HKSAR v. LI QIN FANG

DCCC 672/2017

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 672 OF 2017

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REASONS FOR SENTENCE

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1.  The defendant is convicted upon her pleas and admissions of the facts of three charges:-

(a) Charge 1, fraud, contrary to section 16A of the Theft Ordinance, Cap 210;

(b) Charge 2, loitering with intent to commit an arrestable offence, contrary to section 160(1) of the Crimes Ordinance, Cap 200;

(c) Charge 3, remaining in Hong Kong without the authority of the Director of Immigration after having landed unlawfully in Hong Kong, contrary to section 38(1)(b) of the Immigration Ordinance, Cap 115.

THE FACTS

Incident 1

2.  On 5 June 2017, when Ng Yuk Ming (PW1) was on the way to market, she met the defendant, who was a stranger to her, asking her if she knew how to find the well-known retired British doctor nearby.  An unidentified female (WP1) joined in and added that the British doctor could cure any disease and persuaded PW1 to find the doctor together.  PW1 agreed.  When they were on the way, WP1 asked PW1 about her surname, age and family.

3.  They met another unknown female (WP2).  WP1 claimed to PW1 that WP2 was the granddaughter-in-law of the British doctor.  WP2 claimed that the British doctor was busy and not able to meet them, but they could have a discussion on PW1’s problem at a park nearby.

4.  At the park, WP2 was able to tell PW1’s surname, age and family composition.  WP2 added that PW1’s son was occupied by a spirit and would die within three days as a result of traffic accident.  PW1 was led into believing that WP2 possessed magical power.  WP2 then said if PW1 wanted to solve the problem, she had to hand over all valuables to WP2 for spiritual blessing.

5.  PW1 later withdrew two sums totalling HK$93,000 from two separate bank accounts and handed over the money to WP2 for the blessing.  WP2 placed the cash of HK$93,000 into a black plastic bag and then placed it into PW1’s handbag.  WP2 instructed PW1 not to open her handbag until 5 July 2017 or the whole ritual would fail.

6.  The next day, ie 6 June 2017, PW1 felt that she had been deceived, opened her handbag, only to find two bottles of water, two packets of soft drink and some newspapers inside.  She reported the case to the police.

7.  On 10 June 2017, on an identification parade, PW1 positively identified the defendant as the one who asked her how to locate the well-known doctor.

Incident 2

8.  This is in relation to Charges 2 and 3.  On 9 June 2017, DPC7757 (PW2), while conducting an operation in Wong Tai Sin area, spotted three females, namely the defendant, Lee Choi Wan and Li Wan, and a male, namely Li An, acting suspiciously at a park.  Then PW2 spotted Li Wan and Li An entered a restaurant in San Po Kong.  Lee Choi Wan and the defendant followed.  Later, Li Wan and Li An came out of the restaurant.  Lee Choi Wan and the defendant also came out and chatted with them.

9.  The party of four then split into two groups and took two taxis to Kowloon Tong MTR station.  They chatted for a while on the platform before they boarded the same train, though the three females, including the defendant, entered the first-class compartment while the male, Li An, boarded the ordinary class compartment.

10.  Upon arrival at Sha Tin Wai station, the three females, including the defendant, formed a group, followed by Li An.  They loitered at Sha Kok Estate area, looking at some aged citizens. 

11.  According to PW2’s observation, outside Yue Shing Court, Tin Sum, Lee Choi Wan approached an old lady asking her if she knew a famous magical doctor who could cure any diseases.  The defendant joined in and claimed that she knew the doctor, emphasising that the doctor was powerful.  Li Wan joined in and claimed herself to be the granddaughter of the doctor and suggested the old lady to meet the doctor with them.  The old lady, however, refused their invitation.

12.  Li An followed the old lady up to Sand Martin House’s entrance.  The three females, including the defendant, arrived at the open car park next to Ming Shun House.  The defendant was then arrested.

13.  The Immigration Department confirmed that defendant had no movement record in Hong Kong.

CAUTIONED INTERVIEWS

14.  In the first cautioned video recorded interview on 9 June 2017, the defendant admitted that she came to Hong Kong by boat on 3 June 2017, as arranged by Ah Chan.  Ah Chan had introduced Lee Choi Wan and Li Wan to her in Shenzhen.  On 9 June 2017, Lee Choi Wan, Li Wan and the defendant took MTR from Mong Kok to Shatin where they approached the old lady in Shatin but their deception was unsuccessful.

15.  In the second cautioned video recorded interview on 10 June 2017, the defendant admitted that she came to Hong Kong as arranged by Ah Chan to work at a rate of a few hundred dollars a day.  The defendant came to know Lee Choi Wan a month ago in Shenzhen, but she only knew Li Wan after coming to Hong Kong.  On 6 June 2017, the defendant met two females named Ah Yung and Ah Ying and they worked together to deceive money from PW1.  The defendant was responsible for asking PW1 if she knew a magical doctor, then Ah Yung would lead their way to find the doctor.  Finally, Ah Ying claimed to be the granddaughter of the magical doctor.  The defendant left after asking PW1 the question and earned HK$700 from Ah Chan.  On 9 June 2017, it was the second time that the defendant worked.  She, together with Lee Choi Wan and Li Wan, tried to deceive the old lady, but in vain.

16.  In the third cautioned video recorded interview later on 10 June 2017, the defendant said she did not have the contacts of Ah Yung and Ah Ying.  She knew that working for Ah Chan was to deceive others and she could earn if the deception was successful.

DEFENDANT’S BACKGROUND

17.  The defendant is 61 years old, born in Mainland China, a widow, of secondary education in Mainland China, unemployed prior to the offences, living with her son and daughter in Guangdong province.  She has a clear record in Hong Kong.

MITIGATION

18.  Miss Tsang, counsel for the defendant, has helpfully submitted a written submission to mitigate on the defendant’s behalf.  The antecedents submitted by the prosecution are admitted, except that prior to the present offences the defendant was in fact living with the son and the daughter-in-law and that she is suffering from diabetes.

19.  Very briefly, it was submitted as mitigation that the defendant’s husband was seriously ill in 2011 and the family therefore ran into financial difficulties by borrowing money for medical expenses.  Her husband passed away in 2015.  The family is still seriously troubled by the financial debts and the burden is solely on the shoulder of her son.

20.  It was said by the defendant that she came across two people in a restaurant and was told to try to come to Hong Kong for work.  With a view to earning money to clear the family’s debt, the defendant agreed.

21.  The defendant was then led to a boss called Ah Chan and was told to go to Hong Kong to work as a casual worker in a restaurant and, on the arrangement of Ah Chan, the defendant on 3 June came to Hong Kong illegally by boat.

22.  After arrival in Hong Kong, the defendant claimed that she came to realise that she was not to work as a casual worker in a restaurant, but to work to cheat elderly people’s money for wages of $500 a day.  The defendant claimed that, out of greed and stupidity, she agreed.

23.  Defence counsel submitted the case HKSAR v Ng Sau Lan (transliteration), CACC 396/2008, which is a case of street deception and, on that occasion, the Court of Appeal has summarised various previous cases involving similar charges and facts, and it is submitted that the usual starting point for a street deception of this sort should be 3 to 3½ years’ imprisonment.

24.  Defence counsel invited the court to adopt a lenient starting point as the defendant is very regretful for what she did, she missed her family, and would very much like to go back as soon as possible.  It was also submitted on the defendant’s behalf that she was not an active player in this case and asked the court for leniency.  Defence counsel also submitted that the sentences for the three charges could be ordered to run wholly concurrently or partly concurrent, partly consecutive.

SENTENCE

25.  Before the plea was taken, I made enquiries with the prosecution about Charge 2 of loitering with intent, arising from Incident 2.  My observations were that the culprits did nearly the same to perpetrate the fraud respectively in Incidents 1 and 2, except that the victim in the Incident 2 did not get cheated.  I raised the issue as to why a charge of different nature instead of an inchoate offence or conspiracy was laid for Incident 2.

26.  Miss Tam for the prosecution, after seeking an indulgence to consider the matter, informed me of the prosecution’s stance to proceed with the charges as they were.

Charge 1

27.  I first deal with Charge 1.  Arising from Incident 1, I am given to understand from the prosecution, upon my enquiry, that these cases of street deception are less prevalent than they used to be in the last decade.  That perhaps explains why no application under the Organized and Serious Crimes Ordinance, Cap 455, for any enhancement of the sentence was made.  I bear that in mind in the sentencing process.

28.  There were a number of Court of Appeal decisions in similar cases. Apart from the one Ng Sau Lan mentioned above, in HKSAR v  Onyang Guilan & 2 Ors, CACC 251/2008, the Court of Appeal differently constituted also endorsed a range of 3 to 3½ years as a starting point for a single offence where a gang was involved.

29.  In a more recent decision, HKSAR v Yang Tulian, CACC 177/2012, judgment handed down on 7 March 2013, the Court of Appeal confirmed that range of 3 to 3½ years’ starting point.

30.  I have considered all the circumstances of this case, which is a typical street deception of its kind, involving a gang of several culprits coming unlawfully to Hong Kong, preying on the elderly and lone ladies, and cheating them of substantial amount of money.

31.  The background of this defendant, including her age, lack of previous conviction in Hong Kong and her claim of committing the offences out of greed and stupidity, do not amount to any significant mitigation, though they do not disclose any aggravating factors either.

32.  Time and again, as said by the Court of Appeal, the lack of previous conviction should be subsumed in the credit given for a plea of guilty.  See, for instance, SJ v Ko Wai Kit [2001] 3 HKLRD 751.

33.  Bearing in mind the fact that these kind of offences is not as prevalent as they used to be, not only that I do not seek to enhance the sentence at all, but I am also prepared to adopt a lenient starting point of 3 years, which is the lowest in the range as suggested by the Court of Appeal in the cases mentioned above.

34.  As said, apart from the guilty plea, I do not find any other mitigating factor.  I would give the full one-third discount to the defendant to reflect her early plea.  The final sentence for Charge 1 is one of 2 years’ imprisonment.

Charge 2

35.  I now deal with Charge 2, arising from Incident 2.  During the exchange with counsel for both sides, I was given to understand that another culprit in Incident 2, Lee Choi Wan was also arrested, charged and convicted of the same offence of loitering with intent, for which she was sentenced to 2 months’ imprisonment after her guilty plea; 1 month of which was made to run consecutively to the other offence she was convicted.

36.  I have to say that the defendant should count herself very fortunate for being charged with the current offence of loitering with intent, which only carried a maximum penalty of 6 months, for what she and her accomplices had done came very close to, if not constituting, an offence of attempted fraud or conspiracy to defraud.  If charged with those offences of attempted fraud or conspiracy, the court can impose an additional 9 months’ imprisonment, wholly consecutive, as suggested in HKSAR v Tan Meiyuan & 2 Ors, CACC 360/2008, or at least 6 months’ imprisonment, consecutive, as in Onyang Guilan & 2 Ors mentioned above.

37.  The defendant is even more fortunate to have her accomplice, Lee Choi Wan, who had been treated extremely leniently by another sentencing court.  Even for the current offence of loitering with intent, it disclosed serious circumstances.  For other loitering offences of much less serious circumstances, for example, in HKSAR v Yeung Kwan Hung, CACC 217/2010, where the applicant was convicted of the same charge of loitering with intent by merely pulling handles of vehicles parked in meter-parking spaces, the Court of Appeal considered an appropriate starting point to be one of 3 months’ imprisonment and had the sentence to run wholly consecutively to the other sentences of the applicant.  No doubt the circumstances of Incident 2 were much more serious.

38.  Here, in view of what happened to the accomplice of the defendant, Lee Choi Wan, to avoid any sense of grievance or unfairness, I am left with no better alternatives but to adopt the same starting point, namely, 3 months’ imprisonment, reduce it by one-third for the guilty plea to make it 2 months, and order 1 month of which to run consecutively to the sentence of Charge 1.

Charge 3

39.  Finally, I shall deal with Charge 3 of unlawful remaining.  It is a well-established sentencing guideline under So Man King & Ors [1989] 1 HKLR 142 that a sentence of 15 months’ imprisonment to be imposed after guilty plea for the defendants of this offence.  Such sentence will usually be ordered to run consecutively to that of other offence(s) committed by the defendant.  See the more recent decision in HKSAR v Lee Chiu Yui [2015] 1 HKC 323, where the 18 months’ imprisonment for the unlawful remaining offence was ordered to run completely consecutively to the 16 months’ imprisonment for the burglary offence committed by the appellant.

40.  Even on the authority submitted by the defence, HKSAR v Tong Fuk Sing [1999] 3 HKLRD 710, it was said by the Court of Appeal that, unless there were compelling circumstances, such as strong humanitarian reasons, the sentence for the immigration offence should normally be imposed consecutively for the offence which accompanied it.

41.  I do not see any of those compelling circumstances in this case, so I order the sentence of Charge 3 to run consecutively to that of Charge 1.

42.  To conclude, I sentence the defendant to 2 years’ imprisonment for Charge 1; 2 months’ imprisonment for Charge 2, 1 month out of which to run consecutively to the sentence of Charge 1; 15 months’ imprisonment for Charge 3, to run consecutively to the sentence of Charge 1.  The total sentence of the defendant is one of 3 years and 4 months’ imprisonment.