HKSAR v. CHENG SIN KEUNG

DCCC 681/2015

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 681 OF 2015

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Reasons for Sentence

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1.  The defendant has pleaded guilty to a total of 14 charges. Each one of them is separate, dealing with property known or believed to represent the proceeds of an indictable offence. He has agreed the facts and I have convicted him accordingly.

2.  The background of the Agreed Facts states the background of these offences quite clearly, and it says that this is a typical case of telephone deception where the elderly were being targeted.  The victims received scam calls from an unknown male who used pre-paid SIM cards to make the calls.  They were led to believe their sons or daughters were in need of money.  As a result, they deposited money into designated bank accounts.  Upon realising that they were deceived, reports were made to the police.  There were a total of five designated bank accounts.  It was found that the defendant had withdrawn money from the designated bank accounts.

3.  On 21 April 2015, the defendant was arrested and cautioned.  When the defendant’s home was searched, several mobile phones, including a Nokia mobile phone, were found and there was a relationship between certain of the charges on the mobile phone.

4.  The facts surrounding Charge 1 are illustrative of the modus operandi.  That occurred in the morning of 15 April 2014 where an 81-year-old lady received a mobile phone call from an unknown male who claimed to be her son.  He claimed to be in need of money and asked her to transfer a sum of HK$20,000 to a numbered bank account, which is Count 1.  She did so.

5.  CCTV at a bank captured the defendant withdrawing the HK$20,000 from that account.

6.  The 2nd and 3rd charges relate to another incident. This would be the second of the incidents of telephone deception.  A total of HK$20,000 was obtained again.  Each withdrawal from the bank is charged separately to avoid there being any duplicity in the charges.  These offences occurred on 12 January 2015.  The victim was 72, and again received a claim from her son asking for HK$10,000 and the money was deposited.  The sum of money was withdrawn, by two transactions, on 12 January 2015.

7.  The fourth and fifthoffences occurred on 19 January 2015, an event which resulted in a call to a 64-year-old person.  Again there was a deposit of HK$20,000 which was removed from the bank in sums of $10,000 and $9,500.  A further sum was withdrawn from an ATM in Shenzhen.

8.  The sixth to ninth offences relate to an incident that occurred on 26 January 2015, which was when an 84-year-old person received a call claiming to be her son and asked him to deposit $20,000 into a bank account which is account number 4.  The defendant eventually removed all those sums of money on four separate occasion on 26 January 2015.

9.  The next set of offences occurred on 9 February 2015, involving a 72-year-old lady who again received a call asking her to deposit $20,000 into a numbered account.  She did so.  That money was removed on four separate occasions on 9 February 2015, leading to the four charges he faces, with respect to Charges 10 to 13.

10.  The final offence was on 10 February 2015, a phone call to a 77-year-old man, again from a person claiming to be his son, involving a deposit of $20,000 into another account, that money being removed again by the defendant.

11.  The arrest of the defendant involves search of his home and the connection between his phone and certain of the offences was discovered and those relate to the offences from Charges 6 through to 14.

12.  The home telephone number and mobile phone number of PW6 were on the Nokia phone’s phonebook that the defendant had.  Call records retrieved from the phone show that the phone was used to call PW7, and that is the 14th charge.  And the call records retrieved from the phone match the call records which were involved in the offence involving PW5 – that is Charges 6 to 9 - that being the number 53161736.

13.  In summary, there are  what I think can be described as six separate predicate telephone deceptions, each one involving a sum of HK$20,000, all of them involving the elderly, involving a total as charged of HK$119,500.  Totally, five different accounts were opened and money was deposited into them.  The defendant was seen by CCTV cameras to have collected the money from ATMs in Hong Kong and Shenzhen that related to those counts.

14.  And as I said, the phonebook of the Nokia seized from the defendant and the numbers used involve Charges 6 through to 14. The defendant accepts that in Charge 14, he made the call and collected the money.  So of course he was fully aware this was a telephone deception because he was practising it himself.

15.  In respect of the deceptions in Charges 1 to 13, he says that he was, in mitigation, he was merely the collector of the money.  I think the expression is ‘bag man’.  The possession of the phones with the numbers in connection to PWs5 to 7 may provide some evidence to the contrary.  But that is the only evidence to the contrary at this stage.  The defendant said he had been given the phones at a late stage, but it may not be sufficient to establish to a criminal standard the defendant’s full involvement in those earlier charges.

16.  In addition to these matters, there is an application for enhancements of sentence by the prosecution.  The basis of the enhancement of sentences is pursuant to section 27(2) of the Organised and Serious Crimes Ordinance on the ground of prevalence of telephone deceptions and the nature and extent of any harm, whether direct or indirect, caused to the community by recent occurrences of this specified event.

17.  The statement of a Detective Chief Inspector Lam Chuk-ho has been admitted into evidence.  He has testified to the prevalence and use of telephone deception and the use of what are called bank deposit cases, which this is one of and clearly illustrates the prevalence of these offences and the nature of direct or indirect harm caused by these offences. No issue was taken that this is an appropriate case for the enhancement of sentence under this Ordinance.

18.  I now turn to the defendant’s mitigation. The defendant is 36 years old.  He was born in Shanghai, but came to Hong Kong as a child at a very young age, and he is a Hong Kong Permanent Resident.  He was educated up to secondary level, has worked in decoration, delivery, as a salesman as well.  He has a criminal record of unrelated matters, involving assault, gambling and failing to produce proof of identity.  He has been fined in the past.  He has been married and is separated, as I understand, from his wife.  He has two children at this point, aged 9 and 6.  There is mitigation in his personal circumstances.  The boy is unfortunately subject to developmental delay and with autistic features.  He requires special care and education and treatment.

19.  The defendant has written a letter in mitigation; he sets out details of the difficult time experienced by his family as a result of his younger son’s diagnosis with developmental difficulties.   The defendant expresses remorse and says he feels shame as a result of these offences.  He wishes to be released, if possible, at some stage so that he can discharge his responsibility towards his family.

20.  Clearly, for offences of this nature, a sentence of imprisonment is necessary to be imposed.  Sentences of imprisonment are always harsh on the family of people who are imprisoned and in this case will perhaps be somewhat disproportionally harsh on the defendant and his young son.  Nevertheless, it is a mitigating factor that I should take into account when determining the sentence in this case.

21.  In mitigation, these matters are referred to. It is said I should accept that the position of the defendant is that he was merely the bag-man in relation to the first 13 offences and acted greedily in respect of the last offence.  Also, this is not a case where the defendant comes to Hong Kong specifically to commit these offences.  He is a Hong Kong resident and goes to China during the week to work – or used to go to China during the week to work.  Also in respect of the victims, the modus operandi does not involve threats of violence or detention.  

22.  As far as the approach to sentence is concerned, there are number of authorities that can be relevant to these particular kinds of offences.  I have been referred to a number of them.  The prosecution has referred me to the case of HKSAR v Lin Zong Yue, Criminal Appeal 141/2014, also a broad discussion of the approach to sentencing can be found in the case of HKSAR v Wu Jianbing, CACC 32/2011, and more recently in HKSAR v Chen Jianchao which is CACC 184/2014.  

23.  A broad description of the approach to sentencing is that in cases involving substantial sums of money and where the defendant has clear knowledge of the predicate offence and method of telephone deception, then a starting point of sentence of 4 years’ imprisonment could be appropriate. The starting point of course will be determined by the extent of the offence which is largely related to the value of money obtained during the offence. Similarly, in a case where the defendant is seen to have little or no knowledge of the organisation of the operation, then a starting point of 3 years could be appropriate, of course the eventual starting point being determined largely by the value of money obtained by the offence.

24.  In this case, perhaps the significant figure is the overall figure obtained is almost HK$120,000 over six separate occasions; each of the separate occasions relates to a figure of HK$20,000.  The number of charges related to those separate occasions varies depending on the number of withdrawals made by the defendant. 

25.  I consider the correct approach in this case is to determine an overall starting point for the offences in relation to Charges 1 to 13, then a starting point in relation to Charge 14, then deduct by one-third from that starting point to reflect the defendant’s plea of guilty, then deal with the appropriate enhancement.  After doing that, then to consider to what extent the sentences individually should be served consecutively or concurrently to achieve a correct overall totality for the overall value of money obtained by these offences.

26.  Bearing in mind that the defendant was up to this for quite a period of time from April 2014 to February 2015, the offences were, to a certain extent in that respect, repetitive.

27.  Taking into account the factors that I have already dealt with, the amount of money obtained in each of the predicate offences, each of the telephone deceptions, the defendant’s role and the mitigating factors put forward for the defendant, such as the fact that he is a Hong Kong resident and also that he has difficulties in his family life, especially relating to his son, I consider that, in respect of Charges 1 to 13, the appropriate starting point for sentence on each offence will be one of 24 months’ imprisonment.  That is Charges 1 to 13.  After deduction of one-third for the defendant’s plea of guilty, that gives a figure of 16 months, there will be an enhancement of 25 per cent, leading to a final figure of 20 months’ imprisonment on each of those charges.

28.  Having regard to the 14th offence, a starting point could range as high as 36 months’ imprisonment.  Having regard to the mitigating factors I have described, I will take a starting point on the 14th offence of 30 months’ imprisonment.  I reduce that to 20 months’ imprisonment for the defendant’s plea of guilty and again enhance by 25 per cent to a figure of 25 months’ imprisonment.

29.  I must now consider to what extent these offences should be served consecutively or concurrently and in determining that figure, I will look at the time over which the offences take place and the size of this overall operation.

30.  The time is almost one year and there is almost $120,000 value.  I consider that in an operation of this nature, the overall total sentence should be 45 months’ imprisonment.  I will achieve that figure by ordering the sentences on Charges 1 to 5 be served concurrently to each other, and the sentences on Charges 6 to 14 be served concurrently to each other but consecutively to Charges 1 to 5.  That gives a total of 45 months’ imprisonment.