HKSAR v. XIE MEI AND OTHERS

DCCC 432/2019

[2020] HKDC 461

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 432 OF 2019

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REASONS FOR SENTENCE

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1.  The 1^st defendant (D1) was convicted of four charges of obtaining property by deception (1st charge to 4th charge), contrary to section 17(1) of the Theft Ordinance, Cap 210, on her own plea and agreement to Amended Summary of Facts.

2.  Likewise, the 2^nd defendant (D2) was convicted of two charges (3rd charge and 4th charge) and the 3^rd defendant (D3) was convicted of three charges (1st, 3rd and 4th charge).

3.  The 2nd charge against D3 is to remain on the court file and not to be proceeded with without leave of the court.

Facts

4.  These are “blessing ritual” street deception cases involving D1 to D3.  All were mainlanders visiting Hong Kong at the time of the respective offences.

Charge 1 against D1 and D3 only

5.  On 23 February 2018, PW1, aged 59, went for grocery shopping and was approached by D1 and another female who introduced her to a miracle healer.  They then led her to yet another unknown woman claiming to be the relative of this miracle healer.  This proclaimed miracle healer relative told PW1 that PW1 would encounter bad luck.

6.  In remedy, this unknown woman offered PW1 spiritual blessing by having PW1 producing her valuables for the ritual which were to be returned to her afterwards.  PW1 complied.  She went home and a nearby bank to retrieve the following properties totalling HK$260,000, ie, cash of $207,000, RMB¥13,000 and five gold ornaments. 

7.  PW1 then met up with the three and later the proclaimed miracle healer relative then carried out the ritual in a cubicle and asked PW1 to put the personal properties in a black plastic bag.  They swapped PW1’s valuables with junk in the course and asked PW1 to take the black plastic bag home warning her not to look into its contents until then. 

8.  PW1 then went home and realised her valuables went missing and reported the case. 

9.  CCTV captured D3 following PW1 during the deception from a distance as a lookout. Immigration travel record shows that D1 and D3 entered Hong Kong via Lo Wo Control Point at the same time and on the same day on 19 February 2018 (four days before this incident).

Charge 2 against D1

10.  On 27 October 2018, PW2, aged 83, went for morning exercise in her neighbourhood.  When she was walking at the park, PW2 was approached by D1 and another woman who introduced to her a miracle healer at a park nearby.  This proclaimed miracle healer told PW2 that PW2 will encounter bad luck and ill health.  In remedy, this miracle healer offered PW2 a spiritual blessing by having PW2 producing her valuables for the ritual, which were then returned to her afterwards.  PW2 complied and returned home and also went to the bank to retrieve the following personal properties totalling $204,290, ie, cash of $150,000, one bracelet, two chains, one necklace, one pair of earrings, four rings and two pendants. 

11.  PW2 then returned to the park to meet with D1 and two unknown women.  PW2 handed over her personal property, wrapped in a red plastic bag as told, to the miracle healer who told PW2 that she will go home to perform the ritual, while D1 and the other unknown women continued to chat with PW2.  10 minutes later the miracle healer returned and gave it back to PW2 telling her that it contained her valuables and asked PW2 to open it only one month and seven days after.

12.  PW2 returned home and soon noticed that the handbag contained only beverages and water bottles.  She realised the scam and reported the case. 

13.  The immigration travel record shows that D1 entered Hong Kong via Lok Ma Chau Control Point on the same day as charge 2.

Charge 3 against D1 to D3 jointly

14.  On 8 January 2019, PW3, aged 67, went to withdraw money from the bank.  D1 approached her and inquired her about a miracle healer.  D1 then invited D2 into the chat who in turn introduced them to a miracle healer.  D1 and D2 then led PW3 to an unknown woman nearby who held herself out to be the granddaughter of the miracle healer.

15.  The unknown woman offered PW3 a spiritual blessing by having PW3 produce her valuables in a ritual which were to be returned to her afterwards.  PW3 complied and went to the bank at a nearby shopping centre and withdrew $50,000 cash from her bank account.  

16.  PW3 returned to the park and met with D2 and the unknown woman who asked PW3 to provide more valuables for the ritual.  PW3 then returned home and retrieved the following personal properties in total worth about $138,500, inclusive of the $50,000 cash previously withdrawn, namely, two chains with pendants, two chains, two rings and cash of RMB¥12,000. 

17.  PW3 then returned to the Shatin Park again to meet with D2 and the unknown woman.  PW3 handed over the valuables and put it inside a black bag which the unknown woman carried as told.  The unknown woman then asked PW3 to wait until she would go and perform the blessing ritual.  She then left together with D2 and never to be returned.  PW3 realised the scam and reported the case to the police. 

18.  CCTV captured D3 following behind them as a lookout at a distance during the deception.  Earlier in the same morning on 8 January, CCTV inside an elevator at a residential building in Mong Kok captured D1 to D3 and an unknown woman enter the elevator from the same floor at the same time, i.e. they set out from the same place.

Charge 4 against D1 to D3 jointly

19.  On 9 January 2019, PW4, aged 71, went for shopping.  She was approached by D2 and an unknown woman who introduced to her yet another unknown woman, who held herself to be a relative of a miracle healer.  This proclaimed miracle healer relative told PW4 that PW4 was cursed by some evil spirit 20-odd years ago and the evil spirit would now haunt PW4’s son.  In remedy, this miracle healer relative offered PW4 spiritual blessing by having her producing her valuables in a ritual which were to be returned to her afterwards.

20.  PW4 complied, went home and went to a nearby bank and retrieved the following personal properties, in total worth about $175,000, i.e., cash of $25,000, three rings and two necklaces with pendants.  PW4 put her above valuables in four red packets as told and she went to meet D2 and two unknown women as told.  The three led PW4 to an open area near Shau Kei Wan MTR exit.  The proclaimed miracle healer relative asked PW4 to put her valuables into a black plastic bag.

21.  She then asked PW4 to turn around to wash her hands but swapped PW4’s valuables with junk.  In the course she gave PW4 the black plastic bag containing only junk and told PW4 to refrain from opening it in 49 days.  PW4 protested that the time is too long.  In response, the proclaimed miracle healer relative agreed to reduce the time to 21 days.  PW4 returned home and found her valuables not being inside the plastic bag and reported the case to the police. 

22.  CCTV showed that D1 lingered as a lookout within the vicinity of D2 and PW4 during the deception and that she had followed PW4. D3 also followed PW4 from a distance as a lookout during the deception. 

23.  Earlier in the morning on 9 January 2019, CCTV again inside the elevator in a residential building in Mong Kok captured D1 to D3 and an unknown woman entering the elevator from the same floor at the same time, i.e., they set out from the same place.

24.  The immigration travel record shows that D3 entered Hong Kong on the same day as D1 and D2 shortly before Charge 3 and 4 on 6 January (D3 in the afternoon and D1 and D2 in the evening). 

25.  Between 10 and 11 January 2019, D3 booked a room and then stayed at a guesthouse on the 20th floor in the same building where they were seen on the CCTV earlier mentioned.

26.  CCTV captured D1 to D3 and an unknown woman entering the room with luggage.

Arrest and caution statement

27.  On 11 January, D1 to D3 were arrested when trying to leave Hong Kong together.  They were all intercepted at a control point at the Hong Kong-Zhuhai-Macau Ferry.

Criminal record

28.  D1 and D3 both have a clear record in Hong Kong. 

29.  D2 has one previous conviction, namely conspiracy to defraud in the year 2002.  She was sentenced to 2½ years’ imprisonment.

Mitigation

D1

30.  It was admitted by defence counsel for D1 that D1 is aged 56, she is married and living with her husband, two sons and grandchildren in Guangdong, Mainland before her present arrest. 

31.  She was born in mainland and received her education up to primary 3 level and her husband works as a security guard with a monthly income of RMB¥2,200. D1 was a housewife and her living was supported by her husband.

32.  The couple mortgaged their matrimonial home to finance the operation of a grocery, but the business failed and they were in debt of RMB¥1 million. Further, their eldest son was diagnosed with a mental illness after going through a divorce.  As a result, D1 and her husband had to bear the medical expenses of the son and the education expenses of the grandchildren.

33.  D1 has a clear record. 

34.  It was admitted that the couple have tried their utmost best to repay the debt and the expenses for the son and grandchildren, but it seemed hopeless for them to settle the debt completely.  It was said that at this point in time D1 was approached by a female who was D1’s co-worker.  The latter persuaded her to join her in the scam promising a reward of RMB¥10,000 per case.

35.  D1 came to Hong Kong as a visitor at the material times together with D2, D3 and other persons.  It was admitted that the total of all lost property was in the region of $770,790.  It was said that upon her arrest, D1 made full admission in relation to Charge 3 and that she indicated her guilty plea at the earliest opportunity.  Defence counsel for D1 accepted that these offences were heartless crimes of dishonesty.  They targeted elderly women to part with money and jewellery. 

36.  It is accepted that all offenders came from Mainland to Hong Kong for the purpose of commission of these offences and they specifically targeted elderly women.  These offences were premeditated and well-planned.  They prey on the gullibility and superstition of all the victims.  The value involved in these cases were substantial and only a small amount of cash in our case has been recovered.  It is conceded that D1 was actively involved in the scam.  It is accepted that the defendants, including D1, should receive deterrent sentences and that D1 is fully aware of the seriousness of the case and that a lengthy imprisonment is unavoidable.

37.  Defence counsel submitted to this court that in view of the defendant’s guilty plea, her background and the totality principle that she urges this court to deal with the defendant leniently.  Defence counsel also agreed that the sentence on the 1st defendant should be enhanced by reason of the OSCO application, but she says that in recent years the street spiritual blessings cases dropped and she referred this court to the cases of HKSAR v Liang Yaqiong [2009] 1 HKLRD 334 and HKSAR v Tan Meiyuan and 2 Others, CACC 360/2008.

38.  In a letter to this court, the 1st defendant repeated the reasons for her commission of the present offences.  She says she is deeply remorseful as to what she has done and vows not to reoffend and she would like to start afresh and she is willing to repay the victims with the property seized on her. 

D2

39.  D2 is now aged 44.  She is divorced with three children in their 20s.  She received education up to Primary 4 level. 

40.  D2 made her living by selling fruits and earned income of RMB¥2008 per month in the Mainland between year 2017 and January 2019, prior to the fourth offence.

41.  It is admitted that she has a prior conviction in year 2002 for conspiracy to defraud and was sentenced to 30 months’ imprisonment.  It was admitted that there is no evidence that D2 played a significant role or was the mastermind in the offences.  Initially, it was submitted that she came to Hong Kong for the primary purpose of purchasing goods to be resold in mainland, but that was withdrawn upon the court indicating that the court is not willing to accept the same unless there would be a Newton hearing clarifying the issue.

42.  D2 in her mitigation letter explained that she lost RMB¥3 million several years back due to a failed factory investment and that she still owes a creditor a high interest loan of RMB¥200,000.  It was admitted that she is unable to return home due to the pressure from creditors and has been in the circumstances induced by others to participate in this defrauding scheme.

43.  It was admitted that she committed the offences out of desperation and she was foolishly encouraged by others.  She is deeply remorseful and she has now pleaded guilty and urges this court to give her a chance to start afresh.  She is willing to apply all the valuables and money seized on her at the time of arrest for compensation to the victims, save a Longines watch.

44.  Defence counsel for D2 also submitted that whilst there has been a significant increase in blessing ritual cases in year 2017, there has since 2019 been a clear decrease in the number of similar scams and he asked this court to enhance the sentence by less than 50 per cent.  It was said that D2 pleaded guilty in a timely manner and should be given a one-third sentence discount.  Defence counsel for D2 also urges this court to consider ordering no more than 6 months custodial sentence to be served consecutive to the sentence in Charge 3.

45.  He also referred this court to the following cases.  HKSAR v Ye Yaliu and Others, CACC 85/2008, HKSAR v Onyang Guilan and Others CACC 251/2008, HKSAR v Yang Tulian CACC 177/2012, HKSAR v Wu Mudi, [2008] 5 HKLRD 179 and HKSAR v Dai Fuxi CACC 134/2008.

D3

46.  D3 is age 42.  He came from Mainland and he has received education up to Primary 4 in the Mainland. 

47.  He is married with a son and a daughter.  Both his wife and himself are farmers. 

48.  D3 also lives with his father and a bedridden grandmother.  It is said that the whole family income is about RMB¥1,300 per month. 

49.  D3 has a clear record.

50.  It was admitted that D3 was enticed by his friend to commit the offence in order to earn money for repaying his gambling debts.  For each offence, he would earn $4,000 to $5,000. 

51.  It was admitted that D3 had pleaded guilty at the earliest opportunity notwithstanding that the evidence against him was not overwhelming.  D3 is also willing to apply all valuables found on him at the time of arrest for the purpose of compensation for the victims.

52.  Defence counsel for D3 also referred this case to the Onyang Guilan and Others case as well as the recent case of 香港特別行政區 訴 柯日金及另兩人, DCCC 459/2018.  She urges this court that while she agreed that there should be enhancement of sentence in this case due to the prevalence of the crime enhanced, she asked that there be enhancement of 25 per cent as being appropriate.

53.  It is submitted for the present case the defendants were not sophisticated people and the scheme was not elaborate.  It was said that the starting point should be 3 years for each count and after giving a one-third sentencing discount it should be reduced to 24 months with an enhancement of 25 per cent, adjusted upwards to 30 months per charge and that 6 months of each additional count be run consecutively.

54.  In his letter to this court, D3 expressed his remorse for commission of the offences and he urges this court for leniency so that he could join his family sooner and start afresh.  He vows not to reoffend.

Discussion

55.  For these offences, on conviction upon indictment, a person is liable to 10 years’ imprisonment. 

56.  The four offences in this case are typical spiritual blessing street deception cases and they are very serious offences. The defendants preyed on the naivety, gullibility and superstition of the victims, threatening them with danger or misfortune to them or their loved ones.

57.  All victims are elderly women and each of them were deceived a substantial amount of money, probably the entire life savings and they are seldom compensated.

58.  The four offences in our case here involved participation by at least three to four persons each taking a different role played in the scam.  None of the property defrauded were recovered and I have no hesitation to find the defendants all came here for the purpose of commission of these offences.  In fact, defence counsel for D1 conceded this point.  It is also conceded by defence counsel for D1 that these are heartless scams against the vulnerable aged victims. 

59.  In the case of HKSAR v Yang Tulian,  CACC 177/2012, the court adopts the stance taken in HKSAR v Onyang Guilan and Others, CACC 251/2008, where it was said that the sentencing starting point for street deception should lie between 3 years and 3½ years’ imprisonment. Depending on the gravity of the offence, there should be an additional 6 months’ imprisonment consecutive to each additional offence.

60.  In that case the sentence was enhanced by 50 per cent.  The trial judge said, although there appears to be a decrease in the number of these spiritual blessing street deception cases, considering the seriousness of the offence and the very serious impact on the victims, he enhanced the sentence by 50 per cent.

61.  Before sentencing the defendants, this court has considered all submissions by defence counsel, mitigation letters and authorities cited to this court, as well as the role played by individual defendants in each of these offences as revealed in the Agreed Summary of Facts. 

1st charge against D1 and D3

62.  Three persons were involved in this scam and D1 played the role of approaching the victim whilst D3 was the lookout.  The amount involved in this case is around $260,000.  As said, this court finds that both of these defendants came to Hong Kong for the purpose of commission of the offences.  I would, as suggested by defence counsel, adopt a starting point of 3 years’ imprisonment. 

63.  By reason of their guilty plea, these defendants are entitled to the full one-third sentencing discount.  Accordingly, their sentence is reduced to 2 years’ imprisonment.  Although, they both have a clear record in Hong Kong, the same does not carry the same weight as if they were Hong Kong residents.

OSCO Application

64.  The prosecution applied for enhancement of sentence pursuant to section 27 of the Organized and Serious Crimes Ordinance, Cap 455.  Defence accepted that the sentence should be enhanced, but they urged this court to enhance the sentence by 20 per cent to 25 per cent.  They cited to this court the decision in柯日金及另兩人where the court enhanced the sentence by 25 per cent.

65.  In support of the application, a statement from Senior Inspector Wong Yuk-yan dated 18 June 2019 was tendered to this court. Senior Inspector Wong worked in the field of strategic intelligence on the subject of commercial fraud and syndicated frauds.  Part of her duties include collating and analysing statistics on the subject of street deception. 

66.  One can see from her statement that the number of street deception cases appeared to drop for most of the years since 2012. It is noted, however, that there is no corresponding drop in the total amount of loss for street deception.  In fact, in the year 2013, there was a rise of 26.24 per cent. 

67.  In year 2015, there was a significant rise of 167.27 per cent, and for year 2017, there was an increase of 263.33 per cent. There was a drop in the amount of loss for the year 2012, 2014, 2016 and 2018.

68.  Furthermore, the spiritual blessing cases represented from year 2012 to year 2018, 41.77%, 32.89%, 16%, 55.36%, 32%, 63.33% and 75.86% of street deception cases.

69.  The statement shows that spiritual blessing continues to be a popular modus operandi in street deception.  It is said that despite the apparent overall trend of a decrease in number of street deception cases, the offences remain common and cause financial distress to victims, especially that of the elderly. 

70.  In fact, there is a sharp increase of 260% of street deception cases in the year 2017 compared to year 2016 and the modus operandi of spiritual blessing has recorded 612.5% increase from year 2016 to the year 2017.  No doubt, the spiritual blessing cases was organized crime within the meaning of the section of the ordinance. 

71.  Having regard to the information supplied by the prosecution to this court, the general nature of the organized crime itself, there is no doubt that the enhancement of sentence is called for.  In the case of HKSAR v Yang Tulian and Ors, CACC 177/2012, the Court of Appeal delivering its decision on 26 February 2013, do not disturb the 50 per cent enhancement of sentence in this spiritual blessing case.

72.  Considering what is before me, this court now finds it appropriate to enhance the sentence by 40 per cent.  Accordingly, for the 1st charge, D1 and D3 are both sentenced to 24 months and by reason of their willingness to compensate, making small compensation out of their prisoner’s property, their sentence is further reduced to 23 months’ imprisonment to reflect their remorse.  After the enhancement at 40 per cent, they are both sentenced to 32 months and 6 days’ imprisonment.

2nd charge – against D1

73.  This offence was committed by D1 and two others, eight months after the commission of the first offence.  The money involved was $150,000.  Again, D1 came to Hong Kong for commission of the offence. Similarly, the sentencing starting point of 3 years’ imprisonment is adopted and the same is reduced to 2 years’ imprisonment by reason of her guilty plea.

74.  The sentence is further reduced to 23 months’ imprisonment by reason of her offering of a small amount of compensation to the victims.  The sentence is enhanced by 40 per cent and, therefore, the 1^st defendant is sentenced to 32 months and 6 days’ imprisonment for the 2nd charge.

3rd charge – against D1, D2 and D3

75.  The three defendants were all convicted of this charge.  The amount involved is $138,500.  As I said earlier, this court does not accept that the 2nd defendant came to Hong Kong for the purpose of purchasing goods for resale and this court finds that three defendants came to Hong Kong for the sole purpose or primary purpose of the commission of the offences.  The court again adopts a 3 years’ imprisonment sentence starting point for this offence.

76.  D2 has a previous conviction of conspiracy to defraud in the year 2002.  Although, that was 16 years ago, nevertheless as a visitor to Hong Kong, she came to commit crimes and had not learned her lesson in the past and had committed similar offences now.  Her sentence starting point is enhanced by 3 months to 3 years and 3 months’ imprisonment.

77.  By reason of their guilty plea, the sentence for D1 and D3 is reduced to 2 years and that of D2 is reduced 2 years 2 months’ imprisonment.  Each of them has agreed to pay modest compensation of the valuables or money seized on them and their sentence is further reduced by 1 month to 23 months for D1 and D3 and 25 months for D2. 

78.  Again, the sentence is enhanced by 40 per cent.  Accordingly, D1 and D3 are each sentenced to 32 months and 6 days’ imprisonment, and for D2, her sentence is 35 months’ imprisonment for the charge.

4th charge – against D1, D2 and D3

79.  Similarly, three persons were involved in the commission of this offence and the amount involved is $175,000.  As in the 3rd charge, D1 and D3 are each sentenced to 32 months and 6 days’ imprisonment, while D2 is sentenced to 35 months’ imprisonment. 

80.  The four offences were of similar nature involving different victims and the money received on each occasion was roughly around $200,000. 

81.  The 1st charge and the 2nd charge offences were committed eight months apart, while the 3rd charge and the 4th charge were committed on consecutive days, but it is noted that they were committed in entirely different locations.  In fact, the defendants chose four different localities in the commission of the four offences.  The 3rd charge and the 4th charge offence were both of considerable gravity and does not justify a concurrent sentence despite they were just one day apart.

82.  Considering the totality principle and having regard to each defendants’ culpability in the case, for D1, this court orders that 6 months each of the sentence in the 2nd charge, 3rd charge and 4th charge, shall run consecutive to the sentence in the 1st charge and the rest shall run concurrent to the sentence in the 1st charge.  The total sentence for D1 is, therefore, 50 months and 6 days’ imprisonment.

83.  For D2, 7 months of the sentence in the 4th charge shall run consecutive to the sentence in respect of the 3rd charge.  The rest shall run concurrent to the sentence in the 3rd charge.  Accordingly, D2 is sentenced to a total of 42 months’ imprisonment.

84.  For D3, 6 months each of the sentence in the 3rd charge and the 4th charge shall run consecutive to the sentence in the 1st charge, the rest shall run concurrent to the sentence in the 1st charge. D3 is, therefore, sentenced to a total of 44 months and 6 days’ imprisonment.