HKSAR v. CHU SAU CHI AND OTHERS

CACC 294/2002

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 294 OF 2002

(ON APPEAL FROM DCCC 378 OF 2002)

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J U D G M E N T

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Stuart-Moore VP (giving the judgment of the Court):

Introduction and background

1. On 11 June 2002, the Applicants (D1, D2 and D3 respectively) pleaded guilty in the District Court before Judge Wright to a common law charge of conspiracy to defraud. In addition, D2 pleaded guilty to a charge of theft, contrary to sections 2 and 9 of the Theft Ordinance, Cap. 210.

2. D1 was sentenced to three years' imprisonment, D2 received concurrent terms of three and a half years' imprisonment and D3 was sentenced also to three and a half years' imprisonment. These sentences had been enhanced under the terms of section 27(11) of the Organised and Serious Crimes Ordinance (OSCO), Cap. 455.

3. The Applicants now seek leave to appeal against their sentences.

4. Both offences on the charge sheet amounted to street deception cases, and more particularly were what have become known in colloquial parlance as "dropped money scams".

5. The conspiracy (in charge 1) involved the Applicants working as a team of confidence tricksters on 28 February 2002 at Kowloon Tong Railway Station. Fortunately, their activities were being observed by police officers. D2 was a lookout while D3 engaged a 52-year-old man (the victim) in conversation about whether he had dropped the money which D3 said he had seen D1 pick up earlier. Then, in the victim's presence, D1 and D3 talked to each other and D1 produced a plastic bag which was said to contain a large sum of money. They all then got onto a train and they alighted at Tai Wai KCR Station. D1 was pretending to be on his way to work. At that stage, D3 persuaded the victim to take out his money which amounted to RMB3,000. D3 pretended to place this inside the plastic bag D1 had produced at Kowloon Tong. He then appeared to place the bag inside the victim's rucksack. The victim then boarded a train on his own, only to discover after it had departed that no money was to be found and that even the plastic bag itself had not been put inside his rucksack. He immediately reported the offence and the Applicants were arrested. D3 was found in possession of the stolen money. All the Applicants admitted participation in the events relating to the first charge of conspiracy.

6. The theft charge against D2 had occurred about three weeks earlier, on 6 February 2002. This was a very similar offence. The chosen victim was a 59-year-old lady (PW1). D2 was, on this occasion, acting in concert with an unknown man. D2 asked PW1 if she had dropped her money. She checked her handbag and found, of course, that nothing was missing. The unknown man then pretended to make a genuine enquiry directed at D2, asking him if the money he had found belonged to him. D2 said it did not but that it belonged to PW1. The unknown man said he would return the money to PW1 on the train. Before they boarded the train, however, D2 asked PW1 how much money she had in her wallet and he requested to see it. There was $400. D2 took the money. The unknown male then asked PW1 about her necklace and bracelet and PW1 told him to mind his own business. However, the unknown male suggested they were fake. She said that they were genuine and, in her naivety, she passed D2 her gold necklace and bracelet and her jade pendant to look at. D2 then pretended to put these items into the bag being carried by PW1 and he said he would return the $400 to her when they got onto the train. PW1 then got onto the train. However, D2 and the unknown male did not board the train. Instead, they made off not only with the $400 but PW1's jewellery also. PW1 was able to identify D2 on an identification parade on 1 March 2002 following his arrest for the conspiracy.

The application

7. A number of grounds of appeal were advanced by Mr Sammy Hui, representing all the Applicants. The main ground, which was common to all of them, was that the judge took a starting point for these offences which took into account the 'prevalence' of this type of offence and then went on to enhance the sentences by a further 50% under section 27(11) of OSCO on the ground that they were prevalent offences as described in section 27(2)(c) of OSCO. Mr Hui's complaint was effectively that the Applicants had been punished twice over for the element of prevalence in these offences.

8. Additionally, Mr Hui submitted that the judge's starting point of three years' imprisonment was too high as a relatively small monetary value was involved in the conspiracy charge and as the commission of the offence had not involved a great deal of sophistication. For the same reasons, he argued that an enhancement by 50% was too high in all the circumstances.

9. The judge set out in meticulous detail the way in which he approached sentence. In particular, he followed the guidance of this court in HKSAR v Tam Wai-pio [1998] 4 HKC 291, [1998] 2 HKLRD 949, when saying that he had to determine:

"the appropriate starting point for sentence having regard to the part played by the Accused and the sentence that the court would have imposed taking into account the defendant's mitigation and totality; secondly, whether the offence was an organized crime as defined in that Ordinance; thirdly, whether in the light of the information supplied by the prosecution, or in the light of the nature of the offence itself, enhancement is called for; if enhancement is called for, the percentage of that enhancement." (Appeal bundle p. 10)

The reference to whether the offence was an 'organised crime' related to a relevant issue in Tam Wai-pio. For present purposes, as the judge appreciated, the relevant part of OSCO was confined to whether the offence was shown to have been 'prevalent'. Later, the judge went on to say:

"There is no guideline case for offences of conspiracy to defraud for, obviously, the nature of these offences is extremely diverse. However, in respect of offences of the nature of street deception, of which this is but an example, the starting point varies from less than to in excess of 3 years' imprisonment. Typically, it has to be said, this is an offence which is frequently carried out by visitors to Hong Kong. That is a factor which, in my view, is one that is properly taken into account in assessing the appropriate starting point prior to considering whether there should be enhancement." (Appeal bundle p. 10)

10. The judge then cited a passage from HKSAR v Huang Yu-huan and Anor, CACC 336/2001 (unreported) which read:

"The gravamen of the offence is the fraud itself .... All the offences of this type employ the same modus operandi: two or three tricksters acting in concert, each playing pre-assigned roles, and no doubt using well-honed psychological tricks, prey on the credulity of unsophisticated middle-aged or elderly people in the hope of relieving them of substantial sums of money. The offences, of necessity, have to be both premeditated and well planned. They are certainly cynical and heartless crimes." (Appeal bundle p. 11)

11. The judge found that the facts disclosed by the offences before him were designed to "extract the maximum amount from their victims". He then selected a starting point on charge 1 of three years' imprisonment for D1 and D2 but three and a half years for D3 who had acquired a recent conviction for theft and who was, in the judge's view, to be treated as a "persistent re-offender" following what had been said in HKSAR v Chan Pui-chi [1999] 3 HKC 848. D3 had been sentenced on 14 November 2000 to sixteen months' imprisonment so that it had not been long before he had returned to his old ways in Hong Kong where, on both occasions, it was said that he had been a "visitor".

12. The judge gave a full discount of one third to each Applicant saying that the only real mitigation any of them had been able to advance was their timely acceptance of guilt as demonstrated by their pleas. The judge went on to say:

"Consequently, the appropriate sentence in respect of the 1st Accused on charge 1 is 2 years' imprisonment. In respect of the 2nd Accused on each of charges 1 and 2, 2 years' imprisonment. And in respect of the 3rd Accused on charge 1, 2 years and 4 months' imprisonment.

Before I consider the issue of enhancement, I have to have regard to the issue of totality insofar as the 2nd Accused is concerned. It seems to me that this is a matter where, rather than order a portion of one sentence to be served consecutively to that of another, the appropriate method of dealing with it is to increase the sentences and order that both be served concurrently.

So, rather than take a starting point of 3 years in respect of each of the two offences and reduce it to 2 years in respect of each of the two offences, I propose to take a starting point of 3 years and 6 months in respect of both of the offences and reduce that to 2 years and 4 months in respect of both of the offences, with a view to ordering that the final sentences be served concurrently with one another.

I have intentionally dealt with the two offences in respect of the 2nd Accused individually and then collectively in the belief that it will make the calculation of the final sentence more comprehensible to him." (Appeal bundle pp. 11-12)

13. The judge went on next to consider enhancement. He said:

"There is evidence before me in the form of an admitted statement by Woman Detective Senior Inspector Yip, in which substantial statistics dating from 1997 to February of this year are set out. These deal with street deception cases. They show 51 such cases being reported in 1997, 209 in 1998, 455 in 1999, 617 in 2000, a very slight drop to 606 in 2001 and 111 cases in the first two months of this year. If that figure is multiplied out, it suggests that there will be some 660 cases during 2002, an increase of approximately 10 per cent over last year. That of course is to some extent speculatory but is consistent with previous years and demonstrates the real point which is that these remain extremely prevalent cases. The amounts of property that are involved have varied from $3.3 million in 1997 to a high of in excess of $42 million in 2000. These are prevalent offences and they remain so despite the efforts of the police to combat them.

The circumstances of the commission of these offences fall full square within the type of offences where enhancements have previously been approved by the Court of Appeal. In my judgment, both having regard to the prevalence of the offences as well as the nature of the offence itself, these are offences in which an enhancement is appropriate. As to the quantum of any enhancement, it seems to me, based upon particularly Huang Yu-huan's case, that an appropriate enhancement is one of 50 per cent.

In the circumstances, I take the sentences which I would have imposed prior to enhancement and enhance each of their sentences by 50 per cent." (Appeal bundle pp. 12-13)

14. It is apparent from the clarity of the judge's approach that he had made no error of principle. In particular, it was not the prevalence of the offence which had been a factor in determining the starting point. The judge had gauged the gravity of this type of fraud by the summary which he had taken from Huang Yu-huan (above), which was equally relevant to this case. Further factors in D2's case related to the commission of two separate and distinct offences and, for D3, related to his previous conviction and to his status as a visitor in Hong Kong on both occasions when he had turned to thieving.

15. The independent issue of 'prevalence' of the offence amply justified the judge's decision under section 27(11) of OSCO, using the words taken from that section, to:

".... pass a sentence on the person for that offence that is more severe than the sentence it would, in the absence of such matter, have passed."

16. Furthermore, in HKSAR v Ma Suet-chun & Ors [2001] 4 HKC 337 at 344 which concerned a street deception involving a pretence that the miscreants were in possession of a pill which could cure cancer, this court said that:

".... in future, it would not interfere with decisions to enhance the original sentence by 50% in similar cases."

17. The reference to "similar cases" was, of course, to offences involving street deceptions in general and not merely to the kind which was specific to that case.

18. We were not persuaded that the sentences imposed in the present case were manifestly excessive or wrong in principle so far as any of the arguments were concerned with which we have so far dealt.

19. There were two other matters with which we should deal, covered by specific grounds of appeal in relation to D2 and D3 respectively.

20. On behalf of D2, Mr Hui argued that D2's role in the conspiracy offence was merely that of a "lookout" and that a higher starting point to take into account two offences instead of only one was unjustified. These arguments carried no weight whatever. Dealing with the first of these, a lookout was obviously an essential member of the team and although he had failed to spot the police who were, in turn, watching D2's gang at work, his careless inefficiency is obviously no ground on which to reduce his sentence. The second point is equally quickly answered. The judge had explained exactly why, in the interests of making the sentence more "comprehensible", he had taken the course he had chosen to adopt. He would have been equally able to make the sentence for the theft in charge 2 consecutive to the sentence on charge 1 (at least in part) and to have arrived thereby at the same overall starting point. Even Mr Hui, in the course of argument, eventually agreed that this was so.

21. Mr Hui complained, in D3's case, that the judge should not have taken a higher starting point for the reason he gave, namely that D3 was a "persistent re-offender". As to this, the Court of Appeal, in HKSAR v Chan Pui-chi [1999] 2 HKLRD 831 at 834, said:

".... re-offending in the same or a similar way may aggravate the offence, at least so far as sentence is concerned. This will have the result that the starting point which would have been adopted for a man of good character will sometimes need to be increased to take into account the aggravating features of persistence and the failure of previous sentences to deter on the one hand, and the court's duty to protect the public on the other. The court, in other words, is passing a deterrent sentence on the persistent offender, from whom the public needs protection, which is often unnecessary on a first or even sometimes a second-time offender. Much may depend on the gravity of the crime. The graver the crime, the more obvious becomes the need for a deterrent sentence on repetition in order that the public are properly protected."

22. There was an obvious need for deterrence in this case. D3 had twice concentrated on stealing from Hong Kong citizens whilst a visitor in Hong Kong. He was sentenced on 14 November 2000 for theft. On that occasion he was working with one other person as a pickpocket, once again concentrating his dishonest endeavours at Kowloon Tong Railway Station. He was released on 7 September 2001. Thereafter, he returned to the Mainland. When D3 came back five months later, he committed the offence in charge 1. His previous sentence had plainly failed to deter him.

Conclusion

23. We are satisfied that the sentences imposed in this case were entirely appropriate.

24. Accordingly, the applications are dismissed.