HKSAR v. Liang Yaqiong and Others

CACC 92/2008

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINALl APPEAL NO. 92 OF 2008

(ON APPEAL FROM DCCC NO. 1069 of 2007)

----------------------

BETWEEN

----------------------

Before:   Hon Stuart-Moore VP and Yuen JA

Date of Hearing: 28 August 2008

Date of Judgment: 28 August 2008

----------------------

J U D G M E N T

----------------------

Stuart-Moore, VP (giving the judgment of the Court):

Background

1.On 22 February 2008, the applicants, Liang Yaqiong, Zhong Cuilan, Li Haimei and Su Ziyao, referred to in the court below as D1, D2, D3 and D5 respectively, pleaded guilty before Deputy District Judge C P Pang to a charge of conspiracy to defraud, contrary to Common Law and section 159C(6) of the Crimes Ordinance, Cap. 200.  Each of them was sentenced on 27 February 2008 to a term of 3 years and 8 months’ imprisonment against which they now seek leave to appeal.

2.As the judge aptly expressed the matter, the facts were all-too-familiar.  The applicants were mainlanders who came to Hong Kong to practise, on 5 September 2007, a form of street deception on a gullible victim, Chung Chuk-chun, by falsely representing to her, in the words of the charge, that:

“… her son would befallen with misfortune and will be dead by tonight on 5.9.2007; … that in order to prevent the said ill fate a ritual blessing had to be performed by a spiritual doctor; … [and] that she was to surrender valuables including money, gold ornaments into a bag for the performance of the said ritual blessing by the spiritual doctor and after which the valuables will be returned to her.”

3.The judge summarised the admitted facts in his Reasons for Sentence, as follows:

“3. On the afternoon of 3 September 2007, the four defendants together with another two Chinese males came together from the mainland to Hong Kong via Lo Wu. On the early morning of 5 September 2007 they travelled together by KCR and MTR and reached Yuen Long at about 7 am. At about 9.20 am, Dl and D2 approached two women separately. D3, D5 and the other two Chinese males were in the vicinity. The six of them were communicating with each other by gestures and mobile phones. Their activities had attracted the attention of a team of police officers in plainclothes who started to keep them under observation. The officers also learned from one of the two women that D1 and D2 had asked for the direction to look for a spiritual doctor.

4.   At about 9.30 am the 1st defendant approached the victim in this case, a woman aged 66, on the pretext of trying to locate a spiritual doctor to cure D1’s husband’s illness. At this juncture D2 joined in and claimed to know the whereabouts of the spiritual doctor. D1 and D2 successfully persuaded the victim to go with them to see the spiritual doctor. On their way to locate the spiritual doctor, D3, claiming to be a daughter-in-law of the spiritual doctor, appeared. D3 said, as she had just given birth to a son, it would be unlucky for the spiritual doctor to see strangers at that time. D3 said she would go back to ask for permission from the spiritual doctor first.

5.   D1, D2 and the victim then waited at a restaurant for the return of D3. Later D3 came back. She said that the spiritual doctor refused to see any strangers. She further told the victim that the spiritual doctor had prophesied that unless the victim would have all her money and valuables blessed in a ritual by the spiritual doctor, her son would die that night. It was also promised that after the ritual the victim could get back her money and valuables which would bring her good luck in investment. Being scared and believing what was said, the victim agreed to do so. She also agreed to bring D3 home to get her money and valuables for the blessing ritual. There is no doubt that it was a scam to deceive the victim …

6.   Upon the whole group’s leaving the restaurant the police officers appeared and spoiled the scam by arresting D1, D2 and D3. D5 and the other two Chinese males who were observed remaining in the vicinity acting as lookouts were also arrested. Under caution for the offence of conspiracy to defraud D1, D3 and the two Chinese males denied the offence. D2 and D5 remained silent. In subsequent police interviews each of them gave a version which did not admit the offence.”

4.The prosecution applied for the enhancement of the sentence of each applicant, pursuant to section 27(11) of the Organized and Serious Crimes Ordinance, Cap. 455, citing three decisions of this court in support of their application.

5.Counsel in the court below, Mr Kwong Ki-tack who represented all of the applicants, was rightly praised by the judge for having been realistic about the mitigation he advanced in a case of this obvious gravity.  Later, the judge referred to a description of the sort of criminality involved, utilising a passage in HKSAR v Huang Yu-huan and Anor [2002] 2 HKC 682 which read:

“The gravamen of the offence is the fraud itself … All the offences of this type employ the same modus operandi: two or three tricksters acting in concert, each playing pre-assigned roles, and no doubt using well-honed psychological tricks, prey on the credulity of unsophisticated middle-aged or elderly people in the hope of relieving them of substantial sums of money. The offences, of necessity, have to be both premeditated and well planned. They are certainly cynical and heartless crimes.”

6.The judge went on to review the facts of six other street deception cases to have come before this court before assessing the starting point he would adopt in the present case.  He stated:

“… Although only four defendants have pleaded guilty, the facts admitted by the defendants have clearly established a conspiracy between the four defendants and the two unknown males beyond a reasonable doubt. This case is more sophisticated and organised for its number of conspirators involved than the previous cases I have referred to. After their arrest each of the defendants could give a detailed story to deny the offence. This suggests that they had all prepared for a story for the police upon arrest. I find the sophistication represented by the number of conspirators an aggravating factor which justifies a higher starting point than the cases I have referred to.

20. Further, I find the age of the victim another aggravating factor. She is 66 years old. Had the deception succeeded she would likely lose $8,900 cash and about $150,000 worth of gold ornaments and shares which would likely be the whole of lifesavings upon which the victim and/or her spouse are dependent for their living. Apart from the financial loss, one can easily imagine the great distress and anxiety suffered by the victim. The offence committed by the defendants is no doubt cynical and heartless crime which deserves no mercy of this court.

21. Moreover on the evidence of their arrival in Hong Kong together, their living and travelling together, their arrival on the early morning of 5 September 2007 at Yuen Long to find their targets and the previous approaches to another two women, the only reasonable inference is that they came to Hong Kong with the intention to commit the crime. I find it another aggravating factor. They also made repeated attempts to locate their targets on that day.

22. In all the circumstances I am of the view that the proper starting point for the offence is 3½ years.”

7.The judge found that each of the applicants was equally culpable and he stated, rightly in our view, that the only mitigation capable of reducing sentence was the plea of guilty each of them had entered before trial.

8.The judge also followed the procedure for enhancement of sentence as set out in HKSAR v Tam Wai-pio [1998] 4 HKC 291, having first decided that enhancement of sentence was appropriate.  The judge then examined the statistics he had been given to illustrate the prevalence of street scams in Hong Kong, finding that between 50 and 55 per cent of all reported cases of this kind took the form of “spiritual blessing” offences.  Plainly, prevalence was established on the statistics presented to the judge.  In the judge’s words:

“27.   From the statistics it can be seen that the number of reported street deception cases in 2001, 2002, 2003, 2004, 2005, 2006 and 2007 were respectively 623, 811, 576, 479, 393, 218 and 262. In January 2008, nine street deception cases were reported of which five were spiritual blessing cases. The number of spiritual blessing cases in 2001, 2002, 2003, 2004, 2005, 2006 and 2007 were respectively 311, 346, 142, 212, 179, 129 and 145. The proportion of the number of spiritual blessing cases out of the total report[s] in 2001 and 2007 were respectively 50 per cent and 55 per cent. The proportion of value of stolen properties in spiritual blessing cases out of the total reports in 2001 and 2007 were respectively 60 per cent and 87 per cent.

28. One will also see from these statistics that the number of street deception cases had decreased since its peak in 2002, but they were still commonly practised in 2007. It is also noted that the number of both the total reports and spiritual blessing deception have increased from its bottom in 2006. Moreover the proportion of street deception cases adopting the modus operandi of spiritual blessing out of the total reports was not decreasing. It came down to the bottom at 25 per cent in 2003 and then rose up to 55 per cent in 2007. In other words, there is a rising trend.”

9.Later the judge remarked, understandably in the circumstances, that it was apparent that this kind of deception had not been deterred as it was “persistently prevalent”.  In a remark which is directly relevant to these proceedings, the judge went on to say that:

“… If the usual 50 per cent enhancement having been adopted since 2001 [HKSAR v Ma Suet-chun and Ors, CACC 1/2001] does not deter, a percentage higher than 50 per cent should be considered…”

to deter like-minded people from committing street deceptions of this kind.  Indeed, the judge had very properly alerted defence counsel to the course he was proposing to adopt and it was for this reason that sentencing was adjourned for some days to enable counsel to address the point he had in mind.

10.In the event, the judge enhanced the applicants’ sentences by approximately 60 per cent.  The starting point of 3½ years which the judge had taken was reduced to 28 months to allow for the usual one-third discount for the guilty pleas before this was enhanced to 44 months, pursuant to section 27(11) of the Organized and Serious Crimes Ordinance.

Grounds of appeal

11.Mr Andy Hung, on the applicants’ behalf, submitted that the sentence was manifestly excessive.  In particular, he complained that the 3½-year starting point taken by the judge was too high and that the enhancement of about 60 per cent was wrong in principle especially when set against a background where the applicants were not recidivists.

12.We do not need to recite, from the many cases of this kind which have come before this court, the various ways in which we have previously described heartless scams of this kind.  In any event, as we have said, the judge was extremely familiar with the grave view taken of crimes of this sort and he had cited Huang Yu-huan and Anor (above) as an illustration of the criminality involved.

13.He was also well aware of previous sentencing decisions taken by this court.  In all but one of the examples he had cited (HKSAR v Cheung Kwun-ching and Anor CACC 220/2001, HKSAR v Chu Sau-chi and Ors CACC 294/2002, HKSAR v Cho Ah-mui CACC 83/2003, HKSAR v Huang Yu-huan and Anor [2002] 2 HKC 682, HKSAR v So Yat-chun and Ors CACC 403/2002, and HKSAR v Xu Mai-qing CACC 464/2005), a sentence of 3 years’ imprisonment was considered appropriate.  The reason given by the judge for taking a higher starting point for the applicants was that the gang, of which they formed a part, consisted of six members.  This, he observed, was more than in all the examples to which he had referred.

14.We can sympathise to an extent with the judge’s concern that offences of this kind have not been dealt with sufficiently heavily in the past to deter others in the light of clear evidence that these crimes show little sign of abating.  On the other hand, a sense of proportion has to be maintained with other serious offences involving dishonesty including burglary and thefts by well-organised teams of pickpockets. 

15.Aside from keeping a sense of proportion, there are other considerations as well.

16.In the first place, the judge chose to take a higher starting point than in any of the cases he had used as illustrations of street deception offences although, in practical terms, whether or not there were slightly more participants engaged in this conspiracy, the criminality involved was just the same.

17.Secondly, the courts make a real effort to achieve parity of sentencing for like offences and when this principle is not applied, as here, a sense of grievance on the part of those who are arbitrarily selected for much heavier punishment is almost bound to result.  This is one reason why, when sentencing guidelines are called for or an increase in the general tariff for a particular kind of offence is recommended, the responsibility is left to this court so that arbitrary decisions are not made by individual sentencers.

18.Thirdly, the judge not only took a higher starting point for the offence than this court had considered to be an appropriate level of sentence in earlier similar cases involving a single offence but he then also enhanced those sentences by a greater percentage than had apparently ever been taken before.  There was, in this regard, an element of double counting as the applicants then found themselves receiving an increased enhancement on an already increased starting point. 

19.If the applicants had been previously sentenced for a scam of this type following an earlier visit to Hong Kong, there would have been every justification for an increased starting point in precisely the same way that an earlier conviction will often amount to an aggravating factor when an offender has previously committed an offence of the same kind (see: HKSAR v Chan Pui-chi [1999] 2 HKLRD 830).  There is no suggestion in this case that any of the applicants were previous offenders. 

20.We observe lastly, in regard to the comparatively high level of sentence imposed, that in this particular case unlike many of the others to which the judge was referred, the victim was spared the trauma of any actual loss.  This was the result of a highly efficient police exercise in surveillance leading to their timely intervention for which the police officers concerned in the operation are to be congratulated.

Conclusion

21.Having regard to the breaches of principle we have outlined, we will give leave to each of the applicants.  We will treat the hearing as the hearing of their appeals and we shall allow each applicant’s appeal.  In our view, the proper starting point for each of the applicants was one of 3 years’ imprisonment reduced to 2 years for their pleas of guilty.  Additionally, we consider that the enhancement of sentence, pursuant to section 27(11) of the Organized and Serious Crimes Ordinance, ought to have been no more than 50 per cent on the facts of this case.  This has the effect of reducing each applicant’s sentence to 3 years’ imprisonment.  In the result, therefore, the sentence of each applicant is reduced by 8 months.

Ms Grace Chan, SPP, of the Department of Justice, for the Respondent.

Mr Andy Hung, instructed by Messrs Godwin Chan & Co., assigned by Director of Legal Aid, for the Applicants.