HKSAR v. Deng Wenwei

DCCC 1346/2010

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 1346 OF 2010

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Reasons for Sentence

1.The Defendant has pleaded guilty to one count of conspiracy to defraud, contrary to common law and punishable under Section 159C(6) of the Crimes Ordinance, Cap. 200.

2.PW1, Ms. Leung, is aged 66 years. She has attained education to primary 2 level. She lives with her husband Mr. Lee, aged 72 years, and their grown up daughter in a flat in North Point. Their only son has emigrated to Australia. At about 3 p.m. on 18 October, 2010, when only PW1 and PW2 were at home, they received a telephone call on their land line and heard a male voice say “Daddy, save me, I’m being beaten up”. Immediately after that, another male voice told PW2 that his son had acted as a guarantor for a friend who had failed to pay up on his debt. This male demanded that PW2 pay up the debt on behalf of his son. PW2 was very frightened. He told his wife PW1 about the call. PW1 tried to call their son in Australia but was unable to reach him, and they thought their son had really been detained. At about 3.15 p.m., the male called PW2 again and told PW2 to pay $250,000. PW1 spoke to him and said she could only raise $50,000, which was accepted by the male. He asked her for her mobile phone number – she told him, and then her mobile phone rang. She was instructed to withdraw the money from her bank account. She left home for the bank, and with the help of bank staff, a report was made to the police. PW1 was instructed by the male to take the money to the sitting out area outside Island Place. She did so whilst being observed by police officers. At 1713 hours, acting on the instructions of the male, PW1 dropped off a red nylon bag onto the innermost part of a flower bed, although no money was put in the bag. She then walked away. Shortly after, the Defendant was seen to approach the flower bed and pick up the bag and check it, and heard to say ‘no money’ and then he immediately put down the bag. He had earphones on at that time. He was intercepted by the police officers and arrested. The Defendant is a two-way permit holder from Mainland China. He had been in Hong Kong once before between 12 and 15 September 2010. This time, he had entered Hong Kong at 1129 hours on 17 October 2010. The mobile telephone seized from him was checked – it had a China Mobile pre-paid sim card. Telephone call records showed that after the Defendant’s arrival in Hong Kong, the first time he made an outgoing call with that sim card to a mainland telephone number was at 1214 hours on 18 October 2010. By 1428 hours, he had 8 incoming and 2 outgoing calls to the same number. At 1630 hours, he communicated with a caller on a number for 41 minutes. Following that, he had 2 more incoming telephone calls where the telephone numbers were not shown. He hung up at 1712 hours, just before PW1 dropped the red nylon bag onto the flower bed.

3.The Defendant is aged 31 years with a clear record. He is a Mainland resident and came to Hong Kong legally on 17October 2010 on the strength of a PRC two way permit. He has acquired primary education on the Mainland. He used to be a decoration worker.

4.The Prosecution has applied by their application dated 17December 2010 for enhanced sentence under Section 27(2)(c) of the Organized & Serious Crimes Ordinance, Cap. 455 in respect of the charge because of the prevalence of this offence. Notice of their intention to do so was served on the Defendant on 23 December 2010.

5.In support of their application for an enhanced sentence, I have before me the statement of CIP Chan Che-man. Defence Counsel did not require CIP Chan to be called, although he did seek to oppose the Prosecution application for an enhanced sentence in respect of the charge. He submitted that the Defendant came from Mainland China, and would not be aware of the prevalence of this type of offence in Hong Kong. In the absence of such knowledge, the enhancement should not apply.

6.As revealed in the statement of CIP Chan, the number of phone deception cases appeared to have been decreasing since its peak in 2006. There were a total of 1,429 cases in 2008 and 1,496 cases in 2009. However, in 2010, the total number of telephone deception cases rose to 2,019. I note that there is a steady increase in the value of stolen funds from 2007 to 2009. The total value of stolen funds in 2010 was HK$25.6 million. In 2010, there was a total of 5,693 deception cases reported, of which 2,019 or 35.5% were telephone deception cases. In my view, there is clear and cogent evidence before me that telephone deception is still widespread and is still commonly being practiced today. It is a prevalent crime in Hong Kong.

7.CIP Chan in his statement also furnished information in respect of Section 27(2)(d) which is not a ground put forward in the notice by the Prosecution. In my view, it is of no consequence. That the Defendant may not have known that the offence was a specified offence or that it was prevalent in my view is not a ground for refusing the Prosecution application for enhancement. I am satisfied beyond all reasonable doubt that the charge herein is a specified offence and it is a prevalent offence. Given the role played by the Defendant, the amount involved and the overall circumstances, I grant the Prosecution’s application for enhancement of sentence in respect of the charge.

8.The offence herein is obviously a serious offence involving the duping of elderly persons. They were targeted by telephone calls to their homes. Large sums of money were demanded from them. I have no reason to believe that these would not have been substantial sums of money for them and would have caused financial hardship to the victims. They also involve allegations or claims that their children had been detained. This would cause considerable distress and fear and upset to the victims.

9.I bear in mind the Defendant’s role – he was there to collect the money so he was an important member of the conspiracy and without him, it could not have been brought to completion. The only mitigation of weight before me really is his plea of guilty.

10.In a recent decision of the Court of Appeal in HKSAR v. Hung Yung Chun & Anor, CACC 453/2009, delivered on 10 September 2010, the Court of Appeal held that for offences of conspiracy to defraud involving telephone deception, on facts very similar to those before me, the appropriate sentence should be 4 years' imprisonment and the degree of enhancement one-third.

11.I take as a starting point 4 years’ imprisonment, discount this by one-third to reflect his pleas, which would make it 32 months, and then enhance the sentence by one-third which would be 10.66 months, which I will round off to 10 months. He is sentenced to 42 months’ imprisonment.