HKSAR v. Li Wai Hung

DCCC1170/2008

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 1170 OF 2008

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Reasons for Sentence

1.Defendant pleaded guilty to 31 charges of obtaining property by deception, that is Charge 1 to Charge 31 of this case, and one charge of possession of Part I poison, that is Charge 32.  I do not consider it necessary to spend the time to repeat the facts of each of the 31 charges of deception.  The defendant adopted more or less the same modus operandi in committing each of these offences.  I think it suffice to summarise the nature of the case as follows.

2.Between 2 June 2008 and 26 September 2008, on 28 separate occasions, the defendant approached 31 young people in the street.  He misrepresented to each of these young people that he had lost his wallet and money and was worried that he would be scolded by his parents.  He asked the victim to lend him an item or items such as mobile phone, game player, MP3 player and Octopus card to show to his parents, telling them he had bought the items instead of telling them that he had lost the money so that he would avoid being scolded for loss of the money.  On some occasions, he borrowed money as well.  He promised to return the borrowed properties at once and asked the victims to wait for him.  He did not come back nor return the properties.  In fact, he sold the items he had borrowed and kept the money.  The young people who had given the defendant properties suffered a loss.

3.On 26 September 2008, the defendant was arrested.  He was found in possession of a pack of 10 tablets, each containing zopiclone. 

4.In mitigation, learned counsel for the defence told the court that the defendant lost his identity card and did not have the means to have a new one.  Without an identity card, he was not able to find any employment upon his discharge from prison for his last conviction.  In desperation, he committed the offence and was tempted to carry on.  I totally reject this as mitigation.

5.The court was also told that the defendant’s mother deserted the family when he was about 12 years old.  Thereafter, he was brought up by his father alone.  He had received education up to Form 1 and then started employment.  His father passed away in May 2007 when he, the defendant, was serving an imprisonment term.  As a result, the public housing unit in which he had been living was taken back by the authority, leaving him with no place to live.

6.There is no sentencing guideline for this nature of offence.  Each case has to be decided on its own facts.  Each offence committed by the defendant, when viewed in isolation, is of a degree of seriousness which can be sufficiently dealt with in a magistrates’ court.  However, the defendant had committed 31 of these offences.

7.I have had regard to the following cases of magistracy appeals.  In Kong Ching Ha, Priscilla HCMA941/2005, Deputy Judge Fung, as he then was, held that an imprisonment term of 6 months was appropriate in that case where the appellant had used the pretext of borrowing a mobile phone from a new friend and left without returning.  The learned judge noted that there was a certain degree of planning and manipulation, and the appellant was a first offender when she committed this offence.  In that case, the appellant had committed another similar offence with an aggravating feature of extortion.  The learned deputy judge held that a 9 months’ imprisonment was appropriate for that charge.  A total sentence of 12 months’ imprisonment was imposed.

8.In making his decision, the learned judge had cited two cases: Chou Mao Wen HCMA1112/2002 and Lee Cheuk Fai HCMA1238/2002.  In the former case, $2,500 was deceived.  The appellant was sentenced to 12 months’ imprisonment, taking into account prevalence in the locality where the magistrate was sitting.  The latter case was a case of theft of mobile phone, and Deputy Judge Barnes, as she then was, considered a starting point of 4 months appropriate.

9.In the case of Wong Kai Chung HCMA240/2007, the appellant pleaded guilty to seven charges of theft which were committed with a modus operandi similar to the present case.  The sentence of 6 months’ imprisonment for each charge on a guilty plea and a total sentence of 24 months’ imprisonment were upheld, and the contention of the sentence being manifestly excessive was rejected.

10.In the case of Cheung Tin Si HCMA284/2007, the appellant stole the mobile phone of the victim with the excuse of charging its battery for the victim.  There was premeditation and planning.  The appellant had six previous conviction records.  Five related to dishonesty.  Barnes J held that a starting point of 12 months appropriate.

11.I stress that these cases can only be used as reference.  In sentencing, I have considered the whole circumstances of the present case, including its nature and facts, personal background of the defendant and mitigation put forward on his behalf.

12.Compared with other street deception cases such as those often described as spiritual blessing cases, the loss suffered by the victims can be said to be much lower, around $1,000 at the lowest, and the highest was in the region of $4,000.  However, this represents not an insignificant loss to most of the victims, in particular as most of them were youngsters below the age of 15.

13.The defendant had committed a total of 31 offences on 28 separate incidents in a span of less than four months, starting 2 June 2008.  The total value of the properties he stole was $64,775.

14.The defendant, now aged 31, has an appalling criminal conviction record for a person of this age.  He has been convicted on nine occasions.  Eight related to dishonesty offence and one was for breach of probation order.  In 1995, at the age of 17, he was for the first time convicted of the offence of theft and put on probation for 12 months.  Since then, he has been on seven more occasions convicted for having committed a total of 39 charges of theft.  The last conviction took place in December 2007.  He was sentenced to 8 months’ imprisonment for an offence of theft.  Not long after his discharge from prison for this conviction, on 2 June 2008, he committed the first of this long series of offences in the present case.

15.I am of the view that there was premeditation on the part of the defendant.  There must be prior thought before he could tell this sort of lie to the victims.  He preyed on youngsters; he exploited their kindness, sympathy and trust; he took advantage of the immaturity of the young victims as well as those who are not sufficiently street wise and alert despite the government’s effort to publicise against this type of street deception.  The defendant is obviously a greedy man.  Financial hardship was not the real reason for his committing this series of offences.

16.The defendant has an appalling criminal conviction record and this has to be taken into account.  There is, however, no evidence of a syndicate.  The defendant committed the offences alone.  He did not conspire with others.  The victims were not subject to threat, extortion or violence. 

17.In all the circumstances, I am of the view that a starting point of 9 months appropriate for the earlier cases committed by the defendant.  The victim of the offence in Charge 4 was a young lady, 18 years of age.  The aggravating feature of preying on the very young does not exist.  While the victim was, strictly speaking, an adult in terms of age, I consider it drawing too fine a distinction if the same starting point is not adopted since it was already the fourth case in the row of offences the defendant committed.

18.Indeed, it is my view that there comes a point when the starting point should be raised to reflect the repeated illegal acts.  By August 2008, the defendant had already deceived 16 victims.  A higher starting point of 12 months should be adopted for the subsequent offences.  For the reason I mentioned earlier, despite the victims in Charge 19 and Charge 20 are young adults, I adopt the same starting point.

19.The prosecution applies for an enhancement of sentence pursuant to section 27 of the OSCO on the sole ground that the offence is prevalent.  In consideration of the matter, I follow the procedure as set out in the case of Tam Wai Pio CACC32/1998.  Each of the offences in Charges 1 to 31 is a specified offence.  In support of the application, the prosecution adduced the witness statement of Senior Inspector of Police J A Close.  The defendant took no issue in relation to admissibility, and the statement was produced under section 65B of the Criminal Procedure Ordinance.  The defence did not require the witness to be called.  The defence also did not seek to furnish information on their part regarding the same matter. 

20.From the information furnished in this admissible evidence and ignoring the opinion of the witness, I am satisfied beyond reasonable doubt that the offence of this sort is prevalent.

21.I come to this conclusion, noting that in last year, up to the end of October, that is less than three months ago, the number of street deception cases using similar modus operandi of borrowing money or mobile phone to steal was 121, a figure comparable with the number of the so-called spiritual blessing cases which had been held to be prevalent.  I also note that the defendant alone accounted for 28 of these 121 cases.

22.The number of street deception cases by various means was at its peak in 2002 but has been dropping over the years, and significantly so for the spiritual blessing cases, for which enhanced deterrent sentence has been imposed.  Despite this general decreasing trend, the figure of deception cases by borrowing has been rising in the past few years.  The number in 2007 almost trebled that of 2006, and in the first 10 months in 2008, the figure has already arisen by one-third from the total of the previous year.  The same rising trend exists also in the value of properties stolen.

23.Victims of this type of deception cases were mostly young people.  Between January 2005 and the end of October 2008, 77% of the victims were young people under the age of 20.  The total loss suffered by this group of victims exceeded $1 million.  The statistics show an alarming pattern.  There is an obvious upward trend of this kind of deception.

24.I am satisfied beyond reasonable doubt by the information furnished by the prosecution that this specified offence is prevalent, and having regard to the whole circumstances, I think it fit to pass a sentence that is more severe than the sentence I would have passed in the absence of this factor.  In a situation like this, as said by the Court of Appeal in the case of Ma Suet Chun [2001] 2 HKC 337, the court should impose a deterrent sentence to stop the growth of such cases.

25.This is the first time the prosecution has applied for an enhancement of sentence for this particular type of street deception.  I have had regard to the case of Lee Sai Wing [1998] 4 HKC 480 in which it was held that to increase the sentence without prior warning might lead to a sense of unfairness.  The court in that case also said that in respect of crimes that were becoming prevalent, the extent of enhancement would be decided by their gravity, prevalence and effect upon the community.

26.In all the circumstances, I am of the view that it is appropriate to enhance the sentences in this particular case by 25 per cent.  Had it not been the first application of this sort, the enhancement should have been higher.

27.For the reasons I mentioned earlier, the starting point I adopt for each of Charge 1 to Charge 16 is 9 months, and for each of Charge 17 to 31, the starting point is 12 months.  The defendant is entitled to a one-third discount for his guilty plea.  I do not consider there exists any matter which justifies a further discount.  Before the sentence is enhanced, the sentence I am to impose on each charge is therefore: for Charge 1 to Charge 16, 6 months’ imprisonment for each charge; and for Charge 17 to Charge 31, 8 months’ imprisonment for each charge.

28.For each charge, there was a separate victim.  Apart from Charge 5, Charge 6, Charge 15, Charge 16, Charge 22 and Charge 23, each charge represents a separate incident.  Charge 5 and Charge 6 arose from the same incident.  So were Charge 15 and Charge 16 as well as Charge 22 and Charge 23.  These six charges represent three separate incidents.

29.Having regard to totality, I am of the view that a total sentence of 36 months’ imprisonment upon a guilty plea but before enhancement is appropriate.  I divide the charges into the following groups: group 1 is Charge 1 to Charge 8; group 2 is Charge 9 to Charge 16; group 3 is Charge 17 to Charge 21; group 4 is Charge 22 to Charge 26; group 5 is Charge 27 to Charge 31.  I order the sentence imposed on each charge in each group to run concurrently with each other and that the aggregate sentence of each group of charges to run consecutively to the aggregate sentence imposed on each of the other groups.

30.I enhance the sentences by 25%.  The defendant is sentenced to a total of 45 months’ imprisonment for Charge 1 to Charge 31. 

31.The defendant is further convicted for a charge of possession of Part I poison.  The poison he possessed was 10 tables of zopiclone.  I was told that he possessed the drug for his own consumption to cure his insomnia problem.  I have no reason not to accept that.  I have had regard to the case of Tsang Kin Chung, Ridgeley HCMA673/2006 and the cases cited in it. 

32.In the circumstances of the case, bearing in mind that the defendant is to serve a substantial term of imprisonment for the other charges, I am of the view that a short custodial sentence is appropriate.  I adopt a starting point of 21 days and give the defendant a one-third discount for his guilty plea.  I sentence the defendant to 14 days’ imprisonment for this offence.

33.The nature of the offence in Charge 32 is completely different to those in the other charges.  A consecutive sentence is appropriate as a matter of principle.  However, having regard to totality, I order that the sentence for Charge 32 to run concurrently with the other sentences.

34.The defendant is to serve a total sentence of 45 months for the 32 charges for which he was convicted upon his guilty pleas.