HKSAR v. HO KAI YU

DCCC 209/2015

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 209 OF 2015

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Reasons for Sentence

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1.  The defendant has pleaded guilty to 12 offences of fraud, contrary to section 16A of the Theft Ordinance.

2.  There are 12 victims.  The modus operandi was for the defendant to advertise for sale of concert and stand-up comedy shows via e-platforms such as Facebook, Instagram and iconosquare.  The buyers would purchase tickets by payment into the defendant’s bank account, the contact being made through another system such as WhatsApp.  The moneys eventually were deposited by buyers for the tickets.  Now, the defendant failed to deliver any of the tickets.  In fact, he did not have any, and the total operation was a scam.  On arrest, the defendant in fact said, “I have no money.  So I cheated others.”

3.  The crimes were committed through October to December of 2014.  The total loss is in the region of $28,000.

4.  The defendant’s antecedents show that he has committed fraud before.  The facts of his conviction in April 2014 are almost identical.  He has had seven previous court appearances dating from 2010, 2014 and 17 previous convictions on those appearances.  All save for his conviction for a breach of probation order are offences of dishonesty.  In June of 2013, he committed 11 offences of fraud and was sentenced to prison for 2 months on each.  In April of 2014, he had offences of fraud, serving 6 months’ imprisonment in total; most recently, in July 2014 and for an offence of fraud, a sentence of 4 months’ imprisonment.  He was discharged from prison on 11 October 2014 and then started to commit these offences shortly afterwards.

5.  His antecedents say that he is only 22 years old but he has become a persistent offender particularly in this kind of fraud.  He is in clear danger of being classified as a recidivist in the future.  Clearly, his previous convictions for fraud aggravate this offence.  The defendant’s family are concerned about his offending.  They consider it may be a kind of addiction, and they may well be right.

6.  He has Form 3 education.  He is unemployed since July 2014.  He is single.

7.  The prosecution have applied to enhance the sentence pursuant to section 27(2) of Cap 455.  There is a statement from Woman Senior Inspector Lo which shows support or an increase in offences involving computer crime.  Clearly, one can reach the conclusion of prevalence.  No objection was taken by the defendant for the application for enhancement.

8.  There is no operative guideline sentence for fraud.  The modes by which this offence can be committed vary considerably.  It is of course necessary to consider factors such as the degree of planning, sophistication of the offence and the impact on the victims.

9.  There are 12 offences over a period of about two months.  What I shall do is that in respect of each offence, I will take a starting point for sentence of 18 months’ imprisonment.  This will be enhanced by 3 months’ imprisonment to reflect the defendant’s persistence in committing these kind of offences and the failure of sentencing in the past.  Thus, the starting point for sentence in respect of each of the 12 offences at this point is one of 21 months’ imprisonment.  The defendant is entitled to a one-third discount, giving a sentence at this stage of the proceedings of 14 months’ imprisonment on each charge. 

10.  There will be an enhancement of sentence.  This will be in the region of 25 per cent.  This would actually give a figure of 3.5 months’ imprisonment.  I will reduce that or round this down to a further 3 months’ imprisonment on each charge.  This gives a total sentence on each charge of 17 months’ imprisonment.

11.  Having regard to the issue of totality, also sentences will be served concurrently, giving a total of 17 months’ imprisonment.