HKSAR v. WONG CHUN PONG

DCCC 164/2017

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 164 OF 2017

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DCCC 591/2017

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 591 OF 2017

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REASONS FOR SENTENCE

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1.  The defendant was charged with 16 and 13 counts of Fraud, contrary to section 16A of the Theft Ordinance, Cap 210 in the two cases respectively. The defendant pleaded guilty and admitted the facts, he was convicted accordingly.

FACTS

DCCC164/2017

2.  The defendant used different identities in different online platforms to falsely represent that he had concert tickets of various artists for sale.  Between May 2014 and August 2015, on 16 occasions, victims were deceived to deposit a total of HK$39,658 into the bank account of the defendant.  The defendant later became out of reach.  Reports were made, the defendant was put on the “Wanted” list since 20 June 2015 and he was arrested on 13 August 2015.

3.  Under caution the defendant admitted that he was wrong.  He admitted having used his mobile phone to deceive others by claiming to sell concert tickets or show tickets on Facebook but in fact he did not have any concert tickets or show tickets for sale.  He committed the offences because he was unemployed and had no money.  He spent the money for daily expenses.

DCCC591/2017

4.  The defendant continued to perpetrate similar fraud.  Between June 2016 and February 2017, on 13 occasion, victims were deceived to deposit a total of HK$41,175 into the bank account of the defendant.  The defendant later became out of reach.  Reports were made and the defendant was arrested on 14 May 2017.  

5.  Under caution the defendant admitted he communicated with victims via Facebook and Instagram and provided his mobile numbers to the victim to send him Whatsapp messages.  He deceived others by claiming to sell concert tickets when actually he had no concert tickets for sale.  He was unemployed and had no money.  He had used up all the money on rental and his parents’ medical expense.  He knew he was wrong and willing to compensate to all of the victims.

MITIGATION

6.  The defendant aged 29 married with a mainland resident and has a son of 7 months old.  The defendant has a clear record and worked as a sale since May 2016 earning $12,000 per months until early 2017. He was remanded since May 2017 for the commission of the second case.

7.  The defendant did not have stable employment, while the wife was a full time housewife.  The couple did not live together after their marriage, the wife visited the defendant with two-way permit and stayed in her relative’s home while the defendant stayed with his parents and on occasions stayed overnight at the wife’s relative’s home.  The defendant contributed $4,000 to $5,000 per month to his parents.

8.  The defendant committed the first case because of greed and financial pressure.  During the investigation of the first case, he offered to compensate the victims because he thought he could get a job, but he could not find one.  The defendant was unemployed between August 2015 and April 2016.  He worked as a salesman in May 2016 but he was dismissed after the employer learnt he had committed these offences in early 2017.  It is noted that the defendant claimed to be a waiter at time of his arrest in May 2017 to the police.

9.  In June 2016 he learnt the pregnancy of his wife, as they were not able to secure a place with public hospital in Hong Kong, they needed to arrange maternity package with a private hospital in Hong Kong for the delivery.  Because of financial pressure he committed the second case while on bail.  The proceeds from the second case had been used up in family expenses and part of the maternity package.  He offered to compensate the victim during investigation of the second offence because he thought he could find a job but he was remanded since then.  Thus the defendant was not in a position to offer any compensation.

10.  Mr Yeung for the defendant submitted that the scams concerned were simple operations via Internet but acknowledged that the defendant committed the second case pending the investigation of the first case while he was on bail amounted to an aggravating feature.  The defendant has indicated his plea at the earliest opportunity and all along he was co-operated with the police.  The wife had also written a mitigation letter for the defendant.  The defence urged for leniency. 

SENTENCE

11.  There is no tariff for fraud, all depends on the circumstances.  Mr Yeung and Mr Choi for the prosecution submitted a number cases on Internet Fraud for my reference.  The only Court of Appeal decision on sentence of Internet Fraud is the appeal from Leung Yiu Fai CACC 100/2014, an appeal from DCCC 912/2013, the appeal was dismissed.  Pending his appeal of DCCC 912/2013, the same defendant had another case DCCC 1097/2015 before Judge Casewell, of which I shall refer to later.

12.  Broadly speaking, for Internet Fraud cases involving not more than 20 offences and total losses within $30,000, the starting point (which also representing the overall culpability) before enhancement was 2 years’ imprisonment (HKSAR v Chow Wai Yip DCCC 951/2014; HKSAR v Hui Wing Chi DCCC 814/2015).  Where the number of offenses were less and total losses were less, the starting point (which also representing the overall culpability) before enhancement could be as low as 18 months (HKSAR v Wong Sai Nam DCCC 701/2016; HKSAR v Ho Kai Yu DCCC 209/2015).  Where the number of offenses were more and/or the losses were more, the starting point would go up.

13.  In the case of HKSAR v Leung Yiu Fai DCCC 912/2013 (hereinafter referred as the first case of Leung Yiu Fai), the defendant who had 2 criminal conviction records involving 16 counts of theft and 3 counts of fraud, was charged for 1 count of fraud.  The fact of the case was that during a period of about 1.5 months the defendant deceived 36 victims and the total loss was $63,180.  The defendant was convicted after trial, the trial judge adopted a starting point of 30 months before enhancement for prevalence.  The sentence was up held by the appellant court.

14.  In the case of HKSAR v Wong Ching Yi DCCC 1016/2014, the defendant pleaded guilty to 7 counts of fraud, 4 counts of evading liability by deception and one count of theft, one count of fraud and the theft charge were relating to the theft of a credit card and the subsequent use of the card, the rest of the charges were related to face to face deception not Internet Fraud.  This case involved 11 victims and the total loss was over $270,000.  One of the charge was committed while the defendant was on police bail.  The overall starting point of this case was 3 years’ imprisonment.  

15.  The present case is an instance of “Internet Fraud” where a buyer paying in full or made deposit fails to receive the goods or refund from the seller who takes the payment and disappears.  The defendant adopted a simple but effective scam to cheat the public from 2014 to 2017. Should his first case be heard by 2016, it is most likely that the prosecution would have applied for enhancement of sentence on ground of prevalence of the offences. (HKSAR v Ho Kai Yu DCCC 209/2015; HKSAR v Hui Wing Chi DCCC 814/2015)

16.  In offences involving fraud to the public, however, the court would adopt a stringent deterrent approach in appropriate circumstances.  Although Judge Casewell in HKSAR v Leung Yiu Fai DCCC 1097/2015 (hereinafter referred as the second case of Leung Yiu Fai) did not considered the offence was prevalent at time of the sentence and refused to enhance the sentence, the Judge did find these are offences called for deterrence and stated that:-

“However, one must also consider, when determining what the appropriate length of sentence should be for these offences, the nature of the crime that we are dealing with. The bulk of the offences, the 16 offences involving the money obtained for the concerts tickets can be properly described as a fraud committed on the Internet, and such offences do have their own special features which make them perhaps more serious. The fraud is practised on the general public at large, and the number of victims can be high. The offences themselves have serious negative effects on Internet auction trading activities, and they seriously affect the interest of people acting in good faith in these activities. They are offences that are easy to imitate and easy to put into practice if one simply has the right technology. They are offences which are suitable for a deterrent approach in sentencing.”

17.  In the second case of Leung Yiu Fai, the defendant who had similar criminal records pleaded guilty to 16 offences of Internet Fraud involving concert tickets which were committed between January and June 2015.  The losses ranging from a thousand dollars and some $27,000.  The Judge adopted a starting point of 3 years for each of the offences, allowing the full one-third discount for his plea of guilty and ordered a concurrent sentence, giving an overall total of 2 years’ imprisonment, 18 months of which be served consecutively to the first case of Leung Yiu Fai and the balance concurrently.

DCCC 164/2017

18.  In a period of 15 months, the defendant committed 16 offences of “Internet Fraud”.  He received full or deposits into his bank account for the purchase of concert tickets advertised by him on the internet.  He did not make the tickets available to his customers afterwards. The victims suffered loss from $500 to $6,000, as the case may be.  The total loss was $39,658.  Though the total loss was less than that in the first case of Leung Yiu Fai, the duration of the scam was 10 times longer.

19.  Taking into account of the nature of the offence, the duration of the scam, for a fresh offender, I consider that the appropriate starting point for sentence in respect of each of the offences should be one of 24 months, the defendant has pleaded guilty and is entitled to full 1/3 discount, but I do not consider there to be any mitigating factor that called for further deduction. 

20.  As to the question of overall totality in relation to all the 16 offences, having regard to the actual loss suffered by the victims, I consider it is appropriate that the sentences are to be served concurrently.

DCCC591/2017

21.  The defendant was on Police bail pending the investigation of the first case since his arrest on 13 August 2015 and he was granted court bail on his first appearance in court on 1 December 2016.  He was interviewed under caution on 14 August 2015, 5 November 2015 and 30 June 2016 and in all these interviews, he invariably claimed that he knew he was wrong and was willing to compensate all of the victims.  The commission of the second case proved it was only a lip-service, there was no sincerity in his remorse.

22.  In a period of 8 months, while on police bail and later on court bail for a similar case (DCCC 164/2017), the defendant further committed 13 offences of “Internet Fraud”.  He received full or deposits into his bank account for the purchase of concert tickets advertised by him on the internet. He did not make the tickets available to his customers afterwards.  The victims suffered loss from $600 to $9,400, as the case may be.  He only returned $1,000 to the victim who had deposited $9,400 into his account.  The total loss was $40,175. As the fraud was perpetrated via Internet, it could have reached people outside Hong Kong, victim of Charge 1 read the defendant’s advertisement on Facebook whilst at home in Macau.

23.  Likewise, taking into account of the nature of the offence, the duration of the scam, that this case was committed while the defendant, a fresh offender, was on police bail pending the investigation of the first case and continued after his first appearance in court for the first case.  I consider that the appropriate starting point for sentence in respect of each of the offences should be one of 30 months, the defendant has pleaded guilty and is entitled to full 1/3 discount, but I do not consider there to be any mitigating factor that called for further deduction. 

24.  The two cases of the defendant were committed between May 2014 and February 2017, involving 29 victims and a total loss of about $80,000.  As to the question of overall totality both in relation to these 13 offences and also to the other set of offences in the first case, having regard to the actual loss suffered by the victims, I consider it is appropriate that the sentences of these 29 offences are to be served concurrently.

25.  As to the matter of compensation, the prosecution did not make any formal application of compensation.  Having considered that the defendant’s cash bail in court was borrowed from relative, the defendant all along did not have stable employment, the defendant is required to serve a term of imprisonment and not in a position to make any compensation in the foreseeable future, I decided not to order compensation without prejudice the victims’ right to civil claims.

ORDER

DCCC 164/2017

26.  On each count, the defendant is sentenced to 16 months’ imprisonment, all to be served concurrently.

DCCC 591/2017

27.  On each count, the defendant is sentenced to 20 months’ imprisonment, all to be served concurrently.

28.  The sentence of DCCC 164/2017 be served concurrent with the sentence of DCCC 591/2017.