HKSAR v. ZHOU WENGUI

DCCC980/ 2009

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO.980 OF 2009

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Reasons for Sentence

1.  The defendant faces one amended charge of conspiracy to defraud, contrary to Common Law and punishable under s.159C(6) of the Crimes Ordinance, Cap.200. Particulars of the offence are that the defendant on 21st July 2009 in Hong Kong, conspired with 2 other unknown persons to defraud Leung Yu Kiu by dishonestly (i) falsely representing that he was a Mr. Lam who traded in electronic components; and (ii) inducing the said Leung Yu Kiu to buy certain electronic components that he did not have, thereby to dishonestly induce her to part with funds.

2.  The defendant pleaded guilty to the charge and admitted to the summary of facts and was duly convicted.

3.  The prosecution gave notice pursuant to s.27 of the Organized and Serious Crimes Ordinance, Cap. 455 in anticipation of an application to seek an enhancement of sentence based on the prevalence of the offence. Mr. Edwin Choy for the prosecution however very fairly indicated that, having considered the relevant statistics and authorities, he no longer wished to proceed with the application.

Facts

4.  At around 09:15am on 21.7.09, pw1 (59, waitress) was approached by a male, subsequently identified as the defendant, at a bus stop. The defendant introduced himself as “Mr. Lam”. The defendant offered HK$300 to pw1 for her to later help him to keep an eye on a stock of electronic goods. Pw1 agreed. In the meantime, another male, wanted person 1 (“wp1”) approached the scene. The defendant offered HK$300 to wp1 and asked if he could later help him move the electronic devices. The wp1 pretended to agree.

5.  The defendant then showed wp1 a small electronic device and claimed that it was a very expensive device which could be used for saving electricity. Wp1 then bought the device from the defendant for HK$300. The defendant left the scene.

6.  Shortly afterwards, another male, wanted person 2 (“wp2”) approached pw1 and wp1. Wp2 asked them for directions. He claimed to be a merchant from Singapore. Wp1 showed him the electronic device that he had just purchased from the defendant. Wp2 expressed that he was looking for similar devices and offered to buy them for HK$500 each. Wp2 further said to pw1 and wp1 that he had cash of more than a million with him and he would purchase more of those devices if available. The defendant left his contacts with wp1 and left the scene.

7.  About 10 minutes later, the defendant arrived at the scene again and told wp1 and pw1 that he did not require them to guard or move the devices because he had already found someone else to do it. The defendant offered to sell to pw1 and wp1 2000 devices for HK$300 each. Wp1 then suggested to pw1 that they should purchase the devices from the defendant. Pw1 agreed and went home to get the money (about HK$20,000). The defendant followed her. In fact, the defendant did not have these devices to sell to pw1.

8.  At about 09:45am on the same day, pw1 returned home to retrieve her bankbook whilst the defendant waited outside the building. Pw1 related the incident to her son, pw2. Feeling suspicious, pw2 decided to accompany pw1 when she went back to meet the defendant.

9.  Pw1 left her residence to met up with the defendant. Pw2 followed them from a short distance. The defendant whispered to pw1 and asked whether pw2 was her son. When pw1 replied in the affirmative, the defendant immediately fled. Pw2 pursued him and reported the case to the police at the same time.

10.  Pw2 pursued the defendant but lost sight of him for a short while. A passerby informed pw2 about the defendant’s location. Pw2 maintained his pursuit and followed the defendant. Police arrived shortly afterwards and arrested the defendant. Under caution, the defendant denied the offence. Pw2 identified the defendant at the scene of arrest.

11.  2 records of interview were taken from the defendant. Under caution, the defendant denied the offence and stated, inter alia, that he had only been waiting for a bus to Shenzhen Bay at the material time so that he could return to mainland China. He refused to answer any questions which related to pw1.

12.  The defendant claimed that he came to Hong Kong alone on 29.7.2009 at around 12 noon. The defendant also claimed that he came to Hong Kong to purchase Chinese medicine and he had neither relatives nor friends who worked or lived in Tin Shui Wai. He admitted that he did not carry any luggage. He also denied any knowledge of the said electronic devices.

13.  The defendant was positively identified by pw1 in an identification parade held on 24.7.2009.

Previous convictions

14.  The defendant has 2 previous convictions, both for conspiracy to defraud, both dated 25.2.1999. He was sentenced to a total of 18 months’ imprisonment.

Mitigation

15.  The defendant is 36, educated in the mainland up to primary 5. He was married in 1992 and has 2 sons and 3 daughters aged between 12 and 18, all students. The eldest is a daughter and hopes to go to university next year. The defendant’s wife is a farmer while his parents are retired. His wife only became a farmer after the defendant’s grandmother passed away. The defendant is the sole bread winner of the family.

16.  The defendant came to Hong Kong in 1999 for the first time as a visitor, and got into trouble and was arrested and later convicted for the above mentioned charge of conspiracy to defraud. The defendant was sent back to mainland China after his release from prison. The defendant had worked as a driver and a fruit seller before. He had also collected scrapped metal on the street in order to earn a living. The defendant is not a drug addict and has no triad affiliation.

17.  2 letters were submitted in mitigation. One was written by the defendant himself, wherein he explained the difficulties he faces in supporting his family. The defendant’s eldest daughter, I presume, wrote the other letter. It is a beautifully written letter, from daughter to father. It is beautiful in its contents and it allows us to feel vividly the love she has for her father, as well as the difficulties she is facing at home, being the eldest daughter. The defendant should be proud that he has such an understanding and also talented daughter.

18.  It was further submitted in mitigation that the defendant came to Hong Kong hoping to improve his financial situation at home by getting a job here. Unfortunately he was not able to do so and was somehow enticed by his friends to take part in their criminal enterprise.

19.  It is noted that the victim in the present case did not suffer any financial loss as a result of the deception. Finally, the defendant has pleaded guilty and saved the court's time.

Sentence

20.  The prosecution has very helpfully provided me with copies of 2 cases. In the case of HKSAR v Huang Yu Huan and another [2002] 2 HKC, the facts are almost on all four with our present case where the appellants set out to deceive the intended victim by offering for sale scrap electronic components alleging they were valuable. In that case, the intended victim stood to lose between $10,000 to $50,000 had the fraud been successful. Lugar-Mawson J. has the following to say:

“there is no tariff sentence for this type of offence (street deception). The gravamen of the offence is the fraud itself….All the offences of this type employ the same modus operandi: 2 or 3 tricksters acting in concert, each playing pre-assigned roles, and no doubt using well-honed psychological tricks, prey on the credulity of unsophisticated middle-aged or elderly people in the hope of relieving them of substantial sums of money. The offences, of necessity, have to be both premeditated and well planned. They are certainly cynical and heartless crimes. If the fraud is successful, the consequences for the victim can be exceptionally distressing.” (at 685I-686C)

21.  Although unlike our present case, the prosecution did apply for an enhancement of sentence in that case, the choice of starting point is still relevant for this court's consideration.

22.  In the case of HKSAR v Liang Yaoqiong [2008] 6 HKC, the applicants were mainlanders who came to Hong Kong and falsely represented to the victim's son that unless she surrendered valuables for blessing, her son will not live past midnight. The Court of Appeal held that a starting point of 3 and half years' imprisonment was on the high side. At paragraph 13 of the judgment, Stuart-Moore VP observed that in previous similar cases, most had adopted a starting point of 3 years' imprisonment as the appropriate starting point.

23.  Taking into consideration all the circumstances of the case, including the defendant's mitigation and his previous convictions, and having reference to the above cited authorities, I find that a starting point of 3 years' imprisonment is appropriate. I will grant the full 1/3 discount for the defendant's guilty plea and sentence him to 2 years' imprisonment.