HKSAR v. CHOW CHUN YIU AND ANOTHER

DCCC 269/2021

[2021] HKDC 1575

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 269 OF 2021

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Reasons for Sentence

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1.  Both defendants here have pleaded guilty to numerous charges at the earliest opportunity.

2.  The 1^st defendant has pleaded guilty to the following 11 charges.  He has pleaded guilty to Charge 1, 2, 4, 5, 6, 8, 10, 13, 14 and 16, all fraud charges where he together with other people, by deceit, falsely represented to each victim that the purchase price agreed for a valuable item had been paid up, and with intent to defraud, induced each victim to part with the said valuable item which resulted in a benefit to him and a substantial loss to each victim.

3.  In Charge 1, between mid-July and 6 August 2020, the victim was induced to part with a watch with a purchase price of HK$270,000. 

4.  In Charge 2, on 27 July 2020, the victim was induced to part with a watch with a purchase price of HK$69,000. 

5.  In Charge 4, between 30 and 31 July 2020, the victim was induced to part with a Chanel handbag with a purchase price of HK$44,500. 

6.  In Charge 5, on 31 July 2020, the victim was induced to part with a bottle of whisky with a purchase price of HK$29,000.

7.  In Charge 6, between 31 July and 3 August 2020, the victim was induced to part with a watch with a purchase price of HK$55,000.

8.  In Charge 8, between 15 and 28 August 2020, the victim was induced to part with a watch with a purchase price of HK$93,000.

9.  In Charge 10, on 2 September 2020, the victim was induced to part with a watch with a purchase price of HK$60,000.

10.  In Charge 13, between 10 and 11 September 2020, the victim was induced to part with a watch with a purchase price of HK$118,000.

11.  In Charge 14, between 7 and 9 October 2020, both defendants induced the victim to part with a handbag with a purchase price of HK$26,000.

12.  In Charge 16, between 13 and 14 October 2020, both defendants induced the victim to part with a bottle of whisky with a purchase price of HK$20,000.

13.  The 1^st defendant has also pleaded to Charge 17, using an identity card relating to another person, on 26 September 2020 in a hotel in Kowloon without lawful authority or reasonable excuse to rent a room in that person’s name.

14.  The 2^nd defendant has pleaded guilty to the following 4 charges: 2 fraud charges and 2 drug-related charges.  Charges 14 and 16, both fraud charges where he is jointly charged with the 1^st defendant, they by deceit and with intent to defraud induced the victims to part with valuable items, having falsely represented to each victim that the purchase price had been paid into their personal bank accounts when in fact that was not true. 

15.  He also pleaded guilty to Charge 18.  He admits on 14 October 2020, in a hotel room in Kowloon, he had in his possession a pipe fit and intended for the smoking or inhalation of a dangerous drug.  He had possession of a glass bottle pipe for the inhalation of methamphetamine, ‘Ice’.

16.  He also pleaded guilty to Charge 19.  He admits on the same day, 14 October 2020, in the same hotel room, he had in his possession a dangerous drug, 50 millilitres of a liquid which contained upon drying 0.05 grammes of a solid containing methamphetamine.

17.  The remaining charges were left on court file, not to be dealt with unless there is an order from this court or the Court of Appeal.

18.  The 1^st defendant had Charges 3, 7, 9, 11, 12 and 15 left on court file.  The 2^nd defendant had Charge 15 left on court file.

Summary of Facts

19.  There were a total of 10 victims in this case. Each victim offered an expensive or valuable item for sale ranging from watches, handbags to bottles of whisky on the online platform, Carousell between July and October 2020.  They were tricked into parting with their items without receiving payment. 

20.  The modus operandi was the same in every fraud. Each victim was approached by a potential buyer on this online platform.  After a price was agreed upon, then the two parties would arrange a time and place to meet to complete the sale transaction.  The potential buyer would ask each victim for his or her bank account details.  A cheque in the amount agreed would then be deposited in each victim’s bank account.  Once that was done, the victim would see that sum of money show up in their account’s ledger balance and believed that they had received the money from the buyer.  They would then hand over their valuable item, only to find out later that the cheques deposited for the agreed purchase price were then dishonoured.  The victims could not locate or contact the buyers after that.

21.  I do not intend to repeat the particulars of each charge and the details of the fraud perpetrated on each victim as the details are set out in the Amended Summary of Facts agreed by the defendants. I will summarise.

22.  The 1^st defendant in Charge 1 pretended to be sent by the buyer of the victim’s expensive watch when they met up after a purchase price was agreed.  He met the seller to “inspect” the watch, and he took it away when the victim confirmed that the buyer had transferred the money to his account and he could see it in his account balance.  Only after the 1^st defendant left with the watch did the victim find out no money was deposited because the cheque bounced.

23.  The 1^st defendant in Charge 2 pretended to be sent by the buyer of the victim’s expensive watch to collect it from the victim after the victim was told the purchase price had been transferred into his account and he had checked it.

24.  The 1^st defendant in Charge 4 pretended to be sent by the buyer of the victim’s expensive handbag to “inspect” it.  After he inspected it, he called the supposed buyer and told him that the bag was genuine.  Minutes later, the victim could see that the purchase price had been transferred into her account.  So she handed her handbag to the 1^st defendant.

25.  The 1^st defendant in Charge 5 pretended to be the purchaser of the victim’s bottle of whisky.  After he met the victim, he told him that he did not have enough cash on him, HK$29,000.  So his friend would make a bank transfer to the victim’s bank account.  Minutes later, the victim received a transfer record that HK$29,000 had been deposited into his Hongkong Bank account.  So he gave the 1^st defendant his bottle.

26.  The 1^st defendant in Charge 6 pretended to be sent by the buyer to “inspect” the victim’s expensive watch. Within minutes, the victim checked her bank account with Internet banking and found the purchase price deposited into her account.  So she gave the 1^st defendant the watch.

27.  The 1^st defendant in Charge 8 did not meet the buyer who sold the fraudster his watch worth HK$93,000, but the evidence against him is that he was captured on CCTV camera depositing a cheque into the victim’s account at the material time at an ATM.  He admits that he deposited the cheque that deceived the victim.  The cheque bounced after the victim had handed over his watch to another person. 

28.  The 1^st defendant in Charge 10 pretended to be sent by the buyer to “inspect” the victim’s expensive watch. The 1^st defendant told the victim that he had deposited a cheque of HK$60,000 into his account, inducing the victim to hand over his watch.

29.  The 1^st defendant in Charge 13 again pretended to be sent by the buyer to “inspect” the victim’s watch.  Within minutes of the 1^st defendant inspecting the watch, the victim received a message and saw from his online banking that HK$118,000 had been deposited into his account.  He then handed over the watch to the 1^st defendant.

30.  The 1^st defendant in Charge 14 was sent by the buyer to meet the victim who was selling her handbag.  It was the 2^nd defendant who had been in touch with the victim and agreed a purchase price of HK$26,000.  The 1^st defendant told the victim when he met her that the buyer had deposited the money into her account.  She checked and found HK$26,000 had been deposited.  So she handed over the handbag to the 1^st defendant.  This handbag was later retrieved from a handbag shop in Kowloon.

31.  After the 1^st defendant was arrested, under caution, he said it was the 2^nd defendant who asked him to go to meet the victim and pick up her Chanel handbag.  He then sold the handbag to a shop and received HK$8,000 which he gave to the 2^nd defendant.  He knew that the victim had been defrauded and an invalid cheque deposited into her account.  He knew that the cheque would not be honoured.

32.  The 1^st defendant also told the police that this fraud or scam had been perpetrated on many occasions, and on each occasion he would be given between HK$500 and HK$1,000 as financial reward from the 2^nd defendant.

33.  In Charge 16, the roles of the 1^st and 2^nd defendants were again similar.  It was the 2^nd defendant who had been in touch with the victim and agreed a purchase price of HK$20,000 for his bottle of whisky.  It was the 2^nd defendant who messaged to the victim and said he had transferred HK$20,000 to his account.  It was the 1^st defendant who went to meet the victim to pick up the bottle of whisky.  After the victim checked his bank account and saw that deposit, he then handed the whisky to the 1^st defendant.

34.  Both defendants were arrested on 14 October 2020.  The police were at the location where the victim of Charge 16 had arranged to meet and did meet the 1^st defendant.  After the victim handed the 1^st defendant the bottle of whisky, he was intercepted and arrested. Under caution, he said it was the 2^nd defendant who had instructed him to meet the victim to collect the whisky.

35.  The 1^st defendant was then taken back to a hotel room in Kowloon where he had been staying since 26 September 2020.  It was discovered that he had used an identity card belonging to another to check in.  He was trying to conceal his real identity from the hotel.  He told the police that he had picked up this identity card on a street and decided to use it.  Those are the facts for Charge 17.

36.  The 2^nd defendant was arrested in a room in a different hotel in Kowloon on the same day.  He admitted that he had contacted the victim of Charge 16.  He says there was a third male involved and that the three of them had come up with the plan together and agreed to split any profit they made from their fraudulent transactions.

37.  When the 2^nd defendant was arrested in his hotel room, the police also found an ‘ice’ bottle or pipe with some liquid inside.  The government chemist confirmed that the liquid inside did contain methamphetamine, ‘ice’.  The 2^nd defendant admits that he had bought the ‘ice’ pipe in order to consume methamphetamine.  He consumed it in the toilet of his hotel room.  Those are the facts of Charges 18 and 19.

Mitigation

38.  I have taken into account the written mitigation and authorities as well as the letters produced by both defendants.  I am greatly assisted by the submissions, and both defendants should be grateful that counsel have worked hard to present the best mitigation possible.

The 1^st Defendant

39.  The 1^st defendant is 30 years old, single and living with his father.  His parents divorced when he was very young.  He finished Form 3 but then took some Vocational Training Council courses.  After that, he worked in several fields.  He has worked in restaurants and garages cleaning cars.  He met the 2^nd defendant a few months ago before these offences and says he will never associate with him again. 

40.  He is not a man with a clear record.  He has 6 previous convictions which include theft, assault, trafficking drugs, possessing prohibited weapons and conspiracy to launder money.  Mr Young has said all he can say on behalf of the defendant.  I have had letters in mitigation from the defendant himself, his aunt and an officer from the Hong Kong Christian Kun Sun Association who had met the 1^st defendant when he was detained for a previous conviction.  Mr Leung from this association has noticed the distinct change and determination in the 1^st defendant to rehabilitate.  He has turned to the church and become more spiritual.

41.  There are two further letters from members of the clergy who have come across the defendant some time ago or even recently but, clearly, they felt his remorse was genuine and he deserved some assistance in his mitigation.  I have considered the contents of those letters.

42.  It is pertinent that the Hong Kong Christian Kun Sun Association will provide him with accommodation in a hostel after he is released from prison.  This is not something offered to all who have served their sentences but for those who show a genuine intent to stay away from a life of crime.

43.  The 1^st defendant has also told me that his previous employer is willing to re-employ him.  He knows himself he must stay away from bad peers to stay out of prison.  He is not a young man and this is not a difficult concept to grasp; he says he is determined to see it through.

The 2^nd Defendant

44.  The 2^nd defendant is also 30 years old, single and lives with his family.  He has two previous convictions for gambling in 2017 and was fined on both occasions.  Mr Wong has said all he can say on behalf of the 2^nd defendant.  In fact, both defendants’ best mitigation is their pleas at the earliest opportunity. 

45.  The 2^nd defendant has written a letter of mitigation as has his father.  The 2^nd defendant says he is remorseful and promises to start afresh when he is released from prison.  His family are still supportive of him despite these offences.  His father writes that he has had a stroke and is unable to work.  The 2^nd defendant’s mother has diabetes and is not well.  It is in fact the 2^nd defendant, they say, who is the breadwinner supporting his family.  Both ask for leniency.

Reasons for Sentence

46.  There are no guidelines for fraud cases. Sentencing will depend on the facts of the case before the court. Mr Young has suggested that the guidelines for breach-of-trust cases can be loosely followed and referred to as a source of guidance in other cases that do not relate to a breach of trust.  Here, the loss suffered is HK$784,500. The 2^nd defendant pleaded to two charges, a total loss of HK$46,000.

47.  Mr Wong has referred me to several similar fraud cases dealt with in the District Court for my reference.  Mr Young has assisted me with calculations in his submissions based on guidelines for breach-of-trust cases.  Obviously, these frauds are not breach-of-trust cases but those guidelines can be of some assistance in ensuring starting points are neither too high nor too low. 

48.  What is relevant to assist me with sentencing are the following factors.  There are a total of 10 victims, and the amount of money involved here is nearly HK$800,000.  Many who have been scammed will not recover their valuable items.  The loss will be significant for most victims. I also take into account that the offences were committed over a period of 3 months, not a particularly long time.  The frauds are identical, the modus operandi the same.  Clearly, there were 2 or more involved in these frauds. The police were able to successfully locate and arrest the 2 defendants. 

49.  Looking at these frauds or this scheme, it would appear that the 1^st defendant was sent out to meet the victims publicly. His exposure was the greatest and his risk of arrest the highest.  Therefore, I doubt he is the mastermind nor did he play the most prominent role in these frauds.  His explanation is that he did it for money, having lost his job and his home. 

50.  Because these frauds were committed within a fairly short period of time and were all identical frauds, I am of the view that I can take a global approach in sentencing; taking into account the culpability of each defendant separately.

Starting Points and Discounts

51.  The 1^st defendant has pleaded guilty to 10 counts of fraud, and I find it appropriate to take a global approach of 2 years and 6 months as a starting point.  He has pleaded guilty at the earliest opportunity and will benefit from a full one-third discount.  After that discount is applied, he will be sentenced to 1 year and 8 months’ imprisonment for each fraud charge, to be served concurrently.

52.  Charge 17 relates to the 1^st defendant using an identity card belonging to another to register and rent a hotel room during the commission of these offences.  I have considered Mr Young’s submissions for this offence, and I will impose a sentence of 12 months’ imprisonment for Charge 17.

53.  The 2^nd defendant has pleaded guilty to 2 charges of fraud.  I have taken into account his role proved and the loss suffered by the victims in those 2 charges.  I find it appropriate to consider a global approach for these 2 charges and take a starting point of 1 year and 9 months for each charge which I will reduce to 1 year and 2 months after a discount of 7 months is applied.  He will be sentenced to 1 year and 2 months’ imprisonment for each fraud charge, to be served concurrently.

54.  Charges 18 and 19 relate to an ‘ice’ bong or pipe found in his hotel room when he was arrested.  Charge 19 relates to the residue found in that ‘ice’ bong.  The quantity found remaining in that ‘ice’ bong is 0.05 grammes of a solid upon drying containing ‘ice’.  The amount is small, but under caution, the 2^nd defendant told the police that he had bought the ‘ice’ bong days before his arrest to inhale ‘ice’, and then he had bought HK$200 worth of ‘ice’ to consume over 2 to 3 days.  He said he would consume it in the toilet of his hotel room.  I am sure that this was what was left in his pipe.

55.  I have considered the submissions by Mr Wong and take a starting point of 6 months’ imprisonment for Charge 18 and 9 months’ imprisonment for Charge 19 to reflect his admission and the fact that ‘ice’ is an exceptionally dangerous and additive drug.

56.  The defendant has pleaded guilty at the earliest opportunity and benefits from a full discount for his pleas.  After that discount is applied, he will be sentenced to 4 months’ imprisonment for Charge 18 and 6 months’ imprisonment for Charge 19.  

57.  In considering the totality principle, I will take into account the different nature of the identity-card-related offence and the drug-related offences.  I will take into account the offences occurred in the same period as the fraud offences.  However, I do not find it appropriate that all sentences should run concurrently.

Summary

58.  The 1^st defendant is sentenced to 1 year and 8 months’ imprisonment for Charges 1, 2, 4, 5, 6, 8, 10, 13, 14 and 16.  All 10 charges are to run concurrently.

59.  The 1^st defendant is sentenced to 12 months’ imprisonment for Charge 17.

60.  I will order that 2 months of Charge 17 be served consecutively to the 1 year and 8 months’ sentence for Charge 1 and the balance concurrently.

61.  Therefore, the 1^st defendant will serve a total of 1 year and 10 months’ imprisonment.

62.  The 2^nd defendant is sentenced to 1 year and 2 months’ imprisonment for Charges 14 and 16.  Both charges are to run concurrently.

63.  The 2^nd defendant is sentenced to 4 months’ imprisonment for Charge 18.

64.  He is sentenced to 6 months’ imprisonment for Charge 19.

65.  I will order that 4 months of Charge 19 be served consecutively to the 1 year and 2 months’ sentence for Charge 14.  The balance of Charge 19 will be served concurrently. Charge 18 will also be served concurrently to all sentences.

66.  Therefore, the 2^nd defendant will serve a total of 1 year and 6 months’ imprisonment.