HKSAR v. Sun Yen Tung and Another

DCCC901/2008

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 901 OF 2008

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Before:   Deputy District Judge Tallentire

Date:     17 March 2009 at 2.15 pm

Offence:  Obtaining property by deception, etc. (以欺騙手段取得財產等罪項)

Reasons for Sentence

1. D1, you were convicted after trial of one offence of obtaining property by deception, contrary to section 17(1) of the Theft Ordinance, Cap. 210, and one offence of conspiracy to obtain property by deception, contrary to section 17(1) of the Theft Ordinance, Cap. 210, and sections 159A and C of the Crimes Ordinance, Cap. 200.

2. D2, you pleaded guilty and admitted the facts in respect of the 2nd offence.

3. The facts are dealt with at length in my judgment delivered in respect of D1 on 9 March last.  Therefore, I do not propose to deal with each offence in detail, suffice it to say that each of the two offences were similar in that it involved a fictitious claim that the son of the respective victims was kidnapped and in danger of physical assault unless money was paid to the captors.  In each case, it was claimed that the respective son had stood as a guarantor for a person and $100,000 were defaulted in payment.

4. In the first case, PW1 was induced to part with $28,000 to you, D1.  In the second case, because of the resourcefulness of PW4, no money was paid; the police were called, and at least two of the perpetrators, that is, you, D1, and you, D2, were arrested.  In neither case did the son of the victims stood guarantor for $100,000 nor had he been seized.  D2, you gave damning and cogent evidence against D1, especially in relation to Charge 2 but also, to a lesser extent, in respect of Charge 1.  Further, a notice pursuant to section 27(2) of the Organised and Serious Crimes Ordinance, Cap. 455, had been served on each defendant in the event of conviction.

5. It was the intention of prosecution to furnish information as to the prevalence of such offences and invite the court to consider enhancement of such sentence.  To this end, Chief Inspector Williams produced a table detailing the number of reported similar cases since 2004 on a yearly basis together with the amount of money actually lost.  The evidence stood unchallenged.  Neither counsel for D1 nor D2 made any contrary submissions.

6. On the basis of that evidence, I am satisfied beyond a reasonable doubt in accordance with section 27(11) of the Organised and Serious Crimes Ordinance that the crimes are proven on each one of the specified offences.  Therefore, the court has power to enhance sentence in each case.  Further, I am satisfied that this should in fact be done.

7. I go on now to mitigation.  On behalf of you, D1, Mr Yuen entered mitigation.  He told me that you are 43, Taiwanese, divorced, with two sons aged 19 and 20.  You have a girlfriend in Zhuhai.  Your clear record was stressed and the fact that neither victim lost any money, the $28,000 being returned to PW1.  No comment was made on the application to enhance sentence.

8. In respect of you, D2, Mr Lam told me that you are 24 years of age, married, with a son aged 2.  He produced a photograph of your wife and son and a letter from your wife who begged for your clemency.  Also, Mr Lam stressed your plea of guilty and the giving of evidence for the prosecution.  There was no comment on the application to enhance sentence.

9. These two offences are serious.  Of that, there can be no doubt.  In addition, it is noted, and I accept, that this type of crime is prevalent and has reached a level that is totally unacceptable in recent years.

10. D1, despite your plea of not guilty, you were convicted on the clearest of evidence.  Your plea of not guilty showed no remorse for your misdeeds, the only point of mitigation in your case being that no one actually lost any money, that being due to the resourcefulness of PW4 coupled with excellent and effective work by the police.  The deceptions in each case were cruel and designed to cause anxiety to the victims in order to extract money.

11. The amounts involved were not of the highest.  They were not insubstantial.  In the 1st charge, the amount sought was $100,000 but reduced to $28,000.  And in Charge 2, the conspiracy was directed towards $100,000.  That too was reduced by negotiation to a notional $25,000.  PW1 received her money back.  She recovered the money she had paid, and PW4 lost nothing.

12. D2, you have pleaded guilty to one offence and gave telling evidence for the prosecution.  Given your plea of guilty and the giving of evidence on behalf of prosecution, I intend to discount your sentence by 50 per cent.  I will refer to that again later.

13. Stand up, please.  Taking into account all matters, I take as a starting point in each case - that is both defendants, please - in each case, I take into account a starting point of three years’ imprisonment.  I do not differentiate between the sentences of D1 and D2.  D2, even though your part could be said to be somewhat lesser, it was an integral part of the conspiracy.  The starting point I take in each case is, in fact, two years, as I said in the first place, not three years.  That may have come as some relief to you.

14. D1, on the 1st charge, you will be sentenced to two years’ imprisonment.  D1, on the 2nd charge, you will be sentenced also to two years’ imprisonment.  However, at that point, I do apply the principle of totality, and the total imprisonment on each will be the second sentence will be served one year concurrent and one year consecutive, a total of three years’ imprisonment.  Given the application under the Organised and Serious Crimes Ordinance, there will be an enhancement of one-third, which is 33.3 per cent.  You will, therefore, go to prison for a period of four years in total.

15. D2, as I indicated earlier, you will receive a 50 per cent discount.  I take as a starting point two years’ imprisonment reduced to one year.  That reflects your plea of guilty and the giving of evidence on behalf of the prosecution.  There will be a one-third enhancement.  That is an extra four months.  You will go to prison for 16 months.