HKSAR v. Chow Wai Yip

DCCC 951/2014

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 951 OF 2014

----------------------

----------------------

---------------------

Reasons for Sentence

---------------------

1.Defendant, you have pleaded guilty to 18 charges of fraud, contrary to Section 16A of the Theft Ordinance, Cap 210.

2.There are 18 victims of the defendant’s scam. The modus operandi of this fraud was the defendant advertising goods for sale online, often on an Internet auction site.  Buyers interested in the defendant’s goods would contact the defendant and a price would be negotiated. Once a price was agreed, the buyer would deposit that agreed amount into an account designated by the defendant.  The scam was the fact the defendant had no goods to sell.  The buyers, the victims, received no product and would ultimately lose their entire purchase amount.  The total loss suffered by all 18 victims is $30,469. 

3.This is not the first time the defendant has committed this offence. 

4.In December 2010, the defendant was sentenced to 220 hours of community service for 30 charges of fraud, where the modus operandi was identical, according to the defence.  Compensation was ordered to the sum of $25,131.

5.In  November 2012 and January 2013, in Fanling Magistracy, the defendant was sentenced to 7 months’ imprisonment.  In total, that is for three charges, again of fraud with the same modus operandi.  A compensation order was made of $2,100 for three victims.

6.For those three charges, they took place at about the same time as the charges in this case, but because there was a different police investigation team, those charges were not dealt with at the same time as these charges.  If those charges had been dealt with at the same time as these charges, there would have been a totality principle applied.

7.For the offences of this case, the defendant was arrested in March 2013, after he had served the 7-month term of imprisonment.

8.I have heard mitigation put forward on behalf of the defendant.  He is now 24 years old, single but cohabiting with a girlfriend.  He is a hairdresser by trade and has a complete and supportive family.  His mother is in court today and obviously is distressed.  The defendant has obviously brought disappointment upon his family.

9.Bearing in mind the defendant’s previous convictions, he has no guilt about cheating victims online.  It may be easy to cheat money, but the offences committed are serious, so serious that the prosecution has applied for the sentence to be enhanced under Section 27(2) of the Organized and Serious Crimes Ordinance, Cap 455.  Prosecution say the offence has become prevalent and requires an enhancement.

10.I have had sight of a statement from Detective Inspector Lau Pak-wing dated 30 October 2014.  I have read its contents and seen the attached annexes.  Clearly the number of computer frauds with the same modus operandi have steadily increased from 2008 to date. 

11.Mr Li for the defendant does not challenge this.  It is there for all to see.

12.For fraud, there are relevant considerations for sentencing.  These will include:  the degree of planning, sophistication of the scam; the impact on victims as well as the community at large.

13.The facts of this case show that essentially there is a breach of trust and the leading sentencing authority of HKSAR v Cheung Mee Kiu [2006] 4 HKLRD 776 will prevail.

14.In addition, factors akin to those considered relevant in credit card frauds can also be relevant in this type of fraud. 

15.I have referred myself to the authority of R v Chan Sui To [1996] HKCLR 128.  Factors that would be relevant here would be the size of the operation.  I take into account the defendant acted alone and the operation can be described as small, bearing in mind the victims’ loss is not significant.  There is an element of planning.  The defendant had set up many e-mail accounts and obtained many telephone numbers.  I accept there is no international element involved here.  What is also relevant is the defendant’s plea today and restitution has been offered.

16.I will take into account there are 18 charges, but they took place over six months, with the majority committed in July and August 2012.

17.Defendant, please stand up.

18.I do take a global approach to sentencing and consider the factors I have already referred to as relevant.  Those include specifically the number of victims and the loss suffered by all overall, the defendant’s plea and offer of restitution. 

19.I take a starting point of 2 years’ imprisonment. 

20.Defendant is entitled to a discount of one-third for his plea.  This will reduce that sentence to 1 year and 4 months; 16 months.

21.I will consider the fact the defendant served 7 months for similar offences that should have been dealt with at the same time as these.  I reduce that sentence by a further 2 months to reflect this.  That is a sentence of 14 months.

22.I accept that the prosecution’s enhancement application is successful and enhance the sentence by 4 months.  That is just under the 30-per-cent enhancement.

23.For each offence, the defendant is therefore sentenced to 1 year and 6 months’ imprisonment, all to be served concurrently. That is, a total of 1 year and 6 months’ sentence.

COURT: Do you understand that sentence?

DEFENDANT: Understood.

24.You must be warned that if you commit a similar offence, that will be considered an aggravating factor, because you will be viewed as a recidivist and that will increase any future sentence.

COURT: Do you understand that?

DEFENDANT: Understood.

25.I also make a compensation order.  In view of the fact PW8 will be compensated through exhibits seized, there is a compensation order of $29,919 and that sum will be taken from bail.  This amount will be paid to the victims of Charges 1 to 7, 9 to 18.  They will be compensated according to a list to be provided by the prosecution.