HKSAR v. NG KA TSUN AND ANOTHER

HCCC 335/2018

[2019] HKCFI 1861

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 335 OF 2018

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

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

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

Transcript of the Audio Recording
of the Sentence in the above Case

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

COURT:

The following is my reasons for sentence.

Introduction

There are four charges in this case, namely, one charge of attempted fraud, contrary to section 16A of the Theft Ordinance, Cap 210, and section 195G and 195J of the Crimes Ordinance, Cap 200, Charge 1; two charges of fraud, contrary to section 16A of the Theft Ordinance, Charges 2 and 3; and robbery, contrary to section 10(1) and (2) of the Theft Ordinance, Charge 4.

Charges 1 to 3 are against the defendant Ng Ka-tsun, D1, only, and Charge 4 is against both D1 and Fong Man-tik, D2. The defendants pleaded guilty to the respective charges at the Magistrates’ Court and are committed to this court for sentence. They confirmed their pleas before me and also agreed to the “Amended Summary of Facts” prepared by the prosecution dated 14 June 2019.

Facts - Charges 1 and 2

Charges 1 and 2 have the same named victim, Ms Liu. The charges were about D1 making false representation to her that he had means to obtain a quantity of ‘Maxim Lava Custard Mooncakes’ at an employee discount rate. Ms Liu believed in what he said and was interested in buying mooncakes through D1.

As regards the offence particularised in Charge 1, which took place between 9 and 10 August 2017, it was about a joint enterprise offence committed by the defendant with ‘a person unknown’ who introduced himself to Ms Liu as ‘Ken’. After D1 had made false representation to Ms Liu that he could obtain the mooncakes from Maxim at the discounted rate of $185 per box, ‘Ken’ then made the phone call to her saying that he was a manager of Maxim and asked her to make deposit into a bank account of a company which he said was a branch of Maxim Group. In fact, that bank account was previously borrowed by D1 from a third party who had nothing to do with the Maxim Group. The attempt to defraud Ms Liu, however, was unsuccessful as she refused to part with her money without first meeting Ken.

As regards the offence particularised in Charge 2, it was a continuation of the failed attempt. This time, D1 made further false representations to Ms Liu including taking her to a Maxim restaurant to meet an employee of Maxim and talking to that employee in such a way so as to make Ms Liu believe that he was familiar with the said employee and that he could order mooncakes at a discount through that employee. Ms Liu fell into this trap and agreed to place an order for 2,000 boxes of mooncake. On 11 August 2017, D1 was able to collect from Ms Liu $150,000 in cash as the deposit. The payment took place after D1 had signed on the sales and purchase agreement which Ms Liu had prepared.

On the following day, however, Ms Liu had occasion to talk to the aforesaid employee of Maxim. There and then, she discovered that no order had in fact been placed on her behalf and therefore she made a report to the police. Later in the same evening, however, Ms Liu was persuaded by D1 to believe him and continued to wait for delivery. As the matter turned out, no mooncakes were delivered and D1 put up various excuses. Ms Liu kept on chasing him for the mooncakes.

Eventually, on 15 August 2017, D1 appeared with two males and returned $70,000 to Ms Liu, saying that the rest of the money had been used to order mooncakes which would soon be delivered to her. Eventually, as no mooncakes were ever in sight, Ms Liu made another report to the police on 29 August 2017.

Then, at about 10.25 am on 30 August 2017, which was shortly after the robbery (the subject matter of Charge 4) had taken place, D1 contacted Ms Liu by phone and said that he found a friend to repay her first and asked for her bank account number. Later in the same morning, D1 drove a private car belonging to the mother of D2 (who was one of the robbers) to Ma On Shan where he made a cash deposit of $80,000 into Ms Liu’s bank account.

Charges 3 and 4

In Charge 3 and Charge 4, the named victim was Mr Chan who was similarly deceived by D1 into believing that D1 could obtain “Maxim Lava Custard Mooncakes” at a discount.

As regards Charge 3, D1 induced Mr Chan into believing that someone had failed to complete a purchase order of 2,000 boxes of “Lava Custard Mooncakes” with Maxim so that the mooncakes were then available for reselling to another at a discount. As a result of the inducement, Mr Chan paid D1 $60,000 in cash as deposit on 22 August 2017 and then a further sum of 54,000 on 24 August 2017.

Afterwards, D1 told Mr Chan falsely that the mooncakes he ordered had been supplied to someone else and that the “next stock” would be available on 28 August 2017. Still believing in what D1 said, Mr Chan even placed additional orders of mooncakes and mooncakes vouchers in the “next stock” and prepared cash in the total amount of $1.23 million which he packed in bubble wrap. On 28 August 2017, D1 asked Mr Chan whether he had the cash with him. As to this, Mr Chan answered in the affirmative. D1 then put up excuses to Mr Chan for long delivery and said that the goods would be ready on the following day.

Then, at about 7 pm on 29 August 2017, Mr Chan in the company of three others (including one Mr Cheng who was also interested in buying Maxim Mooncakes) arrived at the outside of the Maxim cake shop in Metropolis Plaza, Sheung Shui, and met D1. D1, having confirmed with Mr Chan again that Mr Chan had the cash, took Mr Chan and his companions to a nearby gas station, purportedly to wait for the delivery of the mooncakes. The people waited there for several hours and nothing happened. Then at 11 pm, D1 told Mr Chan that the delivery driver had got lost and that the mooncakes and vouchers could only be picked up on the following morning.

As regards Charge 4, at about 8.15 am on 30 August 2017, D1 met Mr Chan, Mr Cheng and Mr Cheng’s wife, and told them that the mooncake vouchers had arrived at the aforesaid Maxim cake shop and that the mooncakes were on their way to Sheung Shui. Mr Chan was asked to go to the Maxim cake shop to pay for the vouchers and Mr Cheng and his wife was asked to go with D1 to the aforesaid gas station to wait for the arrival of the mooncakes. D1 asked Mr Chan yet again whether he still had the cash in his backpack and asked Mr Chan to call him when he arrived at the outside of the cake shop. Afterwards, D1 made excuses and left Mr Cheng and his wife.

It was later discovered that D1’s car was driven into the car park of Metropolis Plaza just a few minutes after 8.47 am when D2 and M1, the persons who physically committed the robbery the subject matter of Charge 4, were already there. Moreover, D1’s car left the car park three minutes after the robbery had been committed. Furthermore, later investigation shows that there were numerous phone calls between D1 and D2 on 29 and 30 August 2017.

Coming back to Mr Chan, after he had arrived at the outside of the aforesaid cake shop in Metropolis Plaza, he made a call to D1 who asked him to wait there. At about 8.55 am, while Mr Chan was waiting, his neck was suddenly locked from behind by D2’s right arm and the back of his head was hit by M1 with an iron pipe, causing his pain and dizziness. He managed to get loose from D2 but his arms and legs were hit by M1 with the iron pipe. In the process, M1’s iron pipe dropped onto the ground and Mr Chan intended to pick it up to defend himself. At this juncture, D2 tried to pull away Mr Chan’s backpack and managed to snatch a wad of cash (in the amount of $1,122,500) from the backpack before he and M1 took flight.

Mr Chan was so injured that he was unable to give chase. He reported the matter to the police and was sent to hospital for treatment. It was found that he has swelling and bruises on his arms and legs, a 5-centimetre superficial abrasion and swelling on his left chest, and a 4-centimetre laceration on the left temporal area of his scalp which required five stitches. There was also a scalp haematoma.

Arrests

In the evening of 30 August 2017, D1 came to Sheung Shui Police Station in the company of his legal representative. Under arrest and caution, he exercised his right of silence.

On 27 October 2017, D2 returned to Hong Kong from Taiwan to visit his family but was arrested by the police. Under caution, he too exercised his right of silence.

Antecedent of D1

D1 is now aged 28. He was born in Hong Kong and educated up to Form 3. He is married with a daughter who is age 6 and the family lives in a public housing estate. He had worked as a barman and transportation worker. He had also engaged in vehicle trading. He had asthma. He has a previous record of common assault in 2014 for which he was given a one-month sentence, suspended for one year.

Antecedent of D2

D2 is now aged 23. He was born in Hong Kong. He completed secondary education in Hong Kong and studied in a university in Taiwan for a year. He had worked as a construction worker and transportation worker. His father has passed away. He is single and he lives with his mother and elder sister. I am told by Ms Wong that D2 after graduating from Form 4 in 2014 entered the workforce to help lessening the financial burden of his mother. In 2017, he was admitted to a university in Taiwan. However, he committed the robbery just two weeks before the commencement of the school year. He was enrolled to the Open University of Hong Kong during his period of detention for the present case.

Sentence - Charges 1 and 2

Charge 1 is just an attempt, rather than the full offence. It was committed by D1 and another acting in a joint enterprise to defraud Ms Liu. The duration of the offence was just two days and its short lifespan was due mainly to Ms Liu’s refusal to pay without first meeting Ken in person. The amount which D1 and his co-offender intended to obtain from Ms Liu had not been specified. However, in view of her intention to order 2,000 boxes at the purported discount rate of 185 per box as represented by D1 and what he subsequently obtained from her, the amount which D1 intended to obtain in relation to this charge would be significant. I note, of course, that in the event, the attempt was not successful in that no money had been paid by Ms Liu.

The offence in Charge 2 lasted for three days and involved a total amount of $150,000. I bear in mind that the sum had been fully repaid back to Ms Liu in two instalments:

(1) the first $70,000 was repaid on 15 August 2017 and that was after she had made her first report to the police on 12 August 2017 and after much chasing by her; and

(2) the remaining $80,000 was repaid on 30 August 2017 and that was immediately after the robbery (Charge 4).

I am fully alive to the principle that voluntary ‘restitution’ for payment of compensation warrants a specific discount. In addition to the customary one-third discount for pleading guilty and that the extent of any discount that should be given for ‘restitution’ is always a case sensitive matter, see HKSAR v Tsang Pui Yu Shirlina, CACC 349/2013 at paragraph 51 to 52, applying HKSAR v Leung Shuk Man [2012] 3 HKC 424. Remorse is a relevant but not the only factor to be taken into account.

In the present case, I am not satisfied that the repayments by D1 subsequent to his commission of Charge 2 represents any remorse on his part. I note that the first repayment of $70,000 was after a police report had been made and I am also told that D1 was contacted by the police on the same day. Furthermore, there are ample facts to show that the secondary payment of $80,000 came from the proceeds of the robbery which was a much more serious offence than the fraud perpetrated on Ms Liu.

As a matter of principle, I do not think that the repayments in the present case, especially the $80,000, should be treated as ‘restitution’. Otherwise, it may send the wrong signal to the others that an offender may gain a reduction in sentence by committing further offences. In my view, it is preferable to take into account the fact that Ms Liu had suffered no actual loss when deciding on the starting points of Charge 1 and Charge 2. I understand that Mr Fong, counsel for D1, does not disagree with that course. In the end of the day, it is the eventual sentences which matter.

Mr Fong submits that the frauds committed by D1 were unsophisticated ones. With respect, I disagree. As far as Charge 1 is concerned, it was a joint enterprise offence involving another person, ‘Ken’. Moreover, D1 had borrowed a bank account from a third person with intent to use it in receiving payment from Ms Liu.

As regards Charge 2, which was committed by D1 alone, the related facts show that D1 did not desist after his first attempt and was bent on defrauding Ms Liu. He also employed additional tricks by taking Ms Liu to a Maxim restaurant and talked to an employee there in such a way which was calculated to deceive her into believing that he was familiar with that employee and was able to obtain mooncakes at a staff rate.

Having considered all the circumstances, including but not limited to the scale and duration of the offences, the fact that Ms Liu had suffered no actual loss and also having regard to sentencing examples like HKSAR v Chan Wai Fong, (CACC 293/2016, unreported in Chinese) and bearing in mind that the present frauds did not involve any element of breach of trust, I adopt a starting point of 12 months’ imprisonment for Charge 1 and a starting point of 15 months’ imprisonment for Charge 2. The aforesaid starting points are reduced to 8 months and 10 months respectively for D1’s timely guilty plea as per HKSAR v Ngo Van Nam [2016] 5 HKC 231.

Charge 3

Turning to Charge 3, the offence was audacious in that it was a similar fraud to the ones D1 had committed against Ms Liu just a couple of weeks ago and when he knew that a report had been made by her to the police on 12 August 2017. Therefore, D1 should know that he had already attracted police attention. The loss of Mr Chan in relation to this charge was $114,000 and not a cent of it has been recovered. In view of all the circumstances, I adopt 18 months’ imprisonment as the starting point which is reduced to 12 months’ imprisonment for the timely plea.

Charge 4

As regards Charge 4, which concerns both D1 and D2, they both denied to have been the mastermind. However, they both refused to identify who the mastermind was, nor do any of them reveal the identity of other people who they say were also involved in the robbery. In relation to the joint plan to rob, Mr Fong accepts that D1 knew beforehand that a weapon would be used. Mr Fong also says that D1 was at the time in the vicinity witnessing the robbery. Both Mr Fong and Ms Wong accept that the offence was a head bashing robbery. However, both of them say that the bashing of Mr Chan’s head was not part of the joint plan. There was no evidence to show the otherwise.

In the circumstances, I am not going to sentence the defendants on the basis that it was head bashing robbery. Instead, I am going to sentence them on the basis that it was a well-planned armed robbery committed by a gang of at least three people during which the victim was injured by an iron pipe. I have seen the photographs showing Mr Chan’s injury. It is by providence that there is nothing to suggest that the injuries would have any long-term effects on him. Lastly, I note that not a cent of the money stolen has been recovered.

Although D1 did not physically participate in the robbery, I do not agree with Mr Fong that D1’s involvement was limited to the provision of information to the actual robbers. Based on the agreed facts, it was D1 who, by false representations caused Mr Chan to carry a large amount of cash, over HK$1 million, and to go to the place where the robbery was to take place. Before the robbery, D1 had repeatedly checked and ensured that Mr Chan had the cash with him. There is also evidence that D1 and D2 had many phone calls between them during the relevant period of time. In short, I am of the view that D1’s role in the robbery was just as essential and his culpability was just as high as those of D2.

Applying the guidelines laid down in R v Mo Kwong Sang [1981] HKLR 610 to the facts of Charge 4, I adopt 7 years’ imprisonment as the starting point in respect of D1 and D2. Their sentences on this charge are reduced to 56 months’ imprisonment for their plea.

Mr Fong submits that further reduction should be given to D1 for his “surrender” to the police in the evening of 30 August 2017. With the greatest respect, I am unable to agree that D1 had “surrendered” himself to the police. It is certainly not the case that he was revealing his involvement in the offence, see HKSAR v Nam Ka Chai, CACC 81/2016. Based on the agreed facts, the evidence against him is such that his eventual arrested by the police was simply a matter of time. More importantly, he chose to exercise his right of silence after turning in, making no admission whatsoever to the police and providing no information as to his own role in the crime or about any other people. He is not to be penalised for exercising his right of silence. It only means that no admission discount should be given.

As to Mr Fong’s submission that D1 had cooperated with the police by saving their time to locate him, that, with respect, is fully subsumed within the one-third discount for plea, see R v Fung Nai Mo [1980] HKC 305 and HKSAR v Nam Ka Chai, ante; contrasts with HKSAR v Chow Tak Fuk, CACC 428/2004.

As regards D2, Ms Wong says he committed robbery out of foolishness and for financial reasons. No details have been given for those. Her plea for leniency on behalf of D2 is based on his relatively young age, previous good character, family support, and determination to turn over a new leaf by continuing his education even during his detention. In view of the mitigating factors admitted on D2’s behalf, I am prepared to accept that D2 is of previous good character. However, in the absence of any or any satisfactory explanations as to why a young man of previous good character like D2 would have agreed to commit and armed robbery with a stranger, M1, on the street in broad daylight. I have grave reservation as to whether I have been told everything as to why he did what he did. In reply to the court’s enquiry, Ms Wong has confirmed that D2 had not acted under any duress. In the circumstances, I have to sentence him on the basis that he committed the offence in his own free will.

In relation to the mitigating factors relied on by Ms Wong, there are ample and clear authorities for the proposition that serious offences involve violence like armed robbery. The primary sentencing consideration is general deterrence, so that mitigating factors which may call for a reduction of sentence in less serious offences such as those mitigating factors relied upon by Ms Wong can only assume secondary importance, R v Chung Man Kit [1990] 1 HKC 87.

In short, after considering all the written and oral mitigations advanced on behalf of the defendants, I can see no valid grounds to reduce their sentence, save and except their timely plea.

The last issue is the totality of D1’s sentence. In this regard, I bear in mind that Charge 1 and Charge 2 were part and parcel of the same offence against the same victim, Ms Liu. On the other hand, Charge 3 and Charge 4 shared a common factual background concerning the same victim, Mr Chan. However, Charge 4 does add a further and much more serious dimension because of the use of the weapon and violence resulting in injuries to Mr Chan. In my assessment, an overall sentence of 70 months’ imprisonment would appropriately reflect D1’s criminality.

D1’s sentences

In short, D1 is sentenced as follows.

Charge 1: 8 months’ imprisonment.

Charge 2: 10 months’ imprisonment.

Charge 3: 12 months’ imprisonment.

Charge 4: 56 months’ imprisonment.

I also order that:

(i) the sentences on Charge 1 and Charge 2 are to run concurrently with each other, making a combined sentence of 10 months. Besides, 5 months out of this combined sentence are to run consecutively to this sentence on Charge 4. The remainder is to run concurrently with the other sentences.

(ii) 9 months out of the sentence of Charge 3 are to run consecutively to the sentence of Charge 4. The remainder is to run concurrently with the other sentences, thus making an overall sentence of (5 + 9 + 56) equals 70 months’ imprisonment.

D2’s sentence

D2 is sentenced to 56 months’ imprisonment for Charge 4.