HKSAR v. TANG WAI KUEN

DCCC 246/2023

[2023] HKDC 1859

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 246 OF 2023

________________________

________________________

________________________

REASONS FOR SENTENCE

________________________

1.  The Defendant (D)  pleaded guilty to a charge of conspiracy to defraud PW1 for a sum of $30,000.

Summary of facts

2.  At about 10:30 am on 8 November 2022, PW1 received a phone call from an unknown caller claiming to be his son that:-

(a)  He suffered a head injury;

(b)  He needed money urgently.

3.  Subsequent to the telephone conversation, PW1 took $30,000 cash to meet the unknown caller at Wang Wa Street.

4.  When PW1 arrived, the D approached PW1, claimed himself to be Mr. Lee and asked PW1 to pass the $30,000 cash to him.

5.  PW1 refused as he was not sure if D was the real Mr Lee that he was supposed to meet.

6.  The D suggested walking to another place to avoid disturbances to the residence.

7.  While they were walking to Factory Street, the police intercepted PW1 for enquiry who told the police of the incident.

8.  The police arrested the D.

9.  PW1 then contacted his son who said that he was safe.

10.  The D’s phone was examined and found 3 photos of PW1 standing outside 11 Wang Wa Street at 12:45 pm, 12:47 pm and 12:57 pm on 8 November, 2022.

11.  Telegram conversation record showed 5 locations of street view including 11 Wang Was Street.

Criminal record

12.  The Defendant has a clear record.

Mitigation

13.  The D is now 40 years old, single; he used to work in the kitchen and earned $29,000 per month. However, he stopped working 2 months prior to the present incident. He lived with his family before the arrest.

14.  The Defence said that the D did not come from Mainland to commit the present offence and therefore has no element of aggravating feature.

15.  He committed the offence out of stupidity and greediness. He just wanted to earn quick money for a reward of $500. He is now remorseful. He promised that he would not be reoffended again.

16.  During the period of remand, he found faith in Christianity and he signed up for donation of his organs after death.

Sentence

17.  The offence carried a maximum sentence of 14 years.

18.  The present sentence process is two folds :-

a. First to consider the start point according to the summary of facts

b. Second is to determine the rate of enhancement according to the statistic provides by the Prosecution.

The starting point

19.  The defence properly accepted that the sentencing guideline can be found in HKSAR v Hung Yung Chun [2011] 2 HKLRD 167.

20.  In the present case, it is fortunate that PW1 did not pass the $30,000 to the D.

21.  However, the phone call had put PW1 into sever fear and great anxiety. Any parents who received this kind of phone call would only lose their senses without ascertaining from their children whether the content of the calls were true or not. They behave frantically with worry.

22.  It is in these circumstances that PW1 became vulnerable.

23.  For this reason, this kind of telephone deceptions are often successful to collect money from the vulnerable ones time after time.

24.  The Prosecution informs me that the $30,000 was actually the lifesaving of PW1 who is now 85 years old. That means he had worked hard as a decoration worker in his life to earn them and lives frugally to save them.

25.  It is not difficult to imagine that it would have a huge psychological impact on PW1 had he passed the $30,000 to the D.

26.  The D and those behind him in the scheme are all standing in very low moral ground, as they have no empathy to those people like PW1.

27.  The role of the D in the present case was a foot soldier to receive the money from PW1 for a reward of $500. Nonetheless, he played an important part in the scheme. Without his participation, there would be a missing link in the scheme of conspiracy.

28.  From the photos and the telegram conversations, they tell me that there were also someone behind the scene in the scheme. That means the D was not acting alone.

29.  With all this information in mind, I take 3 ½ years as the starting point and reduce the sentence to 2 years 4 months imprisonment after 1/3 discount.

The rate of enhancement

30.  I now deal with the application by the Prosecution as to enhancement under S 27(2)  of the Organized and Serious Crimes Ordinance, Cap 455. The notice has been served on the D on 11 April, 2023.

31.  Since the Prosecution asked for enhancement of sentence under S. 27 of the Organized and Serious Crimes Ordinance, Cap 455, this case has been adjourned for the Prosecution to provide further statement from the police regarding the data of the prevalence of the present offence and to provide the defence an opportunity to address on this issue.

32.  The Defence had no issue with an enhancement rate of 1/3 , but dispute that 50% enhancement was too much in the present case :-

(a)  50% enhancement rate should be reserved for cases that are more serious. This is a relatively simple case. One victim who did not suffer any loss and the amount was $30,000.

(b)  A deterrent sentence ought not be imposed on a first offender like the D himself, :-

(i)  Ho Kau v R [1978] HKLR 197;

(ii)  R v Curran [1973] 57 Cr App R 945.

33.  The defence also relied on the following cases to support his argument:-

(i)  HKSAR v Chan Chi Ming and Another HCMA 115/2003, D1 allowed D2 to use a blank employee pay slips from D1’s company to falsify that D2 was the employee in D1’s company. A sentence of 140 hours of CSO order was in place of the 4 months’ imprisonment for both defendants after appeal.

(ii)  HKSAR v Chan Ho Kit DCCC 238/2023 that the defendant pleaded guilty to two charges, Charge 2 conspiracy to defraud – a phone deception case involved a sum of $65,600 and Charge 3 money laundering of $30,500. Starting point for Charge 2 was 24 months while Charge 3 was 12 months.

34.  I totally disagree with the defence submissions for the following reasons:

(a)  The cases of Ho Kau and Curran were decided some 50 years ago.

(b)  Over the period of time, there were a great deal of social and technology developments. In 2011, the Court of Appeal in Hong Kong has laid down the sentencing guideline in Hung Yung Chun to pass sentence on this type of offence and it remains as good law as today.

(c)  The defendants in Ho Kau and Curran faced different nature of offences.

(d)  In the present case, a deterrence sentence is called for. Otherwise, it will send a wrong message to the syndicate behind the defendant. The syndicate will then look for people with a clear record to become their foot soldiers.

(e)  As to the case of Chan Ho Kit, the defence accepts that it has no binding effect upon me. Further, there was no mention of the case of Hung Yung Chun in the reasons for sentence.

35.  The Prosecution provided statement as to the number of cases from 2018 to 2022 and with an updated period in the first six months of 2023.

36.  The statistic showed the following numbers:-

Year	Number of Telephone Deception cases	Number of Telephone Deception cases with monetary loss	Accumulated monetary loss (in HK$ million)
2018	615	566	60.95
2019	648	629	150.02
2020	1,193	1,151	574.83
2021	1,140	1,094	811.12
2022	2,831	2,625	1,076.45
2023 (Jan-Jun)	1,579	1,390	403.19

37.  As to Guess Who Type Telephone Deception, it is clear to me between 2021 to 2022, there is a sudden surge in the curve from about 500 cases to 1,540 cases respectively, a rise of 300%.

38.  In terms of momentary lost from 2021 to 2022, it was from 8.7 million to 73 million. A difference of 64.3 million.

39.  From these figures, any one can see the prevalence of this type of offences continues and it becomes more prevalent.  Many victims have suffered their lost, while on the other hand, those syndicates made easy money by telephone deception.

40.   As said in the judgement of Hung Yung Chun at paragraph 24 that “ on enhancement, we consider that an enhancement of 1/3 will do for now. However, should this type of case become even more prevalent, the Court may increase the rate of enhancement.”

41.  With all this information in mind, I am satisfy that an enhancement by 50% is the proper rate to reflect the nature of prevalence, that is 1 year 2 months.

Final sentence

42.  The final sentence arrived at 3 years 6 months. ( 2 years 4 months + 1 year 2 months )

Order

43.  The D is ordered to serve a sentence of 3 years 6 months. Imprisonment.