HKSAR v. ZHU HUIYING

DCCC 399/2014

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 399 OF 2014

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REASONS FOR SENTENCE

1. Zhu Huiying you have pleaded guilty to two charges of obtaining property by deception, contrary to section 17(1) of the Theft Ordinance, Chapter 210. Both deceptions are what are commonly known as street deceptions involving spiritual blessings.

2. In summary around 09:40 on the morning of the 30 July last year Madam Chan Hiu Yin (aged 56) was walking near the North District Sports Ground in Sheung Shui when a female approached and asked whether she knew a doctor called “Wong Tak Choi”. Madam Chan replied she did not know the doctor.  A second female then approached and was also asked by the first female if she knew the doctor.  The second female said she did and that he was an extremely good doctor.  On hearing this Madam Chan followed the two females to look for the doctor.

3. The two females led Madam Chan to Ting Ming House where you appeared and claimed to be the granddaughter of the doctor.  You said you would go ask the doctor if he would see Madam Chan.  After 10 minutes you returned saying the doctor would see Madam Chan and claimed that Madam Chan’s daughter was haunted by spirits and that within three months she would suffer serious bodily injury. 

4. In order to prevent harm coming to her daughter Madam Chan was required to surrender her money and property by putting them in a bag.  Madam Chan therefore withdrew $12,000 from an ATM machine nearby and went home to collect three rings and a necklace valued at $7,000.  Madam Chan then put the money and jewellery into a red bag which she handed over to you. 

5. Without Madam Chan noticing the money and jewellery was switched for newspaper.  You then put the red bag inside a blue bag and told Madam Chan to put the blue bag in a wardrobe for 7 days.  Madam Chan then went home.  On her way home she felt suspicious and checked the blue bag only to discover you had switched the money and jewellery for newspaper. 

6. Four months later you practised the same deception on another lady.  In summary around 09:40 a.m. on the 28 November last year Madam Chan Yuk Wah (aged 53) was walking near the Jordan Village Playground at Lok Wah Estate in Sau Mau Ping when she was approached by two females, one of whom claimed to know “Wong Tin Po” who could cure any illness. 

7. Madam Chan, who suffered from asthma, asked if the person could cure asthma.  The female said he could and that she would lead Madam Chan to see him.  When they reached Amoy Garden you appeared and claimed that “Wong Tin Po” was your grandfather. You told Madam Chan that her daughter would die in a car accident within the next three days and that to avoid this happening Madam Chan needed to perform a spiritual blessing. 

8. Madam Chan then accompanied by one of the two other females returned home and took HK$507,000, RMB10,000 and jewellery valued at over $130, 000.  When they returned to near the Jordan Village Playground Madam Chan was told to kneel down and place the money and jewellery in a bag.  Madam Chan was told not to open the bag or tell anyone about the incident for 18 days.  When Madam Chan returned home she discovered the bag with her money and jewellery had been switched and replaced with distilled water, salt and newspaper. 

9. In passing sentence I have carefully considered everything said on your behalf by Mr Cheung, including that you had recently been admitted to hospital and needed money to pay the medical expenses and have two young grandchildren to look after. 

10. I also take into account you have no previous convictions in Hong Kong.  This however carries little weight where the offender is a visitor to Hong Kong.  Rather the courts have said that coming to Hong Kong in order to commit crime and the commission of crime by visitors are aggravating features of sentence justifying an increase in the starting point (see HKSAR v Tan Meiyuan CACC 360/2008 and HKSAR v Aguilar Garcia Milner Javier CACC 485/2012).  

11. The travel records show you came to Hong Kong the day before the first offence and left two days later.  For the second offence you came to Hong Kong three days before and left on the same day you committed the offence.  Although you have been to Hong Kong on other occasions clearly you came on these two occasions to commit crime. 

12. For similar offending the Court of Appeal have held that a starting point of 3 years imprisonment is appropriate for a single offence (see for example HKSAR v Liang Yaqiong & others [2009] 1 HKLRD 334).  Higher starting points of 3 years and 6 months have been held appropriate where substantial amounts have been involved (see for example HKSAR v Or LaiCACC 372/2002 and HKSAR v Yang Tulian & others CACC 177/2012 both judgments in Chinese of which an English digest is to be found in the Criminal Appeals Bulletins, February 2003 and March 2013 editions). I am also aware higher starting points have also been reduced on appeal (see for example HKSAR v Tan Meiyuan).  Clearly therefore each case depends on its own facts and circumstances.

13. I am satisfied the proper starting point after trial on charge 1 is 3 years imprisonment which I increase by 3 months to take into account the aggravating feature that you were a visitor who came to Hong Kong to commit the crime.  Taking into account the loss to Madam Chan was very substantial, just over $650,000, which I am told was her life savings, I am satisfied the proper starting point after trial on charge 2 is  3 years and 6 months imprisonment, which is also increased by 3 months to take into account the aggravating feature that you were a visitor who came to Hong Kong to commit the crime. 

Totality

14. Giving you full credit for your pleas of guilty reduces the sentences to 2 years and 2 months and 2 years and 6 months respectively.  I am satisfied 10 months of the sentence on charge 2 is to run consecutive to charge 1 making a total sentence to be served by you of 3 years imprisonment, which I am satisfied properly reflects your criminality on the two charges. 

15. You are convicted and sentenced as follows:

Charge 1 – 2 years and 2 months imprisonment;

Charge 2 – 2 years and 6 months imprisonment with 10 months consecutive and 1 year and 8 months concurrent to charge 1.

Total sentence to be served is 3 years imprisonment.