HKSAR v. SIN HO WAI

DCCC 1015/2023

[2024] HKDC 1959

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 1015 OF 2023

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REASONS FOR SENTENCE

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1.  In this case on this indictment the defendant has pleaded guilty to four separate charges, Charge 1, of conspiracy to defraud, Charge 3, of dealing with property known or believed to represent proceeds of an indictable offence, Charges 4 and 6, two further conspiracies to defraud. I shall not go into the details of the offences because they are very similar and have a similar modus operandi by way of perpetrating telephone deceptions where someone pretends to be a family member and money is requested to release them from some form of control, whether it is being in a hospital or aborted arrested by police or other authorities or a detention, money is taken then from the victims who are deceived in that way, usually and often in Hong Kong those victims are elderly. They are serious offences.

2.  Insofar as this indictment is concerned, three of the incidents that represent Charges 1, 4 and 6 can be seen from the facts.  Money was taken from elderly Hong Kong citizens by representations claiming to be their son in this case.  On each occasion, a sum of money was given to the defendant for in one case an operation, in other cases bail money following an arrest.  The defendant admits that he was the person who collected the moneys as part of the deception.  We can see that from both the Admitted Facts and the charges.

3.  After the defendant was arrested, he made full admissions that showed in some more detail how this had come about.  He had been recruited on a Telegram group which is some form of internet social media.  He would collect money and be reimbursed afterwards.  He was well aware that this was a fraudulent undertaking and this underlay the collection of money by him.

4.  In respect of Charge 1, he says he was paid $1,500 to collect the money from an elderly person.  He later learnt the money he collected in respect of that charge was about $30,000 to $40,000.  In Charge 3, he made an admission that he collected $30,000 to $40,000 from an elderly lady in Kwai Shing between the 14^th and 16 March 2023, he was paid $1,500 in that case.

5.  In respect of Charge 4, he admitted he was instructed to collect money at Wah Fu Estate on 16 March 2023.  He collected money from an elderly lady and was again paid around $1,500.  In that case he knew in that case he was collecting some $60,000 from the elderly lady.  She was defrauded on the basis that her son needed bail money.

6.  In respect of Charge 6, the defendant collected further moneys on 17 and 18 March which amounted to quite a considerable amount of money in this case which was $290,000.  In each case the defendant would pass over the money allocated to him.

7.  As far as this defendant’s background is concerned, he is now aged 19 years old.  He is a person of clear record hitherto.  Because of the defendant’s age, I have obtained a number of reports on him from the Correctional Services Department including a report from the Young Offender Assessment Panel.  I deal with those in a little bit more detail later on.

8.  As far as the defendant’s mitigation on these charges is concerned, he tells me he is genuinely remorseful for his actions.  He committed the subject offences as described foolishly while his debts were accumulating in the light of a reduced income during the Covid-19 pandemic.  The mitigating factors I refer to in this case are the defendant’s full cooperation with investigators, full and frank admissions upon arrest - that does appear to be the case - defendant’s plea of guilty to the earliest available opportunity.  He is not a mastermind of any of the offences, he is what is described as a “foot soldier”, that is the person who collects the money, there is no international element.

9.  The amounts of money are described in this case by the defence as relatively low in the context of cases of conspiracy to defraud and money laundering that the courts routinely deal with and the court is urged to take into account principle of totality in this case, the four offences are closely linked and they arise out of similar Telegram group where he was tasked with collecting money in exchange for remuneration.  The modus operandi by which the defendant committed these four offences are effectively, I am told, identical.

10.  Finally, I am referred to the fact the defendant is a young offender for whom imprisonment is described as a last resort and I refer to Section 109A of the Criminal Procedure Ordinance, Cap 221.  I am also referred to a similar case in 2024 where a person committing similar offences at the age of 17 years old was sentenced to a Detention Centre Order.

11.  As a result of the defendant’s age, as I have indicated already, I have obtained reports upon him.  The prosecution in this case of terms as far as sentence is concerned has also applied for an enhanced sentence pursuant to Section 27(2)(c), (d)  and (e)  of the Organised and Serious Crimes Ordinance, Cap 445, on the basis of prevalence, the nature and extent of harm caused to the community and the nature and extent of the total benefit gained from the present offence.  No objection has been made to the application by the prosecution.

12.  I have been referred to the evidence of Chief Inspector Tang Kai-wing, Hong Kong Police Force, of a witness statement made by him recently as at 7 November 2023.  I am satisfied that in 2023 telephone deception cases were prevalent in Hong Kong in terms of the number of cases as well as the total value of monetary loss.  The particular mode of telephone deception always involves someone picking up the money left behind by the victim at a public place or collecting the money directly from the victim.  The money collection portion is part and parcel of any type of phone deception.  Although the collector may not have knowledge of the underlying phone deception, the circumstances in which he picks up or collects the money are usually peculiar and would thus arouse their suspicion.  The defendant here has admitted that he is aware that this is an underlying fraudulent operation.  There is clear evidence that this mode of phone deception is still widespread commonly being practiced in Hong Kong today.  Of course people who play the role of collectors should receive severe punishment so that there is a deterrent effect.

13.  When I impose a sentence of imprisonment I would consider enhancement of that sentence by between 20 and 25 per cent.  However, I have to consider other factors in this particular set of circumstances.  I do also have to acknowledge that there are aggravating factors in this case given that the syndicate was targeting elderly people, people with vulnerabilities and there were other people involved in the commission of these offences besides the defendant.

14.  Now I will deal with the reports that I have obtained upon the defendant.  I obtained reports relevant to a person of his age which would involve a custodial element, that is Detention Centre, Training Centre and Rehabilitation Centre.  It is clear that the defendant is not suitable for a Detention Centre due to his inability to complete the programme because of his physical reasons.  He is, however, suitable for the programme set up by the Rehabilitation Centre and the Training Centre.  I called for a Young Offenders Assessment Panel report on him because in this case he was recommended for more than one form of custodial sentencing.  The Young Offenders Assessment Panel has met and considered the case so I will read their conclusion:

“The defendant attributed his commission of the present offence to greed and to earn quick money without considering the serious legal consequences of his law-transgressing behaviour. He showed remorse for his contravention of the law and expressed determination to cut off his ties with his triad peers. During the panel interview, in view of the defendant’s susceptibility to adverse influence of dubious peers and loose-living pattern in the past, the panel views that defendant requires a period of strict disciplinary training in a confined setting to deter him from re-offending, help him to develop a regulated law-abiding life. Hence the panel recommends the Rehabilitation Centre programme for this case as alternatively to recommending the Training Centre programme.”

So that is the option presented to me by the Young Offenders Assessment Panel.

15.  The question in this case, is it appropriate, having regard to the offences the defendant has committed and the nature of the offence, his age and the general overall consideration, for the court to impose this recommended order on this defendant?

16.  The defendant is covered by the statutory restriction on sentencing contained in Section 109A of the Criminal Procedure Ordinance which briefly enjoins the court not to sentence a person between the age of 16 and 21 to imprisonment unless what is described as “No other method of dealing with him is appropriate.  The imprisonment of a young person is a sentencing measure of last resort”.  The defendant falls within that category of consideration.  The fact of the defendant’s youth is a powerful factor in determining the appropriate sentence for him.  Young age can be a mitigating factor.

17.  I bear in mind also the nature of these offences because it has been established that youth, notwithstanding the court must keep in mind the classical principles of sentencing which are part rehabilitation include retribution, deterrence and prevention and the interests of the community as a whole must be considered.  For example, a youth who commits a serious offence such as robbery, his youth will count for little and the similar approach is taken in respect of trafficking in dangerous drugs and that in reference to the Re Application for Review of Sentences [1972] HKLR 370 is said that:

“The personality, youth or personal circumstances of the offender may pale into insignificance because of the magnitude or prevalence of the offence in question. If serious crimes are committed by young persons they cannot expect to turn their age to the advantage upon convictions.”

18.  I must consider in this case the prevalence of the offence, which has been established by evidence in this case, and also the fact that it would appear the defendant was recruited through a Telegram group which may possibly mean that the recruitment is made amongst younger persons who are cognisant of social media, thus the factors I must consider.

19.  Clearly the defendant is of an age, he is of previous clear record.  He committed these offences when he was young and has a solid recommendation that he be sent to a Rehabilitation Centre because of its strict disciplinary training pattern.  This would satisfy the requirements of deterrence in respect of him.  On the other hand, I have the fact he has committed a serious offence which is prevalent.  I do have to note that at this stage there is no authority from an appellate court binding on me to say that this form of offence and offending, namely this form of telephone deception, is too serious for the imposition of sentences such as Detention Centre Training Centre or Rehabilitation Centre.

20.  In the absence of such a clear direction, I feel I must follow the restrictions placed on me by the Criminal Procedure Ordinance in sentencing of young people.  Accordingly, the sentence I will impose on this defendant in respect of the four offences for which he has pleaded guilty is one that he be sent to a Rehabilitation Centre in respect of them and that will be the order of the court.