HKSAR v. WU XIAOPENG

DCCC 1045/2014

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 1045 OF 2014

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Reasons for Sentence

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1.  The defendant pleads guilty to one charge of conspiracy to defraud （Charge 1）, and one charge of resisting police officers （Charge 2）.

2.  The facts of the case show a telephone deception scam.  At around 1 pm on 17 October 2014, Madam Yeung, the victim, received a call from an unknown male (“the male”) at her home.  The male told the victim that her son had made someone pregnant and the male demanded a sum of HK$180,000 for the release of her son.  After negotiation, the male agreed to accept $30,000. 

3.  The victim then headed for the bank together with her relative, one Mr Yeung, to withdraw money.  At the bank Mr Yeung revealed the incident to the staff member of the bank who then reported the case to the police.  The police contacted the victim’s son who confirmed that he was safe. 

4.  The police then mounted an operation.  On the instruction of the male, the victim eventually entered the McDonald Restaurant at Smithfield Road at about 3.30 pm.  While the victim was talking on the phone with the male, the defendant approached the victim and said to her, “Madam, it is me.  You pass the money to me.  Your son and my brother are in McDonald’s Restaurant.  After you give me the money, you can see your son.”  The victim then passed the envelope purporting to contain the ransom money to the defendant. 

5.  Police officers laying ambush nearby intercepted the defendant and declared arrest.  The defendant tried to flee from the scene.  A police officer gave chase to the defendant, but the defendant pushed him away.  They struggled on the ground.  Another officer gave assistance and they finally subdued the defendant. 

6.  Under caution, upon arrest, the defendant admitted having committed a telephone deception.  He also said he did not intend to injure the police officers and his act was just normal reaction.

7.  Upon arrest, a mobile phone was found being dropped from the defendant onto the ground.  The envelope was found near the mobile phone.  Another mobile phone was found on the defendant.

8.  In the subsequent video-recorded interview, the defendant admitted that he had tried to deceive the victim and had resisted the police officers. 

9.  The two police officers were sent to hospital. One was found sustaining abrasions on his right elbow and left and right knees.  Another one was found sustaining tenderness, haematoma and abrasions on his forehead and abrasions on his right arm.

10.  Immigration records show that the defendant entered Hong Kong as a visitor on 13 October 2014 being permitted to stay for a week.

11.  The prosecution applies for enhancement of sentence under section 27(2) of the Organised and Serious Crimes Ordinance, Cap 454.  The application is not opposed to by the defendant.

12.  The defendant is aged 29 with no criminal record in Hong Kong.  He is a resident in the mainland. 

13.  In mitigation Mr Tse, solicitor for the defendant, tells the court that the defendant is a decoration worker in the mainland earning 2,000 renminbi a month.  He received education up to secondary one.  He came to Hong Kong for sightseeing but was asked by a relative to participate in the crime.  He is now remorseful and he already apologised for causing injuries to the police officers in the interview with the police.

14.  In respect of the application for enhancement of sentence, while accepting telephone deception is still prevalent in Hong Kong, Mr Tse points out that according to the statement of Chief Inspector Lam, which is admitted under section 65B of the Criminal Procedure Ordinance, the number of telephone deception cases in 2014 (ie 183 cases), was lower than that in 2013 (ie 200 cases).  The total amount of loss in the crime has also dropped from $13.74 million in 2013 to $12.87 million in 2014. 

15.  Mr Tse refers me to the case of HKSAR v Hung Yung Chun CACC 453/2009.   In that case the Court of Appeal stated that phone deception case is more serious than a common street deception case and the general starting point for a phone deception case should be 4 years’ imprisonment and an enhancement by one-third would be appropriate.

16.  In the present case, the defendant admitted under caution having committed the telephone deception.  He is a party in that crime.  He is not a Hong Kong resident.  The original ransom asked for was $180,000 which was eventually negotiated down to $30,000.  The victim suffered no actual loss of money though. 

17.  I am satisfied that the general starting point of 4 years for Charge 1 is appropriate in the circumstances of the case.  I will take 3 months’ imprisonment as the starting point for Charge 2.  Apart from the defendant’s plea of guilty, I cannot find any mitigating factors in the case.  The defendant will have the full one-third reduction for his plea of guilty. 

18.  The sentences for the two charges should be 32 months and 2 months respectively. 

19.  The application for enhancement of sentence is not opposed to.  Noting the slight decrease in the number of telephone deception cases in 2014, I am satisfied that the prosecution has proved that telephone deception cases are still prevalent in Hong Kong and the crime causes harm to the community by its repeated occurrence. 

20.  Enhancement of the sentence in Charge 1 is necessary. However, in my view, an increase by 25 per cent, ie 8 months, would be sufficient in all the circumstances. 

21.  Having considered the totality principle, the sentence in Charge 2 can run concurrently with Charge 1.  The defendant is therefore sentenced as follows: Charge 1, 40 months’ imprisonment; Charge 2, 2 months’ imprisonment, to run concurrently with the sentence in Charge 1, making a total term of 3 years and 4 months’ imprisonment.