HKSAR v. YE YALIU AND OTHERS

CACC 85/2008

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

criminal APPEAL NO. 85 OF 2008

(ON APPEAL FROM dccc 1078 of 2007)

_______________________

______________________

______________________

J U D G M E N T

______________________

Hon Yeung JA (giving the judgment of the Court):

Introduction

1.  These are “street deception” cases involving the use of “spiritual healers”. The victims, invariably women of senior age, were approached in the streets and told that ill fates awaited their loved ones. In order to avert imminent disasters, the victims were told that certain “blessing ceremonies” had to be performed, requiring them to put into paper bags large sums of cash and other valuables, only to be replaced with valueless items by the fraudsters.

2.  The fraudsters, playing different roles, put the victims in fear and then pretended to offer help, before making away with the victims’ money and valuables.

3.  The applicants, Ye Ya-liu (“Ye”), Dai Hui-fen (“Dai”) and Laing You-qing (“Liang”) were the fraudsters. They were mainlanders coming to Hong Kong as visitors for the sole purpose of perpetrating the “fraud”.

4.  On 22 February 2008, the applicants appeared before Deputy Judge W Lam in the District Court on an indictment consisting of a charge of conspiracy to defraud and two charges of obtaining property by deception.

5.  The 3^rd charge of conspiracy to defraud was directed at all three applicants, whereas the 1^st and 2^nd charges of obtaining property by deception were directed separately at Liang and Dai respectively.

6.  The applicants pleaded guilty to all the charges. They were each sentenced to 39 months’ imprisonment in respect of the 3^rd charge. Liang and Dai were further sentenced to another term of 39 months’ imprisonment for the 1^st and 2^nd charges respectively with 24 months to run consecutively.

7.  The applicants seek leave to appeal against sentence, claiming that they are remorseful. They also say they have family members to care for and hope to be able to return to their hometowns to take care of them.

8.  Ye claims that her sentence is heavier than sentences in other similar cases and that her husband is divorcing her for what she did. She says her conscience is hurting her and she wishes to be given a chance to “redeem her sin”.

9.  Dai associates herself with Ye’s submissions, saying that the 39-month starting point is excessive and that the total sentence of 63 months is much longer than sentences in other similar cases. She asks for a concurrent sentence.

10.  Liang also suggests that her sentence is heavier than sentences in other similar cases. She says that the proper sentence should only be 30 months’ imprisonment.

The Facts

11.  It is not necessary to detail the facts of each charge as they are just too familiar, except to point out that the victim of the 1^st charge lost cash $185,000, three gold necklaces, four gold bracelets, and ten gold rings to the total value of another $45,000, and the victim of the 2^nd charge lost cash $200,000. The victim of the 3^rd charge, due to the alertness of her husband who reported the matter to the police leading to the applicants’ arrests, did not in fact suffer any financial loss.

The Judge’s Approach

12.  The judge adopted a starting point of 39 months for each of the charges and reduced them by one-third to 26 months to reflect the guilty pleas. On the prevalence of the offences, the judge accepted the application by the prosecution under the Organised and Serious Crimes Ordinance (“OSCO”) and increased the sentences by 50% to bring them back to 39 months.

13.  On totality principle, the judge ordered Liang and Dai to serve an additional 24 months for, respectively, the 1^st and 2^nd charge in addition to the 39 months on the 3^rd charge, making a total sentence of 63 months.

Discussion

14.  The offences in question are very serious offences. The applicants preyed upon the naivety, gullibility and superstition of the victims by frightening them with ill fates to their loved ones. The victims suffered or would suffer heavy financial losses. More importantly, the losses to the victims were, very often, losses of their entire life savings and they would not be compensated.

15.  Despite widespread publicity exposing “street deception” cases, they remain prevalent. The judge rightly emphasized, as an aggravating factor, that the applicants were visitors coming to Hong Kong for the sole purpose of furthering their criminal enterprises. 

16.  The applicants and others who continue to commit “street deceptions” must be deterred. The offences call for heavy sentences. The personal backgrounds and family circumstances of the applicants are not mitigating factors. If they are concerned about their families, they should not have come to Hong Kong to commit the offences in the first place.

17.  The judge was right to take a grave view of the crimes in question. However, other than the nature of the offence itself, there was no other aggravating factor, such as large-scale operation, repeated offence or perhaps involving exceptional large amount of money, as fairly conceded by Ms Mary Sin, for the respondent.

18.  Ms Sin also accepts that the usual starting point for one charge of “street deception” is only three years’ imprisonment. (See HKSAR v Huang Yu Huan & anor [2002] 2 HKC 682 and HKSAR v Liang Yaqiong & Others CACC 92/2008)

19.  However distasteful the applicants’ behaviour was, as Stuart-Moore VP said in Laing Yaqiong (supra) at para 14 of the judgment, “…a sense of proportion has to be maintained with other serious offences involving dishonesty including burglary and thefts by well-organised teams of pickpockets.”

20.  One cannot ignore that with the 50% enhancement under OSCO, a three-year starting point translates into a sentence of 4½ sentence, which is already a severe sentence for a “fraud” case involving $200,000 to $250,000.

21.  We are persuaded that the 39-month starting point adopted by the judge is manifestly excessive and that a three-year starting point is adequate, even with deterrence in mind. The judge was entitled to enhance the sentence under OSCO.

22.  To reflect Ye’s guilty plea and the 50% enhancement under OSCO, the proper sentence on Ye should be three years’ imprisonment.

23.  We are also concerned with the total sentence of 63 months on Dai and Liang.

24.  The 63 months’ imprisonment, on a plea of guilty, represents a starting point, with enhancement, close to 8 years, which is manifestly excessive.

25.  We are of the view that a total starting point of 4 years is more appropriate. We approve the 50% enhancement under OSCO to bring the total sentence to 6 years. To reflect the guilty pleas, the 6-year sentence will be reduced to 4 years.

26.  We therefore reduce the sentence on each of the 2 charges against Laing and Dai to 3 years. We are also persuaded that of the 3-year sentence on each of the 1^st and 2^nd charge against Liang and Dai respectively, only 1 year needs to be served consecutively to the 3 years on the 3^rd charge, making the total sentence on each of them one of 4 years’ imprisonment.

27.  We grant leave to the applicants to appeal against sentence. Treating the application as the appeal proper, we allow their appeals.

28.  Ye’s sentence on the 3^rd charge is reduced to three years’ imprisonment. Laing’s sentence on each of the 1^st and 3^rd charges is reduced to 3 years with 1 year to run consecutively. Dai’s sentence on each of the 2^nd and 3^rd charges is also reduced to 3 years with 1 year to run consecutively. The total sentence of Liang and Dai is reduced to four years’ imprisonment.