HKSAR v. SO YAT CHUN AND OTHERS

CACC403/2002

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO.403 OF 2002

(ON APPEAL FROM DCCC NO.543 OF 2002)

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J U D G M E N T

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Hon Pang J (giving the judgment of the Court) :

1. On 1 August 2002, the three applicants appeared before Deputy Judge Sham in the District Court and pleaded guilty to one charge of conspiracy to defraud contrary to common law. They were each sentenced to 45 months' imprisonment. This is their application for leave to appeal against their sentences.

2. This is the type of offence which is more commonly referred to as a street deception case and this case involves the magic doctor patter. The facts are all too familiar. The applicants arrived from mainland China in the evening of 16 April 2002. The very next morning, they set out to execute their planned criminal activities. Their targeted victim in this case is a lady aged 71.

3. The 1st applicant approached the victim on the pretext of trying to locate the whereabouts of a magic doctor to treat her ailing daughter. The 2nd applicant, posing as a bystander, appeared to have overheard the conversation and claimed that her grandmother was cured by the same magic doctor. The 3rd applicant, then materialized at a pre-arranged moment claiming to be the grandson of the elusive doctor. The three then told the victim that unless she is treated and have her cash and valuables blessed in a ritual by the doctor, she would die within three days. There is also the lame promise that the cash and valuables would be returned to the victim after the blessing ritual. At this point of time, the unsuspecting victim would have fallen for the patter and cajoled into parting with her jewellery, cash or other valuables in order to preserve her well being. The victim here is no different. She, like many others, had also fallen for the standard ploy. The lady returned home to collect cash and valuables worth some $22,000 and handed them over to the applicants obligingly. In this particular case, however, their activities had been observed by a group of plainclothes police officers in the vicinity and they promptly foiled the scam by arresting them.

4. The applicants were represented when they appeared in the court below. They are aged 27, 46 and 35 respectively. The 1st applicant is the younger sister of the 3rd applicant who works as a farmer in mainland China. They all claimed to have a clear record before this offence. In mitigation, they claimed that they were lured into this scheme in Guangzhou by someone who promised them a free trip to Hong Kong with spending money. They would each be given an additional sum of $3,000 on their return to mainland China.

5. The Deputy Judge adopted a starting point of four years' imprisonment for each applicant. He then considered the figures presented to him by the prosecution under section 27(3) of the Organized and Serious Crimes Ordinance and found that :

"In view of the prevalence of this crime and its low detention rate, I enhance the sentence by 50 per cent. Therefore, the 4 year term is increased to 6 years."

6. The applicants were then given a one-third discount from the six-year term for their plea and a further discount of three months for their previously good character. The resulting term was one of 45 months' imprisonment. Ms Remedios (who did not appear in the court below), submits on behalf of the applicants before this court that the starting point of four years adopted by the Deputy Judge was manifestly excessive.

7. As can be seen from the list of cases cited in support of her argument, the starting points for similar cases fall into the range of between two to three years. We note that a differently constituted division of this court in HKSAR v. Or Lai, CACC372/2002 (a judgment in Chinese) had not disturbed a 31/2 years' starting point in a case which involved the victim parting with cash and valuables totalling $180,000.

8. A review of the recent cases had led us to believe that the starting point of four years adopted by the Deputy Judge was manifestly excessive. The proper starting point, in view of the circumstances of the case, should be one of three years. We also note that the procedures adopted by the Deputy Judge in his calculation of the enhanced sentence appeared to have departed from the procedures laid down by this court in HKSAR v. Tam Wai Pio [1998] 2 HKLRD 949 which were as follows :

" Instead, we offer the following guidance in order to minimise the risk of confusion for cases where enhancement of sentence has to be dealt with under the procedure laid down in the Ordinance. This approach would, of course, have to be adapted as necessary where multiple offences are involved, some of which are not organized crimes. In such circumstances, a judge should consider, determine and set out in clear terms:

(1) (a) the appropriate starting point having regard to the part played by the defendant, and

      (b) the sentence that the court would have imposed taking into account the defendant's mitigation and totality;

(2) whether the specified offence was an organized crime within the meaning of section 2 of the Ordinance;

(3) whether the crime calls for an enhancement of the sentence under the terms of section 27(11) having regard to the information supplied by the prosecution to the court under section 27(2)(a) to (e) or section 27(8) or the general nature of the organized crime itself;

(4) if enhancement is called for, the percentage increase by way of enhancement of the sentence."

9. Applying this formula the correct procedure should be : a one-third discount for the plea and would result in a sentence of two years' imprisonment form the starting point of three years. We are of the view that the additional discount of three months for the good characters of the applicants should not have been given for the reason that the element of good character, as mitigation, has been subsumed into the one-third discount for the plea, see HKSAR v. Lee Kwok Chuen, CACC445/2000. In any event, their good character only lasted for no more than 12 hours as they had resorted to criminal activities less than a day after their arrival. We accept as correct, the Deputy Judge's finding that this case is appropriate for enhancement. Having said that we also see no reason to disturb the 50% rate of enhancement. The resulting sentence after enhancement is therefore a three-year prison term.

10. For the reasons given above, the applications for leave to appeal against sentence are granted. We treat this hearing as the appeal. The appeal is allowed to the extent that the sentence of 45 months' imprisonment for each applicant is set aside and is substituted with a sentence of three years' imprisonment each.