HKSAR v. Ma Che Hou

CACC 242/2024 [2026] HKCA 1479

On appeal from [2024] HKDC 1847

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO 242 OF 2024

(ON APPEAL FROM DCCC NO 688 OF 2023)

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REASONS FOR JUDGMENT

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Hon Zervos JA (giving the Reasons for Judgment of the Court):

1.The appellant 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). On 23 October 2024, he was convicted of the charge on his own plea before District Court Judge J Lam (“the Judge”). On 1 November 2024, the appellant was sentenced to 56 months’ imprisonment.

2.On 15 November 2024, the appellant filed a notice of application for leave to appeal against sentence (Form XI). 

3.On 11 July 2025, when the leave application was first heard by the Single Judge[1], an appeal aid certificate was granted to the appellant so that he could be legally represented.

4.On 21 August 2025, the Single Judge granted leave to appeal against sentence on the sole ground of whether certain related facts and circumstances admitted by the appellant in the Summary of Facts could permissibly be taken into account in sentencing for the conspiracy offence.  A related question is whether the charge, as framed, properly reflected the criminality involved. 

5.We dismissed the appeal against sentence and indicated that we would hand down our reasons for judgment in due course. These are our reasons.

The particulars of the charge

6.The particulars of the charge alleged that the appellant (D1 at trial) and Cheung Joshua Manwaai (D2 at trial): [2]

“between a day unknown in 2021 and a day unknown in August, 2022, both dates inclusive, in Hong Kong, conspired together and with other persons unknown to defraud such persons as might be induced to travel abroad, by dishonestly falsely representing to such persons that there were genuine employment, business and/or other opportunities that would generate substantial financial rewards, thereby inducing the said persons to travel abroad to other countries.”

The Summary of Facts

7.By agreeing to the Summary of Facts[3], the appellant accepted that, since early 2022, the Hong Kong authorities had received multiple complaints about residents being lured to work in various Southeast Asian countries, where they were exploited and forced into making scam calls.  Some victims were subjected to physical abuse, while others were only released after ransoms had been paid by their families.

8.In the present case, the offence with which the appellant was charged involved five victims, namely Mr Kwong (PW1), Mr Ng (PW3), Mr Lung (PW6), Mr So (PW8) and Mr Chan (PW10).[4]  

9.In broad terms, the victims were recruited under various pretexts, including offers of remunerative employment, business opportunities and other financial inducements overseas.  They were induced to leave Hong Kong for Thailand or Cambodia and were ultimately confined near or in Myanmar, at locations known as “China City” or “KK Park”.  They were then compelled to remain there and could not leave unless they agreed to participate in scams for the syndicate or their families paid ransoms for their release. Some were subjected to serious physical abuse.

10.To reflect how the events unfolded in relation to each victim, the facts are set out chronologically, by reference to the order in which they became involved. 

(i)  Mr Chan (PW10)[5]: June 2021 to December 2022

11.In June 2021, PW10 was introduced by his schoolmate to D2, also known as “Ah Hong”.  D2 represented that PW10 could earn quick money by establishing a company and taking out personal loans, and that PW10 could earn HK$1 million within two or three months.  At D2’s suggestion, PW10 obtained a personal credit report from TransUnion at his own expense. 

12.A few days later, PW10 was brought to a company in Tsim Sha Tsui, where D2 introduced the appellant as the boss, known as “Ah Fei” or “Fei Gor”.  PW10 saved the appellant’s contact number, 5603 0610, on his mobile telephone.  The appellant asked PW10 to sign an English contract for establishing a company and delegating its operations to himself, but refused to provide PW10 with a copy of the contract when requested. 

13.Between July and August 2021, PW10 obtained loans totalling about HK$200,000 from around five financial institutions, which he handed over to the appellant but failed to recover. 

14.In late August 2021, the appellant told PW10 that the company had to execute an agreement with an overseas entity, and that, as PW10 had no travel record, arrangements would be made for him to travel abroad.  PW10 was also promised a monetary reward and that his HK$200,000 loan would be repaid.  The appellant then arranged the air ticket, insurance and travel to Phnom Penh in Cambodia for PW10.

15.On 24 September 2021, PW10 briefly met the appellant before his departure to Cambodia.  After arriving in Phnom Penh, PW10 stayed in a quarantine hotel for 14 days.  On 8 October 2021, he was told that he would be working for a local company and was taken to China City in Sihanoukville.  There, a man called “Ah Lam” instructed him to practise online scams.  PW10 refused and reiterated that he was only there to sign a contract. Ah Lam did not coerce him and told him to wait.  However, the appellant contacted PW10 and persuaded him to practise online scams, by threatening both his and his family’s safety so that PW10 eventually complied, albeit reluctantly. 

16.In November 2021, the appellant went to China City in person and told PW10 to follow the instructions of a Cantonese-speaking man called “Chun Gor”.  The appellant remained at China City until he returned to Hong Kong in February 2022, without PW10.

17.On 18 August 2022, PW10’s mother (PW11) reported the matter to the Hong Kong police and his girlfriend (PW12) provided a witness statement.  Shortly thereafter, PW10 was assaulted by several men, had his mobile telephone taken, and was relocated to another place. 

18.In late August 2022, PW10 was rescued by the Cambodian police and returned to Hong Kong on 16 December 2022. 

19.PW10 retrieved various screenshots of his WhatsApp communications with the appellant from around the time of his travel to Cambodia and later positively identified the appellant at an identification parade conducted on 11 January 2023.

(ii)  Mr Kwong (PW1)[6]: December 2021 to February 2022

20.In December 2021, PW1 was recruited through a Facebook advertisement for casino work in Cambodia and dealt directly with the appellant, known as “Matt少”.  The appellant represented to PW1 via WhatsApp that he would be paid a daily wage of US$300, with flights and accommodation provided, but that PW1 would be required to work for at least three months.  If PW1 failed to meet the requirement, he could leave at will but would have to pay for his own return ticket.  PW1 agreed to take the job and provided his passport details to the appellant.  Arrangements were then made for him to travel from Hong Kong to Cambodia via Singapore.

21.Upon his arrival in Cambodia on 12 January 2022, PW1 was taken to China City in Sihanoukville, where he met the appellant and handed over his passport for processing.  China City was guarded by security guards, and PW1 was accommodated in a room with seven other men.  He was informed that he had to remain there for at least three months owing to the pandemic and the local security situation.  During his stay, PW1 was given scripts and taught how to carry out scams via WhatsApp and WeChat, which he refused to do.

22.After realising he had been deceived, PW1 contacted his mother (PW2), who reported the matter to the Hong Kong police on 18 January 2022.  On 19 January 2022, the Cambodian police attended China City and PW1 was handed over to them.  PW1 arrived in Hong Kong on 7 February 2022 and saw the appellant on his return flight from Phnom Penh to Hong Kong.  Flight-booking records from the airline revealed that PW1 and the appellant were on the same flight that day.

23.PW1 reported that he was neither detained nor prevented from leaving China City, and did not witness or suffer any violence during his stay.  He later positively identified the appellant in an identification parade conducted on 20 March 2023.

(iii)  Mr Ng (PW3)[7]: mid-2021 to 16 August 2022

24.PW3 suffered from dissocial personality disorder, mild intellectual disability and serious hearing impairment.  In mid-2021, he came to know an online girlfriend called “Yongb Fong”, also known as “Miss Fong” (“Fong”), through Instagram.  They communicated on Instagram but had never met in person. 

25.In March 2022, Fong asked PW3 to apply for a personal loan from a finance company.  After providing his proof of address, PW3 was escorted by an unknown man to the finance company, but the loan application was rejected. Subsequently, Fong requested PW3 to open an account with Mox Bank and to hand over his bank card to an unknown man.  Fong later asked PW3 to travel to Thailand to collect gambling winnings of HK$1 million, which she claimed had been deposited into his bank account and would belong to him upon retrieving the bank card in Thailand.  PW3 hesitated but eventually agreed.

26.On 4 July 2022, the syndicate assigned D2 to accompany PW3 to the Immigration Department to renew his passport.  D2 paid the fees for PW3 and later accompanied him to collect the renewed passport on 12 July 2022.  D2 then took PW3’s passport to arrange a flight ticket for PW3 to travel to Thailand the next day.  On the same day, the appellant received PW3’s passport and vaccination record from a person named “K” via WhatsApp, and subsequently forwarded those documents via Telegram to a user identified as “LR-RZ-小梦” (“小梦” or “Xiaomeng”).  小梦 later sent PW3’s e-ticket and accommodation details to the appellant.  Throughout their Telegram exchange, the appellant referred to sending PW3 “across the river”. 

27.On 13 July 2022, D2 accompanied PW3 to the airport, returned his passport to him, and stayed with him during check-in for his departure.  After PW3 boarded the flight, the appellant received from “K” photographs taken by PW3 and forwarded them to 小梦.  小梦 subsequently sent the appellant photographs of PW3 after PW3 had landed in Thailand. 

28.Upon his arrival in Bangkok, PW3 was transported to a place believed to be in Myanmar, where he was informed that he had been “sold by the girl” and that he had to work there for six months and earn 200,000 Thai baht per month.  When PW3 refused, he was taken to an unknown place where he was deprived of his mobile telephone, handcuffed to a bed and assaulted.  He was also locked in a cage for four days before being taken to two other places where he was further assaulted, handcuffed, and stunned with a stun device. 

29.PW3 was then handcuffed to a railing in a room and detained for three to four days before being allowed to contact his family to arrange funds to secure his release.  PW3’s mother (PW4) subsequently received telephone calls from an unknown person demanding ransom payments. 

30.On 14 July 2022, the appellant and 小梦 discussed PW3 and referred to him in derogatory terms as “retarded”.  Photographs of PW3 chained to a bed were attached to those communications.

31.On 30 and 31 July 2022, PW3’s sister (PW5) paid HK$35,530.81 in total on three occasions via Alipay to a designated account held in the name of “王幸康”.  PW3 was then released and returned to Hong Kong on 16 August 2022. 

32.A subsequent medical examination of PW3 revealed multiple healed wounds on his body and limbs. 

(iv)  Mr Lung (PW6)[8]: July 2022 to August 2022

33.In July 2022, PW6 saw a Facebook advertisement recruiting persons to purchase luxury handbags in Thailand for resale in Hong Kong, with a promised reward of HK$30,000 to HK$50,000.  PW6 left his contact details.  In early August 2022, a person called “James” contacted PW6 via WhatsApp and requested his photograph and passport details, which PW6 provided.  James then sent him an e-ticket for a flight to Bangkok.

34.On 2 August 2022, the appellant sent PW6’s passport and vaccination record to 小梦 via Telegram.  The appellant told 小梦 that PW6 had been told that he would be purchasing merchandise for others.  On 4 August 2022, the appellant communicated with 小梦 again via Telegram, with express reference to a “snakehead”, and stated that he had to “put on a show” so that the “client” would “willingly cross the river”. After receiving PW6’s flight tickets from 小梦, the appellant asked 小梦to book hotel accommodation to reassure PW6.

35.On 5 August 2022, PW6 travelled alone to Bangkok and was taken to a hotel on his arrival.  On the same day, the appellant sent 小梦 a photograph of PW6 and asked whether he would be “kidnapped”.  Photographs of PW6 boarding the flight and being picked up were exchanged, and there were discussions concerning the pretext used to induce PW6 to travel overseas under the alleged human trafficking scheme.

36.On 6 August 2022, PW6 and several others were taken by boat across a river to a place believed to be in Myanmar.  After a three-hour drive, PW6 arrived at KK Park.  A mainland Chinese man called “Elephant” took away his passport and mobile telephone and told him that he had been “bought” for US$20,000.  PW6 was required to carry out scams via various online platforms but he was unsuccessful.  He then informed his girlfriend (PW7) of his situation and location via WhatsApp.  PW7 reported the matter to the Hong Kong police.

37.On 20 August 2022, Elephant told PW6 that he could stop working and that arrangements would be made for him to leave KK Park.

38.On 27 August 2022, PW6’s passport was returned, but his mobile telephone was not.  He was then taken back to Thailand and returned to Hong Kong on 28 August 2022.  He confirmed that he did not witness or suffer any violence or ill-treatment at KK Park. 

(v)  Mr So (PW8)[9]: July 2022 to 26 August 2022

39.In July 2022, PW8 was recruited through a Telegram group advertisement for a job involving the transport of luxury watches from Bangkok to Hong Kong for resale, with a promised reward of HK$20,000.  PW8 expressed interest in the job. In mid-July 2022, a person called “Ah Ming” contacted PW8 about the work and asked for images of his Hong Kong Identity Card and passport.  PW8 complied, and arrangements were made for him to travel to Bangkok. 

40.On 9 August 2022, the appellant sent PW8’s passport and vaccination record to 小梦 via Telegram.  In the same exchange, they discussed arrests in Taiwan for human trafficking and the fact that Hong Kong had no law criminalising such conduct.  It was also recorded that, on 10 August 2022, 小梦 sent PW8’s itinerary and hotel booking to the appellant.

41.On 11 August 2022, PW8 arrived in Bangkok and was taken to a location near the border of Thailand and Myanmar.  He was then transported across a river to KK Park, believed to be within Myanmar, where he was told that he had been “sold” and had to pay US$20,000 for his release or work there for a year.  He was allowed to contact his girlfriend (PW9) and friends to arrange payments.  When he indicated to a Chinese man later that day that he could not raise the funds, that man slapped him twice in the face.

42.On the same day, the appellant sent 小梦 photographs taken by PW8 at the airport and after landing in Thailand.  小梦 asked the appellant about the pretext used to induce PW8 to travel overseas and later told the appellant that he would be paid after PW8 had “crossed the river” and been brought to the “Park”.  The appellant then sent a screenshot of PW8’s WhatsApp conversation with “Ah Ming”. 

43.On 14 August 2022, PW8 was given a designated Tether cryptocurrency (USDT) wallet and instructed to deposit the equivalent of US$20,000.  To secure his release, PW9 arranged for payments totalling 9,527.86 USDT, valued at HK$75,000, to be deposited into that cryptocurrency wallet on 14 and 17 August 2022.

44.The USDT tracing records revealed that, of the 9,527.86 USDT paid by PW9, 8,127.88 USDT was transferred on 17 August 2022 to a cryptocurrency wallet and then credited to a Binance account registered under the appellant’s name, using his personal particulars and Hong Kong Identity Card.  On 18 August 2022, the 8,127.88 USDT was sold and converted into Hong Kong currency in two transactions, and proceeds totalling HK$63,422.58 (comprising HK$43,680 and HK$19,742.58) were deposited, via FPS, into an HSBC account held in the appellant’s name.

45.PW8 was eventually released on 24 August 2022 and returned to Hong Kong on 26 August 2022.

The appellant’s arrest and video recorded interview

46.On 19 August 2022, the appellant was arrested at his residence.  Under caution, he stated that it was D2 who had accompanied PW3 to the airport.[10]

47.In three subsequent video-recorded interviews on 19 and 20 August 2022, the appellant stated under caution that[11]:

(1)  He had been unemployed for about a year since 2021 and was financially supported by his elder brother;

(2)  He had known D2 through Facebook for about two years, and had maintained regular contact with him;

(3)  Regarding PW3, he only knew from D2 that D2 accompanied PW3 to the airport for a flight to Thailand.  After D2 left the airport, D2 met up with him and mentioned PW3’s name but did not provide further details;

(4)  He had previously travelled to Cambodia in November 2021, and stayed for four months.  During his stay, he had worked in a casino at China City in Kampong Som City for three months until February 2022 as a sidekick for gamblers and bosses. He was introduced by a friend named Chan Ka-chun (“Chan”). He received a total of US$3,000 as a reward from Chan before their relationship deteriorated.  He also attempted to recruit others to work at the casino through online advertisements using a Facebook account provided by his company, and was offered a monthly salary of US$5,000.  Six individuals were recruited and travelled to Cambodia to work;

(5)  At the casino, he met a mainland Chinese boss called “Sing Gor” and had since February 2022 worked for him recruiting others to work at the casino via Facebook.  He had introduced four to six men from Hong Kong to work for Sing Gor, collected their passports, and sent copies of them to Sing Gor via WhatsApp, after which the appellant would receive e-tickets and send them to those recruits.  He received US$4,000 to US$6,000 in cryptocurrency from Sing Gor as remuneration.  He last contacted Sing Gor in May 2022 and then deleted his contact; and

(6)  PW3 was not among the individuals he had recruited to work in Cambodia. 

48.Examination of the appellant’s two mobile telephones[12] revealed extensive Telegram and WhatsApp communications between himself, 小梦 and other unknown persons regarding the travel arrangements for PW3, PW6 and PW8 to work in Thailand, Cambodia or Myanmar[13].  In particular, these messages showed the appellant sending their travel documents or photographs to 小梦, who then provided or arranged flight, accommodation and itinerary details.  The communications also contained references to sending these victims “across the river” and to “the Park”, as well as to the pretexts used to induce them to travel overseas, and their treatment at KK Park or China City[14]. 

The mitigation

49.At the time of sentencing, the appellant was aged 32.  He is married and has two children (aged 2 and 4).  He was educated up to Form Three and worked as a supervisor on a construction site.  He had six previous convictions in 2009 and 2010 for offences of a different nature.

50.The appellant suffered a stroke in September 2022 while in custody.  He had no life-threatening or daily-living problems apart from impaired memory owing to the stroke. 

51.Counsel representing the appellant submitted that, of the five victims in the present case, only PW10 had been detained for several months, whereas the others were made to stay against their will for only about 10 to 30 days.  Only PW3, PW8 and PW10 were assaulted during their ordeal.  It was accepted that, owing to the offence being well planned, the number of victims, and the presence of an international element, this case was much more serious than HKSAR v Lau Chi Yui and Another[15] and The Queen v Lui Sau Cheong[16]. Counsel invited the Judge to adopt a starting point of no more than five years’ imprisonment, with a one-third discount for the timely guilty plea, and a further discount having regard to the appellant’s health.

The Reasons for Sentence

52.In the Reasons for Sentence, the Judge made the following remarks in respect of the nature and seriousness of the offence:[17]

“3. In gist, both defendants were part of a syndicate, which engaged in human trafficking. Several victims in Hong Kong were falsely told that there were rewarding jobs, businesses or opportunities overseas. They were lured to leave Hong Kong for Thailand or Cambodia and finally ended up in some sort of confinement near or in Myanmar. Those confinements were known as China City or KK Park. The victims were made to stay there and could not leave until they agreed to participate in some scam activities for the culprits there or until the victims’ family had paid ransoms for their release.”

53.The Judge considered the offence to be “a very nasty case of human trafficking” and “one of the most abhorrent crimes one would come across in the District Court”.[18]

“69. This is a very nasty case of human trafficking. Five victims were lured out of HK. When they arrived at Thailand or Cambodia, they were forced to stay in some confinement. They could not leave until they agreed to participate in scam activities or until their family had paid ransoms for their release. In the course of their stay, some victims were subjected to threat and violence. PW3, who was an under-privileged person due to disabilities, was ill-treated most.

70. Fortunately, all five managed to return to Hong Kong after their ordeal. But their trauma probably would remain with them for quite some time, particularly in the case of PW3.

71. The present case may not be the worst of its type; there are certainly cases of more victims and more inhuman treatments. However, the present case is one of the most abhorrent crimes one would come across in the District Court.

72. Such crimes are orchestrated. They need planning and international illicit coordination. According to news reports that all may hear, these cases occur from time to time.

73.  The Court must send out a strong and clear message.  That is, those involved in such crimes are to meet with severe punishment.  The greater their role and involvement, the longer would be the prison term.”

54.The Judge regarded the appellant’s role in the human trafficking of all five victims as “very significant”, and adopted 7 years’ imprisonment as the starting point.[19] Having found no other mitigating factors, the Judge applied the one-third discount for the appellant’s guilty plea, and sentenced him to 4 years and 8 months’ imprisonment. 

The appropriateness of the sentence

55.The appellant’s sole ground is that the starting point of 7 years’ imprisonment was too high in the circumstances of the case.  Mr Wong Po Wing, for the appellant, submitted that, while the Summary of Facts admitted by the appellant referred to acts of human trafficking involving forced labour, ransom demands and assault on the victims, those human trafficking acts were not part of the pleaded particulars of the charge.  However, the Judge based his sentencing decision wholly or substantially on those matters referring to human trafficking, which did not form part of the conspiracy to defraud admitted by the appellant.  He submitted that the relevant facts went beyond the facts and circumstances supporting the pleaded particulars of the offence and should therefore be disregarded or, at most, treated as background for sentence. 

56.Mr Ira Lui, for the respondent, argued that, in view of the appellant’s participation in carrying out the scheme, as evidenced by his travelling abroad and frequent communication with accomplices, it is wholly unrealistic to suggest that he was not a knowing participant in the human trafficking scheme.  In his submission, the human trafficking aspect of the case was a direct, known and intended consequence of the appellant’s conduct. 

57.Relying on ZN v Secretary for Security (ZN)[20], CB v Commissioner of Police (CB(CA)) [21] and CB v Commissioner of Police and Others (CB(CFA)) [22], Mr Lui submitted that the facts and circumstances in the Summary of Facts admitted by the appellant pertaining to the human trafficking conduct (which does not presently constitute an offence) formed the evidential basis of the “additional dimension of human trafficking” taken into account when the Judge passed sentence for the conspiracy to defraud. 

58.Mr Lui submitted that the offence in the present case is very serious.  Although there are no sentencing guidelines for crimes of this nature, deterrence and retribution are clearly paramount considerations.  By way of comparison with HKSAR v Lau Chi Yui and Another [23] and HKSAR v Lee Shinwon [24],both of which involved human smuggling, Mr Lui argued that the starting point of 7 years’ imprisonment adopted by the Judge was, albeit robust, amply justified by the facts of this case.  There being no valid mitigation other than the appellant’s timely guilty plea, the ultimate sentence of 56 months’ imprisonment is entirely appropriate. 

The appropriateness of the charge

59.On the question of whether the offence of conspiracy to defraud adequately reflected the nature and scope of the criminality involved and provided an appropriate level of penalty, Mr Lui noted that human trafficking is well recognised as an international problem and that the definitions of “human trafficking” and the related concept of “forced labour” are to be found in international conventions.  He referred to the Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children (the “Palermo Protocol”), supplementary to the United Nations Convention against Transnational Organised Crime, which was adopted by the United Nations in November 2000.  He also noted that the Palermo Protocol does not apply to the Hong Kong Special Administrative Region unless and until otherwise notified by the Central People’s Government. 

60.While accepting that there is currently no bespoke local criminal legislation on human trafficking and forced labour in Hong Kong, Mr Lui argued that there are more than fifty legal provisions against various forms of conduct which address and combat certain specific aspects of human trafficking and forced labour, sometimes referred to as a “patchwork” of provisions scattered across various statutes and the common law.  He submitted that, as the present case did not involve prostitution or any sexual activity, neither the offence of trafficking in persons for the purpose of prostitution contrary to section 129 of the Crimes Ordinance, nor the kindred offences involving the “Exploitation of other persons for sexual purposes”, criminalised under sections 130 to 139 of the Crimes Ordinance, were appropriate.  Further, owing to both evidential and jurisdictional issues, crimes under the Offences against the Person Ordinance (Cap 212), including forcible taking or detention of a person with intent to procure a ransom for his liberation under section 42, the common law offence of kidnapping, certain offences under the Crimes Ordinance, and offences under the Immigration Ordinance (Cap 115) were also submitted to be inappropriate. 

61.Mr Lui submitted that the offence of conspiracy to defraud overcomes this evidential difficulty in that actual detriment need not be proved.[25] Moreover, the offence is expressly included within the extended jurisdiction under sections 2(3)(b), 4(2) and 6(1) of the Criminal Jurisdiction Ordinance (Cap 461).  He further submitted that the conspiracy to defraud charge is appropriate where the mischief lies more in the agreement between the offenders to traffic the victims than in the carrying out of the acts of recruiting and deceiving victims into working abroad.[26]  In the absence of any specific human trafficking offence or other suitable offence, it is permissible and appropriate for the prosecution to deploy the general offence of conspiracy to defraud, thereby avoiding the need to overload the charge sheet with multiple separate charges in respect of each act of offending against each victim. 

Discussion

(i)  Conspiracy to defraud by imperilling economic interests

62.There is no offence of human trafficking or forced labour in Hong Kong.  In ZN, the Court of Final Appeal concluded that, while the government must afford practical protection to victims, it does not have an absolute legislative duty to enact a specific criminal offence targeting human trafficking or forced labour.[27]

63.The Palermo Protocol defines trafficking in persons as “the recruitment, transportation, transfer, harbouring or receipt of persons, by means of the threat or use of force or other forms of coercion, of abduction, of fraud, of deception, of the abuse of power or of a position of vulnerability or of the giving or receiving of payments or benefits to achieve the consent of a person having control over another person, for the purpose of exploitation.”[28]

64.We agree, without hesitation, with the Judge’s description of this case as an egregious instance of human trafficking.  However, the issue before us concerns the scope and elements of the common law offence of conspiracy to defraud, with which the appellant was charged and to which he pleaded guilty.  The alleged conspiracy was to use dishonest means to cause economic loss to, or put at risk the economic interests of, the victims within the meaning articulated in Mo Yuk Ping v HKSAR[29].

65.In Mo Yuk Ping, Sir Anthony Mason NPJ, giving the judgment of the Court of Final Appeal, extensively reviewed the authorities on the common law offence of conspiracy to defraud and concluded as follows:

“40. What emerges from this discussion of the cases? First, that there is no formulation which amounts to a comprehensive definition of the common law offence. Secondly, that the offence is constituted by becoming a party to an agreement with another or others to use dishonest means: (a) with the purpose of causing economic loss to, or putting at risk the economic interests of, another; or (b) with the realization that the use of those means may cause such loss or put such interests at risk. The offence extends also to cases in which the dishonest means cause a person to act contrary to his public duty, this being a class of case which requires no further consideration by the Court in the circumstances of this case. Thirdly, that the identification of the elements of the offence, may leave or leaves still to be resolved:

(1) what is meant by the requirement of ‘dishonesty’;

(2) whether the offence extends to non-economic loss; and

(3) whether the offence extends to cases where the victim is induced to act contrary to his or her private duty.

…”

66.Mr Lui submitted that the alleged conspiracy to defraud was based on the use of dishonest means to put at risk the economic interests of the victims.  In his written submissions, he further contended:[30]

“27. On the evidence, the victims were clearly deceived in Hong Kong into believing that there were high-paying job offers or an opportunity to collect a handsome payment abroad. As such, the deception was in part practised within the jurisdiction. In terms of intent, the appellant and his co-conspirators must have intended the victims to suffer economic loss, or they must have at least had the ‘realization that the use of those means may cause such loss or put such interests at risk’ on the victims (i.e. working without wages, paying for their release and paying for their return trips).” (Original emphasis)

67.The particulars of the conspiratorial agreement alleged that the dishonest false representations were intended to induce the victims “to travel abroad to other countries”.  Those particulars were inadequate because, to constitute a conspiracy to defraud, the conspiratorial agreement must be directed towards causing loss to, or putting at risk, the economic interests of the victims.

68.The dishonest means involved the conspirators falsely representing to the victims that they were offered “genuine employment, business and/or other opportunities that would generate substantial financial rewards” when, in truth, no such opportunities existed.  The object of the conspiracy was to induce the victims to travel overseas, and then to detain them by force or coercion so as to require them to conduct online frauds and to extort money from them or their family members for their release from detention.  In essence, the defrauding was aimed at the financial exploitation of the victims, both by compelling them to work without pay and by extorting money from them.  To this extent, the offending was analogous to human trafficking, in which a perpetrator exploits a person for labour, services, or commercial sex by using force, fraud, or coercion.

69.In the LIBOR (London Interbank Offered Rate) case of R v Hayes; R v Palombo [31], the Supreme Court of the United Kingdom conducted a critical review of the offence of conspiracy to defraud.  Lord Leggatt JSC, with whom the other judges agreed, emphasised that the uncertain ambit of the offence and the wide range of conduct that may be charged as conspiracy to defraud make it all the more essential “to specify the content of the alleged agreement with particularity”.[32]  He referred to the line of cases that draws a distinction between particulars of the agreement which the prosecution seeks to prove and particulars of overt acts on which the prosecution relies to invite the jury to infer the existence of that agreement.  Whilst there was no such issue in that case, he considered the content of the agreements alleged and the dishonest means which the conspirators allegedly agreed to use.[33]  He examined the particulars of the charge, which he found did not give sufficient detail to enable the defence and the trial judge to know clearly and precisely the nature of the prosecution’s case.  He explained that the alleged object of the conspiracy, “intending to prejudice the economic interests of others” was “hopelessly vague” and did not identify “what interest, of the others, and how were those interests intended to be prejudiced”.  He went on to note that this defect had been remedied by the provision of further and better particulars but, in his analysis of the prosecution and defence cases together with the judge’s misdirection to the jury, he concluded that the convictions were unsafe.

70.R v Hayes; R v Palombo and other decisions[34] underscore the difficulties that arise when charging the offence of conspiracy to defraud and the need to ensure that full and proper particulars are provided, specifically identifying the dishonest means and the dishonest object of the conspiracy in respect of the form of the conspiracy being relied upon.[35]

71.In the present case, the prosecution charged the “economic loss” form of conspiracy to defraud.  It is apparent that the charge did not adequately particularise the object of the conspiracy in terms of the economic loss or risk to the economic interests of the victims.  To induce the victims to travel abroad to other countries is not a sufficiently particularised object for an “economic loss” conspiracy.  However, this was a plea of guilty accompanied by an agreed statement of facts, which contained the particulars of the conspiratorial agreement.  It is admitted that the criminal syndicate, of which the appellant was a member, targeted the economic interests of the victims: they were lured by fake promises of income; their labour was forced without pay; and their families were coerced into paying ransoms.

(ii)  Human trafficking as an aggravating factor

72.As submitted by the respondent, the appellant was involved in this conspiratorial enterprise from the outset.  He recruited and deceived the victims, travelled abroad to locations where they were exploited and victimised, and frequently communicated with other conspirators in deceiving them and arranging for their trafficking.  The question arises as to whether, and to what extent, acts of human trafficking can be taken into account as an aggravating factor when sentencing the appellant for conspiracy to defraud.

73.In HKSAR v Minney [36], this Court explained that what “constitutes an aggravating feature for an offence will vary according to the category of offence, the particular dangers from which the courts must protect the public and what deterrent signals, if any, are required.”

74.In general terms, an aggravating factor is any fact or circumstance surrounding an offence that increases its seriousness or heightens the offender’s culpability, thereby leading a sentencing court to impose a harsher or longer sentence.  An aggravating factor may increase the term of imprisonment within the permitted sentencing range for that offence, but the sentence cannot exceed the statutory maximum for it.

75.As a general principle, a sentencing court cannot punish an offender for a separate, unconvicted crime revealed by the facts.  However, in appropriate cases unconvicted conduct may be treated as an aggravating factor when sentencing for the convicted offence.  In such a case, the unconvicted conduct may properly raise the starting point of the sentence to a higher level within the statutory maximum for that offence.

76.We were referred to HKSAR v Tai Chi Wai and Another[37], which concerned a domestic helper who was subjected to prolonged and serious physical abuse and was not paid her wages, a case that was characteristically one of forced labour.  The domestic helper’s employers were convicted of various violent offences under the Offences against the Person Ordinance and sentenced to various terms of imprisonment.  The Court of Appeal held that it was incumbent upon the courts to protect the interests of domestic helpers coming to Hong Kong for employment, voice their disapproval of such cruelty, and reflect public abhorrence of the employers’ conduct.[38]  The Court went on to say:[39]

“… we must drive home the message that Hong Kong being a modern and civilised society holding human rights in high regard, will never tolerate the commission of such inhumane acts by the applicants on the victims. The offences of the applicants have a very severe negative impact on the image of Hong Kong. In light of the circumstances of the case, we find that the need for a deterrent sentence far outweighs exercise of mercy towards the applicants and their families.”

77.We were also referred to CB(CA) as authority for treating a pattern of forced labour as an aggravating factor in relation to a specific offence.  In that case, the Court of Appeal was concerned with an appeal of a judicial review regarding the right conferred by Article 4(3) of the Hong Kong Bill of Rights (“BOR 4(3)”)[40] not to be subjected to forced or compulsory labour, the duty of the government to comply with its positive obligations under the article, and whether the investigative failures in respect of the case amounted to breaches of CB’s rights.  It was alleged that an employer, Z, had repeatedly sexually assaulted and exploited his domestic helper, CB.  After trial before a magistrate, he was convicted of two charges of indecent assault and sentenced to a total term of 30 months’ imprisonment. 

78.The Court of Appeal recognised that forced labour could constitute an additional dimension to the existing criminal offence which may properly be taken into account:[41]

“… It would be an aggravating element which could only be demonstrated to the magistrate if Z were charged with and convicted of a specific offence of forced labour. However, the magistrate did take into account Z’s breach of trust in the employment relationship in sentencing Z to 30 months’ imprisonment. There was no finding that this sentence was unjust towards CB (in being too lenient to Z) and thereby breached her BOR 4 rights, and no basis for thinking that a forced labour offence based essentially on same facts would have resulted in a higher sentence. Involuntariness, which is involved in the concept of forced labour, is already reflected in the lack of consent for the purposes of the charge of indecent assault. We do not think that under existing sentencing principles, a ‘menace of penalty’, another component of forced labour, to force the victim into indecent acts cannot be taken into account by the court without fresh legislation.” (Footnotes omitted)

79.The Court of Final Appeal in CB, when addressing the suggestion that the indecent assaults on CB might have formed part of a pattern of forced labour for sexual exploitation, acknowledged that:[42]

“… The conduct being part of a pattern of abuse might have been relied upon as an aggravating factor in sentencing Z for indecent assault of CB. Indeed, the magistrate who convicted Z initially did reflect the fact of Z’s breach of trust in his capacity as CB’s employer in imposing the sentence he did.”

80.Whilst we accept that aspects of human trafficking or forced labour may constitute facts or circumstances that aggravate the offending in respect of a specific criminal offence, it should not be assumed that a case of human trafficking or forced labour can be adequately addressed merely by treating elements of them as aggravating factors of that offence. 

81.We affirm that features of human trafficking or forced labour may be taken into account as aggravating factors, provided the resulting sentence remains within the statutory maximum for the offence with which an offender is charged and does not offend the totality principle when multiple aggravating factors are involved.  However, as illustrated by the present case, the offence of conspiracy to defraud is not an offence of human trafficking, which typically involves very serious and varied acts of exploitation and abuse of persons and will, as a matter of law, normally attract the most severe maximum penalty.  

82.It should be a matter of grave disquiet that it was an agreed fact that the appellant and others involved in this conspiratorial enterprise had discussed the absence of any law criminalising human trafficking in Hong Kong, which emboldened them to think that they could operate with impunity.[43]

83.The respondent identified the following aggravating factors:[44]

(a)  The conspiracy was carried on for a considerable period, spanning from late 2021 to August 2022.  It was plainly not a one-off incident;

(b)  A total of five victims were identified.  On the appellant’s own admission, he had recruited six people to work in Cambodia[45];

(c)  The scam involved deception of the victims.  There was never any genuine employment, business or other opportunities for them;

(d)  The appellant was, throughout, deeply involved in the conspiracy.  This is evidenced by his travel to Cambodia (in relation to PW1 and PW10) and his frequent communication with accomplices (小梦 and K) through Telegram (in relation to PW3, PW6 and PW8) about deceiving the victims and arranging for their trafficking;

(e)  There was a transnational element to the offending.  As is clear from the victims’ experiences and the appellant’s Telegram communication, victims were trafficked to different Southeast Asian countries, including Thailand, Cambodia and Myanmar;

(f)  The victims PW1, PW6 and PW10 were made to participate in scam activities;

(g)  As observed by the Judge, the arrangement of the victims’ passage abroad required detailed “planning and international illicit coordination”[46];

(h)  The victims ended up in confinement.  Some of them, namely PW3, PW8 and PW10, were subjected to threats and actual violence;

(i)  PW3 suffered from intellectual disability, dissocial personality disorder and serious hearing impairment.  Notwithstanding his obvious vulnerability, the appellant’s group callously exploited him.  The appellant and D2 were clearly aware of PW3’s intellectual disability.  As a result of such exploitation, PW3 was subjected to serious violence and sustained multiple physical injuries.  

(j)  The victims were detained for periods ranging from 15 days (PW8) to almost 15 months (PW10);

(k)  Apart from PW1, the victims were released (1) upon payment of ransom (PW3 and PW8), (2) upon a police report by the victim’s friend (PW6), or (3) upon being rescued by the local police (PW10); and

(l)  The appellant clearly derived considerable financial benefit from the conspiracy and its related fraudulent activities.  Part of the ransom paid by PW8’s girlfriend, in the form of Tether cryptocurrency valued at HK$63,422.58, made its way to a cryptocurrency wallet and later a personal bank account held by the appellant.  On his own admission, the appellant received a monthly remuneration of US$5,000 for recruiting others to work in Cambodia and also received from Sing Gor cryptocurrency of between US$4,000 and US$6,000 as remuneration.  

84.We agree that these are grave aggravating factors that have significantly increased the seriousness of the conspiracy to defraud the victims.  Taken together, the prolonged duration and organised nature of the conspiratorial enterprise, its international operation, the conditions of confinement and the violence to which the victims were subjected, their particular vulnerability, and the substantial financial gain derived from forced labour and payments of ransom make this a very serious case, elaborate in its execution and callous in its treatment of the victims. 

85.The maximum penalty for conspiracy to defraud is 14 years’ imprisonment.  It was therefore possible for the case to have been tried in the High Court, which would have enabled the sentencing court, after conviction, to deploy the full range of penalties for this offence.  In the present case, however, the Judge, when sentencing the appellant, was constrained by the District Court’s jurisdictional ceiling of 7 years’ imprisonment.  The choice of venue for trial is a matter for the prosecution, which is privy to the full facts and circumstances of the case when applying the relevant guidelines.[47]  We observe that a crime of this nature will invariably involve severe abuse and exploitation of persons, and that it would therefore be more appropriate for it to be subject to the same maximum penalty as kidnapping, which carries life imprisonment.

86.The appellant was thus fortunate that he was prosecuted for his involvement in this conspiratorial enterprise by way of a charge of conspiracy to defraud in the District Court, with its sentencing ceiling.  The Judge could have adopted a starting point higher than 7 years, given the seriousness of the case, provided he had given a meaningful discount for the guilty plea resulting in a sentence within the District Court’s jurisdictional limit. [48] 

87.Whilst the Judge described the case as one of human trafficking, he sentenced the appellant for the offence of conspiracy to defraud and by reference to the penalty for that offence within the court’s jurisdiction.  He highlighted various features of human trafficking as aggravating factors in order to reflect the increased seriousness and higher culpability of the conspiracy to defraud the victims.  The victims suffered severe economic loss through being exploited as workers and forced to pay ransoms.  The Judge’s consideration of these features of human trafficking and forced labour was relevant and justified, and accordingly the sentence should not be disturbed.

Conclusion

88.In light of the foregoing reasons, the appeal against sentence was dismissed.

Mr Ira Lui, ADPP and Mr Jason Lau, SPP, of the Department of Justice, for the respondent

Mr Wong Po Wing, instructed by Hastings & Co, assigned by the Director of Legal Aid, for the appellant