HKSAR v SIN KI WAI

DCCC 1146/2023

[2024] HKDC 1025

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 1146 OF 2023

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REASONS FOR SENTENCE

The defendant faces 2 charges of "Conspiracy to defraud" (Charges 1 and 3)  and 2 charges of "Money laundering" (Charges 2 and 4; alternative to Charges 1 and 3 respectively). He pleaded guilty to Charges 1 and 3. I made no order as to Charges 2 and 4.

Summary of Facts

Charge 1 ($281,500 in total)

2.  About 8:24 p.m. on 21 May 2023, Mr. Fong (PW2; aged 67)  received a phone call from an unknown male (Male 1)  claiming to be his son and that his (Male 1's)  phone number had changed to 5631 3635.

3.  About 9:53 a.m. on 22 May 2023, Male 1 called PW2 claiming that he had hit someone and needed $100,000 to pay compensation.

4.  About 11:21 a.m. on the same day, as instructed, PW2 brought $50,000 cash to Uptown Plaza in Tai Po. About 11:43, "Kit Jai"@98484502 (later confirmed to be the defendant)  walked towards PW2.  He gave the defendant $51,000 cash (with $1,000 for transportation).

5.  Some time later, PW2 received another call from Male 1 (5631 3635)  requesting another $100,000 or Male 1 would go to jail.  About 1:26 in the same afternoon, Madam Tsang (PW3; PW2's wife)  gave $100,000 cash to the defendant at the same location at Uptown Plaza.

6.  About 3:25 p.m. on the same day, PW3 called Male 1 at 5631 3635.  Male 1 told her that he needed another $130,000 since the victim was admitted to ICU.  About 4:30 in the same afternoon, PW2 gave $130,500 cash (with $500 for transportation)  to the defendant at Uptown Plaza.

7.  About 5:04 p.m. on the same day, Male 1 (5631 3635)  called PW3 telling her that he was fine and was having tea with the defendant.  About 5:30 in the same afternoon, PW2 called Male 1 (5631 3635), but no one picked up.  He realized that it might be a scam and alerted the Police.

Charge 3 ($500,000 in total)

8.  About 8:00 p.m. on 20 May 2023, Madam Li (PW1; aged 59)  received a phone call from an unknown male (9812 5245; Male 2)  claiming to be her son.  Male 2 called PW1 a few times afterwards.

9.  About 10:00 a.m. on 22 May 2023, Male 2 called PW1 claiming that he was arrested and needed $90,000 to pay compensation.

10.  About 10:00 a.m. on the same day, PW1 brought $90,000 cash to Wong Tai Sin Temple as instructed.  Upon informing Male 2 of her arrival, 2 males walked towards PW1 claiming to be police officers (without showing any proof).  PW1 gave them $90,000.

11.  Some time later, Male 2 called PW1 requesting $200,000 as bail money.  About 7:00 p.m. on the same day, PW1 brought $200,000 cash to Tsuen Wan as instructed.  Upon informing Male 2 of her arrival, a male (later confirmed to be the defendant)  walked towards PW1 asking her to give him $200,000 as bail money.  PW1 gave the money to the defendant.

12.  Some time later, Male 2 called PW1 again requesting another $300,000 as bail money.  Feeling suspicious, PW1 called her son at his old number and realized that it was a scam.

13.  About 8:10 p.m. on the same day, Male 2 called PW1 to arrange for picking up the bail money in Tung Chung. PW1's real son informed the Police.  About 8:30 in Tung Chung, PW1 recognized the defendant, who had collected $200,000 from her earlier.  When the defendant asked PW1 to hand over $300,000, PC 17854 and PW1's son intercepted him.

Arrest and admissions

14.  Upon arrest, a mobile phone (5691 7583; registered in the defendant's name)  was seized from the defendant. Under caution, the defendant admitted that it was "Hei Hei" who deceived the victim(s)  by pretending to be their family members.  Hei Hei asked him to collect the money from PW1.  The defendant would be rewarded $1,000 plus 0.8% of the money collected.  After collecting $200,000 from PW1, he handed the money over to an unknown male at Citywalk 2 in Tsuen Wan.  The defendant then went to Tung Chung to collect another $300,000 from PW1 but was caught.

15.  In his video recorded interviews, the defendant admitted having collected $50,000 from PW2; $100,000 from PW3; and $130,000 from PW2 (all carried out on 22 May 2023 in Tai Po).  He also repeated his previous admissions in relation to Charge 3.

Other evidence

16.  Call records showed that the defendant and Male 1 had 3 phone calls.

17.  PW2 and PW3 identified the defendant in the respective identification parades.

18.  CCTV footage showed PW1 meeting the defendant in Tsuen Wan around 7:00 p.m. on 22 May 2023.

Mitigation & Sentence

19.  The defendant is 29 and has 1 conviction of a minor offence related to dutiable goods, for which he was fined $6,000.  Defence counsel Mr. Hau informed me that the defendant resides with his girlfriend and their son (aged 2).  He was a logistics worker earning $15,000 per month.  According to the mitigation letters placed before me, the defendant also reside with his mother (aged 66)  and elder brother (aged 38), who suffers from serious depression and receives disability allowance.  The whole family now depends on the meagre income of the defendant's mother.

20.  In mitigation, Mr. Hau submitted that in addition to his guilty pleas and frank admissions, the defendant has promptly offered his assistance to the Police upon arrest by giving the name and phone number of the person who allegedly recruited him to participate in the present phone scams.  Prosecuting counsel Ms. Choi confirmed that the information given by the defendant led to the arrest of someone.  The arrested person was interviewed under caution but was not prosecuted.

21.  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 offences.  Mr. Hau did not object to the application for enhancement.

22.  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]."

23.  I have read the witness statement of DCIP Tang dated 14 May 2024.  I am satisfied that in 2023, telephone deception cases were prevalent in Hong Kong in terms of the number of cases as well as the total value of monetary loss.

24.  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").

25.  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.

26.  The defendant claimed that he was not the main perpetrator of the phone deception in the present case; however, the scams would have been meaningless without a willing "collector".  By pleading guilty to Charges 1 and 3, he admitted having knowledge of the telephone scams and having conspired with others to defraud PWs 1 to 3.  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%.

27.  In Charge 1, the defendant collected a total sum of $281,500 from the victim couple on 3 occasions on the same day; whereas in Charge 3, he collected $200,000 and attempted to collect another $300,000 in the same evening.  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.

28.  I have borne in mind the amount of money involved, the defendant's role and the age of each victim.  I adopt a starting point of 4 years' imprisonment each for Charges 1 and 3.  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 for each charge.

29.  Both offences took place on the same day.  In Charge 1, the defendant made 3 collections between 11:43 a.m. and 4:30 p.m.; whereas in Charge 3, he collected twice between 7:00 p.m. and 8:30 p.m..  Bearing in mind the totality principle, I consider a global starting point of 4.5 years' imprisonment appropriate for both charges.  With the timely guilty pleas, the overall sentence becomes 36 months.  With the 30% enhancement, the overall sentence becomes 46.8 months' imprisonment.  I would grant a nominal discount of 1.8 months to reflect the defendant's willingness to assist the Police, reducing the overall sentence to 45 months.  To achieve this, I order 4 months in Charge 3 to run consecutive to Charge 1.