HKSAR v. LEUNG YAT TING

DCCC 304/2023

[2024] HKDC 474

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 304 OF 2023

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REASONS FOR SENTENCE

The defendant faces 2 charges of "Conspiracy to defraud" (Charges 1 and 2). He pleaded guilty to Charge 1. I granted the prosecution's application to leave Charge 2 in the court file; not to be proceeded against the defendant without leave of court.

Summary of Facts

2.  About 8:00 p.m. on 31 October 2022, Madam Mok (PW1; aged 93)  received a phone call from an unknown male voice (Male 1)  asking her to guess who he was.  PW1 asked Male 1 if he was her grandson "Ah Leung".  Male 1 replied in the affirmative and told PW1 that he had changed his phone number to 9293 2759.

3.  About 10:00 a.m. on 1 November 2022, PW1 received another call from Male 1 claiming that he was under arrest and needed $100,000 as bail money.  PW1 agreed to pay the requested sum and gave her Kwai Chung address to Male 1.  Male 1 said he would ask his friend to go to her home to collect the money.

4.  About 11:40 a.m. on the same day, the defendant knocked on PW1's door claiming to be Ah Leung's friend. PW1 gave him the money.  The defendant told PW1 not to tell anyone about this and left.

5.  Upon calling her real grandson, PW1 realized that it was a scam and alerted the Police.

6.  About 12:30 p.m. on the same day, DPC 11470 arrested the defendant for "Fraud".  Under caution, he admitted having gone to PW1's home that morning to collect $100,000.

7.  In his 1^st video recorded interview (VRI), the defendant admitted that he was recruited by a friend named "Ah Gai" to earn some quick cash by collecting money. He knew that bail money was an excuse to deceive money from PW1.  He would receive a reward for going to PW1's home to collect money from her.  In his 2^nd VRI, the defendant made similar admissions about Charge 1.  He said he was promised a reward of $5,000 for completing 2 tasks on 1 November 2022.

8.  CCTV footage of PW1's home building captured PW1 entering the building, riding an elevator and leaving the building between 11:38 a.m. and 11:44 a.m. on 1 November 2022.

9.  Call records of a purple Samsung mobile phone seized from the defendant showed that he had made 3 calls to PW1's landline between   11:38 a.m. and 11:42 a.m. on 1 November 2022.

Mitigation & Sentence

10.  The defendant is 23 and single. He has 3 conviction records, which are unrelated to dishonesty.  He was sentenced to a Drug Addiction Treatment Centre on 11 January 2024 for a "simple possession" offence.  Defence counsel Mr. Ho informed me that the defendant is the only child of his family and resides with his parents.  He was a decoration worker earning about $16,000 per month.

11.  In mitigation, Mr. Ho submitted that at the end of 2022, the defendant had an income drop due to unstable work.  He bumped into a friend one day and they chatted.  Upon learning about the defendant's situation, that friend invited the defendant to collect money for him in order to earn some quick cash.  The defendant foolishly agreed to do so.  Mr. Ho stressed that the defendant was not the mastermind of this telephone scam; he only collected money from PW1.

12.  The prosecution has applied for an enhanced sentence pursuant to section 27(2)(c), (d)  and (e)  of the Organized and Serious Crimes Ordinance (Cap.455)  on the basis of prevalence; the nature and extent of harm caused to the community; and the nature and extent of the total benefit gained by anyone from the present offence.  Mr. Ho did not object to the application for enhancement.

13.  I bear in mind the Court of Appeal's decision in HKSAR v Xu Mai Qing CACC 464/2005, whereas Yeung JA (as he then was)  held "Under section 27(11)  of OSCO, what the prosecution has to prove is the prevalence of the offence, not the increase in the number of such offences[1]."

14.  I have read the witness statement of DCIP Tang dated 29 January 2024.  I am satisfied that in 2022, telephone deception cases were prevalent in Hong Kong in terms of the number of cases as well as the total value of monetary loss.

15.  The "By Hand" mode phone deception cases always involve someone picking up the money left behind by the victim at a public place or collecting the money directly from the victim.  Hence, the money collection portion is part and parcel of any type of phone deception ("Guess Who", "Pretend Officials" or "Detained Son").

16.  There is clear and cogent evidence before me that the "By Hand" mode phone deception is still widespread and commonly being practised in Hong Kong today.  The court must deter people from playing the role of "collector" by imposing on them a severe punishment.  When there are fewer or no willing "collectors", the "By Hand" mode phone deception method would fail.

17.  The defendant claimed that he was not the mastermind; however, the telephone scam would have been meaningless without a willing "collector".  Under caution, he admitted having knowledge of the plot to deceive PW1.  Given the role played by the defendant, the amount involved and the overall circumstances, I grant the prosecution's application and will enhance the sentence by 30%.

18.  The defendant went to PW1's home to collect money from her.  He also called PW1's home landline 3 times (probably pretending to be her grandson's friend). According to the Court of Appeal's decision in HKSAR v Hung Yung Chun [2011] 2 HKLRD 174, the appropriate starting point for this type of phone deception is 4 years' imprisonment.

19.  I have borne in mind the amount of money involved, the defendant's role and PW1's age.  I adopt a starting point of 4 years' imprisonment for Charge 1.  With the timely guilty plea, the sentence becomes 32 months.  Apart from this, I see no other mitigating factors which warrant any further reduction.  With the 30% enhancement, I sentence the defendant to 41 months' imprisonment.