HKSAR v. Petrus George Jackson and Another

DCCC 1024/2008

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL ACTION NO. 1024 OF 2008

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Coram: Deputy District Judge J. Lam in Court

Date: 26 March 2009 at 9:44 a.m.

Charge: Obtaining property by deception (以欺騙手段取得財產)

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Reasons for Sentence

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1.D1 and D2 both plead guilty to the Second Charge: ‘Conspiracy to obtain property by deception'. It is alleged that both defendants between 5/8/08 and 7/8/08 in Hong Kong conspired together to dishonestly obtain from Wong Pik-fai a sum of US$1.068M with the intention of permanently depriving the said Wong Pik-fai of that sum by deception, namely, by falsely representing that they had in their possession a quantity of diamonds of 1,068 carat, which they agreed to sell to the said Wong Pik-fai at the said sum of US$1.068M.

2.Mr. Wong Pik-fai (Wong) was a trader of mobile phones and other commodities. On 5/8/08, his friend Edem asked him if he wanted to buy some diamonds. Wong expressed interest. Edem then introduced a Somali called Axmed to Wong. Axmed took Wong to the Basso Bar at the Regal Kowloon Hotel. There, Axmed introduced D1 and D2 as suppliers of diamonds. D1 showed Wong a bag of many small diamonds. He gave one to Wong for examination. Wong found that one was diamond. D1 said the whole lot was of 1,068 carats by weight and he asked for a price of US$1.068M. Wong was interested but he wanted to examine all the goods with a diamond tester. All agreed to postpone the deal to a later date.

3.The next day, i.e., 6/8/08, Wong spoke to his friend Mr. Lam Chuen (Lam) about the matter. Lam was a trader of diamonds. He thought Wong might be dealing with some Africans he (Lam) had encountered in 2007. It was arranged that Lam would look at the vendors discreetly when they met Wong again.

4.On 7/8/08, Wong met Edem and Axmed. They were later joined by D1, D2 and another African. The party went to a MacDonald Café first. Wong informed Lam to come to take a secret view of the Africans. Lam recognized D1 as one of the people he had dealt with in 2007. He went to inform the police while Wong pretended to go to a hotel in Wanchai with the others to execute the diamond deal. The party went to a bar first. It was called the Old China Hand Bar.

5.Lam soon brought the police to that bar. D1 took out a bag from his jacket and dropped it onto the ground. The Police retrieved it. Wong recognized the bag was similar to the one D1 showed him 2 days earlier. The police found 123 transparent stones in the bag. There were also 6 transparent stones on the ground. The police also found 22 diamonds testers in D1's briefcase.

6.D1 denied guilt but he admitted his briefcase contained diamond testers. D2 remained silent.

7.All the stones and diamond testers were examined by the Government Chemist. None of the stones were diamonds. Among the 22 testers: 5 were not functioning properly; 12 would produce a positive result for any of these categories: diamond, glass, quartz and topaz; the other 5 were capable of distinguishing diamonds from glass, quartz and topaz if these testers were properly tuned.

8.Both Ds knew that the stones were not diamonds.

9.D1 is aged 38. He used to live in Namibia with his wife and children. He has a clear record.

10.In 2007, D1 came to Hong Kong three times. In 2008, he came 5 times. The last entry was on 23/7/2008.

11.Counsel says D1 was a textile merchant. He would come to Asian countries to source goods for sale in Africa. He did not come to Hong Kong specifically for committing crimes. On this occasion, D1 met an African called Nando, who masterminded the plot. Nando asked D1 to bring the bag of stones to Wong. D1 so participated for a reward of HK$5,000.

12.Counsel submits that the whole criminal scheme was unsophisticated. The stones were merely topaz. One could easily say they were not diamonds. He says Wong was an experienced trader in jewelry and would not be easily deceived. On 5/8/08, Wong only looked at the first stone without any equipment and thought it was diamond. However, before Wong completed the deal, he would certainly examine all the stones with aids. Anyway, Lam had already alerted Wong. The police would come soon. Counsel says the conspiracy was thus bound to fail. Wong had not suffered any loss in this case.

13.Counsel says D1 also dealt in imitation jewelry business including topaz. He had the 22 testers but they were not for use in the conspiracy.

14.D1 produces an e-mail from his wife, who praised D1 as a good man. His parents were fragile. The mother is critically ill due to her worry about D1. The wife says she has difficulties to face without D1's looking after the home.

15.D2 is aged 42. He also lives in Namibia with his cohabitee and children. He has a clear record.

16.In 2007, D2 came to Hong Kong once. In 2008, he came 3 times. The last entry was also on 23/7/2008, as in D1's case. Both arrived at the airport checkpoint at 1 odd pm that afternoon, separated by about 12 minutes.

17.Counsel says D2 was a merchant. He operated an Import/Export company in Namibia, dealing in general sundry goods. He came to Hong Kong for business. He met an African called Iskia on the plane. The latter introduced D1 to him at the airport. They went to the same hotel for accommodation. D2 and Iskia stayed in one room; D1 and Nando in another.

18.Counsel says D2 did not know Nando's plot at first. D2 just went along with others. Because of his proficient English, D2 acted as an interpreter between Wong and the others. It was only before going to the Old China Hand Bar that Iskia asked him to pretend to be a bodyguard in the subsequent transaction. By then, D2 came to know the stones were not diamonds. D2 thus became to be involved in the conspiracy. He was promised a reward of merely HK$5,000.

19.Counsel for D2 also says the criminal plot had no chance of success at all.

20.Counsel says D2 is a benevolent person. He had done good and donated to his community. His cohabitee wrote to Hong Kong, saying D2's mother is now terminally ill. The family faces huge significant problems in the absence of D2. Lastly counsel mentions D2 has an ailment problem as a result of an accident a few years ago. He needs constant mobilization and attention regularly, so his doctor says in a brief note.

21.I would agree with counsel that D1 and D2's criminal conspiracy had involved others, who were not arrested. The plot was not very sophisticated because the stones do not look very like diamonds. Only very ignorant and careless people would be led to believe they were diamonds. Wong was given one stone on 5/8/08 to view and he thought it was diamond. Wong might be careless or he might at that time be given a real stone, we do not know. Anyway, Wong was made to believe that it was diamond and the whole lot of 1,068 carats were also diamonds. It would cost him US$1.068M if he really succumbed to the plot. Wong was actually interested. It was only fortunate that he spoke to his friend Lam first. Then, Wong became alerted. From then on, D1 and D2's plot might be, as counsel submit, not very likely to succeed. However, their conspiracy had already been in place and perpetrated to a significant extent. It failed only due to the alertness of Wong and Lam and the prompt action of the police.

22.The second charge is a serious one. D1 and D2 had conspired to deceive Wong of a great sum of money by false representation. Of course, it failed at the end as mentioned earlier.

23.I accept the criminal plot was not very sophisticated. However, it was a group act. How many other culprits apart from D1 and D2 were involved, we do not know. However, it is clear that the scheme was done with premeditation and planning. Fake diamonds and faulty testers were prepared. I do not believe D1's claim that the 22 testers were not related to the plot. It is obvious they were for deceptive use and they were likely to produce false examination results.

24.I also do not believe D1's or D2's claim that they only became involved so casually or easily in the plot and both for a reward of merely HK$5,000 in a deceit of over US1M. Whether both defendants were enticed or manipulated by others called Nando, Iskia or others, all were still cooperating and working as a group in the matter.

25.The crime is so serious that instant imprisonment of some length is inevitable despite counsel's mitigation, including D1 and D2's clear record. The said difficulties faced by both or their families are vague and in any event should be expected. They do not form any humanitarian ground for a lower sentence. If D1 and D2 were masterminds or if it is proved that they specifically came to HK to commit crimes, I would consider those as aggravating factors and adopt a higher starting point. Just treating D1 and D2 as mere conspirators with their roles revealed in the facts, I would adopt 4 and a half years' imprisonment as the starting point in each of D1 and D2's case. After one-third discount for their plea of guilty, which is the only mitigation factor for them, each defendant is sentenced to 3 years' imprisonment on Charge 2.