yin, Yuki and Another

DCCC 379 & 539/2022 (Consolidated)

[2023] HKDC 651

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NOS. 379 & 539 OF 2022

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REASONS FOR SENTENCE

2.D1 faces 2 charges of "Fraud" (Charges 1 and 3); 1 charge of "Possession of a dangerous drug" (Charge 4); 1 charge of "Possession of an apparatus fit and intended for the inhalation of a dangerous drug" (Charge 5); and 5 charges of "Possession of identity card relating to another person" (Charges 6 to 10). D2 faces 1 charge of "Fraud" (Charge 2)  and 1 charge of "Failing to surrender to custody without reasonable cause" (Charge 11).

3.D1 pleaded guilty to Charges 1 and 3 to 7.  D2 pleaded guilty to Charges 2 and 11.  The prosecution applied to leave Charges 8 to 10 against D1 in the court file; not to be proceeded against her without leave of court.  I granted the application.

Summary of Facts

Charge 1

4.On 29 March 2021, Mr. Fong (PW1)  posted on "Carousell", a sale & purchase e-platform, offering to sell his Rolex Watch.

5.On 30 March 2021, someone (WP)  showed interest and PW1 agreed to sell his watch to WP at $161,000.  They agreed to meet at Lucky Plaza, Shatin at 1:30 p.m. on the same day.  PW1 showed up as scheduled and met a female (later identified as D1)  who claimed to be the buyer's sister.  D1 told PW1 that she did not bring cash.  She made some phone calls.  Afterwards, WP sent PW1 a bank slip purporting to show an ATM deposit of $161,000.  PW1 checked his bank account and saw a purported deposit entry. He then gave the watch to D1.  PW1 later discovered that the purported deposit was invalid (the cheque was bounced).

Charge 2

6.On 3 April 2021, Madam Yip (PW2)  posted on "Carousell" offering to sell her Rolex Watch.

7.On 7 April 2021, someone showed interest and PW2 agreed to sell her watch at $288,000.  They agreed to meet at the HSBC branch at Festival Walk, Kowloon Tong at 2:00 p.m. on the same day.  PW2 showed up as scheduled and met a male (later identified as D2)  who claimed to be the buyer's representative.  D2 told PW2 that $288,000 had already been transferred to her bank account.  PW2 checked and saw a purported deposit entry.  She then gave the watch to D2.  PW2 later discovered that the purported deposit was invalid (the cheque was bounced).

Charge 3

8.On 11 April 2021, Madam Yeung (PW3)  posted on "Carousell" offering to sell her Rolex Watch.

9.On 12 April 2021, someone showed interest and PW3 agreed to sell her watch at $208,000.  They agreed to meet at Chun Hei Court, Fo Tan, Shatin at 11:00 a.m. on the same day.  PW3 showed up as scheduled and met a female (later identified as D1)  who claimed to be the buyer's representative.  D1 asked PW3 for a bank account number.  Shortly after, D1 told PW3 that $208,000 had been transferred.  PW3 checked and saw a purported deposit entry made to her husband's bank account.  She gave the watch to D1, who then ran away with the watch.  Feeling suspicious, PW3 gave chase but without success.  PW3 later discovered that the purported deposit was invalid (the cheque was bounced).

Arrest and search

10.On 6 May 2021, the Police found D1 in the vicinity of her home at Man Ying House, Yau Ma Tei ("the Flat").  Upon search, 2 keys to the Flat were found on D1.

11.The Flat was searched with D1's consent.  The following items were found in a hanging drawer near the bed :-

(i)  4 plastic bags which contained a total of 1.59 grammes of a crystalline solid containing 1.48 grammes of methamphetamine hydrochloride; and

(ii)  a glass tube shaped as a bulb at one end, and one glass bottle with 2 openings (one of the openings was inserted with a plastic tube); the glass bottle contained 34 ml of a liquid which contained 0.03 gramme of a solid upon drying, containing methamphetamine.

Item (i)  above formed the subject matter of Charge 4; whereas Item (ii), Charge 5.

12.The Police also found 2 Hong Kong Identity Cards respectively belonged to Mr. Leung (PW4)  and Mr. Lam (PW5)  near the bed.  Both PWs 4 and 5 confirmed that they have lost their HKID cards and that they do not know D1.  They are Charges 6 and 7.

13.The Police arrested D2 on 6 May 2021 as well.

Admissions

14.In her video recorded interview, D1 admitted and described what she did in relation to Charges 1 and 3.  In gist, she claimed that she was asked by a friend named "Fat Kei" to collect a Rolex watch on each occasion.  Fat Kei promised her a reward of a few thousand dollars and a meal each time but she received nothing.  When shown still photographs captured from the CCTV footage of the respective offence locations, D1 identified herself.

15.In his video recorded interview, D2 admitted that he went to Lucky Plaza together with D1 on 30 March 2021, but denied having accompanied her when she received the goods from someone.  Regarding Charge 2, D2 claimed that he was asked by someone to collect a watch at Festival Walk on 7 April 2021.  He went there and a female gave him a watch.  He took the watch to Reclamation Street and passed it to an unknown male.  He received $5,300 in cash as his reward on 8 April 2021.  When shown still photographs captured from the CCTV footage of the respective offence locations, D2 identified himself.

Other evidence

16.PW1 and PW3 each identified D1 in an identification parade conducted on 12 May 2021.

17.PW2 identified D2 in an identification parade conducted on 12 May 2021.

18.CCTV footage of the respective offence locations captured the presence of D1 and/or D2 as well as the respective victims.

19.In particular, regarding Charge 2, CCTV footage showed that about 2:17 p.m. on that day, D2 met PW2 at Festival Walk.  About 2:24 p.m. on the same day, a male deposited a cheque into PW2's bank account using an HSBC ATM machine in Mongkok.  About 3 minutes later, D2 and PW2 parted and left Festival Walk separately.

Charge 11

20.D2 was charged and appeared at Shatin Magistracy on 10 May 2021.  He was granted bail.  On 21 April 2022, he failed to appear at Shatin Magistracy as required.  A warrant of arrest was issued against him.

21.D2 was re-arrested in Mongkok on 2 June 2022.  Under caution, D2 admitted that he knew about his bail conditions.  He forgot to attend court on 21 April 2022 and also forgot to report to the police station afterwards.  He last reported to the police station on 19 April 2022.

Mitigation

D1

22.She is 41 and has 6 conviction records, which included 1 "Theft" offence, 1 "simple possession" offence and 6 deception-related offences.  Her counsel Mr. Chang informed me that D1 has 4 children (aged 21, 19, 15 and 9).  At the time of the present offences, she was the tenant of the Flat cohabiting with D2, who was her boyfriend then.  During that time, she took up casual jobs earning about $20,000 per month.

23.In mitigation, Mr. Chang submitted that D1 got married in 2000 at the age of 18.  About 2018, D1's husband had an affair and deserted the family.  From that point onwards, D1's life was torn apart.  She learned to smoke ICE and indulged in gambling.  Mr. Chang stated that during her time in prison, D1 had deep reflection on her life and is determined to turn a new leaf.  She has completed 3 vocational courses and is trying to reform herself.  Mr. Chang stressed that at the time of arrest, D1 no longer had any drug habit or addiction, which can be shown from her urine test report.  Mr. Chang explained that the drugs, ICE bottle and ID cards found in the Flat all belonged to D2.  D1 pleaded guilty to Charges 4 to 7 on the basis that she was the tenant of the Flat; she was aware of the existence of those items and had control of them.

D2

24.He is 27 and has 6 conviction records, none of which was related to deception or fraud.  His counsel Mr. McGuinniety informed me that D2 is married with a daughter (aged 3). Prior to his arrest, he was a construction worker earning about $30,000 per month.

25.In mitigation, Mr. McGuinniety submitted that D2 played a minor and unsophisticated role in the scam.  He was not the mastermind or the main instigator of the fraud.  Comparing to the value of the watch, D2's reward was relatively small. 

Sentence

26.The prosecution has applied for an enhanced sentence pursuant to section 27(2)(c)  and (d)  of the Organized and Serious Crimes Ordinance (Cap.455)  on the basis of prevalence as well as the nature and extent of harm caused to the community. Mr. Chang did not object to the application, but Mr. McGuinniety did. Mr. McGuinniety submitted that D2 was not a sophisticated player in the scam. Hence, it is unfair to punish D2 severely when the main perpetrator of the scam is still at large. Mr. McGuinniety also criticized the enhancement application procedures.

27.I bear in mind the Court of Appeal's decision in HKSAR v Xu Mai Qing CACC 464/2005, whereas Yeung JA (as he then was)  held "Under section 27(11)  of OSCO, what the prosecution has to prove is the prevalence of the offence, not the increase in the number of such offences[1]."

28.According to the witness statement of DCIP Au Yeung dated 23 March 2022, the number of "e-Shopping Fraud – Customer to Customer" cases reported in 2015 was 1354. The numbers gradually increased to 1562 cases in 2017; 2102 cases in 2018; 2124 cases in 2019; 6464 cases in 2020; and 5999 cases in 2021. I can comfortably take judicial notice that the volume of e-shopping activities increased substantially due to the pandemic.

29.The amount of monetary loss in "e-Shopping Fraud – Customer to Customer" cases also had a sudden surge in 2018 (from $17.8 million to $41.9 million). In 2019, the figure returned to $17.3 million. There was another surge in 2020 (from $17.3 million to $63.3 million). In 2021, the figure was still high at $38.9 million.

30.In reply to Mr. McGuinniety's comments on the enhancement application procedures, I note that it has always been done in this manner. The numbers (or data)  presented by the Police are neutral in nature. I do not see any unfairness or impropriety in the current enhancement application process. Defence is at liberty to challenge the relevance of those numbers (or data).

31.Based on my judicial experience, the modus operandi of the present case is most typical of an "e-Shopping Fraud – Customer to Customer" case, which involves deploying a "runner" like D1 or D2 to collect the goods from the seller whilst the seller is being misled to believe that he/she has received payment. Hence, the runner's role is part and parcel to the overall scam.

32.In my view, there is clear and cogent evidence before me that "e-Shopping Fraud – Customer to Customer" cases are still widespread and commonly being practised in Hong Kong today. The court must send a clear message to the general public that people who play the role of "runner" will receive severe punishment, so that there is a deterrent effect. When there are fewer or no willing "runners", the principal fraudsters behind this type of scams are less likely to succeed.

33.D1 or D2 might not have orchestrated or benefited much from the 3 scams in the present case, but those scams would have been meaningless without a willing "runner". Given the role played by them, the value of each watch and the overall circumstances, I grant the prosecution's application and will enhance the sentence of Charges 1 to 3 by 20%.

34.Although this case does not involve the Barrick type of breach of trust, I find the sentencing guidelines laid down by the Court of Appeal in HKSAR v Ng Kwok Wing [2008] 4 HKLRD 1017 nevertheless relevant. In my view, such guidelines are simply a yardstick. For cases which are not of the Barrick type, the court may still follow the guidelines in Ng Kwok Wing or impose a sentence which is higher or lower than the guidelines, depending on the facts of each case.

35.Based on the scams employed in the present case, I consider the seriousness of this case commensurate with the sentencing guidelines in Ng Kwok Wing. Hence, I will follow those guidelines.

D1

36.The value of the watch involved in Charge 1 was $161,000. According to Ng Kwok Wing, the starting point is 15 months' imprisonment. With the timely guilty plea, the sentence is reduced to 10 months. Apart from this, I see no other mitigating factors which warrant any further reduction. With the 20% enhancement, the sentence for Charge 1 is 12 months' imprisonment.

37.The value of the watch involved in Charge 3 was $208,000. According to Ng Kwok Wing, the starting point is 22.5 months' imprisonment. With the timely guilty plea, the sentence is reduced to 15 months. With the 20% enhancement, the sentence for Charge 3 is 18 months' imprisonment.

38.Charge 4 involved a total of 1.48 grammes of ICE. I adopt a starting point of 9 months' imprisonment. With the timely guilty plea, the sentence for Charge 4 is 6 months' imprisonment.

39.For Charge 5, the usual starting point for this offence is 3 months' imprisonment after plea[2]. I sentence D1 to 3 months' imprisonment for this charge.

40.For Charges 6 and 7, according to HKSAR v Li Chang Li[2005] 1 HKLRD 864, I adopt 18 months' imprisonment as the starting point for each charge. With the timely guilty plea, the sentence for each charge is 12 months' imprisonment.

41.I consider a global starting point of 36 months' imprisonment appropriate for Charges 1 and 3 to 7. With the timely guilty pleas, the overall sentence becomes 24 months. To achieve this, I order the sentences to run in the following manner :-

(i)  Charges 1 and 3 to run concurrently;

(ii)  Charges 4 and 5 to run concurrently; with 2 months to run consecutive to Charges 1 and 3; and

(iii)  Charges 6 and 7 to run concurrently; with 4 months to run consecutive to Charges 1 and 3.

D2

42.The value of the watch involved in Charge 2 was $288,000. According to Ng Kwok Wing, the starting point is 24 months' imprisonment. With the timely guilty plea, the sentence is reduced to 16 months. With the 20% enhancement, the sentence for Charge 2 is 19 months' imprisonment.

43.For Charge 11, the maximum sentence for conviction upon indictment is a fine of any amount and 12 months' imprisonment[3]. D2 has absconded for 1.5 months.

44.In HKSAR v Wong Chi Hung CACC 300/2010[4], the Court of Appeal upheld a starting point of 3 months' imprisonment for a person who has absconded for 28 days. I adopt a starting point of 3 months' imprisonment for Charge 11. With the timely guilty plea, the sentence for this charge is 2 months' imprisonment.

45.Charges 2 and 11 are separate and distinct. Notwithstanding the totality principle, I order Charge 11 to run consecutive to Charge 2, arriving at a total prison term of 21 months for D2.