HKSAR v. UAMUSSE ELIAS FILIPE AND OTHERS

DCCC 917/2017

[2018] HKDC 1042

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 917 OF 2017

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REASONS FOR SENTENCE

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1.  The three defendants were all convicted on their own plea to a charge of conspiracy to obtain property by deception, contrary to section 17(1) of the Theft Ordinance, Cap 210 and sections 159A and 159C of the Crimes Ordinance, Cap 200 (2nd charge).

2.  Particulars of offence said that the three of them had between 23 January 2017 and 8 April 2017, both dates inclusive, in Hong Kong and elsewhere, conspired together by deception, namely, by falsely representing to a Mr Lam that:-

(i) that the papers of banknotes size found inside a luggage were United States banknotes but were dyed in black for security reasons:

(ii) that $70,000 Hong Kong currency was needed to redeem the said luggage or else it will be returned to the United States;

(iii) that the United States banknotes have been cleaned; and

(iv) that $5,000 of United States currency was needed to redeem the said luggage and the cleaned United States banknotes,

dishonestly obtained from the said Lam in the sum of $4,000 Hong Kong currency, with the intention of permanently depriving the said Lam.

3.  And D3 was further convicted of a similar charge on his own plea (1st charge).

4.  According to the particulars of offence of the 1^st charge, between 15 January 2017 and 23 January 2017, both dates inclusive, in Hong Kong or elsewhere, D3 conspired together with a person known as “Nancy” and other persons unknown, by deception, namely, by falsely representing to Lam that:-

(i) that an authority officer of the United Nations Osu Sacra, namely, Williams Anthony (“Williams”), had entered Hong Kong with a luggage of cash in United States currency on or about 15 January 2017;

(ii) that Williams and United States currency, were detained by Hong Kong Immigration Department; and

(iii) a total of $370,000 Hong Kong currency was required for the release of Williams and to recover the United States currency,

dishonestly obtained from the said Lam cash in the sum of $370,000 Hong Kong currency, with the intention of permanently depriving the said Lam thereof.”

Facts

Charge 1

5.  According to the agreed Summary of Facts, in late September 2016, Mr Lam befriended a Catherine on Facebook.  This Catherine claimed to be a Ghanaian. She told victim that she wanted to deliver US$12 million and 120 kilograms of gold to Hong Kong and offered a reward of 30 per cent of the total value of the delivered goods to victim for his assistance.  Victim agreed.

6.  On 15 January 2017, victim received a call from Nancy who claimed to be an officer of the British consulate.  Nancy told victim that a man called Williams had arrived in Hong Kong from Ghana with a box of United States dollars cash.  He was, however, detained by the Hong Kong Immigration Department.

7.  On 17 January 2017, victim received WhatsApp messages from a person who claimed to be Dickson.  He asked for HK$68,300 to enable the release of Williams and the US dollars cash.  The parties later met on 19 January 2017 and victim met D3 at the Hong Kong International Airport.  Victim handed over HK$70,000 cash to D3 and was asked to wait there. D3 did not return and victim subsequently left the airport.  That night, Nancy called victim and told him to raise another HK$300,000.

8.  Next day, Dickson WhatsApp messaged victim and asked to meet him at a hotel and to pass him the receipt.  Victim met D3 that evening at the hotel and he signed something which he believed to be a receipt.

9.  By 23 January 2017, victim raised HK$230,000 and WhatsApp messaged Dickson with a view to give him the money.  The next day, victim met D3 and victim gave HK$230,000 cash to D3 and was asked to wait.  About half an hour later, Nancy called the victim, saying that there remained a shortfall of HK$70,000 to redeem the US dollar cash.  

10.  On 24 January 2017, victim raised the required HK$70,000 .  He then met D3 again and gave D3 the said sum of HK$70,000.  D3 arrived with a red suitcase and gave it to the victim.

Charge 2

11.  Victim brought home the red suitcase and found numerous black papers in the size of banknotes in the red suitcase.  Victim WhatsApp messaged Dickson who said the black papers were US dollars banknotes dyed for security reason, and they agreed to meet at the same hotel.

12.  On 26 January 2017, victim met D3 at the hotel.  During the meeting, D3 demonstrated how to remove the black dye on the banknotes by rubbing them with hand cream and a mixture of transparent fluid and hot water.  After removing the dye, US dollar banknotes were revealed.

13.  After cleaning 10 sheets of US dollars banknotes, D3 claimed that more transparent fluid was needed and told victim to purchase from Nancy.  D3 asked victim to leave the money in his custody which victim did save for three US$100 banknotes.

14.  On 27 January 2017, Nancy called victim promoting the sale of the transparent fluid.  As victim had no money, he declined Nancy’s offer. 

15.  On 28 January 2017, via a telephone conversation, Nancy told victim that HK$70,000 was needed to redeem the red suitcase or else it would be sent overseas.

16.  On 6 March 2017, victim received WhatsApp messages from 97286246 (the phone seized from D1 upon arrest) to meet at General Post Office.  In addition, victim was informed that US dollar banknotes in the red suitcase had been cleaned and was asked to pay US$5,000 to obtain the banknotes. 

17.  On 7 March 2017 at about 12 pm, victim met D1 and D2 and the victim gave D1 the $4,000 cash in front of D2.  Victim was not given the banknotes.

18.  On 8 April 2017 at around 10, victim was scheduled to meet D1 again to pay HK$35,000 for the banknotes.  Victim notified the police before the meeting.  D1 and D2 were later intercepted and arrested by police.

19.  D3 was arrested at the international airport when he arrived on 11 April, and victim positively identified D3 in an ID parade. 

20.  A mobile phone with SIM card 97286246 was seized from the possession of D1.  A mobile phone with SIM card 94365989 was seized from the possession of D2.  Two mobile phones with SIM card 56987839 and Japanese phone number +818080824260 seized from the possession of D3. Investigation revealed that Japanese phone number was saved as “Jackson” in D1’s phone contact book.

21.  Further investigation revealed that some of the WhatsApp messages exchanged between victim and the phone seized from D1 were forwarded from the phone seized from D1 to the phone seized from D2, and some of these WhatsApp messages were forwarded from the phone seized from D1 to the phone seized from D3. 

22.  And on 8 April 2017, house search was conducted at D2’s residence. Certain clothings were seized by police.  Upon enquiry, D2 said these clothings were worn by him on the day he accompanied D1 to collect the money and D2 also signed on the post-record of DPC18787.

23.  Between 7:36 pm to 10:18 pm on 12 April 2017, video-recorded interview was taken from D3 in the presence of interpreter.  Under caution, D3 confirmed having visited Hong Kong on previous occasions.  He confirmed knowing victim and approached him when he landed on 19 January 2017 and he was offered 10 per cent reward for his assistance by an unknown man on the line, and he agreed to meet the victim at the hotel, the airport and the World Trade Centre.  

24.  Travel record revealed that at all times when victim said to have met D3, D3 was in Hong Kong.

25.  Immigration Department confirms Williams never arrived in Hong Kong during the material times. 

26.  Victim paid HK$370,000 to D3 in relation to Charge 1 and further gave HK$4,000 to D1 and D2 in relation to the 2nd charge.  Had he known that he was a subject of deceit by D1, D2 and D3, he would not have paid the amounts as requested.

Criminal records

D1

27.  D1 had one previous trafficking in a dangerous drug conviction in year 2016 and there was no similar conviction.  

D2

28.  D2 had five previous convictions.  Apart from trafficking in a dangerous drug conviction in 2015, he had other convictions involving using forged, false orunlawfully obtained or altered travel documents, entry permit, re‑entry permit, certificate of identity, document of identity,  Vietnamese refugee card or other document for which he was sent to prison for 12 months concurrent with two other convictions for making or causing to be made false or forged statements or representation to immigration officer for which he was also sentenced to 12 months’ imprisonment concurrent with the sentence for the two previous convictions.  He has no similar conviction.

D3

29.  D3 had previous conviction for breach of condition of stay on 12 June 2014 for which he was sentenced to 4 weeks’ imprisonment suspended for 3 years.  Criminal records show that he used to hold the name of Fofana Salifou then.

30.  Originally, D3 did not admit his criminal record.  After the case was adjourned, he agreed to the same.

Mitigation:

D1

31.  D1 is now aged 43.  He was born in Mozambique and had received education to Primary 6 level.

32.  He came to Hong Kong via mainland in year 2013 as asylum seeker here.  He had an elder sister. 

33.  His last discharge from prison was 24 May 2016.  D1 says he received only HK$4,000 from the victim. 

34.  Defence counsel for D1 submitted that there is no tariff for this sort of telephone deception and there should be no enhancement on sentence.

35.  He asked this court to sentence D1 solely for the 2nd charge.  He further submitted that the victim had recovered already the HK$4,000 paid and there is no further loss to the victim.  He asked this court for the full one-third sentencing discount in view of D1’s timely plea.

36.  He suggested to this court 3 years would be the appropriate sentencing starting point. 

D2

37.  Counsel for D2 submitted that D2 was born in Liberia although he submitted that he also held a Mozambique passport.

38.  He came to Hong Kong in year 2010.  He is also a Form 8 holder. 

39.  He was unemployed at the time of arrest.

40.  His last discharge from prison was 19 February 2016. 

41.  It is submitted on his behalf that his role in the commission of offence was minimal.

42.  He only accompanied D1 to post office to collect the HK$4,000 and that he had no monetary reward as a result of the commission of the offence.

D3

43.  D3 is aged 36 now, divorced with a baby 2 years old. 

44.  He is a Liberian citizen.  He is a singer, a songwriter, music producer, He also does, on occasions modelling work.

45.  He committed present offence in order to make fast money. 

46.  It is said that he is not the ringleader but just there to pick up the money and that he has not gained anything from the commission of offence. 

47.  It is said that as he has pleaded guilty, he is entitled to one-third sentencing discount.

48.  It is also submitted on D3’s behalf that as the two offences were interrelated that when considering totality principle, the sentence for the two charges should be concurrent.

49.  Mr Parry for D3 referred this court to the cases which was previously also referred to this Court by other defence counsel, HKSAR v Li Shou Wen, CACC 269/2006; HKSAR v Huang Yu Huan, CACC 336/2001; HKSAR v Marshall Bill O, DCCC 92/2017 and HKSAR v Ng Kwok Wing case, CACC 398/2007.

Discussion

50.  The maximum sentence on conviction of the 1st charge or the 2nd charge on indictment is 10 years’ imprisonment.

51.  In the Court of Appeal case of HKSAR v Tan Meiyuan and Others, CACC 360/2008, the court endorsed the sentence taken by the Court of Appeal differently constituted in the case of HKSAR v Onyang Guilan & 2 Others, Cr App No 251 of 2008, 16 February 2009 unreported where at paragraph 20 of the judgement, the Court of Appeal suggested a range of 3 years to 3 ½ as the starting point for a single offence of street deception where a gang was involved.  It was said that depending on the gravity of the offence, 6 months of the term for subsequent offences might be made consecutive, and that option is of course open in particular cases though the consecutive term is often in practice and sometimes correctly longer.

52.  This court was referred also to the cases of Li Shou Wen and Huang Yu Huan.  Both are street-scam cases in which 3 years sentencing starting point was adopted but the sentence was further enhanced by 50 per cent in the Li case, following the case of HKSAR v Ma Suet Chun [2001] 4 HKC 337 and enhanced only by 25 per cent in the Huang case as the offence was committed before the Ma case.

53.  This court is also invited to consider the Ng Kwok Wing case,  which in fact is a theft case involving breach of trust.  The same is not, in my view, of any assistance to this court.

54.  Defence has also referred to the case of Marshall Bill O, a phone-deception case in which the defendant was, like D3 in our case here, acted as the person who collected the money from the victim in relation to 1st charge, totally $370,000 in our case, all not recovered and demonstrated to the victim how to wash the counterfeit banknotes in relation to the 2nd charge.

55.  The defendant was said in that case to have played an indispensable role in the scheme and the court said that the sentence should reflect this role.

56.  As for D1 and D2 in our case here, they are the ones who collected the HK$4,000 from the victim in the 2nd charge, again their role is not minor. 

57.  In the Marshall Bill O case, the charge was conspiracy to steal and the money involved is over a million.  The sentencing starting point adopted in that case is 3 ½ years.

58.  In our case here, in relation to 2nd charge, three defendants were involved in the commission of the offence and there is a clear division of labour amongst themselves whereas in the Marshall Bill O case, only one defendant is involved in the commission of the offence.  Of course, the money involved in our case is less than that in the Marshall Bill O case.

59.  Further, it is said that in the Marshall Bill O case that the Court of Appeal in HKSAR v Hung Yung Chun [2011] 2 HKLRD 167 expressed the view that the telephone deception cases are more serious than street-deception cases.  The reason is that in telephone deception cases, the co‑conspirators usually acting in more organised manner and each co‑conspirator performs his or her role according to the plan.  Therefore, the starting point for telephone-deception cases should be 4 years’ imprisonment.

1st Charge

60.  It is noted that although the present case is a telephone deception case, it does not involve threats to safety of relatives of victim.  But again the sophistication involved in the planning and in devising the scam scheme with the many characters involved, Nancy, Williams, Dickson in the 1st charge and Nancy, Dickson, D1 and D2 and D3 in the 2nd charge, the period of time within which the offence was committed, the amount of money involved HK$370,000 in the case of the 1st charge and HK$4,000 in the case of the 2nd charge, the role of D3 in the 1st charge and D3 being the one who turned up on each and every occasion after arrangement was made between the victim and a person claimed to be Dickson, say, on 19 January 2017 when he received HK$70,000 from the victim, 20 January 2017 when he appeared and met victim at the Hunghom hotel regarding the receipt, again on 23 January 2017 when he received the HK$230,000 from the victim, again on 24 January 2017 when he met the victim at World Trade Centre and obtained HK$70,000 from the victim.  He also gave the victim the red suitcase with “the banknotes”.  His active role in the commission of the 1st charge is key and indispensable.

61.  In relation to the 2nd charge, D3 is the one who met the victim at the hotel on 26 January 2017 and demonstrated how to remove the black dye on the banknotes.  He also asked the victim to purchase the transparent fluid from another and requested the victim to leave the banknotes in his custody which led later to the demands for further sums to redeem the banknotes. 

62.  In relation to Charge 2, D1 and D2 were both confronting the victim when collecting the HK$4,000 at IFC to pay for the banknotes.  In the Agreed Facts, it was also said that the WhatsApp messages exchanged between the victim and phone seized from D1 were forwarded from phone seized from D1 to phone seized from D2 and from phone seized from D1 to phone seized from D3, indicating that all defendants really did act in concert in commission of the offences.

63.  The role of D1 and D2 in collecting the money from the victim is also as important as D3’s role in demonstrating to the victim how the transparent fluid works.  This is in relation to the 2nd charge. 

64.  Having considered all that was said concerning the circumstances surrounding the commission of the offence, I consider that for the 1st charge and in particular taking in consideration of the role played by the D3, the amount actually lost by the victim, sentencing starting point for the 1st charge will be 3 years and 6 months.

65.  As for the 2nd charge, the sentencing starting point of 3 years and 3 months is adopted for all the defendants.  Although the money involved is much less than that in the 1st charge, the number of persons involved in the actual commission of the offence involves at least a gang of three and each taking different defined role in the organisation and commission of the offence.

66.  This court has also before passing the sentence carefully considered all mitigation done on behalf of all defendants, but I consider that there is not much valid mitigating ground disclosed save for the guilty plea of the defendants for which D1 and D3 are obviously, because of their timely plea, entitled to full one-third sentencing discount.  And for D2 who pleaded guilty on the first day of trial, I would allow the discount of 20 per cent, having regard to the case of HKSAR v Ngo Van Nam CACC 418/2014 and CACC 327/2015, paragraph 213.   

67.  Accordingly, for the 1st charge, D3 is sentenced to 2 years and 4 months. 

68.  For the 2nd charge, the 1st and 3rd defendants are each sentenced to 2 years and 2 months’ imprisonment, as for D2, he is sentenced to 2 years and 7 months and 6 days.

69.  The 1st and 2nd charges are commission of similar offences on the same victim involving different false misrepresentations made to him on different dates but proximate dates, and the offences can be said to have arisen at least on some related facts.  In respect of the sentence on D3, in the circumstances, I order that 6 months’ imprisonment of the sentence of the 2nd charge shall run consecutive to the sentence in the 1st charge.  The rest of the sentence of the 2nd charge shall run concurrent to the sentence in the 1st charge.

70.  I have also considered the totality principle.  Having regard to the culpability of D3, I consider the total sentence imposed as aforesaid just and proportionate.  In the circumstances, D3 is sentenced to a total of 2 years and 10 months. 

71.  Lastly, coming to the suspended sentence imposed on D3 on 12 June 2014 suspended for 3 years, that is up to 11 June 2017.

72.  The offence in relation to the 1st charge was committed from the period 15 January 2017, i.e. when the suspended sentence was still in force.  On from what is before me, I see no reason why the same should not be activated and, accordingly, the same is activated and D3 is to serve that sentence of 4 weeks, the same to run consecutive to the sentence imposed in the present case, making the total sentence of 2 years and 10 months for this case and additional 4 weeks for the previous case.