HKSAR v. LAI TSZ WAI

DCCC 887/2021

[2022] HKDC 295

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 887 OF 2021

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REASONS FOR SENTENCE

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1.  The defendant is convicted on her own plea and agreement to the Summary of Facts to two charges of fraud, contrary to section 16A of the Theft Ordinance, Cap 210.

Facts

Charge 1

2.  Between 22 November 2019 and 11 April 2020, PW1 to PW15 saw posts published by the defendant on online platforms Facebook and Carousell respectively on renting out two sub-divided flats at Room 416, 4^th Floor, Sun Kai Mansion, Wanchai (“the Wanchai flat”)  and Room 117, Flat C, 11^th Floor, Lei Shun Court, Causeway Bay (“the Causeway Bay flat”).  Feeling interested, they approached the defendant online and they were instructed to make payments of deposit and/or upfront rent via various channels.  PW1 to PW15 complied and after the payments, the defendant did not deliver the flats to them.  Case was reported. 

3.  On 11 March 2021, the defendant was arrested for the offence of obtaining property by deception.  Under caution, she said that she was the tenant of the above Wanchai flat since July 2019 and she had deceived the victims by publishing posts online falsely claiming that the Wanchai flat were available for rental when she had no intention in sub-letting the Wanchai flat, and that she was not the tenant of the Causeway Bay flat and she had deceived the victims by publishing posts online falsely claiming that the Causeway Bay flat were available for rental using the photos sent to her by the landlord of the Causeway Bay flat. 

Charge 2

4.  Between 6 May 2020 and 19 February 2021, PW18 to PW43 saw posts published by the defendant on online platform Facebook on selling various household electrical appliances such as Dyson hair dryer, disinfection device. Feeling interested, they approached the defendant online and they were instructed to make payments via various channels.  They complied and after the payments, they did not receive anything from the defendant. 

5.  The defendant admitted under caution that between February 2020 and February 2021, she published posts online offering to sell various items so as to deceive money from the victims, and that she had no genuine goods for sale and these victims generally made payments to her by FPS. 

6.  Therefore at all material times, the defendant, in Hong Kong, by deceit, namely by falsely representing to PW1 to PW15 that the Wanchai flat or the Causeway Bay flat would be made available on or after payments of the deposit and/or upfront rent by PW1 to PW15, and with intent to defraud, induced them to effect payments in the total amount of $143,500, which resulted in benefit to the defendant, or in prejudice or a substantial risk of prejudice to PW1 to PW15. 

7.  And at all material times, the defendant, in Hong Kong, by deceit, namely by falsely representing to PW18 to PW43 that the household electrical appliances would be delivered on or after payments of the sale prices by PW18 to PW43, and with intent to defraud, induced them to effect payments in the total sum of HK$33,766 which resulted in benefit to the defendant, or in prejudice or a substantial risk of prejudice to PW18 to PW43. 

Criminal record

8.  The defendant has 7 previous criminal records involving 23 charges, 21 of which is fraud, ie similar convictions, and 1 being obtaining property by deception.  At the time of the commission of the offence, the defendant has a clear record. 

Mitigation

9.  The defendant is aged 24.  She is single.  She used to co-habit with her boyfriend and they had a son out of their co-habitation.  Before her arrest, she worked as a part-time wedding dress salesperson earning a few thousand dollars a month.  She has completed Year 1 of the associate degree on business administration at the HKU Space. 

10.  The defendant was brought up by her grandparents, uncles and aunts in her childhood as her parents divorced.  Later she lived with her mother and the stepfather.  The stepfather is now receiving treatment as a result of his heart failure problem and the defendant maintains regular contact with her mother and the stepfather. 

11.  It is said by defence counsel that the defendant and her then boyfriend were both unemployed for over 2 years before November 2019 and she gave birth to a baby boy in March 2020.  The defendant committed these offences as she needed money and out of greediness she committed the offences.  It is said that the defendant is now deeply remorseful and she co-operated fully with the police upon arrest. 

12.  Defence counsel said that the defendant is now serving sentence in relation to the other cases and she is expected to be released from prison on 27 June 2022. 

13.  Defence counsel also submitted to this court 2 mitigation letters, one from the defendant and the other from the defendant’s mother.  Defence counsel urged this court to consider the totality principle in imposing sentence on the defendant. 

14.  It is said that the fraud was perpetrated by the defendant alone, it was not well-planned, and that the defendant made use of her own Facebook account and 2 mobile phone numbers registered under her name in committing these offences.  It is said that all the accounts which were used by the defendant to receive monies deceived from the various victims were either registered under the defendant’s name or indirectly associated with her which enabled the police to track her down easily. 

15.  It is also said that on some of these occasions, the defendant had even met the victims in person, producing her own identity card for inspection and collected monies from them.  It is said therefore that the defendant did not have a well-organised plan in commission of the offences. 

16.  Defence counsel submitted that there is no tariff for fraud charges and the sentence would depend on the circumstances of the case.  He referred this court to the case of HKSAR v Leung Yiu Fai, CACC 100/2014, as well as the case of HKSAR v So Ka Wai, CACC 243/2017.

17.  Defence counsel submitted that in our case here, the period of fraud covered for both charges was between November 2019 and February 2021, ie over a period of 16 months and the total amount deceived from the 41 victims during this period was $177,266. 

18.  He tendered to court, as said earlier, the 2 mitigation letters and urged this court to impose the most lenient sentence for the defendant after considering the case authorities and circumstances mentioned. 

Discussion

19.  Before sentencing, this court has carefully considered mitigation submissions by defence counsel, including the mitigation letters and the legal authorities in the area. 

20.  A person is liable on conviction upon indictment for this offence to imprisonment for 14 years.  There is no tariff in the sentencing or sentencing guidelines for this offence and the sentencing starting point in each case depends on the facts of the particular case. 

21.  It is noted that the present case does not involve a breach of trust and the defendant is the sole perpetrator of these offences. 

22.  It is said in the case cited by the defence, ie HKSAR v Leung Yiu Fai, that the fraud on the Internet is serious for the following reasons:-

(1)  The defendant preyed on ordinary members of the public and all members of the public are exposed to such fraud. The number of victims involved could be very substantial.

(2)  The crimes committed by the defendant has serious adverse effect on Internet trade, as people tend to be cautious to Internet trade, which affects the rights of the bona fide Internet traders.

(3)  Internet fraud would easily be copied and the lack of deterrence in the sentences of these offences would lead to a surge of these cases.

(4)  Internet transactions did not involve face-to-face encounters, the offender could easily use different methods to hide his identity, which made it difficult for the crime to be solved.

(5)  It is generally difficult for the victims to recover their loss.

23.  In the Leung Yui Fai case, the court adopted the ultimate sentencing starting point of 27 months before the sentence is aggravated.  The total amount of monies defrauded in that case was $63,180 and the number of victims involved was 36. 

24.  In the cited case of So Ka Wai, it was said that given the duration of the fraud, the number of victims involved, the amount involved and the planning necessary for its execution, a lengthy prison sentence would be appropriate. 

25.  It was said further that the increasing prevalence of such crimes, the difficulties associated with detecting them and the resources needed for the successful investigation are all reasons why the length of the custodial sentence should contain an element of deterrence.  In the So Ka Wai case, the starting point of 3 years’ imprisonment was not disturbed on appeal. 

26.  In our case here, the defendant has committed these 2 offences while she was on bail in the case of STCC 2153/2020 involving similar fraud charges involving 6 victims and she was under investigation, to her knowledge, for another fraud case in the case of ESCC 2848/2021. 

1^st charge

27.  The defendant defrauded a total sum of $143,500 of 15 victims by falsely representing them, with intent to defraud them, upon receipt of such payment that she would rent the flat in question to them over a period of 16 months. 

28.  It is noted that the defendant did meet 4 victims out of 15 victims in the course of the commission of the offence.  Adopting the stance of the Court of Appeal in the Leung Yiu Fai case and similarly considering the amount defrauded, the number of victims involved, the period over which the offence was committed, the modus operandi in the commission of these offences, the court finds that the appropriate sentencing starting point is 3 years’ imprisonment.  The same is aggravated by reason of the fact that she committed the offence while she was on bail for another similar offence, bringing the sentencing starting point to 3 years and 3 months’ imprisonment. 

29.  The defendant has pleaded guilty and is therefore entitled to full one-third sentencing discount, she therefore is sentenced to 2 years and 2 months’ imprisonment for this offence. 

30.  The fact that the defendant has committed the offence out of momentary greed or need for money is not a valid mitigating factor. 

2^nd charge

31.  The defendant defrauded a total of 26 victims under this charge involving the sum of HK$33,766 over a period of 10 months.  Again, considering the same factors as in the 1^st charge offence, the court finds the appropriate sentencing starting point would be 24 months’ imprisonment for this offence.  The same again is aggravated to 27 months’ imprisonment by reason of the fact that she has committed the offence while she was on bail for another similar offence. 

32.  She has pleaded guilty and is therefore entitled to full one-third sentencing discount.  She is therefore sentenced to 18 months’ imprisonment for this offence. 

33.  Considering the totality principle and having regard to the overall criminality of the defendant in this particular case, this court consider a total sentence of 2 years and 3 months’ imprisonment is appropriate after plea.  Accordingly, 1 month of the sentence in the 2^nd charge is to run consecutive to the sentence in the 1^st charge, the rest to run concurrently.  The defendant is sentenced 2 years and 3 months’ imprisonment for this case. 

34.  This court, however, notes that the defendant was convicted in 7 other cases for similar charges in the year 2021.  These offences were committed between August 2017 and August 2020, involving again numerous victims.  The defendant was sentenced to a total of 23 months and 10 days’ imprisonment for these offences. 

35.  Commission of the 2 offences in present case took place between 22 November 2019 to 11 March 2021.  There was an overlap with the period of the commission of the offences in the other 7 cases. 

36.  Having regard to the foregoing, and considering the fact that had the defendant been facing all the charges at one trial, the possible sentence that she would have to face, this court finds that it would be just and appropriate that 10 months of the sentence in the present case is to run consecutive to the sentence imposed in the other cases, the rest to run concurrently.  

37.  It is clear that the defendant, though still young in age, had been leading a life of deceit for the last 4 years, having no regard for the law.  She is warned that should she not amend her ways upon her release, she should not expect any further leniency from the court in future and she would also set a bad example to her son.