HKSAR v. TANG TAT CHUNG

DCCC 777/2024

[2025] HKDC 969

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 777 OF 2024

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REASONS FOR SENTENCE

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1.  On his own plea and admission of the facts, D was found guilty of one charge of conspiracy to defraud, contrary to Common Law and punishable under section 159C(6)  of the Crimes Ordinance, Cap 200.

Facts

2.  Around 1238 hours on 18 March 2024, Mr Lo Yip Cheong (LO)  received a phone call from a man (WP)  who addressed him as “dad” and claimed that he urgently needed $200,000 to settle a dispute.  Knowing that WP was not his son, LO played along before reporting the matter to the police.  A controlled meeting was subsequently arranged.

3.  Around 1518 hours of the same day, on the instructions of the police, LO called WP telling him that the money was ready for collection. WP said a friend of his called “Kit Jai” would collect the money from him outside Kwun Tong Mansion at 36 Yuet Wah Street (Pickup Point).

4.  In the meantime, a police officer disguising as LO (PO)  arrived at the Pickup Point with a black plastic bag containing what appeared to be money.

5.  Around 1522 hours, D approached PO and said, “I am Kit Jai. Do you have something for me?” Thereupon, PO handed over the black plastic bag to D.

6.  D was immediately intercepted and arrested by police officers in ambush. Under caution, D stated that he was collecting money for someone for a reward of $500, and he did not know what was going on. Two mobile phones were seized from him.

7.  In a video-recorded interview, D told the police under caution that he had been approached on Facebook by someone who asked him to collect something for that person’s father.  D did not know what he was asked to collect.  He was given a mobile phone by an unknown male inside a vehicle near the Ngau Tau Kok Market.  He then received a call on that phone telling him that he would receive another call with instructions to collect an item.  Around 30 minutes later, he received another call on the same phone telling him to attend the Pickup Point to collect an item from a man in black shirt and denim jeans.  He saw such a man at the Pickup Point and told him that he was Kit Jai.

D’s Background

8.  D has a clear record.

9.  He is 31 years old.  He came to Hong Kong when he was 8 years old and was educated here up to Form 1.  He is single and lives with his mother and younger brother.  He claims that he was a cook at the time of the offence.

Mitigation

10.  Defence counsel Mr David Cheung submitted that D’s guilty plea saved the court’s time and public resources.  He is a man with a clear record who committed the offence with a view to earning a small renumeration.  He was not the mastermind but was purely acting on the instructions to meet someone, claim himself to be Kit Jai and collect the money.

11.  D is extremely remorseful and promises not to breach the law again. In his letter to the court, he expressed his deep regrets for his wrongdoing and for the anguish caused to his parents.  His mother opined that D was essentially simple-minded and kind-hearted, and she felt her son’s genuine remorse.  Both mother and son asked for leniency from the court.

12.  Mr Cheung pointed out that the Court of Appeal laid down guidelines for phone deception cases in HKSAR v Hung Yun Chun [2011] 2 HKLRD 174.  The Court held that the starting point for such cases should be 4 years’ imprisonment, and the appropriate enhancement pursuant to the Organized and Serious Crimes Ordinance (OSCO)  should be one-third.

13.  D has nothing to say with regard to the prosecution’s application for enhancement of sentence.

Sentencing considerations

14.  Conspiracy to defraud is a very serious offence. Under section 159C (6)  of Crimes Ordinance, its maximum penalty is 14 years’ imprisonment.

15.  This case involves someone falsely claiming to be the victim’s son and asked for money from the victim allegedly to settle a dispute.  Fortunately, the victim was smart enough to see through the ruse and, in collaboration with the police, set matters in motion for the capture of the collector of the money, which led to the interception and arrest of D.

16.  I note that D has a clear record.  From his admissions to the police and mitigation put forward on his behalf, I accept that D was not the mastermind but was just a pawn used by the person/persons behind this fraudulent scheme.  Nevertheless, he was a party to a very serious offence.

17.  As correctly pointed out by Mr Cheung, the Court of Appeal in Hung Yung Chun took the view that the general starting point for this type of phone deception cases should be 4 years’ imprisonment.

18.  I will adopt 4 years as the starting point.  D’s early guilty plea, which is the only mitigating factor, would reduce the sentence to 32 months.

19.  The prosecution has applied for enhancement of sentence pursuant to OSCO.  In support of the application, a statement/report dated 6 June 2025 made by CIP Cheng Sze Wai of Commercial Crime Bureau (the Report)  was tendered.  This statement was made with regard to the prevalence and the nature and extent of harm caused to the community by recent occurrences of phone deception cases.

20.  The information set out in the Report shows a steady increase of phone deception cases and the accumulated losses from year 2020 to year 2023.  In year 2023, there were 3,213 cases with an accumulated loss of 1,102.08 million dollars.  However, there was a drastic increase to 9,204 cases and 2,011.04 million dollars of accumulated losses in year 2024.  The corresponding figures for the first quarter of year 2025 were 1,115 cases and 214.04 million dollars.

21.  I am satisfied that the offence committed by D is a specified offence.  From the entire content of the Report, I find it proved beyond reasonable doubt that phone deception cases are still prevalent and their recent occurrences have caused significant harm to the community.  This is a suitable case for enhancement of sentence pursuant to OSCO.

22.  As to the extent of enhancement, the Court of Appeal in Hung Yung Chun considered a one-third enhancement to be appropriate.

23.  The starting point and the extent of enhancement applied in Hung Yung Chun were adopted recently by the Court of Appeal in 律政司司長訴陳皓傑 [2024] HKCA 409.

24.  Accordingly, I would enhance D’s sentence by one-third, bringing the final sentence to 42 months’ imprisonment.