HKSAR v. HO WAI LOK AND ANOTHER

DCCC 446/2023

[2024] HKDC 380

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 446 OF 2023

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REASONS FOR SENTENCE

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1.  D1 and D2 appeared before me. They faced a Charge Sheet consisting of six charges as follows.

2.  Charge 1 against D1 only: Conspiracy to defraud, contrary to Common Law and punishable under section 159C(6)  of the Crimes Ordinance, Cap 200.

3.  Charge 2 against D1 only (alternative to Charge 1): Dealing with property known or believed to represent proceeds of an indictable offence, contrary to section 25(1)  and (3)  of the Organized and Serious Crimes Ordinance, Cap 455.

4.  Charge 3 against D1 only: Conspiracy to defraud, contrary to Common Law and punishable under section 159C(6)  of the Crimes Ordinance, Cap 200.

5.  Charge 4 against D1 only (alternative to Charge 3): Dealing with property known or believed to represent proceeds of an indictable offence, contrary to section 25(1)  and (3)  of the Organized and Serious Crimes Ordinance, Cap 455.

6.  Charge 5 against D1 & D2: Conspiracy to defraud, contrary to Common Law and punishable under section 159C(6)  of the Crimes Ordinance, Cap 200.

7.  Charge 6 against D1 & D2: Attempting to deal with property known or believed to represent proceeds of an indictable offence, contrary to section 25(1)  and (3)  of the Organized and Serious Crimes Ordinance, Cap 455, and sections 159G and 159J of the Crimes Ordinance, Cap 200.

8.  D1 pleaded guilty to Charges 1, 3 and 5.  No pleas were taken from D1 on Charges 2, 4 and 6 because they were alternative charges against D1.  After the relevant facts were admitted by D1, he was convicted of Charges 1, 3 and 5.

9.  D2 pleaded not guilty to Charge 5 but guilty to the alternative charge of Charge 6.  After the relevant facts were admitted by D2, he was convicted of Charge 6.  Prosecution advised that they would not proceed against D2 on Charge 5; as a result, D2 was acquitted of Charge 5.

Special procedures relating to D2

10.  Because of D2’s age (14 at the time of the offence and 15 now), there is a gag and anonymity order in force in relation to him for the purpose of protecting his identity.

11.  Because of his age, this court is obliged, unless satisfied it would be undesirable to do so, under section 3F(1)  of the Juvenile Offenders Ordinance, Cap 226, to remit D2’s case to a juvenile court in order for him to be further dealt with according to law.

12.  There was no objection from either the prosecution or D2 for such remission.  Indeed, it was the wish of D2 to be so remitted.  I for my part did not see anything undesirable for such remission to take place.  I therefore ordered D2’s case be remitted to the juvenile court (return day being 1 March 2024)  for him to be further dealt with according to law.  I further ordered that his bail be extended on the same terms until 1 March 2024; and that a certificate under section 3F(3)  of Cap 226 was to issue.

Procedure in relation to D1 only

13.  Hereinbelow, I shall deal only with the procedure relating to D1.

14.  Only particulars of Charges 1, 3, 5 will be provided below.

15.  Particulars of Charge 1 are that D1, on a day unknown in or around October 2022, in Hong Kong, conspired with a person known as “Tsz Yeung” and other persons unknown, to defraud an unspecified elderly woman by dishonestly falsely representing that family member(s)  of the said elderly woman was in need of bail money, thereby inducing the said elderly woman to part with a total cash sum of $20,000 Hong Kong currency.

16.  Particulars of Charge 3 are that D1, on a day unknown in or around October 2022, in Hong Kong, conspired with a person known as “Tsz Yeung” and other persons unknown, to defraud an unspecified elderly man by dishonestly falsely representing that family member(s)  of the said elderly man was in need of bail money, thereby inducing the said elderly man to part with a total cash sum of $20,000 Hong Kong currency.

17.  Particulars of Charge 5 are that D1 and D2, between about 29 November 2022 and about 1 December 2022, both dates inclusive, in Hong Kong, conspired together with a person known as “Tsz Yeung” and other persons unknown, to defraud Lam Chu Wan Tai by dishonestly falsely representing that the said Lam Chu Wan Tai’s grandson was in need of money for bail, thereby inducing the said Lam Chu Wan Tai to part with a cash sum of $100,000 Hong Kong currency.

Facts admitted by D1

Charge 5

18.  On 30 November 2022, at around 8:45 pm, Madam Lam (aged 89)  (PW1)  received a call from an unknown male caller (WP1)  purporting to be her grandson.  On the phone, WP1 claimed to have been arrested by the police and asked PW1 not to tell others before ending the call.

19.  On 1 December 2022, at around 11:50 am, PW1 received another call from WP1 asking for HK$100,000 cash as bail money.  WP1 also said others would come to collect the money from PW1.  PW1 received several other calls on the same day from WP1 urging for money.  Upon clarification with her daughter-in-law, PW1 discovered the scam.  PW1’s daughter-in-law reported the matter to the police.

20.  PW1 agreed to participate in a controlled operation with the police. Later, PW1 told WP1 that she could hand over the cash at a car park in Sha Chau Lei Tsuen, Tin Shui Wai.  PW1 then carried a red plastic bag containing a brown envelope containing newspapers to the car park and waited for persons to collect the “cash”, with police lying in ambush.

21.  At about 4 pm the same day, D1 and D2 arrived at the car park by taxi. They approached PW1.  PW1 was told to return home to wait for calls.  D2 boarded the taxi.  D1 stayed at the car park.  After PW1 returned home, she picked up a call and was asked to hand over the money to D1 and D2 at the car park.  PW1 returned to the car park and handed over the red plastic bag to D1, who then proceeded to board the taxi.  At this moment, the operation turned overt.  Both D1 and D2 were arrested by the police.

Arrest and caution

22.  Upon arrest and caution, D1 said he was acting under the instructions of his boss to collect the money being proceeds of a scam performed by his boss against the old lady.

23.  Two cautioned VRIs were taken from D1 in the presence of his mother as an appropriate adult.  D1 stated that:-

(a)  He got acquainted with D2 as they studied at the same secondary school and they played basketball together;

(b)  he knew his boss (known as “Tsz Yeung”)  would swindle money out of the elderly and his boss would ask him to collect the money; however, he has never met Tsz Yeung;

(c)  D2 called him (D1)  at around 2:30 pm on 1 December 2022 and asked him to meet at Po Tin Estate and then go to Tsing Yi (sic)  for collecting money; a taxi ordered by D2 picked him (D1)  up in Tin Shing Court and then picked up D2 in Po Tin Estate; D2 then told the driver to go to Tin Shui Wai;

(d)  The two of them alighted from the taxi; D2 chatted with PW1 who returned home afterwards; later, PW1 returned to the scene whereupon he (D1)  took a red plastic bag with a brown envelope from her; he did not check the contents but knew there was money inside it; (Charge 5)

(e)  He had participated in two other similar incidents previously: (i)  in or around October 2022, he collected $20,000 from an elderly lady in Chai Wan (Charge 1); (ii)  also in or around October 2022, he collected $20,000 from an elderly man in Tai Wai (Charge 3); during these incidents, his boss instructed him to collect money from the elderly and go to a currency exchange in Sham Shui Po to hand over the money; and

(f)  In each of these two incidents, he got a reward of $2,500 for his labour.

Phone subscriber checks

24.  Phone subscriber checks revealed that D1 and D2 had a series of phone calls commencing 1 December 2022.  D2 first called D1 at 3:18 pm on 1 December 2022.

Present admissions

25.  D1 reiterates he admits the particulars of offence under Charges 1, 3 and 5.  In particular, D1 admits that he committed the offence subject of Charge 5 together with D2.

Criminal record of D1

26.  D1 has one dissimilar previous conviction recorded in September 2023 ie post the present offences.

Antecedents of D1

27.  D1 is aged 18 (17 at the time of the offences), educated to F4, now working as salon assistant.  He has previously worked as a part-time warehouse worker at the time of arrest.  D1 is single and lives with his mother and maternal aunt in Tin Shui Wai.

Mitigation of D1

28.  Mr Chan Ka Sing of counsel mitigated on behalf of D1.  The following is a summary of the mitigation submissions.

29.  D1’s parents divorced in 2018.  D1 lives with his mother and maternal aunt.  D1’s mother suffered a heart attack in early 2023.

30.  D1 was a part-time warehouse worker at the time of the offences earning a monthly income of $9,000.  He now works part-time in a hair salon as a junior hairstyling assistant.

31.  D1 made frank admissions to the police and he pleads guilty at the earliest opportunity.  He had a clear record at the time of the offences.

32.  During the investigation of the present case, police discovered he was involved in an “Affray” offence that took place in October 2022.  As a result, when D1 appeared in Tuen Mun Magistracy, his bail was objected to and he was remanded in custody.

33.  D1 was detained from 1 December 2022 until 27 January 2023 before he finally obtained bail.  Later, on 21 September 2023, he was bound over for 36 months in the sum of $2,000 in respect of the Affray offence.

34.  D1 committed the present offences out of greed and foolishness.  He was rebellious at the time.  A man named “Tsz Yeung” introduced by D2 took advantage of D1 and persuaded him to work for him and commit the offences in return for easy money.  D1 was not the mastermind but was used as a foot soldier by the major player Tsz Yeung who orchestrated the fraud.  D1’s culpability is probably the least within the syndicate.

35.  The victim of Charge 5 ie PW1 did not suffer any loss.

36.  But for his admissions to offences subject of Charges 1 and 3, there would have been no evidence against D1 on those charges.

37.  D1 was only 17 when he committed the present offences.

38.  D1’s mother and aunt support him.  He has finally learnt a lesson.  He decides to turn over a new leaf.

39.  Mr Chan acknowledged there are aggravating factors in the case: syndicate targeting elderly people or people with vulnerabilities; offences committed by more than one person; prevalent offences.

40.  Mr Chan referred to section 109A of the Criminal Procedure Ordinance, Cap 221.

41.  Mr Chan cited at length passages from the following cases:-

(a)  Secretary for Justice v SHY [2020] 1 HKLRD 694, at para 2, per Poon CJHC;

(b)  R v Chau Ho Wan, CACC 389/1993, at pages 2-3[2];

(c)  Wong Chun Cheong v HKSAR (2001)  4 HKCFAR 12, 24C-H, per Ribeiro PJ;

(d)  R v Cheung Wing Wai & Ors, CACC 289/1992, at page 5, per Bokhary JA (as he then was);

(e)  HKSAR v Wong Tsz Hin, CACC 38/2012, at paras 22-26, 36-37, per Yeung VP;

(f)  HKSAR v Fung Ka Nok, HCMA 1138/1998, at page 7, per V Bokhary J;

(g)  Secretary for Justice v Huang Long Wei [2009] 3 HKLRD 136, at para 16, per Cheung JA;

(h)  Secretary for Justice v CMT & Anor [2021] 1 HKLRD 1, at paras 20 & 70, per Poon CJHC;

(i)  Secretary for Justice v Li Cheuk Ming [1999] 1 HKLRD 63, 65E-G, per Chan CJHC (as he then was);

(j)  Secretary for Justice v Wong Chi Fung & Ors [2018] 2 HKLRD 699, at paras 138-139 & 141, per Poon JA (as Poon CJHC then was);

(k)  R v Brown (1981)  3 Cr App R (S)  294, 295, per McCullough J; and

(l)  HKSAR v Chan Pak Yin & Ors [2021] HKDC 1621, at paras 72-76, per HHJ G Lam.

42.  Mr Chan has no particular submission to make on the prosecution’s intention to furnish information pursuant to section 27(2)  of Cap 455 with a view to asking for enhanced sentence.

43.  Mr Chan also referred to HKSAR v Tsang Kai On, CACC  79/2010, and asked for a further discount because the offences subject of Charges 1 and 3 only came to light as a result of D1’s admissions to the police; there was no evidence against him otherwise.

44.  Mr Chan asked the court to impose a lenient sentence on D1.  Mr Chan also asked the court not to impose a prison term on D1 due to his age.

45.  Mr Chan asked the court to consult the Young Offender Assessment Panel before sentence.  Mr Chan asked the court to obtain reports on Rehabilitation Centre, Detention Centre, Training Centre and Community Service Order.

46.  Mr Chan submitted on behalf of D1 a total of 7 mitigation letters all written in Chinese with English translation.  The writers were respectively D1’s employer, a social worker, D1 himself, his mother, his maternal aunt, a District Councilor and finally a Mr Leung, holder of SBS.  The contents are generally that D1 was a sincere, punctual, responsible person; that he will be re-employed by the same employer after serving his sentence; that D1 took advantage of “Youth Employment and Training Programme” offered by the Labour Dept and worked part-time in a hair salon since November 2023.  Most if not all of the letter writers asked for a lenient sentence on behalf of D1 so that he may turn over a new leaf.

47.  Mr Chan also submitted 3 medical reports on D1 showing that he has been suffering thyrotoxicosis for a long time.

48.  After the obtaining of the reports, Mr Chan further submitted that the contents of the reports have been explained to D1 and his family; that D1 agreed with them.

49.  Mr Chan said that D1 is willing to attend the “Short, Sharp, Shock” programme offered by the Detention Centre; and that D1’s employer has reserved a vacancy for D1 once he has finished the programme.

50.  Mr Chan urged the court to give D1 one last chance so that he may turn over a new leaf.  Mr Chan assured the court that D1 has already cut off his ties with his baneful peers and wants to reform himself.

Reports

51.  Because of D1’s age, I called for Training Centre, Detention Centre, and Rehabilitation Centre suitability reports on him.  I also made an order that the Young Offender Assessment Panel (“YOAP”)  be consulted.

52.  Two reports came back: one the Combined Multiple-Centres suitability report (the first report), the other YOAP report (the second report).

53.  The first report concluded that D1 is mentally and physically fit for detention in all of those centres; that from the information available and after a general assessment of his behavior and attitude whilst on remand, D1 was considered to be more suitable for detention in a Detention Centre.

54.  The second report stated that “the Panel opines that “Short, Sharp and Shock” disciplinary training of Detention Centre followed by a one-year statutory supervision upon release would be effective to deter him from re-offending and strengthen his law-abiding sense.  Hence the Panel recommends Detention Centre Programme for this case.”

Sentence

55.  Under a Notice of Intention to furnish information pursuant to section 27(2)  of OSCO, Cap 455, the prosecution submitted a witness statement dated 6 February 2024 under the hand of CIP Tang Kai Wing.

56.  Having read the witness statement, I am satisfied that telephone deception cases are prevalent, and the extent of the harm caused to the community by recent occurrences of these cases is substantial.

57.  I have considered the various cases referred to by Mr Chan.

58.  Although Conspiracy to defraud is a serious offence, and there are aggravating features in this case as acknowledged by Mr Chan, I cannot ignore the fact that D1 is a young offender for whom imprisonment sentence is a last resort: section 109A of Cap 221 refers.

59.  Both reports that have been called for speak with one voice: a recommendation that D1 be detained in a Detention Centre rather than any other centres for which he is also mentally and physically fit.

60.  Striking a balance among the various sentencing principles of deterrence, prevention, punishment, rehabilitation and retribution, I am of the opinion that, in the circumstances of the case, and having regard to D1’s character and previous conduct, it is in his interest and the public interest that he should undergo a period of detention in a Detention Centre.

61.  Therefore, I am minded to accept the recommendation of the reports and make a detention order against D1, in lieu of imposing any other sentence on him.

62.  I impose the following sentences on D1.

(D1, please stand)

63.  On each of Charges 1, 3 and 5, I impose an order of detention in a Detention Centre against D1, all to be served concurrently.