HKSAR v. KWOK TSZ HIN

DCCC 911/2020

[2021] HKDC 443

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 911 OF 2020

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REASONS FOR SENTENCE

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The defendant pleaded guilty to a charge of "Fraud". He posted advertisements on an online platform falsely offering surgical masks for sale. He deceived about $120,000 (in total) from 80 intended buyers.

Summary of Facts

2.  Between 20 and 31 January 2020, PWs 1 to 80 (aged 16 to 50; collectively "the Victims") saw advertisements posted by "baojai123" and "KenWong@baojai123" (both subsequently identified as the defendant) on an online platform named "Carousell" offering to sell surgical masks.

3.  Between 23 and 30 January 2020, the Victims placed their respective orders with the defendant via the Carousell chatroom.  He instructed them to deposit their respective payments into an HSBC account No.124-580-481-292 ("the HSBC account") held in the name of Madam Lok Ka-yin.  The Victims paid various sums, ranging from $50 to $3,964, into the HSBC account.  After they had made their respective payments, they each informed the defendant via WhatsApp at 6974 4643 ("the Phone Number") in accordance with his instructions.

4.  The defendant informed the Victims that they could collect their surgical masks from 3:00 p.m. to 9:00 p.m. on 31 January 2020 at Mongkok MTR Station.  He, however, failed to show up on the scheduled date and time, even though the Victims had tried to locate him via the Phone Number in that afternoon.  About 20 to 30 victims went to Mongkok MTR Station.  They then went to Mongkok Police Station together to report suspected deception in the same evening.

5.  Madam Lok is the defendant's ex-girlfriend.  She received calls accusing her as a fraudster.  She went to the bank to close the HSBC account and withdrew the balance, which was $14,309.  In the evening on 31 January 2020, Madam Lok handed over the sum of $14,309 in cash to the Police at Mongkok Police Station.  Madam Lok also provided the defendant's contact details which led to his arrest.

6.  About 2:00 a.m. on 2 February 2020, DPC 10618 and his team members arrested the defendant at Shan Tung Street near Fa Yuen Street in Mongkok.  Under caution, he admitted that he had deceived the people who made payments for surgical masks.  Upon search, cash in the sum of $35,190.50 was found in the defendant's wallet.

7.  In his video recorded interview, the defendant made detailed admissions about his scam.  He admitted that in January 2020, he asked Madam Lok to lend him her bank account for receiving his salary.  She then gave him the ATM card of and password for the HSBC account.  The defendant said Madam Lok did not know about the HSBC account being used for another purpose and that she did not receive any reward for lending him her bank account.  The defendant claimed that about 100 people had ordered surgical masks from him.  He then instructed them to deposit money into the HSBC account.  He received orders for over 1,000 boxes and an aggregate sum of $110,000 to $120,000 was deposited into the HSBC account.  The defendant also admitted that he had withdrawn $70,000 to $80,000 from the HSBC account and had spent about $30,000 playing electronic games.  He kept the remaining cash in his wallet.  About $10,000 to $20,000 were left in the HSBC account.

8.  Police investigation revealed that during the offence period, a total sum of about $120,000 (by way of about 329 deposit transactions) was deposited into the HSBC account.

Mitigation & Sentence

9. The defendant is 25 and single. He has 7 conviction records, which involved 7 "Theft" offences. Defence counsel Ms. Ma informed me that prior to his arrest, the defendant was a warehouse attendant responsible for operating a forklift earning $17,000 to $18,000 per month.

10. In mitigation, Ms. Ma submitted that the defendant was laid off in December 2019. Having no income or savings, he took advantage of the pandemic situation and plotted the surgical mask scam. Ms. Ma described the Victims as gullible, given the circumstances of shortage of surgical masks; and the defendant, naive, thinking that he could cheat the whole world this way.

11. This case does not involve the Barrick type of breach of trust. I nevertheless find the sentencing guidelines laid down in HKSAR v Ng Kwok Wing [2008] 4 HKLRD 1017 relevant. In my view, such guidelines are simply a yardstick. For cases which are not of the Barrick type, the court may still follow those guidelines or impose a sentence which is higher or lower than those guidelines, depending on the facts of each case. According to Ng Kwok Wing, if the amount stolen is $250,000, the starting point is 2 years' imprisonment.

12. Ms. Ma has helpfully drawn my attention to the decision in HKSAR v Leung Yiu Fai CACC 100/2014[1], in which the Court of Appeal upheld the starting point of 30 months' imprisonment for an applicant who deceived a total sum of $63,180 from 36 victims by falsely offering to sell Ocean Park's Halloween tickets via online shopping platforms. That applicant had 2 conviction records, which involved 16 "Theft" offences and 3 "Fraud" offences.

13. The present case is a typical online shopping fraud targeted at the then grave demand for surgical masks by the general public. Deceiving the Victims in circumstances under which surgical masks were necessities for preserving lives made the scam even more despicable and repulsive.

14. I consider the defendant's culpability more serious than the type contemplated in Ng Kwok Wing. Hence, I will adopt a starting point higher than the guidelines specified for the respective amounts. I am aware of the defendant's conviction records. He is no doubt a greedy and/or dishonest person; however, I will not further increase the starting point because of his previous convictions.

15. The defendant deceived a total sum of about $120,000 from 80 victims. Madam Lok has returned about $14,000 to the Police and about $35,000 were found in the defendant's wallet. Both the prosecution and defence have agreed that this total sum of about $49,000 be distributed to the Victims on a pro rata basis. I will adopt a starting point of 27 months' imprisonment. With his timely guilty plea, the sentence is reduced to 18 months. Apart from this, I see no other mitigating factors which warrant any further reduction. I sentence the defendant to 18 months' imprisonment.