HKSAR v. Cheung Wai Yee

DCCC 20 & 640/2023 (Consolidated), 1221/2024 (Heard Together)

[2025] HKDC 705

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 20 & 640 OF 2023

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IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 1221 OF 2024

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REASONS FOR SENTENCE

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1.The Defendant pleaded guilty to 4 charges in DCCC 20 & 640/2023 and one charge in DCCC 1221/2024.

2.The details of the four charges in DCCC 20 & 640/2023 are as follow according to the date of the commission of the offences:-

Charge	Offence	Date	Items	Value	Facts
3	Handling stole goods	23.2.2022	One handbag	$61,000	D2 Sold the bag for $38,000

3.The Defendant was arrested for another offence on 3.3.2022 and was on police bail on 4.3.2022.

Charge	Offence	Date	Items	Value	Facts
4	Conspiracy to defraud	14.3.2022	One watch	$118,000	D2 left without taking the watch
2	Ditto	21.3.2022	One diamond ring	$37,500	Another defendant sold the ring for $16,000
5	Ditto	29.3.2022	Mobile phone	$29,500	Police arrested the D2 when PW10 delivered the watch to her

4.The Defendant committed the ‘handling’ offence in DCCC 1221/2024 while the Defendant was on bail of DCCC 20 & 640/2023.

Offence	Date	Item	Value
Handling stolen good	24.6.2022	One Rolex watch	$350,000

5.In a gist, all the above offences involved various victims posted their items for sale in the online platform such as Facebook.

6.Arrangement had been made for the owners (the victims)  to meet the buyers to pass on the items.  While on the other hand, only cheques were deposited into those sellers’ accounts, however, they only showed the figures of the amount of the deposited cheques.  At the end of the day, all cheques were dishonored.

Summary of Facts of DCCC 20 & 640/2023

Charge 3 (22 February 2022)

7.On 22 February, 2022, PW4 posted her handbag on Carousell to sell for HK$61,000.  A purported buyer soon contacted PW4 and they agreed to meet at 3:00 p.m. the next day in Tsuen Wan West MTR Station.

8.When PW4 saw the increased account balance in the bank record, PW4 passed the handbag to the purported buyer.

9.When PW4 found the deposit was made by cheque deposit, she called the purported buyer to return the bag.  But the buyer never showed up.  The cheque was confirmed to be a dishonored cheque.

10.On the same day, at about 5:30 p.m., the Defendant sold the handbag to “Brand off Tokyo” for $38,000.

On Bail

11.The Defendant was arrested for another offence on 3 March 2022 and was on police bail on 4 March 2022.

Charge 4 (14 March 2022)

12.The buyer realized that a $118,000 figure in his account balance was not the “available balance”.  D2 left without taking the Rolex watch.

Charge 2 (21 March 2022)

13.PW1 passed the diamond ring to the Defendant upon confirming that there was a transfer of $37,500.  However, it was a dishonoured cheque.

14.The ring was sold to “Top Lucky Gold” on the same day about 3:00 p.m. by D1.

Charge 5

15.PW9 posted a mobile phone in Carousell.  A purported buyer agreed to buy and sent a screenshot to PW9 of a bank transfer receipt.

16.Later on, the buyer sent another transfer receipt screenshot to PW9 claiming that his girlfriend had mistakenly transferred $9,900 to PW9 who then found the transaction in his bank record.  PW9 transferred the $9,900 to an FPS account provided by the buyer.

17.Subsequently, the buyer asked PW9 if he had any more mobile phone to sell.

18.They both agreed on a sum of $19,600 for 2 mobile phones.

19.When PW9 turned up, he met a delivery man (PW10)  from La La Move.

20.PW10 was instructed to receive an order to pick up 2 mobile phones and was told not to reveal his identity as a delivery man.

21.The purported buyer then sent a screenshot of a bank transfer receipt.  PW10 warned PW9 that it might be a scam.  PW9 passed on the two mobile phones to PW10.

22.The buyer asked PW10 to deliver the 2 phones to his sister in Jordan.

23.PW10 found the circumstances suspicious and asked PW9 to send him the screenshot.  PW10 noticed it was a cheque deposit and believed that it was a fraud.  PW10 asked PW9 to come to Jordan to meet the buyer’s sister.

24.While they were all outside Yue Hwa Department Store, PW10 reported the matter to a police officer who was on patrol nearby.  D2 was then intercepted.

25.Under caution, D2 said that she received money from others to do the transaction and she did not know anything about it.

26.PW9 was informed by the bank that the 2 cheques of $9,900 and $19,600 were dishonored.

Second Time on Bail

27.The Defendant was then on bail and committed the offence in DCCC 1221/2024.

Summary of facts of DCCC 1221/2004

28.PW1 posted on Facebook to sell his Rolex Watch.  PW1 passed on the watch to the wife of a potential buyer named LEE after receiving a deposit receipt of $350,000.  However, PW1 was later informed by the Bank that the cheque was dishonored.

29.A few days later, PW1’s friend (PW2)  saw a post in Facebook to sell the same watch.  PW2 met the seller at a watch shop.  PW3 (a policeman)  retrieved the watch from the shop.

30.In July 2022, the Defendant was arrested.  During police investigation, it was revealed that the Defendant attended the watch shop on 23 June 2022 to sell the watch for $280,000.  Her identity card details was recorded.

Criminal Record

31.The Defendant has one conviction record in 2009 for an offence of possession of dangerous drug; she was sentenced to rehabilitation center.

Mitigation

32.The Defendant is now 34 years old, she separated from her second husband in April 2023 and has 2 children (aged 2 and 11 years old).  In December 2021, she was unemployed and pregnant; she committed the offence due to the financial difficulties.

33.In respect of the charges of handling stolen goods, the Defence quoted R v Chan Wing-Kwan and another[1] for a starting point of 2 years.

34.As to the other charges in DCCC 20 & 640/2023, the Defence said that there is no sentencing guideline, suggested a 2-year starting point is appropriated and asked the sentences to run concurrently.

35.The Defence accepted that the Defendant committed DCCC  1221/2024 while she was on bail of DCCC 20 & 640/2023, an additional 2 months of sentence is sufficient to reflect the circumstances of the offences.

Background Report

36.The Defendant’s elder daughter is now living with her first husband.  While the second child (2 years and 8 months)  is now living with the Defendant’s friend.  The probation officer said that he is a lovely boy with stable emotion and attached to the Defendant’s friend as she is the main carer.

37.The Defendant has lost contact with her second husband for a year.  The Defendant’s mother has not seen the Defendant for 2 years due to old age to visit her.

38.She admitted that she received $500 to $10,000 for each transaction.

Sentence (Charge 2, 4 & 5 of DCCC 20 & 640/2023)

39.This is a typical online sale when the transaction was made by dishonored cheque, as the figure of the amount would appear in the bank record. Very soon afterwards, the stolen item would then be sold in the second hand shop or other shops[2].

40.In the case of HKSAR v Leung Yiu Fai[3]  at paragraph 44 of the judgement said that:-

“44.  法庭對一些針對公眾的無良、令人討厭及不恥的詐騙案件，例如街頭騙案、電話騙案等，都會採取較為嚴厲的判刑，希望能阻嚇該等罪行，避免無辜大眾受害。該類罪行涉及款項數額不一定太大，而即使被告人沒有犯案前科，法庭亦會採納高達3年至4年的量刑基準。（見HKSAR v Liang Yaqiong & others [2009] 1 HKLRD 334、HKSAR v Wu Mudi [2008] 5 HKLRD 179、香港特別行政區訴洪永俊[2011] 2 HKLRD 167、香港特別行政區訴岑華擴[2015] 2 HKLRD 945等案）”

41.The Defendant committed the offences due to financial hardship which is not a mitigating factor to be considered.

42.The Defendant targeted at high value resalable items:-

(a)  A watch $118,000[4];

(b)  A diamond ring $37,500[5];

(c)  Mobile phones and with the trick of misleading PW9 that there was a genuine transfer of $9,900 to his account, in fact was not true. The total lost was $29,500[6].

43.The 3 offences took place within a period of 2 weeks, from 14 March 2022 to 29 March 2022.

44.The Defendant played an important role in the commission of the present offence as she exposed herself in the front line; she received $500 to $10,000 for each transaction.

45.As such, the appropriate starting point should be 3 years.

46.The Defendant committed Charges 2, 4 and 5 while she was on bail for another offence.  I increased the starting point by another 3 months.  The total sentence for Charges 2, 4 and 5 arrive at 3 years and 3 months.

Enhancement of Sentence

47.The Defence has no objection to the Prosecution application under the OSCO Cap 455 s.27(2).  The Prosecution also furnished a statement from Senior Inspector Chan with data in support to show:-

(a)  The prevalence of this specific offence;

(b)  The nature and extent of harm caused to the community by recent occurrence of this specific offence.

48.As decided in the case of HKSAR v Chung Chi King[7] that the purpose of enhancing the sentence is to impose a deterrence on potential wrong doers.  Hence, the time of the commission of the crime is irrelevant.

49.Having regard to the content of the statement, I accepted the Prosecution application to enhance the sentences in Charges 2, 4 and 5 accordingly.

The Enhancement Rate

50.According to the case of HKSAR v Hung Wing Chun[8] and HKSAR v Chan Ho Kit[9], the appropriate rate should be ¹/₃.

51.As such, the sentencing formula for Charges 2, 4 and 5 are as follow:-

(a)  Starting point is 3 years;

(b)  Aggravating factor: enhance by 3 months. The total sentence arrives at 3 years and 3 months (3 years + 3 months);

(c)  Given ¹/₃ discount, the sentences come down to 2 years and 2 months;

(d)  Enhance by ¹/₃ under the OSCO application, 2 years 2 months x ¹/₃ = 8.7 months;

(e)  The final sentence is 2 years and 2 months + 8.7 months = 34.7 months;

(f)  I round down to 34 months.

Sentence of handling stolen goods charges (Charge 3 of DCCC 20 & 640/2023 and Sole Charge of DCCC 1221/2024)

52.As to the offences involved handling stolen good, in arriving at an appropriate sentence, there are a number of aggravating (and mitigating)  factors indicated in the case of Secretary for Justice v Cheng Chi Wai[10] for sentencing consideration:-

“55. its views for the guidance of trial courts. At paragraph 20 of the judgment it said that the following nine factors may be regarded as aggravating the offence of handling:

(1)  The closeness of the handler to the primary offence (We add that closeness may be geographical, arising from presence at or near the primary offence when it was committed, or temporal, where the handler instigated or encouraged the primary offence beforehand, or, soon after, provided a safe haven or route for disposal).

(2)  Particular seriousness in the primary offence.

(3)  High value of the goods to the loser, including sentimental value.

(4)  The fact that the goods were the proceeds of a domestic burglary.

(5)  Sophistication in relation to the handling.

(6)  A high level of profit made or expected by the handler.

(7)  The provision by the handler of a regular outlet for stolen goods.

(8)  Threats of violence or abuse of power by the handler over others, for example, an adult commissioning criminal activity by children, or a drug dealer pressurizing addicts to steal in order to pay for their habit.

(9)  As is statutorily provided by section 151(2)  of the Powers of Criminal Courts (Sentencing)  Act 2000, the commissions of an offence while on bail.

We also agree with the mitigating factors identified as being among those relevant by the sentencing panel: namely, low monetary value of the goods, the fact that the offence was a one-off offence, committed by an otherwise honest defendant, the fact that there is little or no benefit to the defendant, and the fact of voluntary restitution to the victim.

We also agree with the Panel that other factors to be taken into account include personal mitigation, ready cooperation with the police, previous convictions, especially for offences of dishonesty and, as statutorily provided by section 152 of the Powers of Criminal Courts (Sentencing)  Act 2000, a timely plea of guilty.”

(a)  In Charge 3 of DCCC 20 & 640/2023, it involved a classic style of a Chanel handbag; the victim posted it on line for sale for a price of $61,000. The purported buyer got it at 3:00 p.m., while the Defendant sold the handbag to a second hand shop at 5:30 p.m. on the same day for $38,000.

(b)  As in the case of DCCC 1221/2024, the owner of the Rolex watch ($350,000)  passed the watch to a purported buyer at 11:45 p.m. on 23 June 2022 in Pioneer Centre, Prince Edward. On the same day, at 2:44 p.m., the Defendant sold the Rolex watch to a watch shop located in Causeway Bay.

(c)  The closeness of these offences of the handler to the primary offence indicated that the Defendant has advance knowledge to the primary offence. The Defendant willingness to receive the proceeds of the primary/original offence had promoted and encouraged the criminal activity of the culprit in the primary offence as the primary offence to the handling offence were within a couple of hours.

(d)  There is no doubt that the primary offence (conspiracy to defraud)  was a serious one.

(e)  The value of the stolen properties were of high value and clearly, they have a high resale value in the second hand market. There are outlets in Hong Kong to take these high value items. As such, the resale value was high ($38,000 and $280,000 for the Chanel bag and the Rolex watch respectively)  and the Defendant was able to make a huge profit within a couple of hours.

(f)  On the other hand, the owner of the handbag, especially the Rolex watch owner, lose a great deal of money in this transaction.

The Starting Point

53.The Defence referred me to the case of R v Chan Wing Kwan and another[11]. In which the primary offence was burglary of mink fur valued at about HK$1 million.  The Appellant was the handler, his sentence was reduced from 4.5 years to 2 years.

54.This is on this basis that the Defence suggested that the sentence should not be more than 2 years.

55.However, in the judgement of this case, Robert CJ also mentioned that “the normal bracket of sentences runs between 2 to 4 years.”

56.Although D1 in DCCC 20 & 640/2023 also received a sentence of 2 years for a charge of handling stolen goods.  Defence counsel accepted that such sentence is not binding upon me.

57.Having considered all the above factors, the appropriate starting point for the handling charges should be 3 years for both handling charges in DCCC 20 & 640/2023 and DCCC 1221/2024.

58.However, the starting point in DCCC 1221/2024 should be enhanced by 3 months as the Defendant committed the offence while on bail for the case of DCCC 20 & 640/2023.

59.The sentence for the handling stolen goods offences:-

	Starting pointing	Enhancement	After 1/3 discount
DCCC 20 & 640/2023 Charge 3	3 years		2 years
DCCC 1221/ 2024	3 years	3 months	2 years and 2 months

Totality

60.The following table shows the respective sentence of each case:-

DCCC 20 & 640/2023
Charge 3	2 years
Charge 4	2 years and 10 months
Charge 2	2 years and 10 months
Charge 5	2 years and 10 months
DCCC 1221/2024
Sole charge	2 years and 2 months

61.In order to achieve a fair and just sentence, I order 3 months from each charge of Charges 3, 4,and 5 from DCCC 20 & 640/2023 (a total of 9 months)  and 3 months from the sole charge of DCCC 1221/2024 to run consecutively to Charge 2 of DCCC 20 & 640/2023.

62.The total sentence is 3 years and 10 months (2 years and 10 months + 9 months + 3 months).