HKSAR v. KWONG MAN CHUN

DCCC 1089/2023

[2024] HKDC 427

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 1089 OF 2023

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REASONS FOR SENTENCE

The defendant faces 2 charges of "Conspiracy to defraud" (Charges 1 and 3)  and 2 charges of "Money laundering" (Charges 2 and 4; alternative to Charges 1 and 3 respectively). He pleaded guilty to Charge 1 (and accepted by the prosecution). I made no order as to Charge 2. I also granted the prosecution's application to leave Charges 3 and 4 in the court file; not to be proceeded against the defendant without leave of court.

Summary of Facts

2.  In July 2023, Madam Cheung (PW1; aged 94)  was residing with her eldest son, Mr. Mak, at Block 4, Villa Athena, Ma On Shan.

3.  About 12:20 p.m. on 7 July 2023, PW1 received a phone call made to her home landline.  A male voice (Male A)  pretending to be her eldest son claimed that he was at the police station and had to pay compensation in the sum of $80,000 since he was accused of having an affair with someone's wife and had injured someone in a fight.  Male A also claimed that he would have to go to prison if no compensation was paid. He would send a friend to collect the money from PW1.  PW1 believed Male A was her eldest son.

4.  About 12:36 p.m., PW1 received a phone call from another male (later found to be the defendant)  asking for her address.  The caller told PW1 to prepare the money and that he would come collect it.  PW1 believed the caller was her eldest son's friend and disclosed her address to him.

5.  About 1:07 p.m., PW1 received another phone call from the purported friend of her eldest son (i.e. the defendant).  He said he was at the Ground Floor of Block 4.  He asked PW1 to go downstairs to give him the money.  When PW1 met the defendant, he passed a phone to her.  The person on the other end asked PW1 to pass the money to his friend.  Believing that the person on the phone was her eldest son, PW1 gave the defendant an envelope containing $80,000 cash.  The defendant took the envelope and left.

6.  For reasons which are not related to Charge 1, the defendant met PW1 again outside Block 4 around 3:53 p.m. on the same day.  He was then arrested by PC 20331 for "Obtaining property by deception" (i.e. Charge 1).  Under caution, he said "Ah Sir, I know it was wrong to use [the] phone to deceive the elderly lady. Please give me a chance."

7.  In his video recorded interview, the defendant described how he met a male named "Ah Hin" in late 2022 and how he was recruited by Ah Hin in the morning on 7 July 2023 to do a job for $3,000.  The defendant explained what Ah Hin had told him to do.  He admitted in details how he had called the elderly lady (i.e. PW1)  and what he had said to her over the phone.  The defendant also admitted having collected the money from the elderly lady outside Block 4, Villa Athena.  He claimed that he had given the money to an unknown person according to Ah Hin's instructions.

8.  CCTV footage of Block 4, Villa Athena captured PW1 meeting up with the defendant and handing something over to him around 1:14 p.m. on 7 July 2023.

9.  Call records of a mobile phone seized from the defendant showed that he had called PW1's home landline at 1236 hours, 1307 hours and 1550 hours on 7 July 2023.

Mitigation & Sentence

10.  The defendant is 18 and single. He has 1 conviction record, which involved 2 "Criminal damage" offences (they were committed after the present case).  He is now serving a Rehabilitation Centre Order.  Defence counsel Mr. Lee informed me that the defendant has completed Secondary 3.  He resides with his parents and his elder sister.  He was a delivery worker earning about $15,000 per month.  He became unemployed in June 2023.

11.  In mitigation, Mr. Lee submitted that the defendant made full and frank admissions upon arrest.  He is truly remorseful.  The defendant's role was mainly a "collector".  He was not Male A who deceived PW1 over the phone.  Furthermore, the defendant did not retain the $80,000; he was only promised a reward of $3,000, which he did not receive.

12.  Owing to the defendant's age, I have called for a Training Centre Report.  He is found suitable for detention in a Training Centre.  I have given this sentencing option my due consideration.  Notwithstanding the defendant's age and his need for rehabilitation, telephone deception is a type of offences far too serious for correctional institutions cater for young offenders.  In my view, imprisonment is the only appropriate and just punishment for the defendant in this case.

13.  The prosecution has applied for an enhanced sentence pursuant to section 27(2)(c), (d)  and (e)  of the Organized and Serious Crimes Ordinance (Cap.455)  on the basis of prevalence; the nature and extent of harm caused to the community; and the nature and extent of the total benefit gained by anyone from the present offences.  Mr. Lee did not object to the application for enhancement.

14.  I bear in mind the Court of Appeal's decision in HKSAR v Xu Mai Qing CACC 464/2005, whereas Yeung JA (as he then was)  held "Under section 27(11)  of OSCO, what the prosecution has to prove is the prevalence of the offence, not the increase in the number of such offences[1]."

15.  I have read the witness statement of DCIP Tang dated 22 February 2024.  I am satisfied that in 2023, telephone deception cases were prevalent in Hong Kong in terms of the number of cases as well as the total value of monetary loss.

16.  The "By Hand" mode phone deception cases always involve someone picking up the money left behind by the victim at a public place or collecting the money directly from the victim.  Hence, the money collection portion is part and parcel of any type of phone deception ("Guess Who", "Pretend Officials" or "Detained Son").

17.  There is clear and cogent evidence before me that the "By Hand" mode phone deception is still widespread and commonly being practised in Hong Kong today.  The court must deter people from playing the role of "collector" by imposing on them a severe punishment.  When there are fewer or no willing "collectors", the "By Hand" mode phone deception method would fail.

18.  The defendant claimed that he was not the main perpetrator of the telephone deception; however, the scam would have been meaningless without a willing "collector".  By pleading guilty to Charge 1, he admitted having knowledge of the telephone scam and having conspired with others to defraud PW1.  Given the role played by the defendant, the amount involved and the overall circumstances, I grant the prosecution's application and will enhance the sentence by 30%.

19.  In the present case, the defendant went to PW1's home to collect the money from her.  He even called PW1 pretending to be her eldest son's friend. According to the Court of Appeal's decision in HKSAR v Hung Yung Chun [2011] 2 HKLRD 174, the appropriate starting point for this type of phone deception is 4 years' imprisonment.

20.  I have borne in mind the amount of money involved, the defendant's role and PW1's age.  I adopt a starting point of 4 years' imprisonment for Charge 1.  With the timely guilty plea, the sentence becomes 32 months.  Apart from this, I see no other mitigating factors which warrant any further reduction.  With the 30% enhancement, I sentence the defendant to 41 months' imprisonment.