HKSAR v. WONG SHEUNG HANG

DCCC 461/2023

[2024] HKDC 648

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 461 OF 2023

________________________

________________________

________________________

REASONS FOR SENTENCE

________________________

1.  There are altogether three defendants in the present case.

2.  D1 and D2 are jointly charged for 12 offences of conspiracy to defraud, contrary to common law and punishable under section 159C(6)  of the Crimes Ordinance, Cap 200.

3.  D3 faces Charge 13 alone.

4.  In the present proceeding, it only concerns D1, he pleaded guilty to the 12 charges.

5.  The following table shows the date of offences and various particulars:-

	Date (On or about)	Asking Price	Actual loss
C1	25 July 2022	$12,000	Huawei mobile phone + $10,000
C2	25 July 2022	$18,000	MacBook Pro 14
C3	26 July 2022	$45,500	Panerai watch
C4	26 July 2022	$43,000	One pair of black “LV x Nike Air Force 1” sneakers
C5	26 July 2022	$5,200	iPad Air
C6	27 July 2022	$75,000	One pair of green “LV x Nike Air Force 1” sneakers
C7	27 July 2022	$44,000	8 bottles of Japanese whisky
C8	29 July 2022	$178,800	26 bottles of Japanese whisky
C9	1 August 2022	$15,000	MacBook Pro
C10	2 August 2022	$53,800	One pair of blue “LV x Nike Air Force 1” sneakers
C11	2 August 2022	$36,800	Leica Camera + $25,000
C12	2 August 2022	$90,000	One pair of white “LV x Nike Air Force 1” sneakers

6.  As to the Summary of Facts showed that the modus operandi of committing the 12 offences are very much the same.

(1)  There were sellers posted on online platform such as Carousell to sell various items for certain prices.

(2)  Then there were the fraudulent buyers claimed that he/she was willing to buy those items for the asking prices.

(3)  In each occasion, images of deposit slips were shown to the sellers before selling items were passed to a Mr Leung.

(4)  After the items were passed to the fraudulent buyers, the 12 sellers found out that they in fact did not receive any money. In Charge 3 and 6, they were cheque deposits and the cheques were bounced.

(5)  In the case of Charge 1 and 11, the fraudulent buyers claimed in addition to the asking prices deposit, they also mistakenly transferred additional money to the sellers.

(a)  Charge 1:- claiming mistakenly transferred

$10,000;

(b)  Charge 11:- claiming mistakenly transferred

$25,000.

(6)  Those sellers in Charge 1 and 11 believed what was claimed by the fraudulent buyers, they honestly refunded the money back.

Criminal record

7.  Between 2011 to 2020, the Defendant has nine previous convictions:-

(a)  Three convictions of trafficking in dangerous drugs;

(b)  One conviction of theft;

(c)  One conviction of attempted theft;

(d)  One conviction of conspiracy to defraud; and

(e)  Others are driving offences.

Background

8.  The Defendant is now 29 years old, his mother and sisters are both living in Macau while the Defendant lives alone in Hong Kong. Prior to the pandemic, the Defendant used to work as technician in Macau, but he was out of job due to economic situation.

9.  In February 2020 the Defendant was arrested for another offence, and he was in prison until 30 June 2020. He was arrested for the present offences in 2 August 2020.

10.  That means he was rearrested soon after his release from prison as this present offenses were all committed between 25 July to 2 August 2022.

Sentence

11.  The maximum sentence for a charge of conspiracy to defraud punishable under section 159C(6)  of the Crimes Ordinance, Cap 200 is 14 years’ imprisonment.

12.  The Defence in his four pages of the first mitigation submission, relied on four authorities:-

(a)  HKSAR v Tsoi Shu [2005] 1 HKC 51 –

It is a case involved Loco London Silver fraud and the amount involved was about $2 million.

(b)  AG v Dominic Cheung Kai Man [1987] HKLR 788 –

A breach of trust case. The defendant was a bank officer and he conspired with the bank chairman and also the son of the chairman in 2 serious conspiracies involving a sum of $112 million.

(c)  HKSAR v Cheung Mee Kiu [2006] 4 HKLRD 776 and R v Clark [1998] 2 Cr App R 137.

13.  In the present case, the Defence in his mitigation did not mention the total sum of the asking price by the victims was about $600,000. It was no way close to the cases cited by the Defence.

14.  It is clearly not a breach of trust case. It is an e-shopping fraud involved a total of 12 victims, covered a period of about one week, involving 3 persons. D1 did not act alone.

15.  In a fraud case, the amount in each charge is a sentencing considering factor. In the present case it is from $5,200 to $178,800.

16.  Our world has advanced in many directions, including technology. A lot of crimes have been committed by using the online shopping platform, such as in the present one.

17.  D1 must have aware that when a cheque is deposited into a bank account, it takes time for the bank to clear the cheque. At the same time it appears in the bank account that there is such a face value of the cheque being deposited.

18.  Apart from the cheque deposit, the culprits also used cash deposit of as little as $10 into the bank machine, but key in the amount of the asking price. In fact, there was no such amount of cash being deposited.

19.  Apart from that, D1 and the others used the same trick to cheat victims in Charge 1 ($10,000)  and Charge 11 ($25,000)  that there were 2 mistaken transfers, the 2 victims believed they were true and transferred the money back to the Defendant’s account.

20.  All the victims in the present case believed that they have actually received the money being agreed to be deposited.

21.  The Defence said that D1 was not a professional cheater. I disagree.

(1)  D1 together with the others committed the 12 offences within a period of 1 week;

(2)  Each time it was successful because it was a calculated move by providing the deposit slip images into designated accounts when in fact there was no actual funds being deposited.

(3)  Items were then successful received from the 12 victims.

(4)  Those items must have high re-sale value in the secondhand market. Otherwise, there is no point for D1 and the others to take risk to continue to commit the offences.

(5)  D1 and the others were manipulating that they told the victims there were mistaken transfer of funds and asked for refund of those money. They were all lies.

22.  Today, I am told only 3 stolen items were recovered, they were items from Charge 4, 10 and 12. They were 3 pairs of sneakers.

23.  As said in the judgment of HKSAR v Leung Yiu Fai CACC 100/2014 at paragraph 43:-

“在不同案件，即使控罪相同，但因為案件的性質及犯案情節不同，判刑亦會有分別。雖然本案並非一般的違反誠信詐騙案，故不具該些罪行的嚴重性，但本案亦有其特別的嚴重性。第一，申請人的詐騙對象是社會大眾，任何公眾人士都會蒙受被申請人詐騙的風險，而受害人的數目可以是十分巨大的；第二，申請人的罪行對日漸普遍的網上買賣有極為嚴重的負面影響，令人對網上買賣有戒心，影響到忠誠從事網上買賣生意的人士的權益；第三，網上詐騙罪行容易模仿亦容易進行，如不阻嚇可能會引發大量同類罪行；第四，由於網上買賣不涉及面對面的交易，而犯案者亦可以用不同方法掩飾身份，令偵破該等罪行非常困難；及第五，受害人的損失一般極難追討。”

24.  The Defence counsel in his second mitigation submission, asked for a starting point of less than 2 years and all sentences to run concurrently by relying on HKSAR v Wong Chun Pong DCCC 164/2017 and DCCC 591/2017.

25.  The facts of these 2 cases were falsely misrepresenting to the victims to have concert tickets to sell and to cheat money from the genuine buyers.

26.  In DCCC 164/2017:-

(a)  16 occasions;

(b)  From May 2014 to August 2015 – a total period of 16 months;

(c)  Starting point of 2 years for each charge, reduce to 16 months after 1/3 discount. All charges to run concurrently.

27.  While on bail, the defendant committed further offences in DCCC 591/2017:-

(a)  13 occasions;

(b)  From June 2016 to February 2017 – a total period of 8 months;

(c)  Starting point of 30 months for each charge, reduced to 20 months after 1/3 discount. All charges to run concurrently.

28.  The court ordered both cases, DCCC 164 and 591/2017 to run concurrently.

29.  I have different view in this matter, that the Defendant cannot be expected to have the sentences be run concurrently as it cannot reflects the gravity of the offences. Further, they are committed on different dates, on different victims and with different items.

30.  In view of the above factors, I considered that each charge has a different starting point as follows:-

(i)  Charge 1:- 18 months;

(ii)  Charge 2:- 18 months;

(iii)  Charge 3:- 24 months;

(iv)  Charge 4:- 24 months;

(v)  Charge 5:- 12 months;

(vi)  Charge 6:- 24 months;

(vii)  Charge 7:- 24 months;

(viii)  Charge 8:- 36 months;

(ix)  Charge 9:- 18 months;

(x)  Charge 10:- 24 months;

(xi)  Charge 11:- 24 months; and

(xii)  Charge 12:- 36 months.

31.  Today, the Defence agreed that there was an aggravating factor as the Defendant committed the present offences right after his discharge from prison. As such, I enhance the starting point by 3 months for each charge.

Enhancement rate

32.  Section 27(2)  of the Organized and Serious Crimes Ordinance, Cap 455.

33.  The Prosecution served the notice for the application to enhance the sentence under section 27(2)  on 1 June 2023 on the grounds that:-

(a)  The prevalence of these specified offences;

(b)  The nature and extend of any harm, whether direct or indirect, caused to the community by recent occurrences of these specified offences;

(c)  The nature and extend of the total benefit, whether financial or otherwise, accruing directly or indirectly to any person from recent occurrences of these specified offences.

34.  In support of this application, the Prosecution provided a statement from Inspector Ng which informed me that there is a rising trend of e-shopping fraud. I accepted that there is such a prevalence of these specified offences. As such, I enhance all sentences by 25%.

Charge	Starting Point	Enhance by 3 months	Sentence after usual 1/3	OSCO%(+25%)
1	18	3	14	17.5
2	18	3	14	17.5
3	24	3	18	22.5
4	24	3	18	22.5
5	12	3	10	12.5
6	24	3	18	22.5
7	24	3	18	22.5
8	36	3	26	32.5
9	18	3	14	17.5
10	24	3	18	22.5
11	24	3	18	22.5
12	36	3	26	32.5

35.  I also consider that a total of 42 months after 25% enhancement is sufficient to reflect the seriousness of the present case and the effectiveness of a deterrent sentence.

Totality

36.  I order:-

(i)  1/2 months each from Charge 1, 2, 5, 9,

(ii)  1 month each from Charge 3, 4, 6, 7, 10, 11, and

(iii)  1.5 months from Charge 12,

a total of 9.5 months to run consecutively to Charge 8 which is 36 months.

37.  The defendant is ordered to serve a period of 42 months imprisonment.