HKSAR v. Chan Siu Ting and Others

DCCC 468/2014

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 468 OF 2014

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Before: HH Judge Browne

Date: 15 July 2014 at 10.38 am

Offence:  Conspiracy to defraud (串謀詐騙)

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Reasons for Sentence

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1.The defendants pleaded guilty to a charge of conspiracy to defraud.

2.The facts admitted by the defendants are that on 13 March 2014, police officers were outside Kwai Fung House, Kwai Chung for observation.  This is where the 1st defendant lives. At about 7.20 in the morning, the three defendants were seen leaving the building.  They were seen talking amongst themselves.  They walked to a bus-stop and then took a bus to Tsuen Wan.  They then walked in the area of Tak Hoi Street and Tak Wah Park in Tsuen Wan.

3.At about 7.50, the intended victim in this case, a 52‑year-old female, PW1, was queuing at a bus-stop.  The 3rd defendant was holding a packet containing a pair of dried items in black and brown colour, and she took up a position near to PW1.  After a couple of minutes, D2 arrived.  He stood on PW1’s right-hand side and suddenly spoke to her.  He looked at D3 and told PW1 that the dried items that she was holding were Golden Gecko.  He said that the product was from Vietnam and it was good for curing diabetes.  He also said that the items were sold for $1,000‑odd per pair on the mainland.  D2 said he was a doctor from the mainland and had come to Hong Kong to attend a meeting at a hospital. 

4.The 2nd defendant then asked the 3rd defendant where she had bought the Golden Gecko, and she replied that the person she bought it from was a male around the corner and she bought it for $1,000 per pair.  The 2nd defendant asked PW1 whether or not she wished to go with him so that they would buy the Golden Gecko together, but PW1 refused as she thought the bus might arrive soon.  D2 then walked away and D3 stayed in the vicinity of PW1.  The officers saw that D2 went to a park entrance to meet the 1st defendant.  The 1st defendant then gave a black plastic bag to the 2nd defendant, and they had a conversation.  

5.After a few minutes, the 2nd defendant returned in the vicinity of PW1 and said that he had bought the Golden Gecko. He showed PW1 the black bag containing pairs of items.  There was no response from PW1, and D2 then left the area.  Meanwhile, the 3rd defendant approached and told PW1 that she had cooked the Golden Gecko for her mother and that it was good for curing diabetes.  When PW1 mentioned that her family members did not suffer from diabetes, the 3rd defendant walked away.

6.It was at that stage that the police operation became overt and that the 1st defendant was arrested.  He said on arrest that he had nothing to say.  The police found that he had a briefcase which contained 123 plastic bags containing a pair of dried items.

7.D2 and D3 were arrested nearby, and D2 alleged that he had come to Hong Kong for travel and did not know what had happened.  The 3rd defendant denied cheating anyone and alleged that she just went there for buying cosmetics.

8.They were interviewed under caution.  They lied under caution, they denied the offences, and they gave various explanations as to their reasons for their presence in Hong Kong and their presence in the vicinity of this offence.

9.The items recovered from the 1st defendant were examined by a registered Chinese medicine practitioner at Yan Chai Hospital, and he found that they were a type of newt which is different from gecko, and this type of newt does not have the medical effects of the gecko or the medical effect of curing diabetes.  The respective market values of the gecko and this type of newt were HK$80 and RMB2 respectively. 

10.Identification parades were organised and PW1 positively identified D2 and D3. 

11.The defendants have clear records.

12.In relation to the 1st defendant, I am told that he is 66 years of age and was educated to primary-level standard on the mainland.  He came to Hong Kong in 1975.  I am told that he was being supported by his sons but because of financial difficulties, they have not been able to contribute to his maintenance in recent times, and because of that, he was experiencing financial hardship.  I am told in addition that the defendant suffers from heart disease, high blood pressure and gout.  

13.The 2nd defendant is 45 years of age, again has a clear record and was educated to secondary level on the mainland.  I am told that after coming to Hong Kong, he lost money at mahjong and because of that was short of money.  He has two children on the mainland.  The younger is 11 and the elder is 17.  

14.The 3rd defendant again has a clear record.  She has a daughter on the mainland who is aged 12.  She and her husband divorced some years ago when her daughter was only 2, and she manages to look after her daughter with the assistance of her parents on the mainland. Unfortunately, her mother has been diagnosed with cancer and the treatment for that has proved to be very expensive.  I am told that she had come to Hong Kong, hoping to earn money to pay for the medical expenses of her mother.

15.I am told that the link between the three defendants is the 1st defendant.  D2 and D3 do not know each other but they each know the 1st defendant, and when they came to Hong Kong, they stayed with the 1st defendant.  It was because of their respective financial difficulties, they came up with this scheme to try and earn some money. 

16.Despite the publicity which this type of offence still attracts, many people in Hong Kong fall victim to scams of this nature.  Obviously, these scams require an amount of pre‑planning, and this incident was well-organised.  Each of the defendants was assigned a role to play in the scam, and it was with some persistence that they attempted to encourage PW1 to purchase the products they were selling.  Fortunately, PW1 was not taken in.

17.I noted that the 1st defendant had a briefcase containing 123 plastic bags and dried items.  I accept that this is not the most serious offence of its kind. 

18.However, these offences do need to be deterred. I propose to take for this offence a starting point of 3 years.  There is no application for enhancement under the Serious Crimes Ordinance.  What I propose to do is give the normal reduction for the guilty plea of one-third and impose a sentence of 2 years in respect of each of the defendants.