HKSAR v. LI TSZ TUNG YVONNE

[English Translation – 英譯本]
HCMA 580/2019

[2020] HKCFI 2235

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO 580 OF 2019

(ON APPEAL FROM ESCC 1526 OF 2019)

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J U D G M E N T

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Background

1.  The Appellant was convicted after trial by Magistrate Veronica Heung Shuk-han [‘the trial magistrate’] of one count of ‘Engaging in a commercial practice that is aggressive’[1] and was sentenced to 15 months’ imprisonment.  She now appeals against both conviction and sentence.

The Prosecution Case   

2.  The case for the prosecution was that on the material day[2], the Appellant, at the fitness centre [‘FFG’[3]] where she worked, by using coercive, intimidating and deceptive practices, and by applying a carrot and stick approach jointly with D2[4], Lau Wing Yan, caused the alleged victim Mr. Ng (‘PW1’) to make, against his will, a payment of HK$47,280 by credit card to FFG for procuring a fitness club membership and transfer HK$1,600 to FFG via ‘EPS’ for purchasing two coach training classes.

3.  PW1 testified that around 1:25 pm on the material day, he walked past Russell Street in Causeway Bay and was stopped by a male, who told him that he could receive a free gift upon signing on a name card.  After signing, he was taken to FFG by the male to get the free gift.  Upon arriving at FFG, the Appellant asked him to fill out a physical fitness questionnaire and said that a free fitness test would be conducted for him.  Subsequently, D2 measured the height and weight for him. She later told him that he ‘failed’ and advised him to work out.  The Appellant then gave a form to Mr. Ng, asking him to write down his name, identity card number, contact phone number and address and said that he could receive the free gift upon completing the form.  However, after PW1 completed the form, the Appellant asked him to produce his identity card, ATM card and credit card, claiming that the identity card would serve as proof of the receipt of the free gift, whereas the two bank cards were for verifying his identity.  At that time, as PW1 believed the Appellant, he handed over his identity card, ATM card and credit card to the Appellant.

4.  According to PW1, the Appellant took his three cards to the front desk.  About a minute later, carrying a tablet computer, she returned his identity card to him but without returning the two bank cards.  At this juncture, the Appellant told him that he had joined as a member and was required to settle a membership fee of $40,000-odd by credit card.  He immediately indicated his disagreement but the Appellant alleged that he had signed authorization letters and she was entitled to use his credit card to settle the payment.  She further said that he could choose to pay by instalments.  At that time, the Appellant’s attitude was fierce, her voice was loud and the tone was commanding, which made him confused.  Feeling shocked and scared, he was eager to leave immediately but the Appellant shouted at him saying he was not allowed to leave if he refused to pay.  At this time, he stepped aside and called his colleague Madam Lau [‘PW2’] seeking assistance.  However, the Appellant kept telling him that he was not allowed to talk on the phone.  Finally, he had no alternatives but to hang up.  Later, the Appellant demanded PW1 to hand over his phone and unlock it for her to examine it, or else she would not help him handle the matter.  After unlocking his phone, he handed it to the Appellant, who then checked whether the call was still active and whether its recording function was being activated. 

5.  After that, the Appellant further intimidated PW1 saying that if he refused to pay the sum of $40,000-odd, the company would chase him for more money at the address he had given.  In addition, she would immediately charge his credit card for $70,000, namely the credit limit of his card.  PW1 still refused to comply.  The Appellant therefore asked D2 to talk to him.  D2 told him to settle the payment by credit card first since he was eager to leave and take his mother there together some time later to withdraw from membership given the seven-day cooling-off period. At last, PW1 reluctantly agreed to settle the payment.

6.  PW1 texted PW2 immediately afterwards, saying that he was deceived into going to a fitness centre and making a credit payment of $48,000.  He also received a call from the bank verifying the payment, during which he took the chance to request the bank to hold over the payment but the bank declined.  Soon thereafter, the Appellant brought a pile of documents in front of him and asked him to sign on them.  The Appellant neither explained the contents of the documents to him nor gave him time to read.  He was only asked to follow her instructions to sign on different parts of the documents.  Although PW1 was unwilling to do so, he signed them reluctantly in order to get back his bank cards and leave as soon as possible. 

7.  PW1 once again requested to leave but the Appellant alleged that the formalities would not complete unless he did a workout.  Thus, D2 asked PW1 to pay for two coach training classes valued at $1,600.  And she repeated that he might take his mother there later to request for a refund.  Eventually, PW1 indicated that he would pay by ‘EPS’.  D2 brought an ‘EPS’ terminal from the front desk to him, who input a passcode and paid $1,600. D2 did a workout together with PW1 afterwards.  It was not until around 3 p.m. that the Appellant returned his two bank cards to him, gave him a pile of documents and a FFG membership card and let him leave.  However, before he left, the Appellant took a photo (or photos) of him without telling him the reason for doing so.

8.  PW1 made a report to the police in the same evening.  The matter was then transferred to the Consumer Council and Customs and Excise Department for follow-up.  

The Appellant’s Case

9.  The Appellant testified in trial and called no other witnesses.

10.  In brief, the Appellant accused PW1 of fabricating the facts, framing her for engaging in a commercial practice that is aggressive.  The Appellant alleged that PW1 had made the aforesaid transactional decision voluntarily after consideration.

Analysis by the Trial Magistrate

11.  The trial magistrate did not accept the evidence of the Appellant and considered PW1 and PW2 honest and reliable witnesses. The analysis by the trial magistrate is as follows:

“47. I have carefully considered all the testimonial evidence and have carefully observed the demeanour of all the witnesses when they testified. The testimonies of PW1, PW2 and PW3 were clear and precise, simple and straightforward. PW1 and PW2 were not shaken under cross-examination. Their testimonies corroborate in material aspects and there was no contradiction to the WhatsApp messages and the screen captures of the call history. I believe all of them were honest and reliable witnesses. I believe that Mr. Ng did not frame the defendant, nor did he remember any of the details incorrectly. I believe that if he had put down a number of signatures, as required, in a column in “Part C” of the defence exhibit D1, he would have never forgotten about it, nor would he have forgotten that he had signed the payment authorization (defence exhibit D2). I believe what PW1 to PW3 said was all true. The truth was as they stated. Mr. Ng has never seen “Part C” of the defence exhibit D1 and D2, nor did he sign them.

48. On the contrary, the defendant’s testimony in material aspects was unreasonable, illogical and obviously incredible. For instance, she said that before processing the payment with Mr. Ng’s Hang Seng credit card, she had said to Mr. Ng, “Normally, it won’t be successful on the first try even (sic) for an ordinary swipe transaction of such a large payment of forty thousand odd dollars, but let’s try anyway”. Afterwards, she immediately filled in an authorization form for payment made via online payment platform and wrote down the full amount of $47,280 in front of Mr. Ng, then took it to the front desk, where another staff member attempted to carry out the transaction via the online platform. When it was found that it was “Not Accepted”, then she did the following:

(i) Took three payment authorization forms from the front desk and brought them to Mr. Ng,

(ii) Explained to Mr. Ng that the abovementioned “transaction was not successful”,

(iii) Told him that it would have to be split into three separate transactions,

(iv) Filled in three authorization forms in front of Mr. Ng,

(v) had Mr Ng signed the three authorization forms,

(vi) She took the three authorization forms to the front desk and another staff member carried out three transactions via the online platform.

49. However, according to the undisputed bank record [Exhibit P20], it was 14:04:08 hours when she found out that the abovementioned payment of $47,280 was “Not Accepted”. Subsequently, the payment of the first sum of $18,000 was, nonetheless, completed at 14:04:57 hours, that is the above six steps were completed within a short span of 49 seconds. I consider her version really inconceivable and hard to believe. Moreover, the defendant claimed that she had completed the six steps within 49 seconds, but I notice that a single step of carrying out the online transaction of the second sum of $18,000 took 38 seconds nevertheless; it also took 40 seconds for the third sum of $11,280. I believe that the defendant has not told the truth. I believe that the fact of the matter was as described by Mr. Ng, that before the defendant had made an online payment with Mr. Ng’s Hang Seng credit card, she did not tell Mr. Ng at all whether she would “swipe” $47,280 in one go or would “swipe” three times, nor did she fill in the Authorization Form for Online Payment Platform in front of Mr. Ng; Mr. Ng has not seen nor signed those authorization forms.

50. Besides, the defendant testified that when she passed the defence exhibit D1, the Membership Application Form and Contract, to Mr. Ng, she had told him, “Ask me if (you) don’t understand.” However, the defendant also testified that in fact “I do not understand either”. I consider these versions given by the defendant were really self-contradictory. Moreover, as a salesperson, if she did not understand the contents of the membership application form, how could she sell the products, introduce the product details to the clients, introduce and explain the rights and liabilities to the clients? In addition, the defendant also testified that she had mentioned to Mr. Ng “the seven-day cooling-off period”, and she had also told him that “(it) could be cancelled”. However, according to the “Terms and Conditions” set out in the defence exhibit D1, Item [1] stated that “All payments made in accordance with this Agreement shall not be refunded”, which was contrary to what she had told Mr. Ng about the seven-day cooling-off period. Moreover, given that this term is simple and is easily comprehensible, why did the defendant say that she did not understand the contents of the contract?

51. Moreover, when the defendant gave evidence, she first said that she forgot why Mr. Ng would come to FFG; but afterwards she said Mr. Ng came to FFG with a promotional flyer in his hand, and so she told Mr. Ng to take a look around in the shop and fill in a Visitor Registration Form; under cross-examination, the defendant then said that Mr. Ng came to FFG with a promotional flyer in his hand and asked her whether there was any “trial offer”, saying that he would like to know about the membership and take a look around. It was evident that the defendant actually kept on modifying and concocting her testimony. In fact, when Mr. Ng was cross-examined, the defendant never mentioned that Mr. Ng had gone to FFG with a promotional flyer in his hand. Moreover, the defendant has never raised any dispute over Mr. Ng’s evidence that a man brought him to FFG, and that man told the defendant that Mr. Ng came to collect the free gift.

52. I do not believe the defendant’s evidence and reject her evidence. The defendant is not an honest and reliable witness.

53. Nonetheless, the prosecution bears the burden of proof and has to prove beyond reasonable doubt. The defendant needs not prove anything, let alone prove herself innocent. The defendant does not have any previous conviction record. Concerning this aspect, I have borne in mind the appropriate directions and have taken them into consideration, that is, the defendant’s criminal propensity is lower and her evidence is more credible.

54. As to why Mr. Ng put down in the Cardholder Dispute Form of Hang Seng Bank [prosecution exhibit P19] that at the material time, “(he) had been taken hostage” by four staff members at the material time and was not allowed to leave. I am satisfied about his explanation. I believe the reason he wrote like this was because at the material time, inside FFG, there were indeed four staff members, including the defendant, Ah Yan, a staff member who was responsible for the settlement of the payment at the front desk and a male trainer who was inside the shop, and so he felt that the staff members in the shop, including the defendant, coerced and intimidated him, forbade him to leave and withheld his bank cards. In addition, I understand that this Cardholder Dispute Form only required Mr. Ng to briefly state the reason for the refund request and the course of the incident. Therefore, it is understandable that he did not give any details in it.

55. I am also satisfied that the defendant did not invite Mr. Ng to take a look around in FFG, nor did Mr Ng do so either; the defendant did not let Mr. Ng see the price list or consider any of the fitness plans, and she did not let Mr. Ng enter his personal particulars on the iPad. I also believe that the defendant had already settled the payment of $47,280 with Mr. Ng’s credit card before Mr. Ng signed the contract; the defendant did not mention the seven-day cooling-off period either; the defendant did not explain the clauses of the contract to Mr. Ng; Mr. Ng did not promise that he would join the five-year fitness plan nor the membership; the defendant did not pass the authorization form for payment made via online platform to Mr. Ng to sign, and the signatures on defence exhibit D2 did not come from Mr. Ng; the defendant did not explain to Mr. Ng that the payment would be broken down into three sums; Mr. Ng did not pass the Hang Seng credit card to the defendant because he had to pay, to pay an amount or to make a payment; I believe that at the material time, the defendant deceived Mr. Ng and obtained his two bank cards on the pretext of verifying Mr. Ng’s particulars and identity; the defendant coerced Mr. Ng through the use of aggressive practice and at the same time Ah Yan coaxed him into succumbing. The circumstances were like what Mr. Ng has stated, that he was unwillingly coerced into saying that he agreed to carry out the transactions.

56. I believe that at the material time, Mr. Ng indicated again and again that he did not intend to make the payment and no transaction should be carried out, that he wanted to take back his bank cards and leave, but the defendant kept on verbally threatening and intimidating him in a loud and fierce tone, stating that Mr. Ng would not be allowed to leave and the bank cards would not be returned to him. Moreover, with the knowledge of Mr. Ng’s address, she threatened Mr. Ng that FFG would demand that he pay a larger sum if he refused to pay $47,820 on the spot, scaring Mr. Ng into submission as a result.

57. Mr. Ng only completed secondary school education. He then joined the workforce and has been a bus captain for three years. He is a young man who is as green as grass, with limited life and social experience. He is a simple-minded and immature person who does not know how to reject people firmly and is too gullible. However, the defendant and Ah Yan, in the manner described by Mr. Ng in his testimony, kept on putting mental and psychological pressure on him, and coercing, coaxing and threatening him within the one and a half hours. In my view, young people with a personality, mind and life experience like Mr. Ng are particularly vulnerable to the commercial practice of the defendant in a way which the defendant could also reasonably be expected to foresee. Moreover, such practice was likely to cause the average member of that group, like Mr. Ng, to make a transactional decision that the member, including Mr. Ng, would not have made otherwise. In fact, just as what Mr. Ng has said in his testimony, if it had not been for the behaviour, attitude and the words of the defendant and Ah Yan, he would never have made a transactional decision concerning the two abovementioned sums of $47,280 and $1,600.

58.  I am satisfied that at the material time, the defendant, as mentioned above, significantly impaired or was likely significantly to impair Mr. Ng’s, as the average consumer’s, freedom of choice or conduct in relation to the service and product concerned through the use of coercion, intimidation and undue influence, which therefore caused or was likely to have caused Mr. Ng to make two transactional decisions that Mr. Ng would not have made otherwise.”

Grounds of appeal against conviction

12.  The Appellant’s perfected grounds of appeal against conviction are as follows:

(1)  The trial magistrate erred by not having considered or by not having fully considered the significant inconsistencies/contradictions between PW1’s evidence and the objective evidence. Therefore, the trial magistrate erred in finding PW1 to be an honest and reliable witness, and wrongly accepted his evidence;

(2)  The trial magistrate erred in rejecting the Appellant’s evidence and wrongly found that it was incredible to complete the required six steps concerning the first sum of $18,000 within 49 seconds;

(3)  The trial magistrate did not find or wrongly found the definition of “the average consumer”;

(4)  The trial magistrate erred in considering that one of the elements of offence was to prove that the victim was “the average consumer”;

(5)  The trial magistrate did not find that the commercial practice in this case had caused or was likely to have caused the average consumer to make a transactional decision that he would not have made otherwise.

(6)  All in all, the conviction against the Appellant is unsafe and/or unsound.

Discussion

13.  The first and second grounds of appeal relate to the findings of fact by the trial magistrate.

14.  Ms. Li, counsel for the Appellant, submitted that, despite the time shown on the printed receipt of PW1’s payment of $1,600 by EPS being earlier than the time shown on the receipt issued by FFG to PW1, PW1’s evidence was that he signed on the receipt before the card payment by EPS.  Hence, PW1’s evidence was unreliable.  Ms. Li pointed out that it was already shown on the FFG receipt that payment was made by means of EPS, but PW1 said he signed papers including the FFG receipt before making the decision himself to pay by EPS, which made his evidence all the more incredible.

15.  In relation to the Appellant’s evidence, the trial magistrate found that the Appellant could not possibly have completed the six steps that she claimed she had within 49 seconds, i.e. (i) obtaining three payment authorization forms from the front desk and bringing them to PW1, (ii) explaining to PW1 that the payment had not been successful, (iii) telling PW1 that it had to be broken down into three transactions, (iv) filling up the three authorization forms in the presence of PW1, (v) letting PW1 sign on the three forms, and (vi) bringing the three forms back to the front desk for another person to conduct three transactions on the internet platform.

16.  Ms. Li submitted that the Appellant had explained in her evidence why she could complete the six steps within 49 seconds, but the trial magistrate did not elaborate on why the explanation of the Appellant was not accepted.

17.  The Court of Final Appeal in Chou Shih Bin v. HKSAR[5] stated that a magistracy appeal is carried out by way of a “rehearing” on the testimony and evidence before the trial magistrate.  With regard to the findings of fact, the appellate court has to recognise that the magistrate enjoys the advantage of observing and hearing the witnesses giving evidence whereas the appellate court can only hear the matter based on the written transcripts on paper.  Whether the evidence of a witness is credible and reliable is solely within the determination of the magistrate.  Unless the findings of fact by the magistrate are shown to be extremely opinionated or arbitrary; illogical or inherently improbable; or that the magistrate has misquoted, omitted, or failed to consider or analyse any significant aspect of the evidence; or that there was a procedural error that rendered the conviction unsafe, the appellate court will not interfere.  

18.  McWalters J (as he then was) in HKSAR v. Ip Chin Kei [2012] 4 HKLRD 383 set out three principles that should be followed in dealing with magistracy appeals:

(1)  The appellate court will only depart from a magistrate’s finding of fact or determination of a witness’ credibility if satisfied that it is plainly wrong;

(2)  The key consideration in determining whether an error by the magistrate should lead to the appeal being allowed is whether it is just for the conviction to be quashed; and

(3)  Absent the appellate court identifying any error by the magistrate, the appellate court must still perform its statutory duty of conducting a rehearing. This requires the appellate court to be satisfied that on the evidence the guilt of the appellant has been proven beyond reasonable doubt, failing which the appeal must be allowed.

19.  The time shown on the EPS receipt and that on the FFG receipt indeed do not tally with the chronology of events as stated in PW1’s evidence.  However, the time recorded on the EPS receipt was printed according to the time marked by the EPS system while the time on the FFG receipt was printed according to the FFG computer system.  It is not out of ordinary that there is a difference between the times shown by two different systems.

20.  In relation to the Appellant’s evidence, on the matter of whether the six steps could be completed within 49 seconds, I find nothing irrational in the analysis of the trial magistrate from paragraphs 48 to 49 of her Statement of Findings as quoted above. She cannot be said to have been plainly wrong.

21.  In this case, PW2 was a relatively independent witness whose evidence was not open to any challenge.  She corroborated the account that PW1 had sought her help in the course of the incident.  I find that the trial magistrate was entirely correct in accepting the evidence of PW1 but rejecting that of the Appellant.

22.  In my judgement, grounds (1) and (2) must fail.

23.  Grounds (3) to (5) can be considered together.

24.  Section 13F(1) and (2) of the Trade Descriptions Ordinance (“the Ordinance”) stipulate that:

“(1)  A trader who engages in relation to a consumer in a commercial practice that is aggressive commits an offence.

(2)  A commercial practice is aggressive if, in its factual context, taking account of all of its features and circumstances —

(a)  it significantly impairs or is likely significantly to impair the average consumer’s freedom of choice or conduct in relation to the product concerned through the use of harassment, coercion or undue influence; and

(b)  it therefore causes or is likely to cause the consumer to make a transactional decision that the consumer would not have made otherwise.”

25.  Section 13D(1) of the Ordinance provides that “In determining the effect on the average consumer of a commercial practice … account must be taken of the material characteristics of such an average consumer including that the consumer is reasonably well informed, reasonably observant and circumspect.”  Section 13D(2) points out that, in the circumstances specified in Section 13D(3), “a reference to the average consumer is a reference to the average member of the particular group of consumers.”   And Section 13D(3) specifies that:

“(3)  For the purpose of subsection (2) the circumstances are —

(a)  where the commercial practice is directed to a particular group of consumers; or

(b)  where —

(i)  a clearly identifiable group of consumers is particularly vulnerable to the commercial practice or the underlying product because of mental or physical infirmity, age or credulity in a way which the trader could reasonably be expected to foresee; and

(ii)  the practice is likely to cause the average member of that group only to make a transactional decision that the member would not have made otherwise.”

26.  As can be seen from the aforesaid provisions, in determining whether certain practices are deemed to be “aggressive commercial practices”, the court has to consider the effect of the practices in question on the average consumer in accordance with Section 13D(1) of the Ordinance.  However, unlike the case with Section 13D(1), the court does not always have to consider the interpretations related to “the average consumer” and “a particular group of consumers” in Section 13D(2) and 13D(3) for every case where the charge is laid under Section 13F.

27.  The court is only required to consider the relevant concepts in the circumstances specified in Section 13D(2) and 13D(3).

28.  In this case, the relevant commercial practice is the promotion of fitness membership and courses. For this commercial practice, it is very difficult to say that it targets a particular consumer group; or that a certain clearly identifiable group of consumers is particularly vulnerable to such commercial practice or the underlying product. I am of the view that the sales targets of fitness membership and fitness courses are extensive, and the particular circumstances set out in Section 13D(2) and Section 13D(3) do not arise. Hence, Section 13D(2) and Section 13D(3) of the Ordinance are not applicable in this case.

29.  However, the trial magistrate said in her Statement of Findings: ‘In my view, young people with a personality, mind and life experience like Mr. Ng are particularly vulnerable to the commercial practice of the defendant in a way which the defendant could also reasonably be expected to foresee. Moreover, such practice was likely to cause the average member of that group,  like Mr. Ng, to make a transactional decision that the member, including Mr. Ng, would not have made otherwise.’ (Emphasis added)

30.  Although the trial magistrate did not clearly state that she relied on the interpretation in Section 13D(2) and Section 13D(3) regarding ‘the average consumer’, yet she cited the relevant provisions in determining the impact of the appellant’s commercial practice on PW1 as the average consumer.  In my view, the trial magistrate did not have a clear grasp of the interrelation of the above provisions.

31.  Moreover, the trial magistrate said as PW1 ‘only completed secondary school education. He then joined the workforce and has been a bus captain for three years. He is a young man who is as green as grass, with limited life and social experience. He is a simple-minded and immature person who does not know how to reject people firmly and is too gullible’, he therefore became a member of a particular group of vulnerable consumers. I disagree. In Hong Kong, young people who join the labour market straight after secondary school can be found anywhere. And with 3 years of working experience under his belt, PW1 cannot be said to be as green as grass. It may be the impression of the trial magistrate after having heard the evidence that PW1 ‘is a simple-minded and immature person who does not know how to reject people firmly and is too trusting’. These can, at most, only be said to be PW1’s personality traits. There is no basis at all to prove that these are common weaknesses of the group of young people referred to by the trial magistrate.

32.  In my view, the trial magistrate was at fault when dealing with the issue of whether the Appellant’s commercial practice was aggressive.

33.  As mentioned above, it is not necessary in this case to cite Section 13D(2) and Section 13D(3) in determining whether the Appellant’s commercial practice was aggressive. The trial magistrate accepted the evidence of PW1. The Appellant took PW1’s credit card inside FFG and through intimidation and coaxing, forced PW1 into signing a contract and agreeing to make payment with his credit card. During this time, PW1 was not allowed to leave or to contact any person. According to PW1’s evidence, it is obvious that were it not for the treatment he had received, he would not have signed the contract or made the payment. The Appellant’s commercial practice no doubt impaired the freedom of choice or conduct of the average consumer concerning whether or not to purchase FFG’s fitness service.  It was also likely to have caused them to make a consumption decision against their will.

34.  I am of the view that although the trial magistrate was at fault in considering the relevant provisions, the conclusion she made is correct.

35.  For these reasons I refuse the appellant’s appeal against conviction.

Appeal against Sentence

36.  The Appellant is aged 26, single, educated up to first year at university and has a clean criminal record.

37.  As pointed out by the trial magistrate, there is no sentencing tariff for the charge in this case. On summary conviction, the maximum penalty is one of level 6 penalty (i.e. 100,000 dollars) and 2 years’ imprisonment.

38.  In passing sentence, the trial magistrate considered the following:

’64.  I am of the view that the facts of this case are serious. At the material time, the defendant, using all possible means of coercion and inducement, constantly pressured, coaxed and threatened Mr. Ng within the span of 1.5 hours. The facts revealed that first, the defendant obtained Mr. Ng’s personal particulars, including his address, telephone number and two specimen signatures by requiring him to complete a form.  She then deceptively obtained Mr. Ng’s identity card, bank credit card and ATM card on the ground of verifying his identity for receiving the free gift, following which she falsely claimed that Mr. Ng had already joined the membership and forced him to pay $47,280.  She further made use of the knowledge of his address to threaten Mr. Ng to pay the $47,280 as membership fee  or else she would ask his family for a larger amount.  She also detained his two bank cards in order to make him stay in the shop against his will.  This put Mr. Ng under immense pressure.  She further said the bank offered a 60-month instalment plan to induce Mr. Ng into agreeing to the transaction.  When Mr. Ng was still not giving in, she called Ah Yan over to lobby and coax Mr. Ng.  The defendant and Ah Yan resorted to carrot and stick with Mr. Ng.  To coerce Mr. Ng, the defendant even stopped Mr. Ng from seeking help.  She prevented him from making phone calls and even forced Mr. Ng to unlock his mobile phone for her inspection to see whether there was any audio recording or if it was still on call mode.  After she had successfully forced Mr. Ng to sign the contractual document, she then intimidated him into remaining at the shop to work out in order to force him to start using the fitness membership as well as the trainer service.

65.  In my view, the defendant deployed all possible inappropriate means to threaten, coerce and coax Mr. Ng to influence his transactional decision.  The only thing that was not used is violence.  What the defendant did was completely despicable and cunning.  I am of the view that the defendant acted in an organized and planned manner, in circumstances comparable to robbery and looting.  Moreover, she acted in concert with Ah Yan.  The defendant pinned Mr. Ng down to his weaknesses, as this young man was still as green as grass, simple-minded with limited life and social experience.  She made him panic, frightened and helplessly spend 1.5 hours at the shop.  In addition, the amount involved in this case was substantial, up to $48,800.

66.  Based on the above facts and all circumstances, I am of the view that albeit the defendant is a fresh offender, the only appropriate sentence is one of imprisonment.  To sum up the above, I deem a starting point of 15 months’ imprisonment appropriate.  The defendant was convicted after trial, thus there is no other mitigating factors warranting any discount.  The sentence is therefore one of 15 months’ imprisonment.’

39.  Ms. Li submitted that in making reference to sentences of cases with the same charge in Magistrates’ Courts, 15 months’ imprisonment as a starting point is manifestly excessive.  Ms. Li put forward 4 different cases[6], involving 8 defendants, amongst whom 5 were sentenced to Community Services Order, two were sentenced to 3 months’ imprisonment and 1 was sentenced to 1 month’s imprisonment.  Ms. Li submitted that a 15 months’ term is, relatively, manifestly excessive.

40.  On the other hand, Mr. Ma for the Respondent submitted that although sentences imposed in respect of this charge were more lenient in the past, the facts of this case are serious and sentences of cases involving fraudulent use of credit card belonging to another person can be used as a reference.  He submitted that 15 months’ imprisonment is an appropriate sentence.

41.  In my view, although the circumstances of the present case were serious, they were not particularly serious in comparison with the 4 cases Ms. Li put forward.

42.  Although the Appellant used PW1’s credit card to make payment against PW1’s will, I disagree that cases involving the fraudulent use of credit card belonging to another person should be used as sentencing reference.  These two kinds of charges differ greatly in terms of seriousness, with the actus reus being very different by nature.

43.  Although sentences in Magistrates’ Courts offer me no guiding value, I am of the view that unless with very good reason, a sentence should not depart too much from the sentences imposed in other similar cases in general.  In my view, in this case, the sentence of 15 months’ imprisonment is manifestly excessive.

44.  There is no reason in this case to depart from the general sentencing range. I am also of the view that 3 months’ imprisonment is already a sufficient sentence. 

45.  I allow the appeal against sentence, order to set aside the sentence, and reduce the period of imprisonment from 15 months to 3 months.

[1]  Contrary to sections 13F(1) & 18(1) of the Trade Descriptions Ordinance, Cap. 362

[2]  22nd June 2018

[3]  Fight Factory Gym (Causeway Bay) Limited.

[4]  D2 pleaded guilty before trial.

[5]  [2005] 1 HKLRD 838

[6]  KCCC 3903/2014, FLCC 4581/2016, KTCC 355/2017, KTCC 1294/2017