HKSAR v. DWEH JOJO

DCCC 844/2018

[2019] HKDC 346

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 844 OF 2018

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REASONS FOR SENTENCE

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1.  Defendant was convicted, on his own plea, to a charge of conspiracy to defraud, contrary to Common Law and punishable under section 159C(6) of the Crimes Ordinance, Cap 200 (first charge), and another charge of breach of condition of stay, contrary to section 41 of the Immigration Ordinance, Cap 115 (third charge).

Facts

2.  According to the agreed amended summary of facts, in around 2014, the victim (PW1) met a male named “William” online and they communicated via WhatsApp and Hangouts.  PW1 had never met him in person but they became involved romantically.

3.  On 26 August 2017, William told PW1 on WhatsApp that he would come to Hong Kong to marry her and would arrange for one “Johnson Schmid” to deliver a trunk containing US$2,800,000 worth of banknotes to her.

4.  On an unknown day in October 2017, defendant sent PW1 a message on WhatsApp saying that he was a staff member of the United Nations and had been entrusted by William to pass a trunk of cash to her.  He falsely represented to PW1 that the trunk containing the cash had been detained by the Hong Kong Customs and Excise Department at the Hong Kong International Airport and payment had to be made for its redemption.

5.  PW1 was then asked to deposit money into an HSBC bank account numbered 819-516097-833 held by Fu Hui and Mo Wenbin (“Account”) to redeem the trunk of banknotes.  As PW1 did not have enough cash and she was afraid that the trunk of cash would be confiscated, she borrowed money from her friend (PW2).

6.  Induced partly by the defendant’s false representations, PW1 deposited HK$70,416 into the Account on 30 November 2017; US$3,000 on 4 December 2017; US$1,950 on 18 December 2017 and US$24,000 on 10 December 2017. 

7.  Further, on an unknown day in December 2017 and 2 January 2018, PW1 met up with the defendant in Tsim Sha Tsui and passed him cash of HK$123,000 and HK$60,000 respectively.

8.  After making the above payments, defendant informed PW1 that the payment was sufficient and that he would deliver the trunk of banknotes to her in Yau Ma Tei.

9.  In the evening of 2 January 2018, defendant went to PW1’s home with an unknown male who was pulling a suitcase.  Defendant opened the suitcase and took out a few pieces of black-coloured paper therefrom.  He falsely represented to PW1 that these were US banknotes and that William had dyed them black in order to avoid the suspicion of customs.  The defendant also falsely represented to PW1 that a special solution had to be purchased and applied to remove the black dye from the US banknotes and demonstrated it to PW1 using five pieces of the black notes from the suitcase.

10.  Defendant then asked PW1 to pay money to purchase the special solution and left with the unknown male.  They left the suitcase at her home and told her that it could only be opened by a United Nations officer.  Induced by the defendant’s false representations, PW1 asked PW2 to help her transfer US$120,000 to a US bank account held under the name of “First City Bolder Alpha Enterprises” as instructed by defendant.  PW2 did so on 12 January 2018.

11.  On 15 January 2018, defendant went to PW1’s home alone and demonstrated her as to how the black notes could be rinsed with special solutions.  However, he was unsuccessful and claimed that there was something wrong with the solution.  He then left without taking the suitcase with him.

12.  On 16 January 2018, PW2 went to PW1’s home, asking when she had planned to repay him. PW1 told PW2 about the incident. PW2 inspected the suitcase left behind by the defendant, which contained a silver trunk lined with cotton wool and contained 6,630 pieces of ordinary black paper.

13.  In the afternoon of 22 January 2018, PW1 reported the case to the police.  At around 10 pm that night, PW1 and 2 went to Chungking Mansions, Tsim Sha Tsui, with a photo of the defendant that PW1 had secretly taken earlier. They then found the defendant at the 1st floor corridor of Chungking Mansions and called the police.

14.  Defendant was arrested and he failed to provide any identity document upon request.  Under caution, he stated that he had entered Hong Kong on 1 July 2017 but lost his passport on 7 July 2017.

15.  Arrival / Departure records confirmed that defendant had entered Hong Kong as a visitor on 1 July 2017 and was only permitted to remain until 15 July 2017 (Charge 3).

16.  Defendant had no fixed abode and no house search could be conducted.

17.  The forensic scientist examined 10 pieces of the black paper seized from PW1’s home, which were found to be pieces of black-coloured paper stained with white powder.  The papers were found to agree in general appearance and size with each other and measured 6 cm by 15 cm.  The powder samples were found to contain talc, widely used as a major constituent of baby powder.

18.  At all material times, defendant had conspired with William, Fu Hui, Mo Wenbin and other persons unknown to defraud PW1, by dishonestly making a series of false representations and inducing PW1 to make payments in the total sum of HK$253,416 and US$148,950 (Charge 1); and the defendant contravened a condition of stay in respect of his visit, in that, being permitted to remain in Hong Kong as a visitor until 15 July 2017, he remained in Hong Kong after that date.

Criminal record

19.  Defendant has a clear record in Hong Kong.

Mitigation

20.  Defendant is a Liberian national.  He entered Hong Kong on 1 July 2017 as a visitor and had overstayed since 15 July 2017. 

21.  He is aged 42 years old, married with a wife aged 28 and a son aged 3 back in Liberia. 

22.  He was a self-employed trader before he came to Hong Kong.  At the time of offence, he was unemployed. 

23.  He received education up to secondary school level. 

24.  Mr Polson, Counsel for the defendant, submitted that defendant had pleaded guilty when he appeared before the court on 4 December 2018.  He asked this court to give the defendant a sentencing discount on his early plea. 

25.  It was also said that the victim in the present case was greedy, hoping to have an enormous return on the payment of relatively small amount of money and that the case was different from where the victim was an old lady cheated on false pretence of blessings for family.

26.  He accepted that fairly large amount of money was involved in this case. He urged this court to adopt the sentence imposed by this court in the case of DCCC 917/2017 case, which was later affirmed in CACC 230/2018.

Discussion

First charge

27.  The maximum sentence on conviction of the first charge is 14 years’ imprisonment. 

28.  The facts of the present case is very much similar to the facts in the cited case by Mr Polson, the case of HKSAR v Uamusse Elias Filipe & Ors, DCCC 917/2017, where a lot of cases were cited and considered, like the present case.

29.  The present case was a deception case preceded by the victim befriended by a “William” online romantically since few years back. 

30.  Defendant here sent WhatsApp messages containing misrepresentations to the victim, partly on reliance of which, the victim had paid about HK$300,000 in total.  He later met the victim and collected other sum totally approximately HK$ 200,000 from her. 

31.  Further, it was the defendant who delivered the suitcase of black-coloured “US banknotes” to the victim and made further false representations to her and asked her to pay further sums for purchase of the special solution, subsequent to which US$120,000 was paid by the victim. 

32.  The role of the defendant in the present case was manifold and indispensable in the whole scheme.  The amount of money at stake was also few times more than that in the Uamusse case.  The defendant was a key member, no doubt, of a gang, that had perpetrated a “black money” fraud on the victim, who was swindled out of HK$1.4 million.  None of the money was recovered.  In fact, most of these money the victim had borrowed from her friend and she did not have the money back and she is now left in debt.

33.  As noted by the Court of Appeal in the Uamusse case on appeal, CACC 230/2018, this was “an extremely elaborate and well-planned fraud involving the grooming of the victim over the Internet, with extensive role-playing by the gang members in order to beguile the victim into believing the whole arrangement was real”.

34.  The Court of Appeal commented in that case that this court should have enhanced the sentence of the defendant by the reason that he is coming to Hong Kong to commit the crime.

35.  The defendant in the cited case was convicted of conspiracy to obtain property by deception, the maximum sentence of which is 10 years’ imprisonment. 

36.  In the present case, defendant was convicted of conspiracy to defraud, the maximum sentence of which is 14 years’ imprisonment.

37.  Secondly, as said earlier, the amount involved in the present case is about four times as much as the amount involved in the cited case, of which, in this case, as said earlier, most of these are victim’s borrowed money.

38.  Having considered the circumstances under which the present offence was committed, loss suffered by the victim, role of the defendant, level of sophistication and the deception scheme, the sentencing starting point for the first charge is 4 years.

39.  Defendant has pleaded guilty, though not at the first available opportunity, but he indicated his guilty plea before trial was fixed.  This court consider appropriate sentencing discount afforded to defendant should remain at one-third, and I am not minded to enhance his sentence by reason he is a visitor, over-stayer in Hong Kong.

40.  Accordingly, for the first charge, the defendant is sentenced to 2 years and 8 months’ imprisonment.

The third charge

41.  Maximum sentence for this offence is fine at level 5 and imprisonment for 2 years. 

42.  Defendant is over-stayer in Hong Kong when he was arrested, ie 22 January 2018.  He had already overstayed for 6 months.  Defendant is sentenced in this case to 6 weeks’ imprisonment.

43.  In reaching this sentence, the court had not considered that he had committed the first charge offence within this period.  Again, considering the guilty plea, he is entitled to one-third sentencing discount.

44.  Accordingly, he is sentenced to 4 weeks’ imprisonment for this charge.

45.  The third charge is a separate, distinct offence from the first charge. The sentence for the third charge therefore should run consecutive to the sentence in the first charge. 

46.  This court has also considered the totality principle and is of the view that the total sentence of 2 years 8 months and 4 weeks imposed on the defendant for the first and the third charge are appropriate, just and proportionate to the criminality of the defendant in the present case. 

47.  Accordingly, defendant is sentenced to a total of 2 years 8 months and 4 weeks, ie 2 years 8 months for the first charge, the same to serve consecutive to the sentence in the third charge, which is 4 weeks.