HKSAR v. TAM WAI TSUNG

DCCC 1491/2024

[2025] HKDC 851

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 1491 OF 2024

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REASONS FOR SENTENCE

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1.  D pleaded guilty to one charge of “obtaining property by deception”, contrary to section 17(1)  of the Theft Ordinance, Cap 210, and one charge of “procurement of unlawful sexual act by false pretences”, contrary to section 120(1)  of the Crimes Ordinance, Cap 200.

Facts

2.  D met 16-year-old girl X on Instagram.  On 12^th June 2024, D offered on Instagram to pay X $100,000 for borrowing her phone to transfer data.  X agreed and, on the instructions of D, handed her mobile phone to D’s girlfriend on 14^th June 2024 at Yuen Long MTR Station.

3.  D subsequently used various excuses to delay return of the phone to X, including claiming that the phone had been confiscated by the police who might even arrest her.  In the meantime, D used X’s phone to borrow money from those who knew X.

4.  When X urged D to return the phone to her, D gave her 3 options for its return: i)  pay him a sum of money; ii)  find him another phone; or iii)  have sexual intercourse with him. X chose the last option.

5.  Around 1 am on 16^th June 2024, X met D at Yuen Long MTR Station.  This was the first time they met in person. D took X to an apartment in United Court in Yuen Long.

6.  In the apartment, D told X that she had to do what he wanted her to do if she was to have her phone back.  D then removed X’s clothes, kissed her on her lips and inserted his finger into her genitals.  He then proceeded to have vaginal and anal sexual intercourse with her without using a condom.  Despite feeling unwell during the intercourse, X wanted it to end as soon as possible so as to have her phone back.  After the intercourse, D told X that he would send someone to return the phone to her.  X left around 6 to 7 a.m. the same day.

7.  D never returned the phone to X. He even asked her for money.

8.  Around mid-June 2024, X found out from a net-friend D’s personal information including his name, HKID, phone number and address.  She then made a report to the police. On 1^st July 2024, D was arrested.

9.  In a video-recorded interview held under caution, D admitted knowing X and approaching her on 12^th June 2024 to trick and cheat her phone out of her by telling her that he would give her $100,000 for borrowing her phone for data transfer.  He sent his girlfriend to meet with X on 14^th June 2024 to collect the phone from her.  After getting X’s phone, he reset the phone and deleted all the data on it.  He never intended to return the phone or pay for it.  On the night of 14^th June 2024, he used his girlfriend’s phone to contact X to tell her that her phone had been confiscated by the police and ask her to pay $5,000 for retrieval of her phone.  When X indicated that she had no money, he gave her the options of either finding him another phone, paying $5,000, or having sexual intercourse with him.  X eventually chose the sexual intercourse option.

10.  D went on to say in the interview that he met X on the night of 15^th June 2024 and took her to his girlfriend’s home in United Court in Yuen Long.  X asked him to return the phone to her, but he told her that he would do so after having sex with her.  The sexual acts started around 5 a.m. by D asking X to remove her clothes.  X initially refused to do so, but when told that she would have her phone back as soon as they finished, she let D remove her clothes.  After kissing her, D inserted his finger and then his penis into X’s vagina.  X said “no” twice and that she was in pain.  D told X to put up with it and she would have her phone back soon.  The vaginal intercourse lasted for 10-odd minutes.  After this, D had anal intercourse with X during which X said “no” and that she was in pain.  The intercourse finished with D ejaculating outside X’s body.

11.  D further said in the interview that when X left the premises after the sexual intercourse, he told her that he would send someone to return the phone to her.  However, even though he had the phone with him at that time, he had no intention of returning it to X, who asked him again for its return on Instagram later that day.  In the end, he blocked her from his contacts.  He sold the phone for $2,000 around 18^th or 19^th June 2024.

12.  In an identification parade held on 4^th July 2024, X positively identified D.

Defendant’s Background

13.  D has two previous convictions arising out of the same occasion, one for conspiracy to commit criminal damage, and one for unlawful sexual intercourse with a girl under the age of 16.  He was sentenced to be detained in a Detention Centre for both offences.

14.  He was born on 17^th May 2004 in Hong Kong and was schooled to Form 1, after which he attended vocational training. He was 20 years old when he pleaded guilty to the present charges in this Court on 29^th April 2025.  At the time of the offence, he was living with his father, stepmother and grandmother.  His mother deserted the family when he was in kindergarten and has had no contact with him ever since.

15.  He has worked in fast food chains, noodle bars and a hotpot shop, and his most recent job was a trainee tattoo artist.

Mitigation

16.  Pointing out that D had been subjected to bullying, humiliation, and verbal and physical abuse at school and had then been led astray by bad peers, defence counsel Ms Joyce Lai asked the Court to take the following factors into account:

(i)  D is genuinely remorseful and is willing to shoulder his responsibility for his wrongdoings;

(ii)  He sincerely apologizes to the victim for the harm done to her;

(iii)  He has been fully cooperative with the police and made full and frank admissions to the offences; and

(iv)  He indicated his guilty pleas at the earliest opportunity to show his remorse and to save the Court’s time and resources.

17.  In his mitigation letter, D indicated his deep remorse, his understanding of the seriousness of the offences, his willingness to bear the consequences of his wrongdoings, his desire to turn over a new leaf and he tendered his apology to the victim.

18.  A letter from a counsellor responsible for providing counselling to D also noted D’s reflections upon his wrongdoings, his remorse and his determination to change for the better.

Sentencing considerations

19.  The maximum penalty for the 1^st charge of “obtaining property by deception” is 10 years’ imprisonment, and that for the 2^nd charge of “procuring unlawful sexual act by false pretences” is 5 years’ imprisonment.

20.  There are no sentencing tariffs for either offence, which can be committed in a variety of ways.

21.  Regarding the offence of “obtaining property by deception”, Ms Lai referred to a number of decisions.  In HKSAR v Wong Hei Yin [2021] HKDC 1660, D pleaded guilty to 22 charges of theft which were committed with more or less the same modus operandi.  The victims came to meet D through social media or friendly referral for job offers.  D would use various excuses to ask them for money.  In one instance (charge 18), D went further and took an iPhone from the victim.  A starting point of 12 months was adopted for this and some other charges.  The case of HKSAR v 呂源舜 HCMA 185/2016 was referred to in which DHCJ Kwok (as he then was)  pointed out that the starting point for street deception involving small values should be in the region of 9 to 12 months.

22.  In HKSAR v Li Wai Hung CACC 40/2009, the appellant pleaded guilty to 31 charges of obtaining property by deception from various young people involving properties totalling around $64,000.  The offences were committed over a period of 3 ½ months.  The appellant’s acts, described by the Court of Appeal as a form of “street deception”, involved approaching young people in the street and “borrowing” from them with false excuses items such as mobile phones, Octopus cards or other valuables.  Instead of returning these items to the victims as he had promised them, the appellant sold the items for money.  The trial judge adopted a starting point of 9 months for the earlier offences and 12 months for the latter ones to reflect the gravity of the repeated commission of the offence.  In the end, the appellant was given a total sentence of 3 years’ imprisonment which, on appeal, was said to be unimpeachable.  However, the Court of Appeal expressed the opinion that the issue of persistence of criminal activity can be more easily considered when applying the totality principle rather than by choosing a point in time to increase the starting point, as the trial judge did.

23.  In HKSAR v Kong Ching Ha Priscilla HCMA 941/2005, the appellant was convicted of 2 charges of theft of mobile phones after trial.  She used false pretexts to “borrow” the mobile phones without returning them.  For charge 1, the appellant demanded payment of $2,800 from the victim for the return of the phone.  On appeal, DHCJ B Fung (as he then was)  agreed that the offences were committed with certain degree of planning and manipulation and considered 9 months’ imprisonment to be appropriate for charge 1 to reflect the added element of extortion, and 6 months for the other charge.

24.  Ms Lai submitted that the present case is less serious than the above cases, pointing out that D acted alone in an unsophisticated manner without the use of violence or threat, and that only one victim was involved.

25.  I do not think I can compare the seriousness of D’s conduct in committing the 1^st charge of “obtaining property by deception” in the way Ms Lai did, as the facts of our case are very different from the facts of those cases.

26.  D got acquainted with X and practiced his deception on her through the internet.  Up to the point of X parting with her phone, she still had not met D personally.  Pursuant to communications on Instagram, the phone was handed over in a public place not to D directly but to his girlfriend.  Not knowing the means of contacting D such as his address, his place of work or his phone number, X would have no means of locating D to get her phone back from him.  D’s method of obtaining X’s phone displayed a certain degree of cunning and planning.

27.  This offence was made more serious by D giving X the 3 options for the return of the phone when he had no intention at all of ever returning it.  He was obviously not content with simply depriving X of her phone but was intent on extracting extra benefits for himself by dangling before her a hope of her phone’s return when he knew full well that it was just an illusion.

28.  From the facts of our case, an appropriate starting point would be 12 months’ imprisonment for the 1^st charge.

29.  With regard to the 2^nd charge of “procurement of unlawful sexual act by false pretences”, Ms Lai referred to a number of cases involving victim having been lured into having sexual intercourse with the accused in the belief that it was part of an alleged exorcism ritual (HKSAR v Chow Kam Wah [2013] 1 HKLRD 377; HKSAR v Man Ka Ying [2020] HKDC 55)  or spell/curse-removing ritual (HKSAR v Ho Ka Po, Tony DCCC 1169/2012).  As the facts of these cases and the types of false pretence employed are very different from those pertaining to our case, I do not propose to give a summary of these cases save to point out that the starting points for this offence adopted in the abovementioned three cases range from 2 to 3 years’ imprisonment.

30.  I find the case of HKSAR v Chow Chi [2023] HKDC 200, also cited by Ms Lai, to be of even less assistance.

31.  Ms Lai submitted that this case is not the worst of its kind because: i)  the age difference between D and X is only 4 years, ii)  D did not use any threat or violence on X, and iii)  D did not exploit X’s religious fears for sexual advantage.  In her submission, this case is less serious than the cases of Chow Kam Wah, Ma Ka Ying and Ho Ka Po but more serious than Chow Chi.

32.  Having cheated X’s phone out of her, D took his fraudulent scheming one step further when X asked for the return of her phone.  This led to his commission of the 2^nd charge.

33.  This offence can be said to be heaping indignity upon the loss suffered by X and rubbing salt in her wound. In order to get her phone back, which had been illicitly taken from her in the first place, X had to subject herself to the indignity of having sex in the forms of digital, vaginal and anal sexual intercourse with D whom she had just met and who kept delaying the return of her phone with different excuses.  In performing those acts on her, D was simply exploiting X’s naivety, gullibility and her understandable eagerness to have her phone back to satisfy his own greed and lust.

34.  That D wore no condom and persisted in those sexual acts despite X’s saying “no” no less than three times and that she was in pain undoubtedly aggravated the seriousness of this offence.  D should consider himself very lucky that he was not charged with rape.

35.  The Victim Impact Report that I called for is now available and is entitled “Psychological Report”.  It says that throughout her life X experienced multiple traumatic events including prolonged school bullying, pranking and rumour-spreading for which she received little to no help, leading to her feeling of helplessness, adopting a style of passive endurance and taking a pessimistic and negative view of life.  With regard to the present incident, she experienced guilt and self-blame for putting herself in the situation in which the incident occurred, and she also felt deceived. She felt disgust towards not only D but also herself.  The incident has exacerbated her pre-existing depressive symptoms and her profound sense of helplessness, and has resulted in her believing that most people are not good people.  While post-traumatic symptoms were not initially present, her recent passage through the Yuen Long MTR Station acted as a trigger to activate those symptoms of sudden, intrusive recollections of the incident and nightmares.  Her scores for depressive, anxiety and stress level all fell within the “Very Severe” range.  She has received 3 treatment sessions and will need more therapeutic work focusing on addressing her persistent guilt and restoring her self-trust and belief in her ability to protect herself.

36.  From the facts of the case and the impact on the victim, I would consider 3½ years to be an appropriate starting point for the 2^nd charge.

37.  For both offences, a total sentence of 3 years 9 months’ imprisonment after trial would seem right.  Early pleas of guilty would reduce this to 2½ years.

38.  D was only 20 years old when he pleaded guilty before me. By reason of s 109A (1)  of the Criminal Procedure Ordinance, I would have to obtain such information as to help myself determine if, other than imprisonment, there are any appropriate methods of dealing with him.  For this purpose, I called for a Detention Centre/Training Centre Suitability Report.

39.  The Report is now available.  Although D became 21 years old while the Report was being prepared and is now technically outside the ambit of s 109A (1), in light of the Court of Final Appeal’s judgment in Secretary for Justice v Leung Hiu Yeung (2018)  21 HKCFAR 421[1], the sentence that he should receive should be the same as if that section still applied to him.

40.  The Report points out that D is considered unsuitable for detention in a Detention Centre as he had been sentenced to detention in such a Centre.  After his release, he has been recalled to the Centre due to his poor response to supervision and breach of his supervision requirement.  Showing no determination to stay away from undesirable peers and to lead a law-abiding life, D was arrested for Theft on 21^st May 2024, and for the present offences on 1^st July of the same year.  He was refused bail for the present offences and, while on remand, failed repeatedly to comply with the institutional rules and regulations.  He has developed neither any insight into his problems nor any concrete rehabilitative plans.

41.  He is considered suitable for detention in a Training Centre “where he will undergo a more comprehensive programme including educational and vocational training; character, value and life-skill development followed by a longer period of statutory supervision.”  The Report confirms that D is mentally, psychologically and physically fit for detention in such a Centre where a place is available for him.

42.  Ms Lai told the Court that the Report had been explained to D, who told her that he did not want to be sent either to the Detention Centre or to the Training Centre without explaining why.

43.  I entirely agree with the views and recommendation expressed in the Report, and am satisfied that a Training Centre Order is the most suitable way of dealing with him by way of sentence.  I therefore order that D is to be detained in a Training Centre for both offences.