HKSAR v. LAU PING KEI

DCCC632/2011

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 632 OF 2011

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Reasons for Sentence

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The Charges and the Facts

1.  The Defendant pleaded guilty to 14 charges of “fraud”, contrary to section 16A of the Theft Ordinance, Cap. 210.

2.  These offences were committed between January 2009 and February 2011. The same modus operandi was used throughout. On each occasion, the Defendant would telephone the restaurant or club concerned and would claim to the staff picking up the call that he was his/her boss or manager. The staff was then asked to go outside to meet an unknown man and to give to that person, who was indeed the Defendant himself, a certain amount of money in return for some documents meant for the restaurant/club.

3.  Not feeling suspicious, each of the victims in the charges complied with the instruction and handed over to the Defendant a sum ranging from HK$500 to HK$4,500. However, the envelopes which they received from the Defendant were later found to contain promotional leaflets only and reports were then made to the police.

4.  On these 14 occasions, a total of HK$ 23,250 was deceived from the victims. 

5.  Owing to the good work of the police, the Defendant was finally tracked down after extensive viewing of the CCTV footages capturing the vicinity of a hotel near which money was handed over by the victim to the Defendant on one of those occasions, and after the police had used the Octopus card data system to make the relevant analysis.

Mitigation

6.  The Defendant is now 51 years of age. He was born in the Mainland and he came from a humble family, his parents and siblings all engage themselves in farming. He was educated up to Primary 6 level and he came to settle in Hong Kong at the age of 18. Since then, he had worked as a waiter and a construction worker.

7.  During his remand, the Defendant was diagnosed to be suffering from diabetes and he now requires regular medical treatment. He has also shown suicidal tendency but after receiving psychological help in Siu Lam, he is now in a stable condition. 

8.  The Defendant has been before the court on 6 previous occasions with 10 convictions. 8 of those were “obtaining property by deception” and the remaining two were “theft” offences. He was last released from the prison in September 2005.

9.  In mitigation, it was said that the Defendant had secured himself the job of a restaurant manager between 2007 and 2009, earning about HK$20,000 per month. However, owing to the economic downturn, he then lost his job. Ms. Chong for the Defendant said that as the Defendant felt ashamed to apply for comprehensive society security assistance, he resorted to committing these offences. At the time, the Defendant was co-habitating with his girl-friend and he used the money obtained to support their living, not for satisfying any vice habits.

10.  Ms. Chong submitted that these offences were not sophisticated ones and the amounts involved were small. No breach of trust was involved and no severe harm was caused to the victims. Ms. Chong also pointed out that upon arrest, the Defendant confessed to having committed all 14 offences although the evidence against him was only in relation to a few of those.

Sentencing Considerations

11.  There is no tariff for this type of offence. However, I note that while the amount involved on each occasion was relatively small, the Defendant repeatedly committed these offences over a protracted period of time from January 2009 to February 2011. His claim that he found it shameful to rely on public assistance and therefore resorted to committing these offences was, of course, not an excuse at all. 

12.  No doubt, the Defendant preyed on these unsuspecting staff by claiming to be their bosses or managers. Ms. Chong stated that all those names uttered by the Defendant over the phone were fictitious names made up by the Defendant. I am not sure about that as, according to the Summary of Facts, there were occasions on which the Defendant was able to say out the worker’s nickname or to ask to speak to the worker’s colleague. However, how the Defendant got to have those names does not matter much.

13.  I accept that there was not much sophistication and planning in the Defendant’s fraud. However, I cannot lose sight of the fact that it was this ease with which the Defendant could deceive others that he had repeatedly and successfully obtained money from his 14 victims. In fact, according to the Summary of Facts and the Defendant’s own admission, the Defendant would have continued to deceive more people if he had not been arrested by the police. The Defendant should be deterred from doing this further and a sentence which clearly conveys this message is called for.

14.  Moreover, the Defendant has got 8 previous convictions of “obtaining property by deception” and it is clear that the sentences previously imposed did not have sufficient deterrent effect to stop him from committing the present offences. This is a matter which I should take into account when deciding on the sentences in this case.

The Sentence Imposed

15.  Having considered the facts of this case and the factors mentioned above, I am going to adopt a starting point of 6 months for each charge. The Defendant pleaded guilty and he would receive a one-third reduction for his plea.

16.  The offences were committed on different occasions. They were separate and distinct acts. The sentences should, in principle, run consecutively. However, applying the totality principle, I consider that an overall term of 28 months should sufficiently reflect the criminality involved in this case.

17.  I accept that the Defendant, after his arrest, made full confessions to the police about all these 14 charges when the evidence in some of those might not be enough to connect him with the offences. I would therefore give him a further reduction of 4 months to take account of this, thus reducing the overall term to one of 24 months.

18.  The following are my orders :

The 4-month term in respect of charges (1) to (6) are to run wholly consecutively whereas the terms in respect of charges (7) to (14) are to run wholly concurrently with each other and with the terms for charges (1) to (6), making a total of 24 months’ imprisonment.