HKSAR v. Lai Ying Ki

DCCC 1118/2023

[2024] HKDC 397

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 1118 OF 2023

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REASONS FOR SENTENCE

The defendant pleaded guilty to a charge of "Fraud". This is a typical e-Shopping Fraud in which the defendant tried to scam the seller's smart phone by pretending that he had paid the seller. The value of the smart phone was $6,288.

Summary of Facts

2.On 14 November 2022, Madam Poon (PW1)  posted on Facebook offering to sell an iPhone 14 ("the iPhone")  at $6,288.

3.On 23 November 2022, PW1 was approached by someone whose username was "YL Lesley" ("the Buyer").  PW1 agreed to sell the iPhone to the Buyer.  They arranged to meet up at 2:30 p.m. on that day at the roundabout at Tin Tan Street, Tin Shui Wai.  The Buyer told PW1 that a friend of his would collect the iPhone on his behalf.

4.PW1 arrived at the agreed location around 3:00 p.m. on the same day.  About 8 minutes later, she was approached by a male (Male 1)  to collect the iPhone.  PW1 gave her Hang Sang Bank account number to the Buyer via Facebook Messenger and asked the Buyer to transfer $6,288 to her bank account.  A few minutes later, PW1 received a screen capture photo showing that $6,288 had been transferred to her bank account.  PW1 used online banking to verify the payment and saw an "Instant Transfer Quick Cheque Deposit" in the sum of $6,288 was made to her bank account.  PW1 then gave the iPhone to Male 1.  Before they parted, PW1 took a photo of Male 1's HKID card.

5.Later on that day, PW1 discovered that the cheque payment was invalid.  It was made by a cheque drawn on a Dah Sing Bank account held in the name of Hui Chung Man, Aiden.  The cheque was bounced.  PW1 could no longer contact the Buyer on Facebook Messenger.  She reported the matter to the Police.

6.The Police managed to locate Male 1 at his home at Nam Hang Tsuen, Yuen Long.  They found the iPhone in Male 1's home as well.  The Police also discovered from Male 1's mobile phone (9099 XXXX)  that the user of phone number 9621 5537 had kept urging Male 1 to hand over the iPhone.  The Police then contacted the user of phone number 9621 5537 to arrange for the delivery of the iPhone.

7.With the assistance of a courier couple (who received a "collect and deliver" order for a mobile phone from phone number 9621 5537), the Police arrested the defendant around 3:08 a.m. on 24 November 2022 after he had paid Madam Chan (one of the couriers)  the delivery fee and picked up the iPhone from WDPC 6913 (a decoy police officer).

8.An iPhone was seized from the defendant.  Under caution, he admitted that it belonged to him.  The defendant's iPhone was examined and it contained the following contents :-

(i)  the account named "YL Lesley" was logged in on Facebook;

(ii)  the phone number registered for WhatsApp was 9621 5537;

(iii)  PW1 called the defendant on WhatsApp and sent a "?" to him at 4:42 p.m. and 4:44 p.m. respectively on 23 November 2022; PW1's number was blocked at 4:48 p.m. on the same day;

(iv)  the defendant sent PW1's Hang Seng Bank account number and the figure $6,288 to the number 6103 XXXX at 2:05 p.m. on 23 November 2022; at 2:58 p.m., the defendant received a photo of a bank slip purportedly issued by Hang Seng Bank showing an instant transfer of $6,288 to PW1's bank account by cheque had been accepted; and

(v)  the defendant sent a message to Male 1's phone number at 2:27 p.m. on 23 November 2022 asking when Male 1 could arrive; at 4:12 p.m., the defendant instructed Male 1 to go to Hollywood Shopping Centre in Mongkok for the delivery and Male 1 replied "Okok"; between 4:19 p.m. and 11:36 p.m., the defendant kept asking Male 1 to hand over the mobile phone.

Mitigation & Sentence

9.The defendant is 36 and has 10 conviction records, which included 4 "Theft" offences.  Defence counsel Mr. Chan informed me that the defendant is single.  He was a casual renovation worker prior to his arrest.  The defendant's parents have both passed away.  A girlfriend and a younger sister are all he has.

10.In mitigation, Mr. Chan submitted that at the time of the offence, the defendant's girlfriend was pregnant (but she unfortunately had a miscarriage later on).  His younger sister (aged 30)  suffers from chronic depression and is unable to work.  The defendant was the sole breadwinner of his family.  Mr. Chan further submitted that the iPhone was recovered and its value was relatively low.

11.The prosecution has applied for an enhanced sentence pursuant to section 27(2)(c), (d)  and (e)  of the Organized and Serious Crimes Ordinance (Cap.455)  on the basis of prevalence; the nature and extent of harm caused to the community; and the nature and extent of the total benefit gained by anyone from the present offence.  Mr. Chan did not object to the application for enhancement.

12.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]."

13.I have read the witness statement of WDSIP Ng dated 1 November 2023.  I am satisfied that in 2022, e-Shopping Fraud cases were prevalent in Hong Kong in terms of the number of cases as well as the total value of monetary loss.

14.Based on my judicial experience, the modus operandi of the present case is most typical of an "e-Shopping Fraud" case, which involves deploying a "runner" like Male 1 to collect the goods from the seller whilst the seller is being misled to believe that he/she has received payment.

15.In my view, there is clear and cogent evidence before me that "e-Shopping Fraud" 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 any role in such scams will receive severe punishment, so that there is a deterrent effect.

16.The defendant is clearly the main perpetrator of the scam in this case.  He also used agents (innocent or otherwise)  such as Male 1 and commercial courier service to hide his identity.  Given the role he played, the value of the iPhone and the overall circumstances, I grant the prosecution's application and will enhance the sentence by 30%.

17.There is no sentencing tariffs for offences related to "e-Shopping Fraud". If theft of a mobile phone (adopting the "stealing by borrowing" mode)  warrants a starting point of 6 to 8 months' imprisonment[2], the sentence for deceiving someone of her mobile phone by an orchestrated scam must be higher.  The defendant is not a fresh offender of dishonesty offences.  In the present case, I consider a starting point of 15 months' imprisonment appropriate and just.  With the timely guilty plea, the sentence is reduced to 10 months.  With the 30% enhancement, I sentence the defendant to 13 months' imprisonment.