HKSAR v. Ren Shaoqun and Others

DCCC 941/2014

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 941 OF 2014

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Reasons for Sentence

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1.The 6 defendants in this case face one joint charge of Conspiracy to Defraud (charge 1). D6 faces one additional charge of conspiracy to defraud alone (charge 2). D1, D2, D4 and D6 were convicted of charge 1 upon their guilty pleas. D6 also pleaded guilty to charge 2. D3 and D5 pleaded not guilty to charge 1 and were acquitted upon the prosecution offering no further evidence against them.

Summary of facts

2.Both charges involve street deception.

Charge 1: against D1, D2, D4 and D6

3.At around 6am on 4^th September 2014, the defendants, together with other suspects, were seen traveling to Hau Tak Market in Tsueng Kwan O from Sham Shui Po railway station by Police officers who were conducting an anti-street deception operation. The group began looking for a target after their arrival, paying special attention to elderly women.

4.At around 8:15am, they locked on to 85 year old madam Cheng. D2 and another person (“WP1”) approached Cheng and D2 claimed to be her acquaintance. They showed her a packet of dried food, referring to it as ‘deep sea rabbit’, claiming that it was a kind of precious and valuable Chinese medicine with medicinal value. D2 hinted to Cheng that she could lead Cheng to buy the dried food.

5.D2 and WP1 then led Cheng to the 1^st floor of Hau Tak Shopping Centre. D1, D3, D5, D6 and another person (“WP2) were seen standing around the three of them and following them from behind.

6.At the 1^st floor of the shopping centre, D2 told Cheng to wait. While waiting, WP2 approached Cheng’s group and told Cheng how precious rare ‘deep sea rabbit’ was. D2, WP1 and WP2 then brought Cheng to meet another wanted person (“WP3”) behind an anti-smoke door where WP3 sold Cheng a small bag of the ‘deep sea rabbit’ for $610.

7.After repeated urging, Cheng agreed to buy another big bag at $80,000. Since Cheng did not have that much money on her, WP2 offered to lend her the money and Cheng agreed. WP1 then suggested that she would accompany Cheng home to get the money, and the two of them left together. For some unknown reason, once they left the shopping centre, WP1 suddenly left Cheng and walked way.

8.At this juncture, Police officers intercepted madam Cheng for enquiries and began looking for the various suspects. D1 to D6 were arrested at various places in Hong Kong before noon the same day.

9.D1 and D4 admitted to the following facts in their subsequent cautioned interviews. D1 claimed that a female brought them to Hau Tak Market to make some money by selling dried yellow fish maw. D4 claimed that he and D3, his wife, were at the shopping centre. D1 further admitted under caution that she came to Hong Kong on 30^th August 2014 with 2 males and 6 females of her clan to sell ‘rabbit ear’. At the material time, she was at Hau Tak Shopping Centre to sell ‘rabbit ear’. D1’s role was as a lookout. D1 knew the ‘rabbit ear’ had no significant medicinal value and was worth very little money and yet they were selling it at several hundred dollars per catty.

10.D2 and D5 admitted under caution that they came to Hong Kong on 30^th August 2014 and 1^st September 2014 respectively.

11.Upon search of the flat where D1 was staying, 6 bags of ‘deep sea rabbit’ were found.

Charge 2: against D6 only

12.About 2 months before the above incident, on 11^th July at around 5pm, an unknown woman (“S1”) approached 70 year old madam Leung and befriended her. While they were chatting, Leung noticed the bag the woman was carrying and asked what was inside. S1 said it was ‘deep sea rabbit’ and claimed that it had medicinal value.

13.Another unknown woman (“S2”) approached them and started talking about how her mother-in-law suffered from rheumatism and how she wanted to buy some ‘deep sea rabbit’. S1 then led them to the 1^st floor of Concord Square where D6 pretended to be the seller of ‘deep sea rabbit’. Leung agreed to buy one bag from D6 for $1,600. Leung paid the money to D6 who left while Leung and S1 and S2 remained to chat.

14.10 minutes later, another unknown female (“S3”) approached Leung’s group. She claimed to be the mother of the chief executive of Princess Margaret Hospital and that ‘deep sea rabbit’ was very rare and she wanted to buy some. S1, S2, S3 and Leung then located D6 and each bought some ‘deep sea rabbit’ from D6. Leung agreed to buy one bag for $80,000. Since Leung did not have that much money on her, S2 pretended to have paid the money for her to D6. S2 then accompanied Leung home where Leung paid her $35,000 and RMB8,000. Leung agreed to pay the balance the following Monday and S2 left.

15.Leung later realized that she had been deceived and reported the matter to the Police.

‘Deep sea rabbit’

16.Samples of the ‘deep sea rabbit’ were sent for examination and confirmed to not be Chinese medicine and possess no medicinal value.

Movement records

17.Movement records show D1-5 entered Hong Kong through Lowu Control Point between 6:51 and 6:54am, while D6 entered at 8am, on 30^th August 2014, being five days before the commission of the offence in charge 1.

18.Movement records also show D6 entered Hong Kong through Lowu Control Point at 7:11am on 10^th July 2014, being one day prior to her commission of the offence in charge 2,  and left at 3:07pm on 16^th July.

Previous convictions

19.D1, D2, D4 and D6 are all of clear record.

Mitigation

20.Mr. Iu for D1 and D6 and Mr. Poon for D2 and D4 each prepared very helpful written submissions in mitigation on behalf of their clients. I need not repeat the contents here, save to remark that all four defendants came from humble background with limited opportunity for education and each faces her own set of difficult personal circumstances either in the form of the health of their family members and/or their own illnesses.

Sentencing cases

21.Various cases were cited in mitigation. I will only need to refer to the following few.

22.In HKSAR v Liang Yaqiong and others, CACC 92/2008, the appellants, all mainlanders, pleaded guilty to one joint charge of conspiracy to defraud. The facts there were that the appellants came to Hong Kong to practice a form of street deception on a gullible victim, a 66 year old woman, by falsely representing to her that her son would suffer some misfortune unless she paid some money for a spiritual doctor to perform some kind of ritual blessing.

23.The deception involved a total of 6 mainlanders who came to Hong Kong together. Once the target victim had been locked down by one of the group, another joined in and pretended to know how to contact the spiritual doctor. They then pretend to lead the victim to the doctor. After telling the victim the false story of how the doctor refused to help the victim and how he predicted the death of the son unless the victim had all her money and valuables blessed that night, the victim got scared and agreed to bring one of the group home to get her money and valuables for blessing.

24.The scam was exposed when plainclothes Police officers who had been keeping the group under surveillance intercepted the group and arrested those actively taking part in the scam as well as those acting as lookouts.

25.The starting point adopted by the learned Deputy District Judge was 3 and a half years’ imprisonment for each of the defendants. This sentence was then enhanced upon the prosecution’s application.

26.In arriving at that starting point, the learned judge referred to the case of HKSAR v Huang Yu-huan and another [2002] 2 HKC 682, CACC 336/2001 when considering the criminality involved in similar cases.

27.The facts in relation to the street deception in Huang Yu-huan are actually more similar to our present case than Liang Yaqiong. There the tricksters sought to sell some scrap electronic components they picked up on the street to the 57 year old female victim by pretending that they were valuable and could be sold at a substantial profit. The appellants were arrested before any money changed hands. Had the fraud been successful the victim stood to lose between $10,000[1] to $50,000. The learned trial judge adopted a starting point of 3 years’ imprisonment, which was upheld on appeal. There was also an enhancement of the sentence.

28.Counsel for the appellant in Huang Yu-huan argued that a distinction should be drawn for the purpose of sentencing between cases where the tricksters play upon the religious or superstitious beliefs of the victims in inducing them to part with their property and those where the tricksters appeal to the ‘greed’ or desire of the victims to make an easy profit. The Court of Appeal first rejected that submission and then went on to consider the criminality of street deception offences:

“15. We have to say that we do not agree with this submission. As we have already said, there is no tariff sentence for this type of offence. The gravamen of the offence is the fraud itself, not the likely motive of the victim that the tricksters appeal to… All the offences of this type employ the same modus operandi: two or three tricksters acting in concert, each playing pre-assigned roles, and no doubt using well-honed psychological tricks, prey on the credulity of unsophisticated middle-aged or elderly people in the hope of relieving them of substantial sums of money. The offences, of necessity, have to be both premeditated and well planned. They are certainly cynical and heartless crimes. If the fraud is successful, the consequences for the victim can be exceptionally distressing. They stand to lose the whole or a substantial part of their life savings upon which they are dependent for their living. This is something which could reduce them to penury.”

29.Back to the case of Liang Yaqiong, the Court of Appeal allowed the appeal against sentence and found that the proper starting point should have been 3 years’ imprisonment. It was found that despite the fact that the number of participants engaged in the conspiracy was more than the earlier cases considered in the judgment, the criminality involved was just the same and did not warrant a higher starting point. The fact that the victim in Liang Yaqiong did not suffer any actual loss was also a factor the Court took into account when considering the comparatively high level of sentence imposed at first instance.

30.In the case of HKSAR v Ouyang Guilan and others, CACC 251/2008, the Court of Appeal found that street deception cases involving a group of tricksters should attract a starting point of between 3 to three and a half years’ imprisonment, depending on the seriousness of each case. Should there be more than one count, 6 months of the sentence for the second offence should be made consecutive to the first sentence.

Sentence

31.The maximum sentence for an offence of Conspiracy to Defraud is 14 years’ imprisonment. There is no application from the prosecution for the enhancement of sentence in our present case.

Charge 1: D1, D2, D4, D6

32.Each of the 4 defendants took up various roles in the deception in charge 1. I find that in a scam such as theirs, the defendants were all instrumental to its proper execution, and as such share the same criminality.

33.Based on the Court of Appeal’s finding in the above cited paragraph from the case of Huang Yu-huan, I find that the criminality in the acts of our defendants is the same as that of those who try to induce the victim to make a profit from the goods being sold. I also find no difference in the criminality between those tricksters who seek to sell worthless goods to the victim and those who seek to sell goods of some value.

34.The defendants are all mainlanders who came to Hong Kong to commit the offence. They targeted vulnerable old ladies as their victims. But for excellent work on the Police’s part, madam Cheng could have suffered some significant financial loss, other than just the $610 that she had paid to WP3. 

35.While I sympathize with the personal circumstances of each defendant, it is trite law that personal circumstances would not lead to a further reduction in sentence on top of the usual one-third discount after plea, save in exceptional circumstances where there is evidence of positive good character. There are no such exceptional circumstances in the present case in relation to any of the defendants.

36.I find that an appropriate starting point is that of 3 years’ imprisonment for each of the defendants. I find that there are no aggravating factors to warrant an increase in this sentence. I find that the only mitigating factor is the timely guilty pleas of the defendants.

37.D1, D2, D4 and D6 is each sentenced to 2 years’ imprisonment on charge 1 after plea.

Charge 2: D6

38.In relation to charge 2, the victim madam Leung actually handed over $1,600 to D6 and then $35,000 and RMB$8,000 to one of the co-conspirators. The loss cannot be said to be insubstantial. There has been no offer for the return of this money to the victim from D6.

39.Based on the same sentencing principles as applied in relation to charge 1, I find that an appropriate starting point is that of 3 years’ imprisonment.

40.I find that there are no aggravating factors, and I find that there are no exceptional circumstances in the defendant’s personal circumstances to warrant an additional reduction in the sentence other than the usual one-third discount for plea.

41.D6 is therefore sentenced to 2 years’ imprisonment on charge 2 after plea.

Totality in relation to D6

42.Bearing in mind the observation of the Court of Appeal in the case of Ouyang Guilan, and having taken a step back to consider the circumstances, I order that 6 months of the sentence in charge 2 to be served consecutively to her sentence in charge 1, making a total sentence of 2 and a half years’ imprisonment for D6 for the two charges after plea.