HKSAR v. FOK TSZ HIN

DCCC 323/2023

[2023] HKDC 1564

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 323 OF 2023

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REASONS FOR SENTENCE

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1.  Defendant is now charged with one charge of attempted fraud[1] (Charge 1), and one charge of “Attempting to deal with property known or believed to represent proceeds of an indictable offence”[2](Charge 2). Defendant pleaded guilty to Charge 1, and the Prosecution decided not to proceed with Charge 2. Charge 2 to be left in court’s file.

ADMITTED FACTS

2.  At around 2:00 pm on 21 November 2022, whilst Madam Wong (“PW1”)  was at home, she received a phone call from an unknown male caller claiming to be her son.  The caller claimed that he had changed his telephone number to “6636 8682” (“the Phone Number”)  and asked PW1 to save this new telephone number.  Believing that the caller was indeed her son, PW1 complied with the request.

3.  At around 10:30 am on 22 November 2022, PW1 received a phone call from the Phone Number in which the caller claimed to be her son and claimed that he was arrested by the Police and needed bail money. The caller requested bail money of HK$50,000 from PW1 and told her that his friend would attend her residence to collect the money.  Believing that the caller was indeed her son, PW1 provided her address to him. 

4.  At around 11:30 am on the same day, PW1 received another phone call in which the caller addressed himself as “Mr Cheung” and told PW1 that he has arrived outside her residence for collection of money. PW1 subsequently handed HK$50,000 in cash to the said “Mr Cheung”.

5.  At around 12:30 pm on the same day, PW1 received another call from the Phone Number in which the caller, purporting to be PW1’s son, further requested HK$100,000 as bail money and stated that a “Kit Chai” would come collect the money.  Feeling suspicious, PW1 relayed the incident to her daughter and son.  The scam was unveiled and the case was reported to the Police.

6.  Accordingly, a controlled meeting was mounted by the Police, PW1 was given a brown envelope containing some paper as dummy cash.

7.  At around 2:40 pm on the same day, PW1 received a phone call from the Phone Number in which the caller requested PW1 to meet him on the Ground Floor, Hoi Nga House, Hoi Lai Estate (“the Location”).

8.  At around 3:10 pm on the same day, PW1 arrived at the Location and saw the defendant.  PW1 approached the defendant and asked him whether he was “Kit Chai” and whether he was there to collect money.  The defendant replied in the affirmative.  PW1 thus passed the brown envelope containing dummy cash to the defendant and the defendant then put the same inside his rucksack.  PC12586 (“PW3”)  and police officers then immediately intercepted and arrested the defendant.

Cautioned statements of the defendant

9.  Under verbal caution for “Fraud”, the defendant stated that he knew this was a telephone scam, that he did not make the phone calls and that he was tasked to collect HK$100,000 for others for remuneration of HK$1,000.

10.  In a cautioned VRI conducted on 23 November 2022, the defendant stated that a male known as Anson offered the job to collection items for him for remuneration of HK$1,000.  On the day in question, Anson called the defendant and told him to go to Hoi Lai Estate to pick up HK$100,000 from an elderly woman. The defendant realised that this was part of a bail money scam.

PROSECUTION’S APPLICATION FOR ENHANCEMENT OF SENTENCE

11.  Prosecution applies for the enhancement of sentence, pursuant to s 27 of the Organized and Serious Crimes Ordinance[3].  In support of the application, Statement of Detective Chief Inspector Tang Kai Wing (“the Statement”)  is filed into court.  In the Statement, he said a common modus operandi of telephone deception is “By Hand” “Guess Who” telephone deception. “Guess Who” refers to deception by pretending to be a family member, colleague, friend or acquaintance of victim and asking for ‘money’ in urgency.  “By Hand” modus operandi is where culprits would instruct victims to attend a specific place and hand over cash to other culprits directly.  Parties agree that “By Hand” and “Guess Who” deception relate to the present case. 

12.  Statistics in Annex A of the Statement show an upward trend of “Guess Who” telephone deception since 2018, with a sharp increase in 2022 (1540 cases)  and the first half of 2023 (1224 cases).  The modus operandi of “By Hand” had only been used 2 to 3 times annually in 2018 – 2020, but with a sharp increase to 747 in 2022 and 634 in the first half of 2023.  Accumulated monetary loss of “Guess Who” telephone fraud is now HK$104 millions, and those involving “By Hand” method are HK$75.92 millions. 

MITIGATION

Background of the defendant

13.  The defendant is 22 years old.  He was born in Hong Kong and he received school education locally up to Form 3.  Before 2022, he was living with his mother (age 43, warehouse worker), his younger brother (age 18, high school student), his two younger sisters (age 20 - warehouse staff; and age 12 - primary six student, respectively).  His father (age 43, logistics worker)  divorced his mother last year and he went to live with his father and younger brother in a Tin Shui Wai public housing unit.  His mother and his sisters lived apart.  Defendant is one of the major breadwinners of the family being the eldest son.

14.  The defendant worked as a chef in a local Japanese Restaurant in Yuen Long, earning a monthly salary of HK$20,000.  He is a much treasured staff, and his boss sees him as a very diligent, responsible and courteous person.

15.  The defendant has a clear record. 

His Guilty Plea and cooperation with the Police

16.  The defendant fully cooperated with the investigating police officers of his involvement in the offence and confessed his guilt to the Police voluntarily under caution.  He is very remorseful about committing the offence, and promises not to re-offend again.  He committed the offence as he was in a debt of HK$200,000 because he took out a loan to help a good friend, who failed to repay, so he was enticed to earn some quick money.  He feels sorry for taking part in the fraud towards the victim, a 68-year-old lady.  Very foolishly, and out of his character, under the enticement of the remuneration of $1,000, he agreed to collect the said sum of the fraud money from the victim.  He will never re-offend and he wishes to say sorry to the victim if he could.

17.  The defendant has been remanded for almost 11 months since his arrest on 22^nd November 2022.  

Enhancement of Sentence

18.  The defendant understands the gravity of the offence, and due to prevalence of the offence (this is a s 16A Theft Ordinance), being one of the specified offences within the meaning of s 27(2)  of the Organized and Serious Crimes Ordinance, Cap 455, an enhanced sentence may be imposed on the defendant. The sentence could be enhanced up to 25% in some other decided case (such as DCCC 332/2019 HKSAR v Liu Pong Hei & Anor dated 18 November 2019, see para 78, a 25% enhancement was adopted by HHJ Douglas Yau).

19.  Defence now pray for the court’s kind discretion to enhance the sentence to a lesser extent, because the defendant obviously played a lesser role than the other culprit who masterminded the scam, called the victim by telephone to defraud her and to make her believe her son needed “bail money”, and arranged the defendant to collect the money from the victim face-to-face.  The defendant was literally at the bottom of the food chain in the whole fraudulent scheme.

Sentencing Cases for Reference

20.  Defence submitted in HKSAR v Leung Yiu Fai[4], the Justices of Appeal decided that a 3 years’ imprisonment was appropriate for the Appellant, who at the time of sentencing had a criminal record involving 16 “Theft” and 3 “Fraud” offences, and who was convicted after trial of an electronic fraud operation defrauding a total of 36 victims of an amount of  HK$63,180 over alleged sales of Ocean Park Halloween activities tickets.  The Appellant in that case being the mastermind of an electronic fraud scheme obviously had a higher culpability than the defendant.  Had that Appellant pleaded guilty he would have been given a 2 years’ imprisonment after the 1/3 discount.  Defence prays for the court’s leniency that the defendant may not get a sentence heavier than that case’s Appellant.

Mitigation Letters

21.  Defence submitted three mitigation letters submitted by the defendant’s supervisor, mother and younger brother.  The court had the opportunity to read them all.

BACKGROUND REPORT

22.  A background report was obtained before sentence.  According to the probation officer, the defendant was an immature young adult coming from a working-class family and had limited social experience.  Despite his parents’ divorce, they have continued to support him and showed continuous care and concern for him.  He was not a delinquent and had no association with any unlawful gangs.  He was not a sophisticated person.  Probably due to his simple-mindedness, weak legal concept, and carelessness regarding the malicious intention behind the quick money offered, as well as his eagerness to repay his debt, that he was manipulated by dubious individual and committed the offence. 

23.  The defendant pleaded guilty and had a bitter lesson.  He realised he needed to be cautious and wary of any easy or quick money, and he should be carefully consider his legal responsibility before taking action. 

ANALYSIS

24.  In the case of Leung Yiu Fai, the Court of Appeal commented that for frauds that practised on the general public, like street deception, telephone deception, their acts are ruthless, disgusting and despicable.  Even they did not involve large sums of money, these offences call for heavy deterrent sentence.  Deterrence is necessary even for the first offender.  The lower court can adopt a starting points of a sentence in the region of 3 to 4 years’ imprisonment even for those who are with clear record.  Even though Leung case is one of internet deception, but the sentencing principles similarly apply to telephone fraud cases. 

25.  The present case is a typical case of “Guess Who” telephone deception.  The culprits pray on the vulnerably of the victim’s care for the son to deceive the victim.  PW1 had already handed HK$50,000 to the culprits, but the culprits demanded HK$100,000 more.  This type of deceptions is ruthless, disgusting and despicable.  A deterrence sentence is warranted.

26.  I accept the defendant is not the ringleader in the case.  He only followed instructions of Anson.  However, the defendant still played a major role.  Without his active participation, the fraud would not continue.  Moreover, at the time the defendant went to collect the money, he realised this was a case of bail money fraud and still decided to continue his action. Therefore, immediate imprisonment is still the only sentencing option available.  

27.  Considering the above, I am of the view that the proper starting point is 2 years and 6 months’ imprisonment.  The defendant pleaded guilty at the earliest stage and is entitled to a full one-third discount.  The defendant was 21 years old with a clear record at the time of offence.  According to the probation officer, he is not a delinquent and has no association with any unlawful gangs.  He is a person of good background with family support. I accept the chance for his reoffending is low.  I give him further 4 months discount.  Therefore, a total of 16 months immediate imprisonment. 

ENHANCEMENT

28.  This is a case of attempted fraud, a specific offence under the Organized and Serious Crimes Ordinance, and s 27(2)  of the said Ordinance applies.  Based on the Statement and the attached statsicis, there is sharp increase of both the offence of “By Hand” and “Guess Who” telephone deception in recent years.  Accumulated monetary loss of “Guess Who” telephone fraud is now HK$104 millions, and those involving “By Hand” method are HK$75.92 millions.  Defence did not object to the content of the Statement and its relevance to the present case. 

29.  I am satisfied beyond reasonable doubt, given the prevalence and the nature and extent of harm caused to the community by recent occurrences of this type of telephone deception, the court should pass a sentence that is more severe than the sentence it would otherwise has passed.  Defence asked for a lower percentage of enhancement, given his role in the offence. However, enhancement relates to prevalence and the nature/extent of harm of the deception, not the defendant’s role.  I have already considered his role when I was considering the starting point.  Considering the above statistics, I am of the view a 25% enhancement is appropriate, resulting in 20 months’ imprisonment.

30.  Therefore, I sentenced the defendant to a total of 20 months’ imprisonment.