HKSAR v. PUN HONG TING AND ANOTHER

DCCC 442/2023

[2024] HKDC 229

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 442 OF 2023

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REASONS FOR SENTENCE

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Charges

1.  D1 and D2 pleads guilty to the joint charges of Charges 1, 3, 5, and 7. D1 also pleads guilty to the single charge of Charge 9.  All these charges are for Conspiracy to defraud.

Facts

2.  If the events are to be arranged in chronological order, the charges shall be arranged as Charges 7, 1, 3, 9, and then 5.

3.  At 1230 hours on 23 August 2022, PW3 aged 84, who was blind, received a call from an unknown caller.  She asked if it was her friend calling.  The caller replied in the affirmative and requested for $80,000 as the caller’s bail after being arrested by the police.  PW3 only had $15,000.  D2 accompanied D1 to the public housing estate building where PW3 lived.  D2 alone went up to PW3’s flat to collect $15,000 cash from PW3.  The CCTV inside the building and inside PW3’s flat captured the presence of D1 and D2, as the case may be.  PW3 lost $15,000.  These facts outline how D1 and D2 committed Charge 7.

4.  At around 1230 hours on 24 August 2022, PW1 aged 90 was at home when she received a phone call.  The unknown caller claimed to know her son, Kan.  Kan was said to have assaulted someone in Dongguan, so Kan was arrested and detained by the police.  The bail was set at $100,000.  PW1 was to pass $100,000 cash to D1.  D2 was aware of the scam and acted as the lookout while D1 took the money from PW1.  D1 later passed the money to D2.  D2 later passed the money to another man.  PW1 lost $100,000.  These facts outline how D1 and D2 committed Charge 1.

5.  At around 1400 hours on the same date, PW1 received another call from an unknown caller.  The caller told PW1 to give more money for Kan’s bail.   PW1 was to give $210,000 cash to D1.  D2 was aware of the scam and acted as the lookout at a distance while D1 took the money from PW1.  D1 later passed the money to D2.  D2 later passed the money to another man.  PW1 lost $210,000.  These facts outline how D1 and D2 committed Charge 3.

6.  PW1 told her daughter PW2.  PW2 reported the matter to the police. 

7.  At around 1030 hours on 24 August 2022, PW4 aged 81 received a call from an unknown caller.  The caller claimed to be her grandson and needed $50,000 cash for bail from arrest to be passed to D1.  PW4 only had $48,000 cash.  PW4 brought it to D1.  PW4’s grandson later visited PW4 and discovered the scam. PW4 lost $48,000.  These facts outline how D1 committed Charge 9.

8.  At around 1144 hours on 25 August 2022, the victim PW1 under Charges 2 and 4, received a call from an unknown caller.  PW1 passed the phone to her daughter PW2.  The caller claimed to be PW2’s brother Kan himself and asked PW2 to transfer $200,000 to a bank account for Kan’s bail.  PW2 informed the police.  The police instructed PW2 to set up a controlled meeting with the fraudster to pass fake money to a recipient outside the bank.  D2 was aware of the scam and accompanied D1 to the location, then directed D2 to take the money as D1 acted as the lookout at a distance.  PW2 asked D1 why Kan was not released yet.  D1 replied that Kan would be released after PW2 handed over $200,000.  PW2 passed the fake money to D1.  PW1 and PW2 suffered no loss under Charge 6.  These facts outline how D1 committed Charge 5.

9.  After walking away from PW2, D1 was arrested by the police for obtaining property by deception.  Under caution, D1 said she was helping others to collect money and she knew nothing.

10.  D2 saw D1 being arrested.  D2 made a phone call to a person called Man Gor to relate that he (D2)  would be in big trouble for helping to collect $200,000, now that his girlfriend D1 was being forcibly taken onto a white private car.  After D2’s phone call, the police arrested D2 for obtaining property by deception.

11.  D1’s and D2’s mobile phones were seized by the police.  D1’s mobile phone had WhatsApp messages with another person called Ah Chiu, who instructed D1 what to say when calling PW1 to ask for $200,000.  D1’s and D2’s mobile phones had WhatsApp messages between themselves discussing how rich PW1 was as PW1 could put up $210,000.

12.  The house search of D1’s residence yielded the clothing she wore when meeting the victims.

Prosecution seeking enhancement of sentences for D1 and D2

13.  The prosecution furnish information pursuant to section 27(2)  of the Organized and Serious Crimes Ordinance, Cap. 455, to seek enhancement of sentences for D1 and D2 on the following bases:

a. the prevalence of this specified offence; and

b. the nature and extent of any harm, whether direct or indirect, caused to the community by recent occurrences of this specified offence.

14.  D1 does not challenge the enhancement and urges the Court to adopt no more than a 1/3 increment.  D2 is silent on the issue of enhancement.

D1’s and D2’s personal background and mitigation

15.  D1 is 29 years of age.  She has a clear record.  She was educated up to F.6 level.  At the time of arrest, she was working as a receptionist.  She is single.  She has a 2-year-old son with D1.  She suffered from various illnesses but has recovered fully except for her depressive condition, which has improved as the result of regular psychiatric treatment.

16.  She committed the present offences when she was under financial pressure and depressive.

17.  As she has been in custody, she was unable to attend her father’s funeral and to take care of her son, now in the care of D1’s mother, who is not in good health.

18.  The sums involved were:

a. $100,000 for Charge 1 (against D1 and D2);

b. $210,000 for Charge 3 (against D1 and D2);

c. $200,000 for Charge 5 ((against D1 and D2, no loss to PW1 as fake money was used);

d. $15,000 for Charge 7 (against D1 and D2);

e. $48,000 for Charge 9 (against D1 only);

f. In total, the victims lost $373,000.

19.  D2 is 34 years of age.  He has 4 criminal records, which are not related or similar to the present offences.  He was educated up to F.3 level and completed 2-year course on a hotel and food and beverage management in the vocational training school IVE.  After losing his job as a waiter and serving jailed for a drug trafficking case, he committed the present offences to repay a debt of $200,000.

20.  D1 and D2 accept that they knew it was a phone scam.  They knew just enough of how to call the victims, take the money from the victim, and pass the money to the recipient assigned by the mastermind.  Each time, D1 only got $500 as the reward whereas D2 had none.

21.  Both counsel for D1 and D2 refer to HKSAR v Hung Yung Chun [2011] 2 HKLRD 174 as the most pertinent authority.  There the Court of Appeal set the guideline sentence for phone scam at 4 years, subject to enhancement for prevalence.

22.  I adopt a starting point of 48 months for each charge against D1 and D2.  As the offences were so closely related in time, a matter of 3 days, I impose concurrent sentences on all charges.

23.  On the issue of enhancement, there is a witness statement dated 12 January 2024 made by Detective Chief Inspector of Police TANG Kai-wing.  He was responsible for keeping and analyzing the statistics for phone scam.  His statistics shows as follows:

a. In respect of the prevalence of phone scam, defined in terms of reported cases, there has been a steady increase from 615 cases in 2018 to 2,831 in 2022, to 1,579 from January to June 2023;

b. In respect of the extent of any harm, whether direct or indirect, caused to the community by recent occurrences of phone scam, defined in terms of monetary loss, there has been a steady increase from $60.95 mil in 2018 to $1,076.45 mil in 2022, but a mild decrease to $403.19 mil from January to June 2023.

24.  I am satisfied with the 2 said bases for enhancement of sentence and that the enhancement should be 1/3.

25.  From the starting point of 48 months, I give D1 and D2 a one-third discount for their timely pleas of guilty.  The sentence is 32 months. 

26.  I factor in an enhancement close to 1/3, ie 10 months, for each of the charges.  The final sentence is 42 months for each defendant on each charge to run concurrently.