HKSAR v. LI QINFANG AND ANOTHER

DCCC 582/2021

[2021] HKDC 1527

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 582 OF 2021

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REASONS FOR SENTENCE

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1.  D1 and D2 pleaded guilty to the following charges:-

Charge 1:- Against D1 and D2

Obtaining property by deception contrary to S17(1)  of the Theft Ordinance, namely on 19 June 2020, both defendants dishonestly obtained cash HK$45,000 from PW1 by falsely representing that:-

(a)  A blessing ritual would be performed for PW1.

(b)  All money provided by PW1 for the blessing ritual would be returned to her upon completion of the ritual.

Charge 2:- Against D1 and D2

Obtaining property by deception contrary to S17(1)  of the Theft Ordinance, namely on 8 July 2020, both defendants dishonestly obtained cash HK$230,000, one gold wrist chain, one gold necklace with one jade pendant and 3 rings, worth a total of about $240,000 Hong Kong currency from PW2 by falsely representing that:-

(a)  A blessing ritual would be performed for PW2.

(b)  All money provided by PW2 for the blessing ritual would be returned to her upon completion of the ritual.

Charge 3:- Against D1

Illegal remaining in Hong Kong between 19 June 2020 and 8 July 2020.

Charge 4:- Against D2

Illegal remaining in Hong Kong between 19 June 2020 and 8 July 2020.

SUMMARY OF FACTS

Incident 1

2.  On 19 June 2020, PW1 was approached by the D1 to show her the way of a famous doctor who sells medicine.  Another person came along and showed them the way.  As PW1, D1 and the unknown person walked to another street, D2 appeared and claimed herself to be the granddaughter of the famous doctor.

3.  D2 told PW1 that she would have a “blood-shedding disaster” (血光之災).  D2 told PW1 that she could resolve through a ritual and told PW1 to bring money for that ritual.

4.  PW1 brought $45,000 and put into a black plastic bag prepared by D2.  PW1 was briefly distracted by D1 and was given a black plastic bag which had been swapped.

5.  D2 told PW1 not to open the bag for 49 days.

6.  PW1 later found that all the money in the bag had gone, there were a small packet of rice and a bottle of water.

Incident 2

7.  On 8 July 2020, D1 approached PW2 and asked her about a particular place.  Another person joined in and showed them the way and started to chat.  As the group walked on, D2 came by and stared at PW2 that she was in bad luck that her son would be involved in a traffic accident.

8.  D1 and another person told PW2 that D2 was a fortune teller.

9.  D2 told PW2 to pass all her money for a blessing ritual which would keep her son safe.

10.  PW1 then provided $230,00 cash, one gold bracelet with jade pendant and valuables in a black plastic bag, a total worth about $240,000.

11.  PW1 put all the money and jewellery into a black plastic bag prepared by D2.  D2 then turned around and passed a black plastic bag back to PW2 and told her not open it until 28 August 2020.

12.  Case was reported after PW2 found that the money inside the bag had gone.

13.  On 25 November 2020, D1 and D2 were arrested.

14.  They both claimed that they acted in accordance with a person called “Kuen Shuk” or “Ah Kuen”. 

15.  They each had their role to play when “Kuen Shuk” who would target at elderly ladies, D1 received $1,000 while D2 received $3,000 as their reward for the participation in the second incident.  D2 also further said that she received $1,500 for the first incident.

Criminal record

16.  D1 had one previous conviction similar in 2017.  D2 has a clear record.

D1’s mitigation

17.  D1 is now 65 years of age.  She is married.  Her husband passed away in 2017.  Two children are both in their 30’s.

18.  D1 came to Hong Kong illegally in June 2020 to commit the present offences because her family cannot afford the medical expenses to treat her eye problem (cataract).

19.  The defence said that:-

(i)  D1 made frank admission and full cooperation with the police.

(ii)  She played a relatively minor role in the scam.

(iii)  She is now genuinely remorseful and promised that she will not re-offend again.

(iv)  In view of the totality principle, the defence asks for a lower starting point and ordering substantial part of the sentences to be run concurrently.

D2’s mitigation

20.  She has a clear record.  She is now 41 years old.  She committed the present offence due to financial pressure because her father has fallen ill in 2020 and she needs money to meet the medical expenses.

21.  The defence said that:-

(i)  D2 has a clear record.

(ii)  She pleaded guilty to all charges.

(iii)  D2 made full cooperation with the police.

22.  In her mitigating letter, she said she is now remorseful and ashamed of committing the present offence.

Sentence

23.  Both counsel referred to HKSAR v 歐陽桂蘭 CACC 251/2008 that the starting point for this type of street deception is in a range of 3 years to 3 1/2 years, depending on the seriousness of the facts of the case and 6 months consecutive sentence thereafter for each additional ‘street deception’ charge.

24.  Both defendants came to Hong Kong purposely to commit the present offences.

25.  In D1’s case, she came to Hong Kong and committed the similar type of offences in 2017, that is DCCC 672/2017.  I have the opportunity to read the judgement of reasons for sentence.  I come to know that D1 used the same modus operandi to commit the similar offences.  She was convicted for 3 charges:-

(1)  1^st Charge: “Fraud” – ordered to serve 2 years imprisonment after plea.

(2)  2^nd Charge: loitering – 2 months after plea, 1 month to run consecutively to Charge 1.

(3)  3^rd Charge: illegal remaining – 15 months after plea, ordered to run consecutively to Charges 1 and 2. The learned judge referred to HKSAR v Lee Chiu Yui (2015)  1 HKC 323, of which 18 months’ imprisonment for illegal remaining offence was ordered to run completely consecutively to 16 months’ imprisonment for the burglary offence.

(4)  In HKSAR v Tong Fuk Sing (1993)  3 HKLRD 710, the Court of Appeal held that, unless there were compelling circumstances, such as humanitarian reasons, the sentence for immigration offence should normally be imposed consecutively to other offences.

(5)  D1 should have known when she comes to Hong Kong to commit similar offences, she is likely to subject to a long period of imprisonment.

26.  As counsel for D1 correctly referred to HKSAR Yang Tu Lian CACC 177/2012 of which the 3^rd appellant had come to Hong Kong to commit the similar offence previously, the 36 months starting point was adjusted to 39 months.  That should apply to D1 in the present case.

27.  As stated in many cases, such as HKSAR v Yang Gui Oi CACC 251/2008 that:-

“11. 本庭屢次強調，街頭祈福騙案是非常嚴重的罪行。犯案者一般是國內人士，故意來港犯案。她們經過周詳計劃及小心觀察來鎖定目標後，以受害人親人會遭遇不測來恐嚇她們，目的是盡量騙取她們的財物。

12. 在這類案件，受害人一般是年長，但迷信及無知婦人，屬社會上弱勢社群。她們被騙去的很可能是她們一生省吃儉用而儲到的畢生積蓄。被騙去的財物不可能取回而受害人亦不會得到補償。對這類受害人士，經濟損失的後果亦是特別嚴重的。＂

28.  As to their roles to play, the Court of Appeal in Yang Gui Oi also stated that:-

“13. 申請人指自己在騙案扮演的只是小角色，但案情顯示她有全程參與騙取受害人。況且，申請人和其同謀在行騙過程都只是在“做戲”。她們個別的“任務”及參與程度的深淺，旁人無從由她們扮演的角色得悉。

法庭只能視全部犯案者為同謀，在判刑時亦不應因為她們表面扮演的角色不同而有所分別。

假若個別串謀者在行騙過程特別賣力，導致更多人受騙，法庭更會因此而加重刑罰。＂

29.  I am told today that PW1 was 46 and PW2 was 72.  PW1 and PW2 met the D1/D2 and others in the train station (Tai Wai)  and wet market (Fanling)  respectively.  These are busy places, they could easily identify those lone and/or elderly victims.

30.  Clearly, D1 and D2 came to Hong Kong for the purpose of committing the present offences.  There were more than 2 of them in the scam to lure the victims to believe in their lies that they would be subjected to bad luck and unfortunate incident.  Those victims believed in what they told them, handed in all/some of their savings to those unscrupulous defendants and their syndicate.

31.  In their respective admission to the police, D2 received $1,500 and $3,000 for the 1^st and 2^nd incident respectively.  D1 received $1,000 for the 2^nd incident. 

32.  Although the amount in each charge is a relevant factor in consideration of the sentence, but those amount may be a life time saving of those poor victims.  It is only a matter of relativity.  It may be small amount to some people, but these can be a huge sum to those unfortunate victims.

33.  As to Charge one, the sum is $45,000.  For Charge two, the total sum is $240,000.

Charges 3 and 4 (illegal remaining)

34.  As discussed in mitigation, the sentence guideline is a term of 15 months’ imprisonment after plea as stated in R v So Man King (1989)  1 HKLR 142.  D1’s counsel accepted that the illegal remaining charge, the sentence should run completely to other charges.

35.  D2’s counsel, Mr Fong, tried very hard to persuade this court to order partly concurrent and partly consecutive from the illegal remaining in HK charge to other charges.  Mr Fong relied on the recent authority of HKSAR v Ke Xiu Yun [2020] HKCA 535 that 5 months from the illegal remaining charge was ordered to run consecutively to other charges. 

36.  However, as pointed out in the Ke Xiu Yun case at paragraph 38 of the judgement that:-

“38. 原審法官命令了各項控罪的刑期分期執行，也沒有犯原則上的錯誤，其實，他的處理已對申請人十分寬大。他命令的分期執行的刑期是可以更長的。本席認為，44個月的監禁總刑期，並非明顯過長。”

37.  The charge of appeal also referred to the case of Fong Fuk Sing.

38.  Today, the D1’s counsel submitted D1’s two medical records in December 2019 for her medical treatment to her eyes.  In those two treatments, she had to meet a total of RMB$45,000 medical fees, bearing in mind she was discharged from prison in Hong Kong on 28 August 2019.

39.  I informed the defence that medical grounds or financial hardship are not mitigating factors, they clearly cannot be regarded as compelling reasons for coming to Hong Kong to commit offences.  

40.  D1 and D2 ignored the consequences of what they did to the victims, it can bring upon them emotional disturbances or even subjected them to financial hardship.

41.  I consider that it is appropriate to order the illegal remaining charge to run completely consecutively to other charges, otherwise, it brings a wrong message to the defendants that when they came to Hong Kong, crossed the border to commit serious offences would be treated leniently by the court.

42.  To this end, I bear in mind all the mitigating factors put before me by the defence.  I also bear in mind that D1 had one previous conviction in 2017, therefore I should adjust the notion starting point of Charges 1and 2 for another 3 months.

Charge 1: starting point is 3 years

43.  D1 faces a sentence of 3 years and 3 months, reduced to 2 years and 2 months after 1/3 discount.

44.  D2 faces a sentence of 3 years, reduced to 2 years after 1/3 discount.

Charge 2: starting point is 3 years 3 months

45.  D1’s sentence is 3 years 6 months, reduced to 2 years 4 months after 1/3 discount.  I also order 6 months from charge 1 to run consecutively to Charge 1.

46.  D2’s sentence is 3 years and 3 months reduced to 2 years and 2 months after 1/3 discount.  I also ordered 6 months from Charge 1 to run consecutively to Charge 2.

47.  Charge 3: D1 - starting point is 22.5 months, reduced to 15 months after 1/3 discount.  The 15 months sentence to run consecutively to Charges 1 and 2. It arrives at a total of 49 months.  That is 4 years and 1 month.

48.  Charge 4: D2 - starting point is 22.5 months, reduced to 15 months after 1/3 discount.  I ordered the 15 months to run consecutively to Charges 1 and 2.

49.  It arrives at a total sentence of 47 months.  That is 3 years 11 months.

50.  Order:-

D1 - total sentence is 4 years 1 month;

D2 - total sentence is 3 years 11 months.