HKSAR v. Zhou Honghao and Another

DCCC 69/2012

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO.69 OF 2012

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Reasons for Sentence

1.The defendants are jointly charged with 3 counts of obtaining property by deception. They pleaded guilty to charges 2 and 3. Charge 1 is ordered to be kept on file and not to be proceeded with against the defendants without the leave of court.

Facts

2.The defendants acted together with one other person in a case of what is commonly known as street electronic components deception. The culprits would pretend that they did not know each other. They would find their target victim and then through role playing convince the victim that a certain piece of electronic component was worth much more than it really is. One of the culprits would then offer to buy a large amount of the component at a certain price, inviting the victim to join in. In the present case, both the victims fell for the scam and they parted with $80,000 and around $350,000 of their money respectively.

Previous convictions

3.Both defendants are of clear record.

Mitigation

D1

4.D1 is 61. He is married to his 63 years old wife who resides in mainland China with their 38 years old son who is of below average intelligence. The son is married with 3 children.

5.Prior to losing his job 2 years ago, D1 was working as a chef. D1’s parents suffered from illness and D1 had spent a lot of money looking after them and allowing for their medical treatment. Although they have now both passed away, D1 still owed RMB 200,000 in debt. D1 had no choice but to commit the present offences. The money that D1 had received for his part of the scam had all been used to repay those debts.

D2

6.D2 is 42 years old. He is married and his wife resides with their 3 children, aged 18, 17 and 16 in mainland China. All 3 of them are students. D2 is also a mainlander and had been a decoration worker for the past 18 years. Because the defendant’s 80 year old mother suffered from cancer, the defendant foolishly chose to commit the present offence so that he would have some money to look after her. The money that the defendant had received for his part of the scam had all been used to repay his debts in China.

7.Mr. Ho for the defendants pointed out that this is a typical street deception case. The victims are all elderly women and one of them had lost quite a lot of money. Mr. Ho very helpfully referred me to 3 cases to assist me in sentencing. It would appear that Mr. Ho’s position is that the usual starting point is that of 3 years’ imprisonment for street deception cases.

Sentence

8.The maximum sentence for obtaining property by deception is 10 years’ imprisonment.

9.Both the defendants are mainlanders. They both arrived in Hong Kong at the same immigration check point on 19th September 2011 at around the same time. They both departed Hong Kong at the same immigration check point on 24th September 2011. They committed the offences in charges 2 and 3 just 4 and 5 days after their arrivals respectively. They left Hong Kong on the same day after the commission of the offence in charge 3. I find that it can be inferred that both the defendants deliberately travelled to Hong Kong to commit the 2 offences. This is an aggravating factor: see HKSAR v Tan Meiyuan & others, CACC 360/2008, at paragraph 10.

10.Both victims are elderly ladies who would be least likely to afford to lose their savings.

11.The amount of money the victims lost in this case are respectively, $80,000 for charge 2 and $340,000 for charge 3. The loss suffered by the victim in charge 3 is, with reference to the cases cited by both the defence and prosecution, on the high side.

12.The defendants committed the offences with another person. This is however not a large gang when compared to other similar deception cases such as HKSAR v Liang Yaqiong & Others, CACC 92/2008.

13.Having considered the cases of HKSAR v Li Shou Wen, CACC 269/2006, HKSAR v Tan Meiyuan and HKSAR v 吳秀蘭, CACC 396/2008, I find the appropriate sentences as follows.

Charge 2

14.In relation to each of the defendants, I find that a starting point of 3 years and 3 months’ imprisonment is appropriate. The amount involved is not particularly large but there is the aggravating factor of the defendants coming to Hong Kong to commit the crime, an extra 3 months above the usual starting point is appropriate. I will grant both the defendants the full one third discount in recognition of their guilty plea and sentence them on charge 2 each to 26 months’ imprisonment.

Charge 3

15.The amount involved is much larger, when coupled together with the aggravating factor, a proper starting point is that of 3 and a half year’s imprisonment. After discount for their guilty plea, their sentence is reduced to that of 28 months’ imprisonment.

Totality

16.The offences took place just a few days apart. They involved different victims. The defendants had went to 2 different locales to find their targets, one in Chai Wan and one in Mongkok.  Part of the sentences ought to be made consecutive to reflect on those factors.

17.I find that 8 months of charge 2 should be made consecutive to the sentence in charge 3, making the total sentence for each of the 2 defendants that of 36 months’ imprisonment.