HKSAR v. LI WAI HUNG

DCCC 1173/2016

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 1173 OF 2016

----------------------

----------------------

---------------------

Reasons for Sentence

---------------------

1.  The defendant has pleaded guilty to 12 counts of theft, and five other similar charges were kept on the court file. All 12 charges involved the defendant scamming or tricking young teenagers and stealing from them.

2.  The modus operandi of the defendant was to target a teenager and then dupe them into lending him their mobile phones and/or cash.  He would make up a story that they believed but then instead of returning their phones and money as promised and arranged, he would then stand them up. 

3.  To give an example of his modus operandi, the victim of Charge 1, a female aged 15, was approached by the defendant in the street, and she believed him when he said he had lost his wallet and was in a great hurry.  He asked the victim to lend him her phone and $200 so he could make a phone call.  He promised to meet her in one hour’s time to return the money and her phone to her.  He failed to turn up.  Her phone was worth to her $3,000. 

4.  Instead of meeting this victim, he then approached the second victim, the victim of Charge 2.  He saw and approached a male student aged 15.  He told this second victim he was about to meet someone to trade mobile phones, and he also had to meet his girlfriend. He asked this second victim to lend him his phone and in turn he would give the second victim his phone to keep temporarily.  This was in reality the first victim’s mobile phone.  The defendant told the second victim he had to prove to his girlfriend he was really trading a mobile phone so he would show her the second victim’s mobile phone.  The second victim believed the story.  He handed over his iPhone worth $6,000 to the defendant.  The defendant then told the second victim he had lost his wallet as well and asked him to lend him $100. The second victim lent him this money.  However, the defendant never returned as arranged, and the second victim, when he called his mobile, found it turned off.

5.  Basically, the Summary of Facts show for all 12 charges, the defendant spun a tale that all the young victims believed.  They all handed over their iPhones and/or some money.  Specifically, victims of Charges 1, 6, 8, 10, 13 and 14 lost their iPhones and cash.  The victims of Charges 3, 4, 5, 7 and 9 only lent the defendant money ranging from $200 to $4,100.  Those who lent him several thousand dollars even went to ATM machines with the defendant to withdraw their money to give him after believing his lies. 

6.  The iPhones stolen were worth approximately $38,000 and the cash totalled $12,140, a total loss of approximately $50,140.  These offences were committed in a period of just over two months.

7.  The defendant is 40 years old and not a man with a clear record.  In fact, he has 99 previous convictions obtained in 13 court appearances, and every single conviction involves an offence of dishonesty. Many were in the same modus operandi as the offences here.  This is his fifth appearance in the District Court for similar multiple offences.  The defendant is the epitome of a recidivist, a repeat offender.

8.  In mitigation, I have been informed the defendant is single and homeless.  He came from a broken family, and both his parents have since passed away.  His sister does not talk to him.  The defendant did have a wife and son.  However, due to his criminal activity, she left him in 2006.  He has not seen his son since.  When he is not in prison, he manages to get casual work, earning approximately $4,000 a month.  When he was last released in June 2006, he was sleeping on the street.  Defence counsel has described him as sad and very lonely; he feels perpetually helpless.  She submitted there may be reasons for his persistent offending and says the defendant previously suffered from bouts of low mood and outbursts for which he has been treated and medicated.  I was urged to call for medical reports on the last occasion, and I did adjourn for such reports which are before me today.  

9.  The psychiatrist concludes he does not suffer from any psychiatric issues.  The psychologist describes him previously as being diagnosed with depression.  In 2010, the defendant was referred to the mental health services and offered treatment, but there is a history of poor compliance with treatment and medication.  I do not intend to repeat the details of both reports.  The psychologist’s report is in great detail.  The defendant has been on and off abusing drugs since he was about 18.  Those drugs include “Ice”, cough mixture, ketamine and cannabis.  He is described as a chronic substance abuser taking drugs for mood management which may have contributed to his criminal lifestyle.  The defendant was tested intellectually and found to be intellectual enough to know right from wrong and understand the consequences of his behaviour.  Psychologist says, “His history of depression did not impress to have any direct relationship with his offending behaviours.”  She also says:

“His offending behaviours appeared to be related to his antisocial personality traits and criminal attitudes. In view of his high risk of re-offending, psychological treatment on his offending behaviours with emphasis on his criminal attitudes, substance abuse problem and maladaptive mood management is recommended. However, given his history of poor treatment compliance and superficial readiness to change, his prognosis is guarded. Meanwhile, social services facilitating his development of prosocial support network and stable employment would be beneficial to prevent re-offending.”

10.  The defendant himself admits today that the two reports do not help his mitigation, but he promises he will get treatment and comply with treatment and medical regime.  If he did and at the same time received social services help, maybe he could stop re-offending.

11.  I am shocked the defendant has not been deterred from this life of deception and dishonest behaviour despite several terms of imprisonment.  This report may not be of much use to mitigation but it has given me an insight into the defendant’s character and lifestyle.

12.  There is no sentencing guideline for offences of this nature.  However, each case will be decided on its own facts.  Each offence, if viewed in isolation, does not seem to be so serious but the defendant has committed many similar offences in a short period of time before his arrest.  He has done this on many occasions, in particular, in 2006, 2008, 2014, 2015 as well as 2016.  I have looked at reasons for sentence for several of those District Court cases, in particular, DCCC 926 of 2011, DCCC 445 of 2015 and DCC 1170 of 2008.  For that last case, I have also looked at CACC 40/2009, the appeal from that sentence which was upheld by the Court of Appeal.

13.  There are, in my view, aggravating factors in this case, the first being the defendant deliberately targets young, vulnerable and gullible teenagers.  The defendant told the psychologist he targets teenage girls who are alone.  He sees them as easy to deceive.  Of the 12 victims here, 10 are female.  I also take into account that two victims were 13 years old, three were 14 years old, four were 15 years old, and the eldest 17.  

14.  The second aggravating factor I identify is that although the money he takes from each victim is not significant but when one adds the value of their iPhones to their loss, that is significant to young people.  

15.  Lastly, I find his recidivism should attract a higher starting point.  Moreover, he committed Charge 1 three days after his release from his last sentence.

16.  Defendant, please stand up.  After carefully considering the factors I have just identified as well as mitigation put forward with the contents of two medical reports, I do take for each charge a starting point of 21 months to which I add 3 months to reflect the persistent and constant re‑offending from this defendant.  Therefore, I take a starting point of 24 months for each charge.  The defendant has pleaded guilty in a timely manner and is entitled to a discount of one‑third.  Therefore, for Charges 1 to 10, 13 and 14, each charge will attract a term of imprisonment of 16 months.

17.  I have to take into account the totality principle.  I find that on the facts and relevant factors, an overall sentence of 36 months after plea is appropriate to reflect the criminality and culpability of this defendant.  Therefore, I order that 2 months of Charges 2, 3, 4, 6, 8, 9, 10, 13 and 14 to be served consecutively to Charge 1.  That is 18 months would be added to Charge 1.  Charges 5 and 7 involve a loss to the victims of $200 and $700 respectively.  Therefore, I will order that 1 month of Charges 5 and 7 be served consecutively to Charge 1.  Therefore, I add a further 2 months to Charge 1.  Therefore, a total sentence of 36 months’ imprisonment is imposed.

18.  I add that psychological treatment should be offered to the defendant whilst serving this sentence.  Do you understand the sentence?

DEFENDANT: Yes.