HKSAR v. CHOU MAO WEN

HCMA 1112/2002

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO. 1112 OF 2002

(ON APPEAL FROM TWCC 2139/2002)

____________

____________

_______________

J U D G M E N T

_______________

1. This Appellant was convicted on one charge of "Obtaining Property by Deception"; he appeals against conviction and also appeals against the sentence of 15 months' imprisonment imposed on him by the Magistrate. Today, the Appellant represented himself on the appeal against conviction, but was represented by counsel for the appeal against sentence.

2. The Appellant, a Taiwanese national living in Mainland China, was caught by police in the airport when he tricked a departing Taiwanese man into lend him $2,500, being the price of an air ticket $2,300 and airport departure tax of $200. The Appellant approached the intended victim, introduced himself and told him a story about having missed his flight and having to arrange another. He purported to telephone the airline in the victim's presence. He then gave the victim a business card in the name of "Wong", a card the Appellant had obtained from the genuine holder earlier that day.

3. The Appellant went off saying that he wanted to make enquiry of the airline and on his return told the victim that he was unable to validate his existing ticket and was required by the airline to purchase another. He asked the victim to lend him the money to do so, saying that he would repay him when they arrived at the airport in Taiwan, because the Appellant's wife would meet them and bring the money. The Appellant told the victim that he could use his credit card, but if he did, he could not qualify for the cash discount. The victim handed over two $1,000 notes and one $500 note and waited with his own baggage and the Appellant's hand-carry bag. While he was waiting, plain-clothes officers, who had been keeping watch for some time, made inquiries about the incident and the victim became aware he had been cheated. The police observation showed that the Appellant had not made enquiries at the airline counter and far from his returning with the purchased ticket, they apprehended him heading in the direction of the bus which took people away from the airport.

4. On the appeal against conviction, the Appellant relied on the pro forma grounds and today submitted through the interpreter further grounds. These were first that he had been framed by the police officers, and, second, that the travel bag which had been seized was not his although the things inside it were and he had been forced by the police to admit the bag was his. He claimed that what PW1, the victim, said was untrue and, further, that at Tsuen Wan Magistracy his human rights had been violated and justice had been perverted because the staff of the court interrupted his interview with his lawyer repeatedly and said he could only discuss bail.

5. His further ground was that the Magistrate convicted on pure speculation without any concrete evidence. He claimed that the money found on him was money he brought from home; he had a mixture of Renminbi and Hong Kong dollars. He repeated what he said at trial, that the air ticket receipt was a souvenir of his Chinese wife's first journey to Taiwan in October 2000. He agreed that he had not raised at trial the question of the bag being switched, although he claimed he told his lawyer about it.

6. The Magistrate assessed the credibility of the witnesses and accepted the evidence of the prosecution witnesses. He did not believe the account given by the Appellant as to what had happened, which was that there was no deliberate approach by him to the victim, that he merely assisted him when his luggage fell from the trolley, he denied producing a business card, he denied making any phone calls and denied obtaining any money.

7. Having considered the matters raised, I am satisfied that there was ample evidence on which the Magistrate could have and should have convicted and accordingly, the appeal against conviction is dismissed.

8. In considering the appeal against sentence, I note that the Magistrate had considered various authorities and took a starting point of 16 months. He reduced this by 1 month for the Appellant's clear record, making a total of 15 months.

9. In his Reasons for Sentence, he took into account the clear record of the Appellant, the comparatively small amount of money and that it had been recovered. He noted that the maximum penalty showed this was regarded as a very serious offence; in particular, he found that such deception targeted the kind of tourist that Hong Kong is trying to encourage. He noted the increase in the Magistracy, of cases of travellers being preyed on at the airport. He found, in particular, that the Appellant had come deliberately to Hong Kong to practise such deception at the airport.

10. The Magistrate considered general deterrence necessary as the offence took place at the airport and because a foreigner had come here to commit the offence. He noted that while it might not be desirable to impose a deterrent sentence on a first offender that that depended, to a certain extent, on the nature of the offence.

11. The arguments on behalf of the Appellant were that the starting point of 16 months was too high, that the Magistrate was wrong to have found as a fact that the Appellant deliberately came to Hong Kong for practising the deception and that he was wrong to say such offences were prevalent and required a sentence of general deterrence without calling for supporting statistics from the prosecution.

12. It was suggested that the Magistrate had ignored the fact that Appellant was fully employed as Manager of the same company for seven years, although I note the Magistrate did take that into account. It was submitted that the 15 months' sentence was an exemplary sentence which was improper, because it was not commensurate with the seriousness of the offence, and, overall, the Magistrate was wrong in principle to have passed a deterrent sentence.

13. The Respondent submitted that the important factor was the Appellant's breach of trust in lulling the victim into a false sense of friendship. However, this was not a breach of trust for sentencing purposes. The Appellant was not in a relationship of trust vis-a-vis the victim; the relationship was that between a conman or confident trickster and his victim. Other facts the Respondent suggested were important were premeditation and planning. The Appellant had prepared documents, an old air ticket receipt, and a business card and had a hand-carry bag to give verisimilitude to his role as traveller. Further, targeting tourists to the HKSAR caused adverse publicity damaging a very important industry and thus the sentence was not wrong in principle or excessive.

14. I was referred to a number of authorities none of which was particularly helpful in dealing with this case although they do set out principles. This is not a case that requires the kind of concern that a credit card fraud might require. It is not a low grade confidence trick worked by a gang of confidence tricksters for the victims' life savings as, for instance, confidence tricks involving spurious medical remedies, or magic batteries call for. Each case must turn on its own facts, the amount of money involved was only one factor and not the most significant factor. Here the secret of the successful "con" was to ask for a sum of money that was obtainable, but not so large that an intended victim would refuse immediately to lend it.

15. I was referred to HKSAR v Huang Yu Huan & Qiu Guo Meng CACC 336 of 2001. That was a conspiracy to defraud case where the Court of Appeal considered sentencing for low level confidence tricksters and possible enhancement of the sentence under the Organised and Serious Crimes Ordinance. Statistical evidence in that case was produced to show prevalence and the increased number of offences.

16. The Magistrate also noted the case of HKSAR v Hiroyuki Takeda, HCMA 315/98 where Mr Recorder Ching Wai Wong SC considered the question of a deterrent sentence being imposed as a first sentence on an offender. In that case, which is very different from this, the judge was satisfied that the court correctly imposed a sentence of general and specific deterrence in order to discharge its duty, because of the very serious nature of the case. In Takeda, reference was made to R v Curran (1973) 57 Cr App R 945 where the question of general deterrence was considered in relation to a first sentence. It was stated there (@947) that "As a general rule it was undesirable that a first sentence of imprisonment should be very long, disproportionate to the gravity of the offence, and imposed, as this sentence was, for reasons of general deterrence, that is as a warning to others. The length of a first sentence is more reasonably determined by considerations of individual deterrence". That principle has been adopted by the courts of Hong Kong.

17. I must point out that in looking at this case, there is no evidence the Magistrate could have relied on to show that this Appellant had come to Hong Kong for the specific purpose of practising such deception. This appears to have been a significant factor in sentencing. There was no evidence the Appellant was working with anybody else or that he came to Hong Kong specifically to commit such offences. However, I agree that, as the Magistrate believed, this is a serious offence. Any targeting of tourists at the airport must be dealt with severely and therefore the Magistrate was correct in considering there should be an element of general deterrence, despite Appellant's being a first offender.

18. Counsel for the Appellant submitted the Magistrate should have called for statistics in relation to the prevalence of this type of offence. However, it has been generally accepted by the appellate courts that Magistrates are in a position to make decisions about the prevalence of offences in the areas in which they are presiding and therefore I consider the Magistrate was in a position to comment, as he did, about the level of offences at the airport.

19. What does concern me about this sentence is that the Magistrate in assessing deterrence believed Appellant had come to Hong Kong for the purpose of committing offences. I feel that contributed in a significant measure to the length of the sentence.

20. For that reason, I allow this appeal to the extent of reducing it to one of 12 months' imprisonment. That retains the deterrent element but removes the possibility that the Appellant may have been given a higher sentence than appropriate because of the Magistrate's unsupported belief that Appellant had come to Hong Kong for this purpose.

21. This appeal against sentence is allowed to the extent that the sentence is reduced to one of 12 months' imprisonment.