HKSAR v. CHAN CHI WING

DCCC 275/2023

[2023] HKDC 1082

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 275 OF 2023

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REASONS FOR SENTENCE

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1.  The defendant pleaded guilty to one count of Conspiracy to defraud, contrary to Common Law and punishable under section 159C(6)  of the Crimes Ordinance, Cap 200.  The particulars of the charge state that the defendant had conspired with a person named “Ah Hung” to defraud an elderly lady (hereinafter referred to as “the Victim”)  by dishonestly falsely representing that the son of the Victim had been arrested and was in need of money for bail, and that the defendant would deliver the bail money to facilitate the release of the Victim’s son, thereby inducing the Victim to hand over $50,000 to the defendant.

2.  The summary of facts indicates that this is a typical phone scam case where the 84 years old Victim was deceived by someone who called over the phone, representing to be the Victim’s son and demanding money for bail money. The scam had in fact been completed and was a success, if only police officers who happened to patrol by had not witnessed the handing over of the envelop from the Victim to the defendant, which contained $50,000.  The defendant under caution and at the VRIs stated that he had been instructed by a person named Ah Hung to collect $50,000 from the Victim at the relevant location, and that Ah Hung had told him that the Victim was a telephone deception victim believing that her son had been arrested and was in need of money for bail.  As the defendant was unemployed and was promised $500 reward by Ah Hung, he agreed and collected the envelop with $50,000 from the Victim.

The Defendant’s Antecedent Statement and Mitigation

3.  The court shall deal with the defendant’s personal particulars contained in the antecedent statement and in Defence counsel’s submissions together.

4.  The defendant is 39 years old, and a permanent resident of Hong Kong. He had been educated up to Form 2 level, and used to be a bartender earning a monthly income of approximately $21,000.  During the Covid-19 pandemic, he struggled financially and did not have any savings.  He was unemployed at the time of the offence, and therefore he agreed to his role in the deception, in return for a meagre sum of $500.

5.  He has 2 previous convictions, one of which involved a charge of burglary.  For the last conviction of 2 offences, he was sentenced to imprisonment terms, and was released on 23^rd February 2022 upon a successful appeal against sentence.

6.  Defence counsel urges the court to take into account the defendant’s guilty plea and full cooperation with the police at the time of and after his arrest.  He is remorseful and accepts his culpability in full.  Defence counsel also submits that the defendant is not the mastermind of the scheme, and had merely went along with Ah Shing’s scheme for a return of $500 as the defendant was unemployed at that time.

The Authorities

7.  Defence counsel had submitted 3 cases to the court in mitigation.  All three authorities, ie HKSAR v Ho Ka Keung (No 2) [2009] 1 HKC 88, HKSAR v Chik Hoi Fung Alex and others [2020] HKDC 393 and HKSAR v Ren Shaoqun and others DCCC 941/2014 have somewhat different factual backgrounds from the present case and concern a different kind of scam, and therefore have limited assistance to this court.

Sentencing Considerations

8.  I have taken into account the defendant’s guilty plea, his remorse, the frank admission that he had made to the police from the start, his criminal record, his mitigation letter, and all mitigation advanced on his behalf.  The defendant had only been released a few months before commission of the present offence.

9.  I note that the defendant’s role was collection of money from the Victim.  There was no evidence of his actual involvement in deceiving the Victim.  The sum of $50,000, even though not a large amount of money, could represent a lot to an elderly victim of 84 years old, whatever her means.  The scam lasted a short time, as the defendant collected the money on the same day as the telephone call which was the subject matter of the scam.  The scam was relatively simple, as it involved only Ah Shing and the defendant.  There is no international element involved.  Fortunately the Victim’s money had been swiftly recovered due to the alertness and good work of the patrolling officers.

10.  There is, however, one distinct feature which is different from some other telephone deception cases, in that the defendant actually knew Ah Shing’s method of deceiving the Victim, and decided to go ahead and assist him in completion of the scam by collecting the money from an elderly victim.  For a person who had knowledge of the scam before taking part in it, the culpability would obviously be higher than a person who did not have knowledge of the origins of the funds he had to collect.

11.  There is no sentencing guideline for this type of case.  I am of the view that personal circumstances, in the present case the defendant’s unemployment and financial difficulty, and the meagre reward for which he was willing to take the risk for due to the said difficulty, do not present as strong mitigating factors for this type of cases, bearing in mind the prevalence of this type of telephone scam and the ease in which funds, once collected by the frausters, could be dissipated into thin air.

12.  I am therefore of the view that a starting point of 3 years’ imprisonment is appropriate.  The defendant had pleaded guilty, and is therefore entitled to 1/3 discount in sentencing.  His sentence is therefore reduced to 2 years’ imprisonment.

13.  The court has however been asked by the Prosecution to enhance the sentence of the defendant under section 27 of the Organized and Serious Crimes Ordinance, Cap 455.  The Prosecution had furnished information to the court on the following matters under section 27(2)  of the said Ordinance:

“(c)  the prevalence of that specified offence;

(d)  the nature and extent of any harm, whether direct or indirect, caused to the community by recent occurrences of that specified offence; and

(e)  the nature and extent of the total benefit, whether financial or otherwise, accruing directly or indirectly to any person from recent occurrences of that specified offence.”

Notice of intention to furnish information pursuant to section 27(2)  of the said Ordinance had been duly filed and served on 18^th April 2023.

14.  I am satisfied that the Prosecution has proved beyond reasonable doubt of the information stated in the witness statement of Chief Inspector Lai Mei Yee Gigi dated 1^st March 2023.  I will therefore enhance the sentence of the defendant by 1/3, ie 8 months.  The defendant is sentenced to the enhanced sentence of 2 years and 8 months’ imprisonment.