HKSAR v. Ye Yaliu and Others
Read the full judgment text of CACC 85/2008 on BabelCite. This Court of Appeal judgment was delivered on 2 December 2008 before Yeung JA and Wright J.
Criminal law – sentencing – street deception – spiritual healers – conspiracy to defraud – obtaining property by deception – Organised and Serious Crimes Ordinance – starting point – guilty plea discount – totality principle – appeal against sentence. The applicants, mainland visitors to Hong Kong, perpetrated 'street deception' frauds targeting elderly women by claiming ill fates awaited their loved ones and requiring 'blessing ceremonies' involving cash and valuables placed in paper bags, which were then swapped for valueless items. They pleaded guilty to one charge of conspiracy to defraud and two charges of obtaining property by deception. The sentencing judge adopted a 39-month starting point for each charge, applied a one-third reduction for guilty pleas, then increased sentences by 50% under OSCO, resulting in a total sentence of 63 months for two of the applicants. Whether the 39-month starting point was manifestly excessive – held yes, the usual starting point for one charge of street deception is three years' imprisonment, as established in HKSAR v Huang Yu Huan and HKSAR v Liang Yaqiong. With the 50% OSCO enhancement, a three-year starting point translates to 4½ years, already severe for a fraud case involving $200,000 to $250,000. Whether the total sentence of 63 months was manifestly excessive – held yes, representing a starting point with enhancement close to 8 years. A total starting point of 4 years is more appropriate, with 50% OSCO enhancement bringing it to 6 years, reduced to 4 years to reflect guilty pleas. Personal backgrounds and family circumstances are not mitigating factors; deterrence is required given the prevalence of such offences. Leave to appeal granted; appeals allowed. Ye's sentence on the 3rd charge reduced to three years' imprisonment. Liang's sentence on each of the 1st and 3rd charges reduced to 3 years with 1 year consecutive. Dai's sentence on each of the 2nd and 3rd charges reduced to 3 years with 1 year consecutive. Total sentence of Liang and Dai reduced to four years' imprisonment.
Legal issues: Whether the 39-month starting point for the conspiracy to defraud charge was manifestly excessive · Whether the total sentence of 63 months on Dai and Liang was manifestly excessive
Outcome: Leave to appeal granted; appeals allowed; sentences reduced
Cited by 9 cases · Cites 2 cases
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CACC 85/2008 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF APPEAL criminal APPEAL NO. 85 OF 2008 (ON APPEAL FROM dccc 1078 of 2007) _______________________ BETWEEN
______________________ Before: Hon Yeung JA and Wright J in Court Date of Hearing: 2 December 2008 Date of Judgment: 2 December 2008
______________________ J U D G M E N T ______________________
Hon Yeung JA (giving the judgment of the Court): Introduction 1.These are “street deception” cases involving the use of “spiritual healers”. The victims, invariably women of senior age, were approached in the streets and told that ill fates awaited their loved ones. In order to avert imminent disasters, the victims were told that certain “blessing ceremonies” had to be performed, requiring them to put into paper bags large sums of cash and other valuables, only to be replaced with valueless items by the fraudsters. 2.The fraudsters, playing different roles, put the victims in fear and then pretended to offer help, before making away with the victims’ money and valuables. 3.The applicants, Ye Ya-liu (“Ye”), Dai Hui-fen (“Dai”) and Laing You-qing (“Liang”) were the fraudsters. They were mainlanders coming to Hong Kong as visitors for the sole purpose of perpetrating the “fraud”. 4.On 22 February 2008, the applicants appeared before Deputy Judge W Lam in the District Court on an indictment consisting of a charge of conspiracy to defraud and two charges of obtaining property by deception. 5.The 3rd charge of conspiracy to defraud was directed at all three applicants, whereas the 1st and 2nd charges of obtaining property by deception were directed separately at Liang and Dai respectively. 6.The applicants pleaded guilty to all the charges. They were each sentenced to 39 months’ imprisonment in respect of the 3rd charge. Liang and Dai were further sentenced to another term of 39 months’ imprisonment for the 1st and 2nd charges respectively with 24 months to run consecutively. 7.The applicants seek leave to appeal against sentence, claiming that they are remorseful. They also say they have family members to care for and hope to be able to return to their hometowns to take care of them. 8.Ye claims that her sentence is heavier than sentences in other similar cases and that her husband is divorcing her for what she did. She says her conscience is hurting her and she wishes to be given a chance to “redeem her sin”. 9.Dai associates herself with Ye’s submissions, saying that the 39-month starting point is excessive and that the total sentence of 63 months is much longer than sentences in other similar cases. She asks for a concurrent sentence. 10.Liang also suggests that her sentence is heavier than sentences in other similar cases. She says that the proper sentence should only be 30 months’ imprisonment. The Facts 11.It is not necessary to detail the facts of each charge as they are just too familiar, except to point out that the victim of the 1st charge lost cash $185,000, three gold necklaces, four gold bracelets, and ten gold rings to the total value of another $45,000, and the victim of the 2nd charge lost cash $200,000. The victim of the 3rd charge, due to the alertness of her husband who reported the matter to the police leading to the applicants’ arrests, did not in fact suffer any financial loss. The Judge’s Approach 12.The judge adopted a starting point of 39 months for each of the charges and reduced them by one-third to 26 months to reflect the guilty pleas. On the prevalence of the offences, the judge accepted the application by the prosecution under the Organised and Serious Crimes Ordinance (“OSCO”) and increased the sentences by 50% to bring them back to 39 months. 13.On totality principle, the judge ordered Liang and Dai to serve an additional 24 months for, respectively, the 1st and 2nd charge in addition to the 39 months on the 3rd charge, making a total sentence of 63 months. Discussion 14.The offences in question are very serious offences. The applicants preyed upon the naivety, gullibility and superstition of the victims by frightening them with ill fates to their loved ones. The victims suffered or would suffer heavy financial losses. More importantly, the losses to the victims were, very often, losses of their entire life savings and they would not be compensated. 15.Despite widespread publicity exposing “street deception” cases, they remain prevalent. The judge rightly emphasized, as an aggravating factor, that the applicants were visitors coming to Hong Kong for the sole purpose of furthering their criminal enterprises. 16.The applicants and others who continue to commit “street deceptions” must be deterred. The offences call for heavy sentences. The personal backgrounds and family circumstances of the applicants are not mitigating factors. If they are concerned about their families, they should not have come to Hong Kong to commit the offences in the first place. 17.The judge was right to take a grave view of the crimes in question. However, other than the nature of the offence itself, there was no other aggravating factor, such as large-scale operation, repeated offence or perhaps involving exceptional large amount of money, as fairly conceded by Ms Mary Sin, for the respondent. 18.Ms Sin also accepts that the usual starting point for one charge of “street deception” is only three years’ imprisonment. (See HKSAR v Huang Yu Huan & anor [2002] 2 HKC 682 and HKSAR v Liang Yaqiong & Others CACC 92/2008) 19.However distasteful the applicants’ behaviour was, as Stuart-Moore VP said in Laing Yaqiong (supra) at para 14 of the judgment, “…a sense of proportion has to be maintained with other serious offences involving dishonesty including burglary and thefts by well-organised teams of pickpockets.” 20.One cannot ignore that with the 50% enhancement under OSCO, a three-year starting point translates into a sentence of 4½ sentence, which is already a severe sentence for a “fraud” case involving $200,000 to $250,000. 21.We are persuaded that the 39-month starting point adopted by the judge is manifestly excessive and that a three-year starting point is adequate, even with deterrence in mind. The judge was entitled to enhance the sentence under OSCO. 22.To reflect Ye’s guilty plea and the 50% enhancement under OSCO, the proper sentence on Ye should be three years’ imprisonment. 23.We are also concerned with the total sentence of 63 months on Dai and Liang. 24.The 63 months’ imprisonment, on a plea of guilty, represents a starting point, with enhancement, close to 8 years, which is manifestly excessive. 25.We are of the view that a total starting point of 4 years is more appropriate. We approve the 50% enhancement under OSCO to bring the total sentence to 6 years. To reflect the guilty pleas, the 6-year sentence will be reduced to 4 years. 26.We therefore reduce the sentence on each of the 2 charges against Laing and Dai to 3 years. We are also persuaded that of the 3-year sentence on each of the 1st and 2nd charge against Liang and Dai respectively, only 1 year needs to be served consecutively to the 3 years on the 3rd charge, making the total sentence on each of them one of 4 years’ imprisonment. 27.We grant leave to the applicants to appeal against sentence. Treating the application as the appeal proper, we allow their appeals. 28.Ye’s sentence on the 3rd charge is reduced to three years’ imprisonment. Laing’s sentence on each of the 1st and 3rd charges is reduced to 3 years with 1 year to run consecutively. Dai’s sentence on each of the 2nd and 3rd charges is also reduced to 3 years with 1 year to run consecutively. The total sentence of Liang and Dai is reduced to four years’ imprisonment.
Ms Mary Sin, SADPP of the Department of Justice for the Respondent. 1st, 2nd and 3rd Applicants: In person. |
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