XTRNX HKSAR v. MA SUET CHUN AND OTHERS

[English Translation]
CACC 1/2001

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL JURISDICTION

APPLICATION FOR LEAVE TO APPEAL AGAINST SENTENCE

CRIMINAL APPEAL NO. 1 OF 2001

(ON APPEAL FROM DCCC877 OF 2000)

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J U D G M E N T

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Hon Cheung, J.A. (giving the judgment of the Court):

The Appeal

1. The three defendants have earlier been granted leave to appeal against sentence. They now formally lodge their appeal against sentence. The three defendants were charged with the offence of attempting to obtain property by deception, contrary to section 17(1) of the Theft Ordinance (Cap 210) and section 159G of the Crimes Ordinance (Cap 200). They denied the charge, but were convicted after trial and sentenced to 3 years' imprisonment.

The Facts

2. The facts showed that when the witness was on her way home, the 1st defendant approached and asked her the way. Meanwhile the 2nd defendant appeared and said that the pill held in the 1st defendant's hand was a very valuable medicine that could cure cancer etc. Whilst the 2nd defendant was using $500 in cash to buy the pill from the 1st defendant, the 3rd defendant appeared. He claimed that he was a doctor from Singapore and would offer to buy those pills at a high price of $1,000 each. The 2nd defendant then tried to persuade the witness to pool money with her to buy those pills in bulk and resell them to the 3rd defendant for profit. After the 2nd and 1st defendants had had a discussion, the 2nd defendant indicated that the 1st defendant had 1,000 pills available and she also asked the witness to raise $250,000 for the purchase. The witness at that time realized that the people she had just met were fraudsters of the so-called "Tonic Medicine Gang", so she pretended that she agreed to it and suggested that the three of them should follow her home to get the money. In the meantime the witness used her mobile phone to ask her family to report the matter to the police for her. Later, the police arrested the three defendants.

Reasons for Sentence

3. Deputy District Judge E. Lin in his Reasons for Sentence pointed out that the facts and the method of deception in this case followed a certain mode. Usually such deception involved two or more fraudsters. The first fraudster would approach and deliberately show certain articles to the victim. The articles could be herbal medicine, prepared medicine, food, valuable metal or electronic components etc. The second fraudster would then appear and tell the victim that the first fraudster's articles were magical stuff of value, rarity or efficacy which could be resold at once for a profit. In case the face value of these articles, such as herbal medicine, prepared medicine or electronic components etc, was not apparent, then there would be a third fraudster who would appear and offer to buy these articles at a high price. Then the second fraudster would suggest to the victim to pool their money together to buy the articles and resell them to the third fraudster to gain great profit. If the victim agreed to it then the victim would hand the money in cash to the second fraudster in exchange for something which was almost valueless. The fraudsters would then all disappear. This mode of deception as designed by the fraudsters is mainly aimed at exploiting the chance-taking attitude of the victim who hopes to reap a great profit with a little sum. The result, however, sees the victim suffering great loss which far outweighs the gain. The deception is a pre-planned action and the victim is usually an unsuspecting elderly woman of low education level. The trial judge was of the view that deterrence should be the basis of sentence for this kind of cases. Under the law, the maximum penalty is imprisonment for 10 years. The judge took the view that a 2 years imprisonment would be an appropriate sentence; however, he granted the prosecution's application for enhancement of sentence and changed the sentence to one of 3 years' imprisonment.

Organized and Serious Crimes Ordinance

4(a). In this case, the court's jurisdiction of enhancing the sentence comes from the Organized and Serious Crimes Ordinance (Cap 455) ("the Ordinance").

4(b). Section 27(1) of the Ordinance provides that the section applies where in proceedings in the District Court, a person has been convicted of a specified offence. Specified offences are any of the offences specified in Schedule 1 and their corresponding attempting offences. The offences listed in Schedule 1 include the offence of obtaining property by deception, contrary to section 17 of the Theft Ordinance (Cap 210). The defendants were convicted of this offence.

4(c). Section 27(11)(b) states that subject to subsections (12) and (13), where a court is satisfied beyond reasonable doubt as to any information furnished under subsection (2) or (8), the court shall have regard to such matter when it passes a sentence on the person for the relevant specified offence and may, if it thinks fit, pass a sentence on the person for that offence that is more severe than the sentence it would, in the absence of such matter, have passed.

4(d). Subsection (12) is not applicable to this case as it concerns the application for a confiscation order. Subsection (13) provides that a sentence passed pursuant to subsection (11) shall not exceed the maximum penalty permitted by law for that offence.

4(e). Subsection (8) is concerned with an organized crime which is connected with the activities of a triad society. Subsection (8) is applicable where the court, upon the prosecution's application made pursuant to subsection (4), determines whether the specified offence dealt with by the court is an organized crime or not.

4(f). In considering whether to pass a more severe sentence or not, the court is not restricted to organized crimes. It may also decide upon the information furnished by the prosecution under subsection (2). Under subsection (2) the prosecution may furnish information to the court regarding any or all of the following :

4(g). Apart from invoking subsection (8) referred to section 27(11)(b), the court may also under section 27(11)(a) pass an enhanced sentence on a specified offence which is an organized crime.

4(h). The defendants stated in their perfected grounds of appeal that this case does not involve organized crimes, and thus the court could not pass an enhanced sentence. Based on the above reasons, this ground of appeal cannot stand. Ms Chan, counsel for the defendants, also indicated today that she would not rely on this ground of appeal.

The Prosecution's Evidence

5(a). The prosecution called three witnesses who were the officers-in-charge of the Regional Intelligence Units of the New Territories North Region, New Territories South Region and Kowloon West Region respectively.

5(b). According to the material provided by the prosecution witnesses, in the New Territories North Region (including Yuen Long, Tai Po, Tuen Mun and Border Police Divisions), there were a total of 20 street deception cases for the year of 1999, involving property of $900,000. Between January and July 2000, there were 24 cases of tonic medicine deception involving property of $2.4 million. In 1999, there were 78 cases of electronic component deception in which the same method was employed, involving property of $3.1 million. There were 69 such cases between January and July 2000, involving property of $2.8 million.

5(c). In the New Territories South Region (including Tsuen Wan, Kwai Chung, Sha Tin and Lantau Police Divisions), in 1999, there were a total of 99 complaints of street deception, involving property totalling $5 million. 31 of these cases concerned tonic medicine involving property of $1.23 million. There were 88 street deception cases for the period between January and September 2000 involving property of $5.63 million. 11 of these cases concerned tonic medicine involving property totalling $720,000.

5(d). In the Kowloon West Region (including Yau Ma Tei, Tsim Sha Tsui, Mong Kok, Cheung Sha Wan, Sham Shui Po, Shek Kip Mei, Kowloon City and Hung Hom Police Divisions), the number of cases for 1998 is 88, involving property totalling $4.1 million, only 16 cases of which were solved. The figure for 1999 is 92 cases, 17 of which were solved involving property of $6.6 million. There were 144 complaints of street deceptions between January and September 2000, 20 of which concerned tonic medicine, and only 14 cases were solved; the total property involved was $6.2 million.

Reasons for Enhancement of Sentence

6. The trial judge took the view that the evidence furnished by the

police was in line with the requirement set out in section 27(3), namely, this evidence was material that was admissible in evidence in criminal proceedings. The judge considered that the data furnished by the three police witnesses were data obtained by them in their perusal of data obtained by the police under an established system; such material was within the personal knowledge of the three witnesses, and there was no question of the material being in the nature of hearsay evidence. The evidence furnished by the police was not to prove that each and every item in the data furnished by them was correct, it only served the purpose of establishing that a definite pattern could be deduced from the data furnished, and that the pattern showed that such cases were very prevalent. Moreover, it showed the approximate amount of the property involved.

7. The trial judge took the view that those crimes called for enhancement of sentence in order to deter such criminal tendency. He enhanced the starting point by 50% and imposed a sentence of 3 years' imprisonment. All three defendants came from the mainland as visitors to Hong Kong, the judge considered that if they served their imprisonment terms in Hong Kong, they would find it much harder to adapt than the local people. However, the judge also considered that all three of them came to Hong Kong of their own accord. Their alleged personal family background such as their family members suffering from illness, children needing support and so on, were not mitigating factors at all. If they were indeed truly concerned about their family members, they would not have left their native places and spent money coming to Hong Kong in the first place. The defendants all claimed that they were burdened with financial hardship, but the judge doubted their words in view of the fact that they could still come to Hong Kong as a tourist despite their claim of financial hardship. Taking the above points into consideration, the judge was of the view that there were no grounds for reduction from the sentence of the 3 years' imprisonment.

The Evidence of Sentencing

8. This Court takes the view that the evidence furnished by the prosecution was evidence that might be admitted by the sentencing court. Section 27(3) of the Ordinance provides that criminal proceedings include proceedings in respect of sentencing. In Patrick Smith (1988) 87 Cr. App. R393, the English Court of Appeal decided that the material that might be received by the sentencing court was not confined to the evidence admissible by rules of evidence in the trial of the issue of guilt or innocence of the defendant. In Regina v. Gardiner (1982) 68 CCC(2d)477 the Supreme Court of Canada decided that the sentencing court might admit credible hearsay evidence. This Court agrees to the view taken in these two cases, because what is most important is that the material that the Court receives is reliable and credible, enabling it to impose an appropriate sentence.

Appropriate Sentence

9. The evidence shows there is obviously an upward trend for this kind of deception. The court should impose a deterrent sentence to stop the growth of such cases. In HKSAR v. Lee Sai Wing [1998] 4 HKC 281, HKSAR v. Tam Wai Pio [1994] 4 HKC 291 and HKSAR v. Cheung Wai Man & Ors [1998] 4 HKC 284, the Court of Appeal took the view that it would be appropriate to enhance the sentence of specified offences that involved triad background or organized crimes by 50%. In Cheung Wai Man it was further decided that for organized crimes involving vehicle smuggling, trafficking in women for the purpose of prostitution in Hong Kong, and the use of force to recover money lent at usurious rate to gamblers, it would even be appropriate to impose an enhanced sentence of more than 50%. However, in Lee Sai Wing the Court of Appeal also pointed out that for crimes that were becoming prevalent, if the sentence was enhanced by 50% without prior warning, it might lead to a sense of unfairness. In respect of crimes that were becoming prevalent the extent of enhancement would be decided by their gravity, prevalence and effect upon the community. The charges in that case were procuring entries in bank records by deception, the Court of Appeal took the view that it would be appropriate to enhance the starting point by 25% to 30%.

10. According to this Court's understanding, the judge's reason for imposing an enhanced sentence in this case is because of the prevalence and gravity of similar cases, rather than because this is an organized crime case. Because of the rising trend of similar cases, this Court takes the view that it would be appropriate to enhance the sentence by 50% in order to deter the commission of such crimes. Nevertheless, prior to this case there was no precedent to indicate that the court would enhance the sentence by 50% for similar cases, (even though prior to the commencement of the trial, the prosecution had already served written notices upon the defendants to the effect that in case they were convicted, the prosecution would furnish to the court the above material under section 27(2)). In such circumstances, if the sentence were to be suddenly enhanced by 50%, the defendants would feel a sense of unfairness. As far as this case is concerned, this Court is of the view that the sentence of 2 years' imprisonment should be enhanced by 25%, making the sentence one of 2 years and 6 months.

Conclusion

11. We would allow the appeal, set aside the original sentence and substitute it with an imprisonment term of 2 years and 6 months. At the same time, this Court would point out that in future, it would not interfere with decisions to enhance the original sentence by 50% in similar cases.