HKSAR v. Wu Mudi Alias Bao Xiujin

CACC 358/2007

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 358 OF 2007

(On Appeal From District Court Criminal Case No. 749 of 2007 and No. 738 of 2003)

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Before : Hon Cheung and Yuen JJA in Court

Date of Hearing : 28 March 2008

Date of Judgment : 28 March 2008

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J U D G M E N T

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Hon Cheung JA (giving judgment of the Court) :

1.The applicant pleaded guilty before Deputy District Judge Sham Siu Man to five criminal charges namely, four charges of conspiracy to defraud and one charge of failure to surrender to custody without reasonable cause.  The applicant was sentenced to a total of six years and two months’ imprisonment.  She applies for leave to appeal against sentence. 

The conspiracy charges

2.The four conspiracy charges are the street deception type of cases.  The common feature is that in each of them the applicant together with other accomplices preyed on a gullible elderly woman and claimed that they would help to get rid of the ghosts that were troubling the victim and her family members.  In return the victim was asked by the culprits to provide valuable items which the culprits then stole. 

3.In the first charge (Charge 1) the victim was an old lady of 64 years of age.  As a result of the deception she gave up a gold necklace, a watch, two rings, a pair of earrings and cash of HK$500.00 to the culprits.  Fortunately these were recovered when the police arrested the culprits.   

4.In the second case (Charge 3) the victim, a 52-year-old lady, withdrew HK$261,800.00 from her bank account and gave them to the culprits together with a gold necklace, a gold ring, a pair of gold earrings valued at HK$3,200.00 and cash of HK$1,000.00 and Euro €200.00. 

5.In respect of the third charge (Charge 4) the victim, a 70-year-old lady gave the culprits four gold rings, four necklaces, two gold wrist chains and two gold plates, totalling HK$70,000.00 together with cash of HK$68,000.00. 

6.In the fourth charge (Charge 5), a 51-year-old lady gave the culprits five gold bracelets, a gold necklace, two jade pendants and a watch, the total value of which was HK$25,000.00.  She also gave cash of HK$27,500.00, Renminbi ￥2,000.00, US$150.00 plus HK$3,000.00 she withdrew from the bank account. 

7.The aggravating feature of the case is that after the police arrested the applicant in respect of the first charge in June 2003 she absconded while on bail which was the subject matter of the second charge namely, failure to surrender to custody without reasonable cause.  The applicant then surfaced again and committed the other conspiracy to defraud charges on 31 March 2007, 7 May 2007 and 11 June 2007 respectively.

The sentence

8.The Judge used a starting point of three years’ imprisonment for the first conspiracy charge, and reduced it to two years to reflect her guilty plea.  In respect of the other conspiracy charges he also imposed a term of two years’ imprisonment for each of the charge.  Their terms were to run concurrently with each other but consecutively to the first charge of two years, hence the total sentence for the conspiracy charges was four years’ imprisonment.  He then enhanced the four years by 50% under section 27(11) of the Organised and Serious Crimes Ordinance (Cap. 455) (‘the Ordinance’) on the ground that the crimes were prevalent.  As a result the sentences for the conspiracy charges were increased to six years’ imprisonment.  The Judge imposed a three months’ imprisonment for the failure to surrender to custody charge, reduced it by one third because of the guilty plea, resulting in a sentence of two months’ imprisonment.  This sentence was to be served consecutively to the six years’ imprisonment, making a total of six years and two months’ imprisonment.

Street deception

9.The sentence of three years’ imprisonment for the first conspiracy charge is in accordance with the sentence imposed for offences of this type.  While we are of the view that the starting point for the other conspiracy charges should be increased to three and half years to reflect the aggravating factor namely, the applicant committed the further offences after she had absconded while on bail, we are prepared to accept the same starting point adopted by the Judge in relation to the three other conspiracy charges.

Enhancement

10.In terms of enhancement of the sentence for the conspiracy charges by 50%, we are of the view that the Judge is correct to impose an enhanced sentence.  From the statistics one can see that although street deception cases had dropped from a high of 811 cases in 2002 to 218 cases in 2006, this type of case is still prevalent, specifically in relation to ‘spiritual blessing’ cases.  The statistics are as follows :

Value of money

11.The value of money involved in the street deception and spiritual blessing cases are staggering :

12.The data shows that this type of offence is still prevalent and hence fulfils the requirement of the Ordinance on prevalence.  However, we are of the view that the Judge should have made the enhancement for each of the individual sentences first in instead of applying the 50% enhancement to the total sentence of four years’ imprisonment.  The problem with the Judge’s approach is that in so doing he might have lost sight of the totality principle.  In respect of each of the four conspiracy charges each of the enhanced sentence for the guilty plea is three years’ imprisonment i.e. 2 years X 50%.

Totality

13.The Judge imposed a total sentence of six years and two months for all five charges.  We are of the view that even with the repeated offences the total sentence is manifestly excessive.  This would be equivalent to a nine years and three months’ imprisonment for a contested case.  We are of the view that as the four conspiracy cases occurred at different times the sentences should be consecutive to each other.  We are of the view that eight months of each of the remaining three conspiracy charges should be consecutive to the first conspiracy charge and consecutive to each other, making a total of 60 months’ imprisonment.  The sentence of two months’ imprisonment for the failure to surrender to custody charge should also be consecutive to the 60 months, making a total of 62 months’ or five years and two months’ imprisonment.

Conclusion

14.Accordingly we will allow the application and treat the application as the appeal itself.  We will set aside the six years and two months’ imprisonment and substitute it by a sentence of five years and two months.

Ms Teresa Kam, SGC (Ag) of Department of Justice, for the Respondent

Applicant, in person, present