HKSAR v. TSUI KING WA

DCCC 461/2023

[2025] HKDC 1236

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 461 OF 2023

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REASONS FOR SENTENCE

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1.  The 2^nd Defendant (D2)  was convicted after trial of Charges 1 to 12, all being conspiracy to defraud, contrary to common law and punishable under section 159C(6)  of the Crimes Ordinance, Cap 200. The 1^st and 2^nd Defendants were jointly charged in Charges 1 to 12 for conspiring with each other together with other person(s)  unknown to defraud 1 victim for each of those charges.

2.  Each charge involves an individual victim who had sold through online platforms different kinds of goods ranging from mobile phone, iPads, special edition sneakers, luxury watch, Japanese whisky, and had received or had been shown photographic images of ATM deposit slips as proof of payment or notification of deposits made into their bank accounts, and thereupon parted with possession of the goods.  2 of the victims (PW1 and PW11 for Charges 1 and 11 respectively), apart from being cheated to part possession of their goods, were further contacted after the transaction whereby they received requests for return of a second mistaken payment. 

3.  All victims were later informed that the alleged payment amounts were not honoured, and that the actual payment deposits were made by D2 using gift certificates of $10 each through the ATM machines, while an amount equivalent to the sale price (which is much higher than $10)  had been keyed in by D2 when the deposits were made. 

4.  The value of the goods involved and the return of payment under the pretence of mistaken double payment for each charge are as follows:

Charge 1 $12,000 mobile phone

    $10,000 return payment (frauster asked for $12,000)

Charge 2 $18,000 MacBook Pro

Charge 3 $45,500 Watch

Charge 4 $43,000 sneakers

Charge 5 $5,100 iPad Air

Charge 6 $74,900 sneakers

Charge 7 $44,000 8 bottles of whisky

Charge 8 $178,800 26 bottles of whisky

Charge 9 $15,000 MacBook Pro

Charge 10 $53,800 sneakers

Charge 11 $36,800 Leica camera

    $25,000 return payment

Charge 12 $90,000 sneakers

Total amount involved $653,900

D2’s Antecedent Statement and Mitigation

5.  D2 is 36 years old and single.  He had studied up to Form 4 or 5, and was a warehouse worker. 

6.  He has 10 conviction records, which include 9 charges of theft, 2 charges of fraud, 4 charges of conspiracy to deal with property known or believed to represent proceeds of indictable offence, 2 charges of conspiracy to blackmail, 1 charge of blackmail, and 1 charge of conspiracy to pervert the course of public justice.  He was last sentenced on 7 April 2020 for a total sentence of 36 months.

7.  The Defence urges the Court to consider D2’s cooperation with investigators, the fact that he did not have knowledge of the frauds practiced on the victims, and that he was not the mastermind.

Sentencing Considerations

8.  I have considered the mitigation and facts of this case.  D2 was convicted after trial, and the Court does not agree that D2 had been cooperative with the investigators.  The documentary exhibits were all along present when he was arrested, and his so called ‘cooperation’ merely involves his non-denial of the presence of those documents found at his home. 

9.  Even though the Court agrees that there is no evidence that D2 knew of the frauds on the 12 victims, and that he was not the mastermind in that he was following instructions, his role was a crucial one.  His job was to buy some of the $10 gift certificates used, and to deposit them into the victims’ designated accounts only upon D1 giving instructions to do so at a specific time, while keying in substantially larger amounts as the deposit amounts.  His role also involved immediately taking pictures of the deposit slips after the deposit, and to send them back to the group which consisted of himself, D1 and another unknown person.  He was also involved in taking some of the sneakers, which were subject matters of some charges, to shops to check the second hand price. There were many more gift certificates found at his home.

10.  This is a typical e-commerce crime.  The scheme involved using the time gap between deposit of gift certificates to clearance as a loophole for benefit.  The 12 charges were committed within a period of less than 2 weeks, and there were 12 victims.  The amounts involved in each charge range from $5,100 to $178,800, and the total amount involved was $653,900.  The goods were all expensive items that could be easily sold in the market, and whiskies, luxury watch and limited edition sneakers could be the subject matter of seriously inflated prices upon resale.  For charges 1 and 11, the fraud involved not just the deceit to obtain the goods in question, but also a second lie that money was mistakenly deposited twice, and thereby obtaining transfer of a sum of money, all with aid of the minimal value of the gift certificates.

11.  There was a certain degree of planning, as gift certificates of low value had to be acquired beforehand, and a network of personnel were involved, including D1 and the unknown male who gave orders over phone or on WhatsApp, PW17 who was responsible for picking up the goods, and D2 who was responsible for purchasing some of the gift certificates, making the deposits, sending back photos of the deposit slips, and bringing some goods to shops for resale price checking.  The present case also presents with the aggravating factor of D2 committing the offences with 2 others, and frequent communications between the parties through WhatsApp was involved.

12.  As stated by HKSAR v Leung Yiu Fai CACC 100/2014, concerning offences that target the public, and which were ruthless, disgusting and despicable fraud cases, the Court will adopt strict sentences in order to have sufficient deterrent effect, and to protect the general public.  Even where the amounts involved were not very high, and even considering the clear record of defendants, the Court will still adopt starting points of 3 to 4 years. 

13.  In Leung Yiu Fai, the applicant had 2 previous conviction records consisting of 19 dishonesty related charges.  The single charge in that case was committed within 2 months and involves 36 victims and $63,180.  Each victim had been scammed out of relatively small amounts ranging between $650 and $6,340, in circumstances described as not very sophisticated, where the applicant sold Halloween event tickets which were not in existence and had the victims deposit money to third parties who conduct online sales of inexpensive items, thereafter claiming to the third parties that money had been mistakenly deposited and asked for ‘return’.  It was held that the starting point of 30 months before enhancement was appropriate, and that the enhancement under section 27 of the Organized and Serious Crimes Ordinance by 1/3 was reasonable. 

14.  In HKSAR v Wong Ming Chun [2025] HKCA 275, the appellant pleaded guilty to 9 charges in 2 separate cases, involving a total of 4 conspiracy to defraud charges amongst others.  The Deputy District Judge in that case considered that there were 4 transactions, and adopted for the conspiracy to defraud charges a starting point of 3.5 years for each charge, and increased them by 3 months each, for the reason that they had been committed within one month.  1/3 discount was applied for the guilty plea, and thereupon enhancement of 20% was made on the conspiracy to defraud charges.  The appellant was sentenced to an overall term of 5 years’ imprisonment.  The Court of Appeal found that the sentence on these charges were appropriate.  In particular, the Court of Appeal stated that “committing multiple similar offences within a month is a very serious matter in itself and far more serious than committing one offence on a single occasion.”

15.  The facts of Wong Ming Chun are also very similar to the present case, i.e. bounced cheques as purchase price of luxury goods belonging to the victims and bogus requests for allegedly mistaken double payment; and a number of people were also involved in the organized syndicated crime, with the appellant playing an essential and prominent role.  The 4 transactions in Wong Ming Chun are committed within 1 month, whereas the present 12 charges were committed in less than 2 weeks.

16.  In Wong Ming Chun, the total amount stolen in that case amounted to $925,000, and the unrecovered loss being $744,500; 4 Facebook accounts and a number of telephone numbers were used.  When the police raided the Defendant’s hotel room, 6 SIM cards and $70,041 were found.  The appellant in that case has 13 previous conviction record which includes some charges of dishonesty. Whereas in the present case, the total amount of money involved was $653,900; and Facebook, Carousell and WhatsApp accounts were used.  D2 has an even worse criminal record than the appellant in Wong Ming Chun.  D2’s poor criminal record consisting mostly of dishonesty offences presents itself as an aggravating factor for each of the 12 charges.  I am therefore of the view D2’s case falls in between Leung Yiu Fai and Wong Ming Chun in terms of seriousness.

Enhancement of Sentence

17.  The Prosecution has filed a Notice of Intention to Furnish Information Pursuant to section 27(2)  of the Organized and Serious Crimes Ordinance, Cap 455 on 1 June 2023.  The Defence does not object to the enhancement application.  The witness statement of WSIP Chan Ching Mei dated 3 July 2025 had been filed on 4 July 2025, in support of the application for enhancement of sentence, on the grounds of:

(1)  Prevalence of this specified offence; and

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

18.  I find that the Prosecution has proved beyond reasonable doubt that the content of the witness statement of WSIP Chan Ching Mei represents the truth. Considering the authorities stated above, I am of the view that a 1/4 ORSO enhancement is appropriate.

Sentence

19.  The following are the starting points and the aggravating factor of poor criminal record, and the ORSO enhancement for each charge:

Charge	Starting Point	Aggravation	Total After Aggravation	ORSO enhancement ¼
Charge 1	24 months	2 months	26 months	32.5 months
Charge 2	24 months	2 months	26 months	32.5 months
Charge 3	30 months	2 months	32 months	40 months
Charge 4	30 months	2 months	32 months	40 months
Charge 5	20 months	2 months	22 months	27.5 months
Charge 6	30 months	2 months	32 months	40 months
Charge 7	30 months	2 months	32 months	40 months
Charge 8	36 months	3 months	39 months	48 months
Charge 9	24 months	2 months	26 months	32.5 months
Charge 10	30 months	2 months	32 months	40 months
Charge 11	30 months	2 months	32 months	40 months
Charge 12	36 months	3 months	39 months	48 months

20.  After considering the totality principle, as the 12 charges involve different transactions and victims, partially concurrent sentences should be imposed.  I decide that an overall starting point of 72 months after ¼ enhancement is appropriate.  I shall order that 2 months each of the sentences for Charges 1 to 7 and 9 to 11, and 4 months of the sentence for Charge 8, shall be served consecutively to the sentence of Charge 12.  The total sentence for Charges 1 to 12 shall be 6 years’ imprisonment.