HKSAR v. CHIU SHUN HUNG

DCCC 77/2017

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 77 OF 2017

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Reasons for Sentence

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1.  Although this has come to court later, these offences were committed much earlier than the drug offences. There are two offences of fraud of which the defendant has been convicted. They are what are described as “E-auction frauds” committed on or about 21 and 22 December of 2014.

2.  The defendant has admitted the facts of these offences, and they involve the obtaining by way of a fraud of iPhones; four iPhones in total.

3.  The modus operandi is more or less the same for both offences, and it is as follows.  Reading from the 1st charge, the victim, PW1 here, posted an advertisement on an internet auction site called “Yahoo Auction” for selling two phones.  He is approached by a purported customer with the name of Miko, in this case.  There is a WhatsApp discussion whereby PW1 agrees to sell the phones at $12,800 to the customer.

4.  The actual final transaction is to be conducted at Sham Shui Po MTR Station at 1400 hours on 22 December 2014.  The victim, PW1, takes the two iPhones to Sham Shui Po MTR Station, where the defendant is present.  He claims to be the brother of the customer, but says he does not have sufficient cash in hand and asks PW1 to provide his bank account for him to make a money transfer to PW1.  PW1 in this case provides his sister’s account.  The defendant then makes phone calls and tells PW1 the amount has been transferred into the bank account.  PW1 then is in a position to check the account balance.  He finds there is a credit balance for the right amount, $12,800, in the bank account, and as such, hands over the two phones to the defendant.

5.  Of course, the catch is that the credit entry in PW1’s bank account of $12,800 was made by depositing a stolen cheque to the account.  Eventually the cheque will be bounced, and PW1 does not receive payment.  He then reports the case to the police.

6.  It was found that the stolen cheque was deposited by way of an ATM, and that the victim in the chequebook offence lost his chequebook in November 2014.

7.  As far as the 2nd charge is concerned, it is a copy of the 1st.  PW1, in this case, posted on the internet on “Uwants” for selling two phones.  On 22 December, a purported customer phones him and approaches him.  There is a WhatsApp discussion where there is an agreement to sell the phones at 15,760 to the customer.

8.  This transaction is to be carried out at the Lai Chi Kok MTR Station at 12.45 on 22 December.  PW2 takes the iPhones to the Lai Chi Kok MTR Station, where the defendant is present and again claims to be the customer’s brother; again says that a credit entry could be made into the bank account to prove payment.  The account balance is checked by PW2.  The money is there.  The 15,760 is in the account, and the iPhones are handed over to the defendant.

9.  Of course, the credit entry is obtained by someone depositing a stolen cheque into the account which will subsequently be bounced, and PW2 will not receive his money.

10.  The stolen cheque in that case was placed by an ATM, and the victim of the stolen cheque offence had reported his chequebook lost in February 2014.

11.  The defendant is not arrested until May 2015. He was arrested in Tuen Mun for these offences of fraud.  The defendant makes admissions.  In both the cases I have had to deal with, the defendant has admitted the offences immediately.  He says what is obvious, that he was working with another person to carry out the scam.  He was the man who attended the transactions and collected the goods.  He was the man tasked with telling the customer about the bank transfer fraud.  He knew the victims were deceived and he knew no money would go into the accounts.  He took the goods to a man in Lai Chi Kok and received $500 to $700 for each transaction.  All those facts have been admitted.

12.  As far as the defendant’s antecedents, they are the same as in the earlier case.  At the time when he committed this, he was of clear record.  He was also some 18 months younger.

13.  I do not propose to rehearse the defendant’s background.  It can be seen in the background report I obtained for both offences, and the matters that I raised in relation to his personal background in case 951/2016 are apposite to this offence.  The defendant was of clear record; he is a very young; he has a difficult life.

14.  As far as the starting point for sentence in these cases is concerned, these are serious frauds.  They involve a syndicated approach.  The defendant was not acting alone; there must be other people. They involve the commission of other offences in order to perpetrate this, and they are, although the prosecution has not put before me any statistics, for good reason, in this case, I know and take judicial notice of the fact they are commonplace offences in Hong Kong.  They are easily committed, hard to investigate, and of all the people who tend to get arrested and convicted of these offences, people like the defendant are the people who are sent along to do the transactions.

15.  Taking all those factors into account, although there is no active guideline for sentence, the courts have taken these offences to be serious frauds, and although the amount of money obtained is not substantial - 12,800 in one offence and 15,000‑odd in the other - still, immediate sentences of imprisonment are appropriate.

16.  I will take a starting point in both offences at 2 years’ imprisonment, or 24 months’ imprisonment.  The defendant is again entitled to a one-third discount, having regard to his early indication of plea in these matters.

17.  So on Charges 1 and 2 in 77/2017, the sentence on each charge will be 16 months’ imprisonment.

18.  The offences were committed at the same time, or the same day, effectively.  I consider the overall totality can be served by making the sentences served concurrently to each other.

19.  The total sentence on 77/2017 will be 16 months’ imprisonment.

20.  The defendant already has been sentenced to 36 months’ imprisonment in relation to 951/2016.  I must consider now to what extent the sentence on 77/2017 should be served consecutively or concurrently to that.

21.  The sentence in 77/2017 could be served entirely consecutively.  That is possible.  However, I have to consider whether that would be appropriate, given the defendant’s pleas of guilty; would it be overall too lengthy a sentence for the defendant, having regard to the nature of criminality involved in both offences; also, I must take into account the defendant’s pleas of guilty, remorseful attitude, the fact that the defendant, in the investigation of the offences, provided by way of his records of interview substantial evidence against himself at a very early stage; and having regard to all those matters, I believe and I order that the interests of justice can be served by the following order being made.

22.  I am going to order that 8 months of 77/2017 be served consecutively to 951/2016, and the balance concurrently.

23.  That will give an overall sentence for these four offences of 44 months’ imprisonment, and I consider that to be sufficient, having regard to the defendant’s young age and remorseful attitude.