HKSAR v. Yung Sai Ho and Another

DCCC 891/2023

[2024] HKDC 1668

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 891 OF 2023

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REASONS FOR SENTENCE

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1.D2 was charged with one count of “conspiracy to defraud”, contrary to Common Law and punishable under section 159C(6)  of the Crimes Ordinance, Cap 200 (Charge 5)  and one count of “dealing with property known or believed to represent proceeds of an indictable offence”, contrary to section 25(1)  and (3)  of the Organized and Serious Crimes Ordinance, Cap 455 (Charge 6, alternative to Charge 5).

2.D2 was convicted of Charge 6 on his own plea.

3.D4 was charged with two counts of “conspiracy to defraud” (Charges 8 and 14)  and one count of “dealing with property known or believed to represent proceeds of an indictable offence” (Charge 10, alternative to Charge 14).

4.D4 was convicted of Charge 14 on her own plea.  

5.The prosecution offered no evidence against D4 on Charge 8 and Charge 8 against D4 was dismissed.

Facts

Charge 6

6.On 19 August 2022, Madam Fong received a phone call from an unknown male caller addressing her as “Grandma” and asked her to guess who he was.  Madam Fong mistakenly thought that the caller was her grandson, to which the caller replied in the affirmative.  The caller then told Madam Fong that his bank card was retained by the ATM machine and he was in urgent need of money.  He asked Madam Fong for money and asked her not to tell his father.  Believing the caller was her grandson, Madam Fong offered to give him HK$30,000, and the caller said his friend will go to Kenswood Court to collect the money for him.

7.At around 6 pm on the same day, Madam Fong received a call from another male claiming to be her grandson’s friend.  This person said he was waiting at Kenswood Court.  Madam Fong went to Kenswood Court and D2 approached her.  D2 told her that he was a friend of her grandson and that he came to collect money.  Madam Fong handed over the cash in the sum of HK$30,000 to him and they separated. 

8.On the next day, Madam Fong discovered that she was deceived, and a report was made to the police. 

Charge 14

9.On 23 August 2022, Madam Yip, who lived alone, received a call during which the unknown male addressed her as “Mum”, and told her that he was detained for prostitution and needed HK$100,000 to settle the matter.  Madam Yip was asked to take cash to a college and to pass it to his friend. Believing that the caller was her son, she complied and gave the cash at the college to a female who walked towards her and said she was the friend of Madam Yip’s son.  Madam Yip did ask if she was Fei Fei, and the female replied in the affirmative and told Madam Yip that her son asked her to come.  Madam Yip then handed over the cash in the sum of HK$100,000 in an envelope to the female.  Madam Yip also gave her 2 red packets totalling HK$200. 

10.On the next day, Madam Yip received another phone call from the same unknown male caller (who claimed to be Madam Yip’s son)  who said the matter was not settled and requested HK$200,000 more.  Believing the caller was her son, Madam Yip offered to give him HK$100,000 first.  Madam Yip was asked to take the cash to Wong Tai Sin Centre.

11.She later arrived at the place, and she received phone calls from an unknown female caller with telephone number 67462171.  Then, D4 walked towards Madam Yip and claimed to be her son’s friend.  D4 led Madam Yip to a female toilet where Madam Yip handed over the cash in the sum of HK$100,000 in an envelope to D4.

12.In the evening of that day, the same unknown male caller called Madam Yip again and asked for an extra HK$100,000.  Madam Yip said she needed to borrow it from others. 

13.On the next day, Madam Yip discovered that she was deceived, and a report was made to the police.

14.On 12 October 2022, D2 and D4 were arrested by police.  Under caution, D4 said she was asked by her boyfriend to collect the money.  The phone with the SIM card of telephone number 67462171 was found to be in possession of D4 when she was arrested.

Criminal record

15.D2 has 16 previous criminal records involving convictions of 20 charges, none similar to the present charge.

16.D4 has one previous criminal record involving convictions of 5 charges, all similar to the present charge.

Mitigation

D2

17.D2 is aged 39.  He was born in Hong Kong and has received education up to Form 3.  His father is a taxi driver and his mother is a housewife.  He is single with a 12-year-old daughter born out D2’s previous cohabitation with his ex-girlfriend.  D2 used to be a delivery man earning about HK$10,000 per month. Because of the COVID epidemic, D2 said he had become unemployed since August 2022 and that he experienced financial difficulties.

18.It was submitted that D2 committed the present offence for a fast reward of HK$1,000 out of desperation and foolishness. 

19.Defence counsel submitted that D2 pleaded guilty at the earliest opportunity.  D2 merely played the role of “money collector” and he was not the mastermind of the telephone deception.  It was also submitted that there is no evidence to show that D2 had knowledge about the predicate offence, and that he had never participated in planning the telephone deception plot.

20.Defence counsel referred this court to cases of HKSAR v Boma Amaso [2012] 2 HKLRD 33, Secretary for Justice v Wan Kwok Keung [2012] 1 HKLRD 201, HKSAR v Hsu Yu Yi [2010] 5 HKLRD 545, as well as HKSAR v Fan Yu Hin DCCC 717/2023, and HKSAR v Chen Jinghui DCCC 170/2015.

21.She urged this court to adopt a sentencing starting point of 2.5 years’ imprisonment for Charge 6.  It was also said that whilst defence do not object to the application made by the prosecution for enhancement of the sentence pursuant to section 27(11)  of the Organized and Serious Crimes Ordinance, Cap 455, they urged this court to adopt a lower level of sentence enhancement.

22.It was also submitted that during remand, D2 has fully acknowledged his wrongdoing and expresses regret and sincere remorse.  He is fully determined to rehabilitate himself and to turn over a new leaf by not reoffending upon his release.

23.Defence counsel asked this court to give D2 a lenient sentence so that he could reintegrate back to his family and resume his family responsibilities. She also lodged to court D2’s letter in mitigation.

D4

24.D4 is now single and aged 29.  Her family consists of her mother, her younger sister and two children, aged 2 and 1, born out of her relationship with a boyfriend.  She has received education up to Form 6 level.  At the time of arrest, she was working as a receptionist earning about HK$12,000 per month.

25.It was said that D4 had a history of congenital heart disease.  She also used to suffer severe preeclampsia during pregnancy, and was diagnosed with adjustment disorder during her antenatal period. 

26.Due to commission of the present offence, it was said that D4 was unable to attend the funeral of her father and she was further denied the opportunity of taking care of her own children.  The children were left to the care and custody of D4’s mother who is not in good health.

27.It was said that the sum involved in Charge 14 was HK$100,000. 

28.It was also said that D4 had been sentenced to 42 months’ imprisonment in DCCC 442/2023 for the similar offences committed between 22 and 24 August 2022.  Defence counsel submitted that had the two cases been heard together, then D4 would be sentenced on the basis that she would have a clear record, and that the overall criminality would be assessed by one sentencing court. 

29.Defence counsel cited the case of R v Tong Hoi Fung [1988] 1 HKLR 610, where the Court of Appeal said that the sentence of defendant should be assessed and considered as if the two cases were heard together.

30.Defence counsel urged the sentence for D4 shall be made substantially concurrent with her term in DCCC 442/2023. 

31.He referred this court to the cases of HKSAR v Hung Yung Chun [2011] 2 HKLRD 174,香港特別行政區 訴 林文僑 DCCC 540/2023, and HKSAR v Lam Cheuk Hang DCCC 186/2023, whereby the court had adopted one-third enhancement on sentence. 

32.He submitted further that disturbing the enhancement of one-third should be left to the Court of Appeal (HKSAR v Ma Suet Chun & Others [2001] 4 HKC 337).

33.He submitted that D4 has a clear record at the time of the subject offence and that she pleaded guilty at the earliest opportunity.  It was said that the timespan of the subject offence was short and D4’s exposure to the subject crime was brief.  D4 only had minimal gain as a result of commission of the offence, and D4 committed the offence under the direction of her boyfriend who is the father of her two children.

34.Defence counsel urged this court to enhance the sentence of D4 no more than one-third.  It was also said that the chance of D4 reoffending is very remote, and she is determined to take care of her children and mother. 

35.Defence counsel lodged with the court mitigation letters from D4, her mother and younger sister, as well as medical reports of D4.

Discussion

36.Before sentencing, this court has carefully considered all that was said on behalf of D2 and D4 including, but not limited to, the authorities cited, the medical reports and the mitigation letters lodged.

Charge 14 (D4)

37.On conviction upon indictment of this charge, a person is liable to imprisonment for 14 years. 

38.This is a telephone deception case.  In the case of Hung Yung Chun, the Court of Appeal stated that telephone deception cases were more serious than street deception cases, and a higher starting point should be adopted for deterrence.  The general starting point for this type of phone deception case should be 4 years’ imprisonment.  A one-third enhancement was appropriate, but should telephone deception cases became even more prevalent, the court could increase the rate of enhancement.  The Hung Yung Chun case was decided in the year 2010.

39.D4 was the one responsible for collecting the money from the victim. The modus operandi of the scam in Hung Yung Chun was similar to the case here.  In that case, the elderly victims received phone calls purportedly from their children claiming to be detained for acting as guarantors owing money, and the elderly victims were demanded money to secure the release of their children.

40.Considering the circumstances of the present offence, the court finds the only sentencing option viable is one of immediate imprisonment, and the appropriate sentencing starting point is 4 years’ imprisonment. 

41.D4 has pleaded guilty and is therefore entitled to the full one-third sentencing discount, bringing the sentence to 32 months’ imprisonment.  At the time of commission of the offence, D4 has a clear record, but it is well established that the same has already been subsumed in the one-third sentencing discount.

42.The court has considered the medical reports of D4.  There was no follow-up on congenital heart condition since year 2013, and her injuries from the bicycle accident were said to have recovered well.

43.As for the depressive symptoms, D4 was diagnosed to be suffering from adjustment disorder, the same was mainly due to her concern for financial problem.  The court did not find the same a valid mitigating factor for D4 in the case.

Enhancement of sentence

44.The prosecution has applied for enhancement of sentence pursuant to section 27 of the Organized and Serious Crimes Ordinance, Cap 455, on grounds of the prevalence of this specified offence, and the nature and extent of any harm, whether direct or indirect, caused to the community by recent occurrences of this specified offence. 

45.Defence has no objection and this court is satisfied that both grounds of enhancement were made out.

46.From the statistics provided by prosecution, the number of telephone deception cases in 2011 was 1,943, and that in 2022 when the present offence was committed, it was 2,831.  In 2023, there are 3,213 cases, and for the first half of 2024, the number of telephone deception cases stood at 3,220.

47.It is quite clear that telephone deception has become drastically and alarmingly more prevalent which justifies the court to increase the rate of enhancement at one-third.  This court has considered enhancing the sentence by more than one-third, but has decided not to do so as D4 in the present case has been sentenced previously in another case (DCCC 442/2023)  for similar offences committed on the same day as the Charge 14 offence, and her sentence in that case had been enhanced by one-third.

48.My brother judge adopted a concurrent sentence on all 5 charges committed over the 3-day period in that case.  He adopted a sentencing starting point of 48 months for each charge, and afforded the defendant a one-third sentencing discount by reason of her guilty plea.  He enhanced the sentence by one-third on application from the prosecution, and gave the defendant a total sentence of 42 months’ imprisonment.

49.Defence counsel for D4 submitted that there was no basis for this court to enhance the sentence by more than one-third.  In the telephone deception case cited by defence counsel, HKSAR v Yang Chia Cheng & Another [2011] 3 HKLRD 610, Yeung VP, in paragraph 59 of the judgement, said that information showed that telephone deception cases are very prevalent and there is an upward trend.  It is correct and justified that the trial judge in that case, upon application by the prosecution, had enhanced the sentence by 50%.  Though the sentence was not disturbed in the end because he said that the ultimate sentence was not unreasonable, he did not say that the trial judge did not have jurisdiction to enhance the sentence by 50%.  Further, he did not say that had the sentencing starting point been 4 years in that case and the sentence enhanced by 50%, the sentence would be excessive.

50.D4, in our present case, approached the victim at around 1:30 pm on 24 August 2022 and collected the money from the victim.  Actually, including the present case, she had committed 4 similar offences on the same day involving 3 victims and the total sum of $458,000.

51.This court takes the view that the commission of the present offence obviously added to the overall culpability of D4.  Having regard to D4’s overall culpability in the two cases, ie the present case and DCCC 442/2023, and had the two cases been heard before me at the same time, the just and proportionate sentence for D4 would far exceed the total sentence that this court would deliver today. 

52.This court, however, would respect and is bound by the sentencing decision of the learned brother judge in the other case.  In the circumstances of this case, D4 is sentenced to 42 months’ imprisonment after the one-third enhancement.  8 months of the same would run consecutive to the sentence in DCCC 442/2023.  The rest to run concurrently.

Charge 6 (D2)

53.On conviction upon indictment of this offence, a person is liable to a fine of $5 million and to imprisonment for 14 years. 

54.This court has considered the factors in the case of Boma.  In this case, the amount of money laundered is HK$30,000.  The predicate offence is fraud which attracts a maximum sentence of 14 years. 

55.On the agreed facts of this case, the court is prepared to accept that D2 had just a sketchy idea that the money came from telephone deception.  He had misrepresented himself to the aged victim that he was a friend of the victim’s grandson.  His role was limited to collecting the money.  There was no evidence to show that he was a party to the actual telephone deception.  It must be noted, however, that without D2’s participation, the crime could not have been achieved.

56.In the Court of Appeal case of HKSAR v Li Yonghong CACC 254/2015, again a telephone deception case, the court after referring to appellate cases of HKSAR v Wu Jianbing [2012] 1 HKLRD 781, HKSAR v Cen Huakuo [2015] 2 HKLRD 951, and HKSAR v Lin Zong Yue CACC 141/2014, adopted a sentencing starting point of 3 years’ imprisonment under similar facts.

57.Similarly, this court would adopt 3 years’ imprisonment as the appropriate sentencing starting point for this charge. 

58.D2 has pleaded guilty and is therefore entitled to the full one-third sentencing discount.  Although D2 has numerous criminal records, none of which is similar to the present charge, as such, the court is not going to enhance the sentencing starting point.

59.This court have considered enhancing the sentence by more than one-third, but for the reasons said earlier, the court has enhanced the sentence of D4 by only one-third.  To avoid grievance from D2, the court will also enhance the sentence of D2 by one-third, giving the final sentence of 32 months’ imprisonment.

60.In Secretary for Justice v Chan Ho Kit CAAR 1/2024, the court said that telephone deception can take various forms and is not just limited to victims’ relatives being assaulted, kidnapped or restrained.  Fraudster prey on vulnerable witnesses of victims, ie, their concern for the safety and protection of their loved ones, and put the victims in fear and deceive them of their monies.

61.This court does not find it necessary or appropriate to distinguish between different categories of telephone deception cases in sentencing.

Sentence

62.D2 is sentenced to 32 months’ imprisonment for Charge 6. 

63.D4 is sentenced to 42 months’ imprisonment for Charge 14, 8 months of which is to run consecutive to the sentence in DCCC 442/2023, the rest to run concurrently.