HKSAR v. LAI KING FUNG

DCCC 49/2023

[2024] HKDC 466

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 49 OF 2023

________________________

________________________

________________________

REASONS FOR SENTENCE

________________________

1.  The defendant faces 10 charges of offenses. He pleaded guilty to Charges 2, 4 to 7 and 9.

2.  The Prosecution applied to have Charges 1, 3, 8 and 10 to be left on Court’s file.  It is now ordered to be left on Court’s file and not to be proceeded with without the leave of the Court.

3.  Charges 2, 4 and 9 - all the 3 charges involved selling of concert tickets.  In Charge 2, there were 4 victims being cheated to pay additional $26,100 to the defendant on top of their payment to the concert tickets.

4.  Charge 6 - the defendant falsely represented that he had PS5 Consoles for sale.

5.  In a nutshell, the defendant through the internet forum to cheat on all these victims and they never got their money back or receive any goods/concert tickets from the defendant.  The defendant did not have those concert tickets/PS5 Consoles to sell.

6.  In connection with the selling of the concert tickets, the defendant also used different excuses to ask for more money from those victims in Charges 5 and 7.

7.  The defendant said under caution that he committed offences to pay debts, to buy dangerous drugs and to date girls.

Criminal record

8.  Between 2012 to 2018, the defendant has 5 criminal convictions, four related to dishonesty offences:-

(a)  Two counts of theft (2012 - Probation Order, 2013 – breach and 2018 - to Detention Center);

(b)  One count of handling stolen goods and one count obtaining property by deception (2013 - sentence to Reformatory School.)

Mitigation

9.  The defendant is now 25 years old, single.  His parents separated when he was little.  He has very little contact with them as they both have formed their own separate families.  He was raised by his grandparents and his aunt.  He lived with them prior to the arrest.

10.  During his remanded period, his grandfather passed away.  The defendant was close to him as he was the substitute figure as a father to him.  The dependent felt deeply remorse.

11.  He was previously a hairdresser earning about $12,000 a month and provided half of his earnings to his grandparents for household expenses.

12.  The defendant is a keen footballer and he wishes to become a football coach to train younger children in the future.

13.  The defendant committed the personal offences due to financial difficulty and pressure.

14.  He committed all these charges alone.  There is no syndicate involved.

15.  Each victim’s loss range from $300 to about $70,000.

16.  By pleading guilty to the offenses, the defendants save the court and the victims’ time massively as this case involved huge number of witnesses, a total of 55 witnesses.

17.  In the defendant’s letter and through his counsel, he knows he had committed very serious offences, he apologised to these victims.  He promised not to re-offend again.  He wishes for an early release to start a new and meaningful life again.  His grandmother and aunt have been in Court to support him.

Sentence

18.  This case was originally set down for plea and sentence on 22 December 2023. However, the facts of the case involved too many victims.  The facts do not correspond with the amount in certain charges.

19.  Counsel on fiat received papers just 2 weeks before the hearing, he honestly told this Court that he did not have enough time to do the facts check and to prepare the case.

20.  The defence counsel also has not got enough time to prepare the mitigation of the enhancement of sentence under S27 of Organized and Serious Crimes Ordinance, Cap 455.

21.  The maximum sentence for Fraud of S16A of the Theft Ordinance is 14 years.

22.  The defence in the first hearing cited HKSAR v Cheung Mee Kiu [2006] 4 HKLRD 776 to this Court for sentencing consideration.  This is not a breach of trust case and clearly is inappropriate for reference.

23.  In fact, the defence is aware of HKSAR v Leung Yiu Fai CACC 100/2014.  In the judgement of this case, the Court said that:-

“43. 在不同案件，即使控罪相同，但因為案件的性質及犯案情節不同，判刑亦會有分別。雖然本案並非一般的違反誠信詐騙案，故不具該些罪行的嚴重性，但本案亦有其特別的嚴重性。第一，申請人的詐騙對象是社會大眾，任何公眾人士都會蒙受被申請人詐騙的風險，而受害人的數目可以是十分巨大的；第二，申請人的罪行對日漸普遍的網上買賣有極為嚴重的負面影響，令人對網上買賣有戒心，影響到忠誠從事網上買賣生意的人士的權益；第三，網上詐騙罪行容易模仿亦容易進行，如不阻嚇可能會引發大量同類罪行；第四，由於網上買賣不涉及面對面的交易，而犯案者亦可以用不同方法掩飾身份，令偵破該等罪行非常困難；及第五，受害人的損失一般極難追討。

44. 法庭對一些針對公眾的無良、令人討厭及不恥的詐騙案件，例如街頭騙案、電話騙案等，都會採取較為嚴厲的判刑，希望能阻嚇該等罪行，避免無辜大眾受害。該類罪行涉及款項數額不一定太大，而即使被告人沒有犯案前科，法庭亦會採納高達3年至4年的量刑基準。”

24.  In the case of Leung Yiu Fai, the defendant advertised online Ocean Park tickets for sale, 36 victims were asked to deposit a total sum of $63,180 into a third-party account.  The Court of Appeal upheld the sentence of 3 years after trial for one charge of fraud.  That was 30 months starting point, granted a discount of 3 months for admitting most of the prosecution case, enhanced by 1/3, arrived at 3 years imprisonment.

25.  In the present case, the defendant used difference accounts to receive money including his debtors accounts and

(i)  2 bank accounts, one belonged to himself and the other one belonged to his grandfather who did not know that he had used his account.

(ii)  3 Alipay accounts and 3 FPS accounts which were registered in the defendant’s name.

26.  There are altogether 17 phones numbers were being used in the course of committing the fraud charges, 1 phone number belongs to his grandmother, one phone number was subscribed by the aunt of the defendant, all other phone numbrs were pre-paid sim cards which means investigation of crimes was impossible and difficult. 

27.  Furthermore, the defendant used different online accounts:-

(i)  4 Instagram Accounts;

(ii)  2 Facebook Accounts;

(iii)  2 Carousell Accounts.

28.  The defendant used his own ID card, 3 other persons’ ID cards to show to the victims to gain their confidence in paying the deposit.  I am told today that one of them was Liu Ka Fai and he did not know the defendant and certainly did not understand how did the defendant manage to use his ID card.  The defendant was in luck that he did not face another charge of using ID card belonging to another person.

Period

29.  Charge 2 - between October 2017 to February 2018 - covers of a period a total of about 4 months.

Charges 4 and 5 - between January 2019 to mid-August 2019 - total of about 5 months - victims in Charge 5 were also victim in Charge 4.

Charges 6 to 9 - between November 2021 to early January 2022 - about 1 month - some of the victims in Charges 7 and 9 were also victims in Charge 6.

They are also a large number of witnesses involved in each charge. A total of 55 victims.

Victims and Sum (Total)

30.  Charge 2:  23 witnesses - the total amount was $86,900.

Charge 4: 21 witnesses - the total amount was $70,850.

Charge 5: 5 witnesses - they are the same witnesses from Charge 4 - the total amount of $19,214.

Charge 6: 3 witnesses for a sum of $24,850.

Charge 7: 6 witnesses for a sum of $181,065, two from Charge 6.

Charge 9: 11 witnesses for a sum of $25,285, 4 are from Charge 7.

31.  The total sum was $408,164.

32.  I considered the starting point for each charge should be

	Starting Point
Charge 2	3 years
Charge 4	3 years
Charge 5	12 months
Charge 6	2 years
Charge 7	2 years
Charge 9	2 years

Aggravating factors

33.  The defence in the mitigation bundle did not mention aggravating factors.  However, the defendant has been arrested three times for the present case:-

(1)  He was arrested on 23 February 2018.

(2)  He was then sentence to Detention Center in April 2018 in another case for a charge of theft.

(3)  Both the defence and the prosecution do not have the release date of the defendant from the Detention Center. It is accepted that normally it is for a period of 6 months in Detention Centre. The defendant should be released in around October 2018.

(4)  The defendant was re-arrested in August 2019, that means while he was on bail and after his release from the Detention Center, he committed Charges 4 and 5.

(5)  While he was on bail again, he committed Charges 6, 7 and 9.

34.  Clearly all the previous sentences, whether it was Probation Order, Reformatory School Order or Detention Center Order had no deterrent effect on the defendant.  He simply did not learn his lessons and committed offences while on bail. 

35.  In view of the aggravating factors, I enhanced the sentence of Charges 4, 5, 6, 7 and 9 by another 3 months.

Enhancement of sentence, pursuant to section 27(2)  of Organized and Serious Crims Ordinance, Cap 455

36.  The prosecution serves notice under section 27(2)  on 26 January 2023 on the ground of prevalence of these specified offense.

37.  Two inspectors’ statements have been submitted to the Court,

(1)  Inspector Chain statement dated 11 August 2022.

(2)  Inspector Ng statement dated 23 January 2024.

38.  As it stands today at 20 March 2024, Inspector Ng’s statement did not have data for the first quarter of 2024.  The Prosecution said that it will take some time for the police to collect all the data from each police station before they can provide information of the first quarter of 2024 data.  The defence has no objection to use Inspector Ng’s statement for the present application purpose. 

39.  The defence accepted that whether the nature of the offence was prevalent was at the time of sentence since the purpose of an enhanced sentence is to impose a deterrence on potential wrong doers.  Hence the time of the commission of the crime is irrelevant.  I referred to the case of HKSAR v Chung Chi King CACC 504/2001, paragraphs 23 and 24.

40.  The defence relied on the chart in Annex B of Inspector Ng’s statement and argued that the sentence should not be enhanced because there is a sign of deceasing figures.

41.  Annex B is a chart for proportion of “e-shopping fraud” in overall technology crimes figures.  That figures referred to a period from 2019 to 2023.

	2019	2020	2021	2022	2023
No. of e-Shopping Fraud Reports	2,194	6,678	6,120	8,735	8,950
No. of Technology Crime Reports	8,322	12,916	16,159	22,797	34,112
Proportion	26.4%	51.7%	37.9%	38.3%	26.2%

42.  In annex C - it showed that the amount of loss was from $71.5 million from 2021 to $190.5 million in 2023

43.  Inspector Ng concluded in paragraphs 19, 20 and 22 of her report that:

“19. the table at Annex A gives the number of reports and the amount of loss in E shopping fraud related cases from 2019 to 2023. There has been a rising trend in general in the number of reports over the years.

20. the table at Annex B gives, the proportion of each shopping fraud related cases in the overall technology crime figures from 2019 to 2023 ..... E shopping fraud cases remain as the most significant contributor to the overall technology crime figures in 2023.

…

22. judging from the crime trend the contribution to the overall technology crime reports, as well as the increasing popularity of each shopping activities in Hong Kong, I opine that the e-shopping fraud related crimes and the associated money laundering activities in supporting the commission of such crime are prevalent in Hong Kong.”

44.  To this end, it is clear to me that the data before me shows there is a rising trend according to the number of reports over the years.  The data shows this types of offence remains prevalent as of today.

45.  I accepted the Prosecution application to enhance the sentence accordingly.

46.  However, the defence said that there should not be any enhancement of sentence in Charge 2 because there are 4 witnesses with a total amount of about $26,000 which were not related to concert tickets fraud.

47.  The rational behind was that, the Prosecution does not apply to enhance the sentence in respect of Charge 5 and Charge 7 which are the charges of lending money to the defendant.

48.  That cannot be right and the argument is misconceived:

(1)  There are all together 23 victims in Charge 2.

(2)  The 4 witnesses are PW4, PW11, PW14 and PW17. They all began by buying concert tickets before the defendant made advances with difference excuses for cheating them for more money.

49.  With all these information in mind, I consider that a 25% of enhancement rate under S27 is appropriate.

50.  The following table showed the sentence of each charge.

	Starting Point	Enhancement	1/3	OSCO 25%
Charge 2	3 years		2 years	30 months
Charge 4	3 years	3 months	2 years 2 months	32 months 15 days
Charge 5	12 months	3 months	10 months	12 months 15 days
Charge 6	2 years	3 months	18 months	22 months 15 days
Charge 7	2 years	3 months	18 months	22 months 15 days
Charge 9	2 years	3 months	18 months	22 months 15 days

Totality

51.  I accepted that Charges 4 and 5 should run concurrently as they should be viewed as one incident.

52.  I also order Charges 6, 7, and 9 to run concurrently as these incidents are inter-related.

53.  Having considered all the relevant sentencing factors in the present case, I consider that a total sentence of 39 months is appropriate.  To arrive at this figure, I order 4 months from Charge 2 and 2 months 15 days from Charges 6, 7 and 9 to run consecutively to Charge 4.  That becomes 38 months 30 days.