HKSAR v. Lee Lai Ping

DCCC 333/2023

[2024] HKDC 1328

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 333 OF 2023

________________________

________________________

________________________

REASONS FOR SENTENCE

________________________

1.The defendant has pleaded guilty today to a single charge of conspiracy to defraud. She has accepted the facts as presented by the prosecution and I have entered a conviction.

2.The facts that have been agreed show that this is what is generically described as a “Mainland fraud pretend official case” involving two victims who received calls from people purporting to be Mainland officials, then by a series of fraudulent means were able to get the victims to set up bank accounts with money being transferred into those accounts, then that money being taken away. A substantial sum of money in respect of the first victim where we can see from the charge the total was $7,638,000; from the second victim, that was a known total of $25,000 was taken and used by the defendant. Now some of the detail of the offence is helpful for sentencing so I will just indicate some of that detail for the purpose of sentence.

3.The first victim is 71 years old and was contacted by what is described as unknown male who made that claim of being an Officer of the Public Security Bureau and indicated that the defendant’s identity had been used in some manner. In any event, the victim was contacted by people who claimed to be Officers of the Public Security Bureau in the People’s Republic of China. Eventually an allegation was made that some stolen funds had been used by an account operated by the victim and the victim was importuned to open a bank account and eventually transfer substantial amounts of money into it on the representation that was part of the investigation being made by the Supreme Court of the People’s Republic of China. Of course this was all nonsense, just designed simply to extract the money.

4.The defendant’s role in this was the person who would operate in Hong Kong and would approach the victim in order to get the victim to create and sign documentation which would enable the moneys in the account that she set up to be transferred out. In the facts we can see that on 6 October, the defendant attended the victim at her home in respect of the account where over $7 million was taken and the defendant told the victim she was an auxiliary police officer and took out documents which were purported to be issued by the Supreme Court of the People’s Republic of China, also documents relating to HSBC and got the victim to sign these documents and these documents enabled the defendant to set up an App where she could purport to be the victim and transfer the moneys away to wherever they went. The defendant made admissions to that in her later record of interview.

5.Insofar as the second victim is concerned, again a similar story was told to him, initially a person representing for the Department of Health in Hong Kong but again it related to what was purported to have been some offence committed in the Mainland. Now as far as this victim was concerned, he was told that a Hong Kong Police officer would wait for him at a park near his home and the victim went to the park where he was approached by the defendant, asked for his name, she presented a warrant card and then asked the victim to sign an agreement and print his fingerprint onto that agreement. The defendant told the victim not to make a report to the police and also gave the victim a mobile phone.

6.The defendant was arrested on 20 November 2022. The facts make the statement the defendant surrendered herself to the police. In fact the matter went somewhat further in that it appears from discussion with counsel that the police at that stage were not in a position to identify the defendant and it would appear to have been unlikely that they would be able to in the course of their investigations and the defendant, stricken by conscience, surrendered herself to the police. Now when the defendant surrendered herself to the police, she also gave to the police cash of $16,452 which is part of the moneys that had been taken from the account of the second victim, PW2. She surrendered a warrant card, an appointment letter, documents purported to be for the People’s Court of China, receipts from computer shops, electrical appliance shops and the like, mobile phone shops and such. She surrendered the mobile phones and evidence of ATM withdrawal slips which showed that she had taken in total some $25,000 from the account of the second victim part of which, she said, had been used to purchase materials that were used in the course of the fraud and those materials were things such as clothes, suitcases and printers and she had also purchased SIM cards and mobile phones.

7.She admitted she had assisted in the transfers of the moneys. She herself had downloaded the HSBC Mobile Phone App and had transferred moneys on a number of occasions from the account of PW1. At the time she had been unemployed and she had withdrawn the $25,000 from the second victim’s account and she surrendered what money was left from that. Now the nature of the fraud and the defendant’s involvement in it can be seen from those Admitted Facts.

8.As far as the background to the defendant is concerned, her personal circumstances, she is locally born, born in Hong Kong, she is aged 49, only receiving education up to Form 3. She has been in the labour market since leaving school. She worked as packaging worker and such like. At the time of her arrest she was unemployed. She is single, lives in a public housing estate with family members including a sister to whom, I am told by defence, she had confessed this matter and then had been urged to go to the police.

9.The defendant has of course indicated her involvement in this offence and indicated a plea of guilty would be tendered to the court so she will be entitled to a discount in respect of that.

10.It is submitted in mitigation the defendant’s surrender is of particular importance because of the particulars as follows: There had been no Wanted Notice issued by the police for her and the police have confirmed today that they were not aware of her identity in the course of their investigation. Secondly, the police had no initial clue as to the identity of the accused, there was no ID card number, no fingerprints or such like, and it is said in mitigation without self surrendering to the police the police may have had great difficulties in locating the accused. It certainly would have been difficult for them.

11.Also, there had been full cooperation with the police in the course of this investigation. She provided them with all the details that she had of the offence and may well have provided them with some useful intelligence about these forms of offending. She did not admit to obtaining any greater monetary award from the offence than the $25,000 that she had obtained from the second victim’s account, part of which had been spent on obtaining materials for the fraud and the balance of which was returned to her in cash when she surrendered herself.

12.Well that is the mitigation. I will now deal with the approach of sentence taking into account all those circumstances.

13.I note the prosecution has applied for an enhancement of sentence under OSCO and there is a statement from Chief Inspector Lam dated 24 July 2024 regarding these “pretend official” telephone deception cases. There is no objection made by the defence to the application for enhancement by the prosecution and I am certainly satisfied, having read the statement of Chief Inspector Lam, that the “pretend official” telephone deception cases are prevalent and harm is caused to the community by the occurrence of those offences. As I said, application for enhancement is not opposed and I consider it appropriate in this case to enhance the sentence. A normal enhancement in respect of these kind of cases, telephone deception cases, is up to one-third or 30% and I will adopt this figure when I calculate the final sentence.

14.I now turn to the quantum sentencing. This form of “pretend official” fraud is a form of fraud offence. There are no guidelines or tariff approaches to fraud offences. However, in the case of breach of trust offences we can see from the case of HKSAR v Cheung Mee Kiu [2008] 1 HKC 113 that in such cases as that where a sum of between 3 million to 15 million is obtained a sentence of between 5 to 9 years’ imprisonment is appropriate. This gives the court considerable leeway in approaching this starting point for sentence. It is not a mathematical exercise, the court must take into account a number of factors. The factors that are relevant to this case is the case itself is a fairly sophisticated fraud. It is a common fraud, it is a fraud that is on the increase in Hong Kong, causes great harm to the community. The defendant’s involvement is substantial. She is the person who is designated to approach the victims and also has an involvement in the manipulation of the accounts which are set up for the transfer of money to the ultimate masterminds and perpetrators. The defendant clearly is not a mastermind or perpetrator, she is the person who one could say is expendable and was in this case expended. She is the person who masquerades as the public service officer, as I said, not the mastermind by any means but an essential part of the plot and these persons are an essential part of these frauds and that is why the ability to enhance the sentence is given to the courts.

15.I then have to take into account the personal circumstances of the defendant. She is a person who is not educated to a high level. She is easily impressionable. She no doubt has a low sense of legal responsibility, a person who is easily exploited to fulfil a role such as this. And of more importance perhaps for her, is that she is a person of clear record. She is 49 years old, she has achieved and maintained a clear record. She is obviously at heart a dishonest person but she has allowed herself through her naivety and stupidity to be exploited in this substantial fraud. Now these are all factors that I must factor into the starting point for sentence that I adopt in this.

16.I considered initially that the sentence and I start to think of the sentences of around 5 years’ imprisonment as the initial starting point for this case. What I shall adopt, taking account of factors I have already set out, is an initial starting point for sentence of 57 months’ imprisonment which reflects the nature of this fraud and the defendant’s role in it.

17.Now a substantial mitigating factor in this case is her self-surrender, it shows a realisation of her role in this matter, it shows a realisation of conscience and remorse and she has maintained that throughout; her assistance to the police; the return of money and also her clear record for which, as I say, a person of 49 years old must get some credit for. What I shall do is reduce that initial starting point that I have determined at 57 months by 9 months to reflect those factors. This now leaves me with a starting point of 48 months’ imprisonment.

18.She is entitled to have a full one-third deduction from that which leads to a sentence now of 32 months’ imprisonment. It is this sentence that must be enhanced. I take a sentence of enhancement of around one-third and I will enhance that sentence by 9 months. This leads to a final sentence of 41 months’ imprisonment for the defendant and that will be the sentence of the court, 41 months’ imprisonment.