HKSAR v. Wong Ming Chun
Read the full judgment text of DCCC 21/2023 on BabelCite. This District Court judgment was delivered on 15 January 2024.
1. Defendant faces the following charges:-
Cited by 4 cases · Cites 9 cases
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DCCC 21 & 497/2023 (Consolidated) DCCC 1079/2022 & 709/2023 (Consolidated) (Heard together) [2024] HKDC 95 IN THE DISTRICT COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION CRIMINAL CASE NO 21 AND 497 OF 2023 ________________________
________________________ IN THE DISTRICT COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION CRIMINAL CASE NO 1079 OF 2022 AND 709 OF 2023 ________________________
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________________________ REASONS FOR SENTENCE ________________________ The Charges 1.Defendant faces the following charges:-
2.Defendant pleaded guilty to all the charges and admitted to the agreed facts, and is found guilty to all the charges. Admitted Facts CASE 1 INCIDENT ON 31 MARCH 2022 (Charges 4 to 6) 3.In around end of March 2022, Mr WONG (“PW1”) posted on Facebook for sale of a Rolex watch (“1st Watch”) for sale price of around HK$250,500. On 29 March 2022, PW1 received a Facebook message from a Facebook user account known as “Chi Lung Lo”. The purported buyer and PW1 agreed to meet up at Kowloon MTR station for trade of the 1st Watch. PW1 also obtained from the purported buyer a telephone no 6283 5932 (“WP1”). The purported buyer further requested PW1 to provide a bank account for payment. PW1 provided to the purported buyer Hang Seng Bank Account of his mother (“PW2’s Bank Account”). 4.On 31 March 2022 at around 0846 hours, PW1 received a WhatsApp message from WP1 asking for PW1’s location. On 31 March 2022 at around 0933 hours, the Defendant (“D”) approached PW1 in “Elements” shopping mall (“Elements”) near Kowloon MTR station. D affirmed PW1 the trade of the 1st Watch and D informed PW1 that he had transferred money to PW2’s Bank Account. D also showed PW1 a screen capture of his mobile phone regarding the bank transfer of HK$250,500. PW1 then passed the 1st Watch to D. 5.On 31 March 2022, PW1 received a WhatsApp message from WP1 claiming to have transferred extra HK$250,500 to PW2’s Bank Account and requested PW1 to reimburse him money via FPS to a recipient known as TAI Ka Kui with mobile no 9492 7006 and account no 000401129665 with holder known as CHUNG Fuk Chow. 6.On 1 April 2022, PW2 checked PW2’s Bank Account via e-banking and received notifications from Hang Seng Bank that there were transactions of two dishonoured cheques (cheque nos 000458 and 000459) in the amount of HK$250,500 each. Case was reported to the police. Pawning of the Watch 7.On 31 March 2022 at around 1020 hours, D and two unknown males (WP2 and WP3) appeared outside Lee Tai Pawnshop (利泰大押) (“Lee Tai”), at Kowloon City. 8.WP2 used the HKID Card of M/HO (“PW3”) to pawn the 1st Watch. PW3 had previously lost his HKID card on 27 December 2020. The 1st Watch was pawned for HK$160,000 with two pawn tickets issued in the name of PW3. 9.On 2 April 2022 at around 1517 hours, an unknown Chinese male (“WP4”) in jeans jacket used the pawn tickets to pawn back the 1st Watch. The 1st Watch was handed over to WP4 upon payment by WP4. The Watch was not recovered. Arrest and Caution 10.On 6 April 2022 at 1727 hours, D was arrested for the offence of “Obtaining property by deception” in a hotel in Kwun Tong. 11.Under caution, D stated that he ran out of money and so he deceived another person’s Rolex GMT watch in Elements on 31 March 2022. 12.During the cautioned VRI between 1149 hours and 1228 hours on 7 April 2022, D stated, inter alia, the followings:
Two Dishonoured Cheques 13.The two dishonoured cheque nos of 000458 and 000459 in the amount of HK$250,500 each under Bank of China were issued in the name of a company known as Café 6 Limited situated at Kwun Tong. Café 6 Limited was burgled on 26 June 2020 and the cheque books of Bank of China account were stolen. INCIDENT ON 6 APRIL 2022 (Charges 1 to 3 and 7) 14.At 1430 hours on 6 April 2022, Mr HO (“PW7”) posted on Facebook about selling a Rolex watch together with its case, certificate and receipt (“2nd Watch”). 15.At 1541 hours, PW7 received a Facebook message from a user called “Karry Leung” (“KL”) who expressed interest in purchasing the 2nd Watch. PW7 then communicated with KL via WhatsApp. KL eventually agreed to purchase the 2nd Watch for HK$181,000. PW7 provided his HSBC bank account (“PW7 Account”) to KL. They agreed to meet at 1615 hours at Ground Floor, Block 10, Phase II, One Kai Tak, Kowloon for the transaction. 16.In the scheduled meeting, PW7 met D. D said HK$181,000 had been transferred into PW7 Account. Having confirmed via online banking that HK$181,000 was deposited into PW7 Account by cheque, PW7 passed the 2nd Watch to D who then left with the 2nd Watch. 17.At 1930 hours, PW7 discovered that the HK$181,000 cheque deposit had been recalled. PW7 tried to contact D but D was out of reach. Arrest and Caution 18.On 8 April 2022, D was arrested by DPC 8015 (“PW8”) at Room 102, Ind Hotel, Kwun Tong, Kowloon (“the Room”). Under caution, D said he had pawned the Rolex watch at Lee Tai Pawnshop (“Lee Tai”) in Kowloon City and asked for a chance. Search of the Room and D 19.PW8 searched the Room and seized from it:
20.Police records revealed that the ID Card was reported by its owner to be lost on 29 August 2020. PW8 arrested D for theft. Under caution, D said he picked up the ATM Card and the ID Card at Morse Park one year ago. 21.PW8 also found cash of HK$2,020, a mobile phone and a hotel access card on D. Video-recorded interviews (VRIs) 22.D said under caution in two VRIs:
Recovery of the 2nd Watch 23.The police recovered the 2nd Watch from Lee Tai. Mr CHEUNG (“PW9”), the staff of Lee Tai confirmed that at 1700 hours on 6 April 2022, WP5-6 attended Lee Tai to pawn the 2nd Watch for HK$150,000. WP5-6 left after receiving HK$150,000 and two receipts from PW9. Hotel registration records 24.The registration records of Ind Hotel showed that:
25.A staff of Ind Hotel who handled the renewal of tenancy of the Room confirmed that:
CASE 2 Charge 4 26.On 14 March 2022, Mr Luk put up a watch (“3rd Watch”) for sale on Facebook for HK$207,000. On 28 March 2022, he was contacted by a purported buyer. They agreed to exchange 3rd Watch on the same day at noon at Lai Chi Kok MTR Station. 27.Later that day, the buyer told Mr Luk that a friend would attend the transaction instead. At the appointed time and place, Mr Luk met an unknown man (“UM2”). Mr Luk checked the bank record on his mobile phone and saw that 2 deposits of HK$181,000 and HK$26,000 respectively were made into his account. He handed the 3rd Watch to UM2. 28.Later, Mr Luk was informed by the bank the 2 cheque deposits of HK$181,000 and HK$26,000 respectively were dishonoured. 29.On 28 March 2022 at around 4:00 pm, D sold the 3rd Watch at Lee Tai Pawnshop for HK$150,000 Charge 5 30.On 3 March 2022, Mr Chan put up a handbag (the “Handbag”) for sale on Facebook for HK$36,500. On 4 March 2022, he was contacted by a purported buyer. They agreed to exchange the Handbag that afternoon at To Kwa Wan MTR Station. 31.At the appointed time and place, Mr Chan met D who claimed to be the buyer’s boyfriend. Mr Chan checked the bank record on his mobile phone and saw that 2 deposits of HK$36,500 each were made into his account. D said an extra HK$36,500 was mistakenly deposited and he asked Mr Chan to withdraw cash at an ATM machine. 32.Mr Chan and D went to a nearby convenience store where Mr Chan tried to withdraw cash from an ATM machine. He could not do so due to insufficient available balance in his account. Upon seeing this, D left with the Handbag in a hurry. 33.Later, Mr Chan was informed by the bank the 2 cheque deposits of HK$36,500 each were dishonoured. Arrest of D 34.On 21 July 2022 at around 10:15 am, PC 9346 (“PW10”) arrested D for “conspiracy to defraud”. Under caution, D remained silent. Prosecution’s application for Enhancement of Sentence 35.Prosecution applies for the enhancement of sentence for Charges 4, 5 and 7 of Case 1 and Charge 5 of Case 2[10]. In support of the application, two Statements of Senior Inspector NG Pak Wai Victoria (“the Statements”) were filed into court. The basis of the Prosecution’s application is the prevalence of the specified offence and the nature and extent of any harm, whether direct or indirect, caused to the community by recent occurrences of the specified offence. 36.The Statements stated that both cases fall under the category of “e-Shopping Fraud”, ie the arrested person pretended to be an individual buyer who found the victim selling luxurious products such as handbags, watches, diamond rings, phones or whiskey on an online platform called “Facebook” and “Carousell”. The arrested person then presented to the victim that respective payment had been settled by cheques. In some cases, victims were told that extra amounts were being mistakenly deposited into their bank accounts and refunds were made by Faster Payment System (FPS) accounts in the name of the arrested persons. However, the victims later discovered the cheques were bounced. The arrested persons became out of reach. 37.There has been a rising trend in general in the number of reports over the years. For annual figures, the number of reports in 2022 was 8,735 cases (the highest between year 2018 and 2022), representing an increase of 6,538 cases or 299.4% compared to 2018 (2,187 cases). The total amount of loss in 2022 amounted to approximately HK$74.1 million, representing an increase of HK$24.1 million or 48.2% compared to 2018 (HK$50million). In 2023 (January to October), 7,739 cases and a loss of $156.7 million have been recorded. Mitigation 38.Defendant is 36 years old, born in Hong Kong. He is married with two young daughters, aged 9 and 10 respectively and are taken care of by his mother and father. His mother is a housewife with his father working as a construction site worker. They all live together in Lam Tin at Kwong Tin Estate in a public housing unit which his grandfather is the registered tenant. Defendant and his wife are no longer together, having separated since 2017. 39.The wife visits their daughter at least once a week but has yet to visit the Defendant throughout his remand from April 2022. His mother makes regular visits and his daughters are unaware of the fact that the Defendant has been detained. 40.Before his arrest, the Defendant worked as a skilled technician on various construction and renovation sites, earning around $33,000 per month. He was the breadwinner for the whole family and used to give HK $20,000 to his parents as household money and for taking care of their granddaughters. Unfortunately, during the COVID pandemic starting early 2021, most of the construction and renovation sites were closed and as such, the Defendant found himself out of work for the first time in his working life. 41.In addition of being out of work, his employer also owed him 6 months back-pay. At the time, the Defendant faced tremendous financial pressure from both home and work. It was this pressure that made him sought out fast and quick money making opportunities. For the first 3 transactions, he got paid $3,000 in cash each time. On the 4th occasion, the Defendant picked up the watch and passed the watch to the appointed person outside the pawn shop, his superior informed him that a sum of $3,000 would be given to him the next day but unfortunately, he was arrested on the 8th day of April 2022 and so did not receive the money. In all he was paid a total of HK $9,000 for the 3 completed transactions that he played a part in. 42.The company he exclusively contracted to work for, Hung To Building Services Engineering Company based in Kwun Tong, has ceased business on 31 March 2023. On the day before his arrest on 4 April 2022 in a hotel in Kwun Tong, the Defendant received 2 months of back-pay from the Company totaling HK$66,000 and this was part of the HK$70,041 found on his person upon his arrest. The money has no connection with the money he received from the internet frauds that Defendant took part in and for which he was paid a total of HK$9,000. 43.Defendant has 13 previous convictions, with none similar. He has 9 counts of convictions relating to drugs. The earliest being in 2017. His history with drugs started when he was 20 years old in 2007. He started abusing cough syrups with later use of ketamine, cocaine and finally hooked on ICE. Since his remand, he is no longer drug-addicted. He hopes that it remains that way. His last conviction was for gambling related offence, for which he received a fine of $800 in 2021. His last serious offence was in 2017, 28 months’ imprisonment for Trafficking in Dangerous Drugs. Sentencing considerations 44.In terms of sentence, a custodial sentence will be a matter of certainty given the number and seriousness of the offences and also the amount of money involved. 45.There are no tariffs for the theft offences. In HKSAR v Li Ka Shing and another DCCC 1027/2020, 4 months after plea for theft of an ID card – Defence submit similar consideration for theft of an ATM card. For Charge 3 in Case 1, in HKSAR v Mok Man Sin, Karman DCCC 627 & 1068/2017, 6 months after plea for using an identity card belonging to another. 46.There are no tariffs for fraud offences. Any fraud linked to the use of the internet is viewed as a serious matter due to the ease in which it is carried out, the negative impact on internet trading platforms in affecting the integrity and honesty of sellers and buyers. Even where the amount of money involved maybe small, the difficulty in tracking down the perpetrators and inability to recover the stolen money or goods. 47.Charges 4, 5, 6, 7 in Case 1 and Charges 4 and 5 in Case 2 involve reasonably large sums of money, namely for:
48.Defence submitted the following authorities for considerations: HKSAR v Lam Wah Yik, DCCC 1175/2016, HKSAR v Li Hoi Kit, DCCC 249/2017, HKSAR v Leung Yiu Fai, CACC 100/2014. 49.Defendant, together with others committed the various E-fraud offences. 50.Each offence involved a single victim who was fooled by the use of a dishonoured cheque deposited into their respective account and showing up as actual money deposited to convinced them to part with the goods and the suggestion of mistakenly paying in an extra cheque of the same amount, making the victim not only losing the goods but also the same equivalent amount of cash. 51.There is no evidence that the Defendant was the mastermind behind these frauds. He was either the one who deposited the cheque or obtained and handled the goods. He was coached by others as to how to prepare and deposit the bounced cheque for the scam. He was promised and given $3,000 for each of the frauds except on the last occasion. 52.The internet fraud offences are similar in nature and with the majority of them being committed between 28 March and 6 April 2022, a period of 10 days. Charges 4, 5 and 6 being committed on the same day. The handling of the item in Charge 6 being the same stolen item in Charge 4. These offences committed on the same day ought to warrant a concurrent sentence. Full considerations ought also be given to the totality principle. 53.The Defendant upon his arrest had immediately admitted to the offences and had been co-operative with the police throughout. He has shown remorse in pleading guilty to all the Charges. He is no longer addicted to drugs and ask for leniency. To this end, he has written a letter to the Court expressing his remorse, his dereliction of parental responsibility towards his young daughters, in not being dutiful son to his parents but also the added burden he has put on them. He has been in remand since April 2022, a period of 20 months. When he finishes serving his sentence, he hopes to find steady employment working as a skilled technician in the various construction and renovation sites and to devote more time to his two young daughters. Credit be given for his guilty plea, full consideration of the factors mentioned above. Objection to enhancement of sentence 54.Defence objects to Prosecution’s application of enhancement of sentence. In gist, Defence objects on the following grounds:
Background report 55.A background report is obtained before sentence. I do not repeat the content herein. The defendant accepts the content of the background report except (i) in paragraph 2, the defendant denies he entered into the second marriage for quick monetary return. The defendant maintains it was a real marriage; (ii) the defendant denies he is superficial and evasive, as suggested in paragraph 8. He maintains he is truly remorseful. These disparities do not affect the sentence. There is no need to call the Probation Officer before sentence. Consideration Enhancement of Sentence 56.These cases involve “Conspiracy to defraud” offences, specific offences under the Organized and Serious Crimes Ordinance, and s 27(2) of the said Ordinance applies. According to the prosecution, these “Conspiracy to defraud” offences are typical case of e-Shopping Fraud. Based on the Statements and the attached statistics, there is sharp increase of e-Shopping Fraud in recent years (from 2,187 cases in 2018 to 8,735 cases in 2022, and 7,739 cases within the first 10 months in 2023). The total amount of loss has also increased from HK$24.1million in 2018 to HK$74.1 million in 2022, and a sharp increase to HK$156.7 million in the first 10 months of 2023. 57.Defence objected to the prosecution application, but agreed to the figures contained in the Statements. Defence first argued that the figures did not provide breakdown on the number of cases of “Customer to Customer” or “Business to Customer”. According to the Statements, the Modus Operandi of e-shopping fraud involves:-
58.Whether it is seller or buyer fraud, the culprits practised frauds on the general public by the use of e-Shopping platform, social networking platform or other types of online platform. Both seller and buyer frauds would have the same features as discussed in the last paragraph. I do not find the difference between culprits pretend to be buyer or seller make any difference in differentiating e-Shopping fraud. 59.However, I do notice that the Statements did not provide any information on the dishonoured cheques, as in the case of Charge 5 of Case 1. 60.Defence submitted that the 2023 figures are comparable to those of 2022, showing no sign of increase. As submitted by the Prosecution, prevalence refers to the specific from of that offence which was said to be prevalent (See HKSAR v Li Kin Keung [2014] 4 HKLRD 135). The Prosecution only needs to prove prevalence of the conduct constituting the specific offence (See HKSAR v Chan Ka Kin, unrep, CACC 474/2004) and does not need to prove an increase in number of such offences (see HKSAR v Xu Mai Qing, unrep, CACC 464/2005). I agree with the prosecution submission. 61.Further, despite the number of cases in 2023 did not increase, the total amount of loss in the first 10 months of 2023 reached $156.7 million, a substantial increase from 2022. Moreover, even without increase in total number of cases, 6,678 in 2020, 6,120 in 2021, 8,735 in 2022 and 7,739 in the first 10 months in 2023 amounts to prevalence. 62.Defence submitted that the large jump of figures in 2020 coincides with the beginning of pandemic and “lockdown”. However, the figures in 2023 shows the number has not gone down, showing the trend of prevalence in e-Shopping fraud case continues even after the pandemic is over. 63.Defence suggest that there is no breakdown on extra-territorial or oversea figures. I am of the view it does not affect the prevalence as whether it is local or oversea fraud, the conducts amount to the same crime. 64.Defence also suggests that the figures were only about the number of complaints, but not actual convictions. Given the nature of offence as discussed above, it is difficult to trace and successfully prosecute the culprits. The Court accepts that the complaint figure reflects the prevalence of this type of fraud. 65.Therefore, I am satisfied beyond reasonable doubt, for Charges 4 and 7 of Case 1 and Charge 5 of Case 2, given the prevalence and the nature and extent of harm caused to the community by recent occurrences of this type of e-Shopping fraud, the Court should pass a sentence that is more severe than the sentence it would otherwise has passed. Defence asked for a lower percentage of enhancement, given his role in the offence. However, enhancement relates to prevalence and the nature/extent of harm of the deception, not the Defendant’s role. I have already considered his role when considering the starting point. Considering the above statistics, I am of the view a 20% enhancement is appropriate. 66.However, as the Statements did not provide any statistics on dishonoured cheques fraud, I will not enhance the sentence of Charge 5 of Case 1. Sentence 67.There is no tariffs for theft of ATM card and Hong Kong Identity Card. 68.For the offence of “Using an identity card relating to another person”, Defence asked the Court not to follow Li Chang Li, as the Defendant is not an illegal immigrant. HKSAR v Fan King Lam[11], the Court of Appeal stated “We accept, of course, that the present applicant is a Hong Kong permanent resident and not someone staying in Hong Kong by permission. There is no specific tariff for such a case.” However, the Court of Appeal continued to discuss the sentence of possession of a forged Hong Kong identity card: “While it is true that there could be no issue of seeking unlawful employment, we see no ground to say that the 12 months is not applicable in this case. In HKSAR v Lau Kwok Wo, CACC 181/2008, in discussing the sentence of 12 months for possessing a forged Hong Kong identity card, Yeung JA pointed out that:
As a result, the original sentence of 12 months was not disturbed although the overall sentence was reduced on the ground of totality.” 69.The Defendant used other’s identity card for the purpose of booking hotel room, so his true identity would not be revealed when committing illegal acts. I am of the view that sentences similar to Li Chang Li can be adopted. 70.Regarding sentences of fraudulent cases, in the case of Leung Yiu Fai, the Court of Appeal commented that for frauds that practised on the general public, like street deception, telephone deception, their acts are ruthless, disgusting and despicable. Even they did not involve large sums of money, these offences call for heavy deterrent sentence. Deterrence is necessary even for the first offender. The lower court can adopt a starting points of a sentence in the region of 3 to 4 years’ imprisonment even for those who are with clear record. 71.Defence submitted two District Court cases for the court to consider. However, for both cases, the amount involved is much lower than the present cases. 72.In gist, there is a criminal organization which defrauds potential sellers on internet. The criminal organization aims at high value goods, for example watches or handbags. The Defendant knew the fraudulent nature of the transactions. He assisted and further the criminal conspiracy by collecting the stolen goods, showing the payment confirmation to the victim, collecting cash or pawning the stolen goods. The Defendant also used the stolen identity card to book hotel room. The Defendant committed these fraud offences within one month. The values of the stolen properties are:
73.In the circumstances, I am of the view immediate custodial sentence is the only option, and the starting point for each offence should be as follow:
74.The Defendant has 13 previous convictions, with 3 dishonesty convictions, last one being in 2017. I would not consider the Defendant as a repeated offender of fraud and would not increase the starting point. The Defendant involved in these conspiracy to defraud and handling stolen goods offences within one month, which is an aggravating factor. I will increase the sentence of Charges 4, 5 and 7 in Case 1 and Charges 4 and 5 in Case 2 by 3 months each. 75.In mitigation, Defence submitted that the Defendant was not the mastermind behind these frauds. However, his involvements were not minor. He actively participated and assisted in these frauds, without him the frauds would not succeed. 76.The Defendant indicated his plea of guilty in the first instance, he is entitled to a 1/3 discount. There is no other mitigating factor disclosed in the mitigation and background report. The sentences for each charge is as follow:
77.Charges 4 and 7 in Case 1, and Charge 5 in Case 2 have a 20% enhancement, therefore the final sentences for each offences are:
Totality 78.There are a total of 4 transactions. Charges 1, 2, 3 and 7 in Case 1 related to 2nd watch. Charges 4 to 6 in Case 1 relate to the same transaction but involve two separate stolen proprieties, namely the 1st watch and HK$250,500 cash. Charges 4 and 5 in Case 2 were separate transactions. 79.For Case 1, I am of the view a total of 4 years’ imprisonment is appropriate. Therefore, I made the following orders:
80.For Case 2, I am of the view a total of 3 years’ imprisonment is appropriate. Therefore, I order 6 months of Charge 5 to run consecutively to Charge 4. 81.Considering the totality principal in the two cases, I am of the view that a total sentence of 5 years is appropriate, therefore I order that 1 year of Case 2 to run consecutively to Case 1.
[1] Contrary to section 9 of the Theft Ordinance, Cap 210 [2] Contrary to section 9 of the Theft Ordinance, Cap 210 [3] Contrary to section 7A(1A) of the Registration of Persons Ordinance, Cap 177 [4] Contrary to Common Law and punishable under section 159C(6) of the Crimes Ordinance, Cap 200 [5] Contrary to Common Law and punishable under section 159C(6) of the Crimes Ordinance, Cap 200 [6] Contrary to section 24 of the Theft Ordinance, Cap 210 [7] Contrary to Common Law and punishable under section 159C(6) of the Crimes Ordinance, Cap 200 [8] Contrary to section 24 of the Theft Ordinance, Cap 210 [9] Contrary to Common Law and punishable under section 159C(6) of the Crimes Ordinance, Cap 200 [10] Pursuant to s 27 of the Organized and Serious Crimes Ordinance, Cap 455 [11] CAAR 3/2019 |
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