HKSAR v. MARSHALL BILL O

DCCC 92/2017

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 92 OF 2017

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REASONS FOR SENTENCE

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1.  The defendant pleaded guilty to the following charges:-

(i) 1^st Charge: Conspiracy to steal, contrary to section 9 of the Theft Ordinance, Cap 210 and sections 159A and 159 C of the Crimes Ordinance, Cap 200; and

(ii) 2^nd Charge: Having custody or control of counterfeit currency notes, contrary to section 100(1) of the Crimes Ordinance, Cap 200.

Summary of facts

2.  Madam Po (“the victim”), aged 40, is a Hong Kong citizen and worked as an Information Technology Manager earning about HK$60,000 per month.  In May 2016, she acquainted through the internet a man named “Franklin”, who represented himself as American-German and worked as a doctor at the World Health Organization who was then taking part in a humanity-rescue operation in Syria.  The victim soon fell in love with Franklin despite they never met in person.

3.  On various dates in June 2016, Franklin made numerous requests to the victim to pay certain fees for him.  The reason given by Franklin is that he would come to Hong Kong to visit the victim but before that he had to arrange for his luggage containing US$1 million cash to be delivered from Syria to Hong Kong via the United Kingdom.  First, Franklin asked the victim to pay on his behalf a fee of £2,800 so that his luggage could be exempted from inspection.  The victim deposited the said amount as requested into a designated bank account. Later Franklin asked the victim to pay a clearance fee of US$10,500 for him so that he could retrieve his luggage at the Hong Kong Airport.  The victim agreed.  Upon the arrangement of Franklin, the victim met a person named “James” (who turned out to be the defendant) and handed over him cash HK$81,698 purportedly to be the clearance fee.  Later in the same evening, the defendant told the victim that in order to retrieve the luggage of Franklin, a cost of £6,500 had to be paid to obtain a “non-inspection certificate”.  Again, the victim agreed and later paid the Defendant cash HK$78,970.

4.  On 26 June 2016, the defendant visited the victim at her home and brought with him a suitcase purportedly being the luggage of Franklin.  As instructed by Franklin, the victim opened the suitcase and found some black-coloured papers in banknote size and a bottle of liquid.  Franklin told the victim that the black-coloured papers were in fact USD banknotes that had been deliberately dyed black to avoid detection.  Franklin claimed, in order to remove the black dye, a special solution was needed to be used.  At the request of Franklin, the victim handed over two sums of cash HK$105,615 and HK$778,000 to the defendant to purchase the solution.

5.  Subsequently, after discussing with friends, the victim started to raise suspicion and eventually made a report to the police on 31 July 2016.  On 3 August 2016, the defendant contacted the victim again and asked for further money to purchase the solution.  The victim told the police about the request and a controlled meeting was arranged to be held on 5 August 2016.  On that day, the defendant duly attended the meeting and accepted the purported payment from the victim. The police immediately arrested the defendant.

6.  After the defendant was arrested, a house search was conducted in his home.  Among other items, 262 pieces of counterfeit USD$100 banknotes were found.  Under cautioned at his home, the defendant admitted that he knew the banknotes to be counterfeit banknotes and he planned to use them to cheat people.  The said counterfeit banknotes were later confirmed to be all counterfeit through forensic examination.

7.  In a subsequent video-recorded interview, the defendant said he was introduced by a friend to a male named “Francis” whom he believed is living in Africa. Francis offered him a ‘job’, that is to approach his girlfriend in Hong Kong to collect money from her.  He could keep 10% of the money as reward.  The defendant agreed and subsequently followed the instructions given by Francis to contact the victim and collected the money.  He admitted that altogether he collected a total of cash HK$1,044,283 from the victim.  He admitted that he knew the whole scheme about collecting luggage for Franklin and washing the dyed banknotes was a scam to deceive the victim to pay the money.

8.  The defendant is a Liberian passport holder who entered Hong Kong on 2 May 2008. Thereafter he applied for refugee status and has been granted “Form 8” recognizance since 21 March 2014 by the Director of Immigration to remain in Hong Kong pending determination of his application.

Mitigation

9.  The defendant is 48 years of age.  He is single but has 2 sons and 3 daughters from 4 different relationships.  He has an Indonesian girlfriend who is a non-refoulment claimant and they have 2 young children, aged 3 and 6.  Because of his status, the defendant could not work and is relying on the assistance from the International Social Service Hong Kong.  The assistance was not sufficient to support his family and he needed money.  That is the reason why he committed the offences.

10.  In mitigation, defence submitted that the defendant is remorseful.  He has been very co-operative with the police and has made full confession.  Defence also submitted that the defendant was not the mastermind of the scam and he only acted upon the instructions of others.  The defendant only received 10% of the money stolen from the victim and he had spent all the money on family expenses.

11.  Concerning the counterfeit banknotes, defence submitted that they were all of very poor quality and were not intended to be circulated.

12.  To conclude, defence urged the court to sentence the defendant leniently and to consider the totality of the sentence.

Sentence

13.  The two offences are no doubt very serious offences in their own right.  Concerning the 1^st charge, though the offence is “Conspiracy to steal” but in substance it is very similar to any fraud case, in particular those street deception and telephone deception.  Using all sorts of reasons and tricks, the fraudsters earned the trust of the victims and deceived money from them.  In the present case, the victim was led to believe she was helping her lover and handed the defendant substantial amount of money.  The scheme involved was not very complicated but was elaborate.  There is no doubt that the victim suffered not only financially but also emotionally.

14.  Defence submitted there is no tariff in this kind of “Internet deception”.  It may be the case.  However, as I mentioned earlier, the criminality of Internet deception cases should be at least similar to telephone deception and more serious than street deception.  On street deception cases, the Court of Appeal has laid down guidelines in the case of HKSAR v Tan Mei Yuan, unrep., CACC 360/2008, setting the starting point at 3 to 3½ years’ imprisonment. Further, the Court of Appeal in HKSAR v Hung Yung Chun [2011] 2 HKLRD 167, expressed the view that telephone deception cases are more serious than street deception cases.  The reason is that in telephone deception cases the co-conspirators were usually acting in more organized manner and each co-conspirator performed his/her own function according to the plan. Therefore, the starting point for telephone deception cases should be 4 years’ imprisonment.

15.  Concerning the role of the defendant, reading from the Summary of facts, the defendant obviously was not the mastermind of the conspiracy.  However, his role was not minor at all.  He was the person who collected the money and demonstrated to the victim how the counterfeit banknotes could be washed.  He clearly knew the details of the deception and played an important role to deceive the victim into believe the scam was true.  He played an indispensable part in the scheme and the sentence should reflect this fact.  His situation can be distinguished from the case of HKSAR v Cen Huakuo, unrep., CACC 21/2014, where the defendant received a lighter sentence because the Court of Appeal found that the defendant had no more than some sketchy idea about the offence.

16.  Concerning the 2^nd charge, the offence is a serious one.  In two cases HKSAR v Leung Wai Han, unrep., CACC 102/2002, and HKSAR v Li Tsz Chung, unrep., CACC 312 & 314/2011, the Court of Appeal said the starting point of 2½ years was appropriate for this charge, though the amounts of counterfeit currency notes involved in those two cases were much lesser than the present case. 

17.  Considered all the circumstances of the case, the amount of money involved, the fact that the defendant is not able to make any compensation and the personal background of the defendant, for the 1^st charge, I am of the view that 3½ years ie 42 months’ imprisonment is the appropriate starting point.  After giving one-third discount for the guilty plea, the defendant is sentenced to 28 months’ imprisonment.  For the 2^nd charge, I adopt 2½ years ie 30 months as starting point.  After giving one-third discount for the guilty plea, the defendant is sentenced to 20 months’ imprisonment for the 2^nd charge.

18.  Lastly I have to consider the totality of the sentence.  Defence submitted that the subject matter of the 2^nd charge ie those counterfeit US currency notes were all tools to be used in the scam and were not intended to be circulated.  After careful consideration of the fact of the case, I am of the view that what Defence submitted could be the truth.  In the circumstances, it would be quite unfair to punish the defendant again on the 2^nd charge where he will be receiving sentence for the 1^st charge.  Base on this reason, I order the sentences of the 1^st and 2^nd charges to be served wholly concurrently.  The total sentence is 28 months’ imprisonment.