HKSAR v. LAM CHEUK HANG

DCCC 186/2023
[2023] HKDC 1797
IN THE DISTRICT COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
CRIMINAL CASE NO 186 OF 2023
________________________
HKSAR
v
LAM CHEUK HANG
________________________
Before:
Deputy District Judge K Chan in Court
Date:
13 December 2023
Present:
Ms Tam Ho Hobe, Public Prosecutor, for HKSAR/Director of Public Prosecutions
Mr Kan Wing Fai Terry, instructed by Y S Lau & Partners, assigned by the Director of Legal Aid
Offence:
Conspiracy to defraud（串謀詐騙）
________________________
REASONS FOR SENTENCE
________________________
Introduction
1.
The defendant has pleaded guilty to one count of Conspiracy to Defraud, a common law offence punishable under section 159C(6)  of the Crimes Ordinance, Cap 200.  The Particulars of Offence allege that between the 23
rd
day and the 24
th
day of October, 2022, both dates inclusive, in Hong Kong, the defendant conspired with a person unknown to defraud YAU Kim Ching by dishonestly falsely representing to the said YAU Kim Ching that his son was being detained in Kwun Tong Police Station and that he would have to pay a sum of cash for the release of his son, thereby to induce him to hand over a sum of cash to the defendant.
2.
The defendant has been convicted upon his own plea and admission of the prosecution case.
Case background
3.
At about 8:00 pm on 23 October 2022, Mr Yau Kim Ching, who was aged 78, received a phone call from an unknown male who impersonated Mr Yau’s son.  The unknown male called Mr Yau again at about 10:00 am on 24 October 2022.  He falsely represented to Mr Yau that he had been arrested and detained in Kwun Tong Police Station and that tens of thousands of dollars would be needed for his release.  Mr Yau said that he had about two to three thousand dollars only.  The unknown male asked Mr Yau to raise money and a friend of his would collect the money later.
4.
In the meantime, Mr Yau reported this incident to the police at Kwun Tong Police Station.  Acting upon instructions from the police, Mr Yau gave the unknown male a phone call and said that he had raised HK$30,000.  The unknown male said that it would be sufficient.  Mr Yau proposed to hand over the money outside a school at 2:00 pm that day.  The unknown male told Mr Yau that his friend “Lee Wai” would be there to collect the money.
5.
The police gave Mr Yau an envelop with dummy money inside.  Mr Yau went to the school with the envelop and waited.  At about 2:20 pm on that day, the defendant turned up and told Mr Yau that he was Lee Wai and that he would collect the money on behalf of Mr Yau’s son.  Mr Yau asked if his son would be released.  The defendant told Mr Yau that the money would be given to lawyers. Mr Yau asked again if his son would be released.  The defendant then replied in the affirmative and talked over his mobile phone.  The defendant told Mr Yau that the lawyers were chasing for the money.  Mr Yau handed over the envelop to the defendant, who left with it quickly, but was intercepted and arrested by the police with the envelop recovered.
6.
Mr Yau has two sons.  None of them was detained in Kwun Tong Police Station at the material times.  Neither do they know any Lee Wai.  Nor did they appoint anyone to obtain money from Mr Yau.
Enhancement of sentence
7.
An application pursuant to section 27 of the Organized and Serious Crimes Ordinance, Cap 455, has been made by the prosecution to advocate for an enhancement of the sentence.  To support the application, a witness statement of Chief Inspector Tang Kai Wing describing the prevalence of telephone fraud and the harm caused to the community by recent occurrences of this type of offence has been produced to the court.
8.
According the Chief Inspector Tang, telephone deception cases has risen from 615 cases in 2018 to 2,831 cases in 2022 with monetary loss risen from some 60 million Hong Kong dollars in 2018 to over 1 billion Hong Kong dollars in 2022.  In the first half of 2023, there have been 1,579 cases of telephone deception reported.  Previously, around 48% of the victims were aged 61 or above.  In 2023, around 66% of the victims were aged 61 or above.
9.
I am satisfied that notice pursuant to section 27(5)  of the said ordinance has been given to the defendant prior to his plea.  The learned counsel for the defendant has confirmed that the witness statement of Chief Inspector Tang has been disclosed in advance.
10.
The learned counsel for the defendant does not object the application. The witness statement of Chief Inspector Tang has been admitted as evidence pursuant to section 65B of the Criminal Procedure Ordinance, Cap 221.
11.
According to the statutory definition in section 2 and Schedule 2 of the Organized and Serious Crimes Ordinance, Cap 455, conspiracy to defraud is a specified offence. On the evidence of Chief Inspector Tang, I am satisfied beyond reasonable doubt that conspiracy to defraud involving telephone deception and, in particular, the “detained son” category, within which our present case falls, is prevalent in recent years and tremendous harm in the form of huge monetary loss has been caused to the community by recent occurrences of such offences.
12.
The application to enhance the sentence is allowed pursuant to section 27(11)  of the Organized and Serious Crimes Ordinance.
Defendant’s background
13.
The defendant is aged 23.  He is married with a 15-month-old daughter. He was educated to Secondary Form 3 level.  He used to work as a waiter before his arrest and detention for this case.
14.
The defendant has twice been convicted in the criminal courts for a total of 4 offences including Trafficking in Dangerous Drugs, Possession of liquor for sale or supply without a licence, Selling or Supplying liquor without a licence and Knowingly allows the taking place of prohibited group gathering.
Mitigation
15.
The learned counsel for the defendant suggests that there is no sentencing guideline for this type of case.  Nonetheless, he relied on a case which deals with money laundering to advocate a starting point of 3 years’ imprisonment: see
HKSAR v Lin Zong Yue
[2015] 3 HKLRD 196.  He also asks the court to consider another District Court case.
16.
The learned counsel for the defendant points out that the defendant never had any direct phone contact with the victim and that he was not the mastermind of the scheme.  The learned counsel describes the defendant as a mere courier.  Furthermore, the learned counsel emphasized that no loss was caused.
17.
In open court, the learned counsel for the defendant added that there is no evidence to show that the defendant knew it was a “phone” deception case so that the leading case on conspiracy to defraud relating to telephone deception, ie
HKSAR v Hung Yung Chun
[2011] 2 HKLRD 174, which has been helpfully supplied by the learned prosecuting counsel, is irrelevant.
Discussion on Sentence
18.
First of all, I agree that the defendant did not have any direct phone contact with the victim.  However, the defendant met the victim in person and told him blatant lies in order to get money from him.  His participation and role in the crime, albeit not necessarily the mastermind, is in no way less serious than the one who practised the fraud over the phone.  He is not a mere courier as suggested by the learned counsel.  He is a rogue who perpetrated fraud against an elderly.
19.
Secondly, I do not agree that there is no sentencing guideline on this type of case.  The learned prosecuting counsel has brought to my notice the Court of Appeal’s judgment in
HKSAR v Hung Yung Chun
[2011] 2 HKLRD 174, in which a starting point of 4 years’ imprisonment was adopted as the proper starting point for conspiracy to defraud involving phone deception cases.  In particular, Tang VP added at the end of the judgment at para 30 that the Court of Appeal “hope that this judgment would serve as a guideline for similar cases in future”.
20.
In para 13 of
Hung Yung Chun
, the Court of Appeal has explained the difference in sentencing between money laundering and conspiracy to defraud involving phone deception cases with the following dictum:
“One of the grounds of appeal the applicants relied on was that the sentences imposed on them are harsher than those on other people charged with money laundering. However, the so-called “money laundering”, in general, refers to cases where the prosecution preferred the charge of “dealing with property known or believed to represent proceeds of an indictable offence” against the defendants mainly because they may not be able to prove beyond reasonable doubt their direct involvement in a conspiracy to defraud…… In the present case, both applicants pleaded guilty to conspiracy to defraud. The facts they had admitted also indicate their active participation in the scheme. Their acts were more serious than the ones in a general “money laundering” case.”
21.
The defendant in the present case actively participated in the crime by falsely pretended to be Lee Wai and told the victim the lie that the money would be given to lawyers.  He knew where and when to find the victim.  He trusted the victim was handing over the money on the false belief that his son was being detained.  His mentioning of lawyers suggests that he believed the victim was harbouring a false belief that money was required for some legal issues.  The only reasonable inference is that he had been briefed by the one who had been trying to cheat the victim over the phone and that he knew it was a phone deception.
22.
His acts were more serious than those who are dealing with proceeds of an indictable offence.  Therefore, I refuse to adopt the starting point advanced by the learned counsel for the defendant, who incorrectly claims that there is no sentencing guideline for this type of case and inappropriately relies on a case dealing with money laundering rather than conspiracy to defraud.
23.
Furthermore, I would advise the learned counsel for the defendant to read carefully the Chinese judgment of the Court of Appeal in
Secretary for Justice v Wan Tat Yeung
, CAAR 21/2021 (unreported).  Delivering the judgment of the court, Her ladyship Madam Justice Maggie Poon has in para 27 criticized the reference to Reasons for Sentence of the District Court.  Her ladyship says that these Reasons for Sentence have never been upheld on appeal and should have never been consulted.  Her ladyship added that these Reasons for Sentence are neither binding nor providing any guidance.
24.
I humbly adopt the dictum of Her Ladyship Madam Justice Maggie Poon. Although I always respect other judicial officers, I refuse to consult the Reasons for Sentence provided by the learned counsel for the defendant.
25.
It is true that no loss was caused in this case.  However, credit should be given to the smart victim and all the police officers involved in the apprehension of the defendant.  The defendant wanted to cause loss to the victim at all material times.  He failed to do so only because of a well planned police operation and a good citizen who participated bravely in the fight against crime.  The fact that no loss was caused does not alleviate the criminality and culpability of the defendant and does not amount to a mitigating factor.
26.
Having considered the facts of this case, the defendant’s background and all the mitigation advanced on his behalf, I see no justification to depart from the starting point of 4 years’ imprisonment enunciated in
Hung Yung Chun
by the Court of Appeal.  I adopt 4 years’ imprisonment as the starting point in this case.
27.
Regarding enhancement of sentence pursuant to section 27 of the Organized and Serious Crimes Ordinance, the Court of Appeal in
Hung Yung Chun
considers that an enhancement of one-third would do for the time being and suggests that the court may increase the rate of enhancement should this type of case become even more prevalent.  That judgment was delivered in 2010.  Without a doubt, this type of case has become even more prevalent in recent years.  If it was a case where the defendant has pleaded not guilty and been convicted after trial, I might be tempted to increase the rate of enhancement.  However, this defendant has pleaded guilty to show his remorse. Therefore, I would stick to the one-third rate out of mercy.
28.
Owing to the guilty plea, I would give the defendant one-third discount. That would bring the sentence down from the starting point of 4 years’ imprisonment to 2 years’ and 8 months’ imprisonment, ie 32 months’ imprisonment.  It would be enhanced by a little bit less than one-third to 42 months’ imprisonment pursuant to section 27(11)  of the Organized and Serious Crimes Ordinance.  This is what the Court of Appeal did in
Hung Yung Chun
.
29.
There is no other mitigating factor that would justify further reduction in the sentence.
Sentence
30.
For the above reasons, I impose a sentence of 42 months’ imprisonment on the defendant for the charge of Conspiracy to defraud.
(K Chan)
Deputy District Judge