HKSAR v. LAM SEE CHUNG STEPHEN

DCCC 365/2020

[2021] HKDC 236

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 365 OF 2020

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REASONS FOR SENTENCE

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1.  Defendant was convicted on his own plea and agreement to summary of facts to:-

(1)  5 charges of fraud, contrary to section 16A of the Theft Ordinance, Cap 210 (1^st, 2^nd, 3^rd, 5^th and 6^th charge);

(2)  1 charge of attempted fraud, contrary to section 16A of the Theft Ordinance Cap 210 and section 159G of the Crimes Ordinance, Cap 200 (8^th charge);

(3)  3 charges of theft, contrary to section 9 of the Theft Ordinance, Cap 210 (4^th, 7^th and 9^th charge); and

(4)  1 charge of possession of an identity card relating to another person, contrary to section 7A(1A) of the Registration of Persons Ordinance, Cap 177 (10^th charge).

Facts

Offence 1

2.  Between 2 May 2017 and 16 May 2018 in Hong Kong, defendant, by deceit, falsely represented to the victims that he would deliver cartoon figures to them after payment by these victims and, with intent to defraud, induced them to effect advance payments in the total amount of $10,850, which resulted in benefit to the defendant and prejudice to the victims.

3.  Defendant posted himself as “Stephen Lam” or “Chung Lam” on Facebook and claimed to have cartoon figures for sale.  Both victims wanted to buy these figures and they contacted the defendant by Facebook messages and exchanged telephone numbers. Thereafter, defendant contacted them by phone calls and WhatsApp messages.  Defendant later agreed to sell these cartoon figures to the victims and asked them to make full advance payment into the bank account in the name of the defendant.  These victims then paid the monies into defendant’s accounts but on each occasion defendant did not deliver the cartoon figures to them nor did he make refunds to the victims.  Defendant then became out of reach.  There were 2 victims involved in this offence and they paid a total sum of $10,850.

4.  The offence in relation to the first victim was committed on or about 2 May 2017 to 3 May 2017, while the offence in relation to the second victim was committed on or about 12 May 2018 to 18 May 2018.  The offence covered a period of one year.

Offence 2

5.  Between 11 February 2018 and 23 May 2018, in Hong Kong, defendant, by deceit, falsely represented to the victim that he would deliver electrical appliances to the victims after payment by them and, with intent to defraud, induced them to effect advance payments in the total sum of $10,800, which resulted in benefit to the defendant and prejudice to the victims.

6.  Likewise, he posted himself on the Facebook as “Stephen Lam” or “Chung Lam” and claimed to have electrical appliances for sale.  These victims were asked to leave their contact numbers to the defendant and later defendant contacted these victims by phone calls and Facebook messages.  After agreeing with the victims the price for the electrical appliances, he then asked these victims to make full advance payment by depositing these monies into the bank account in the name of the defendant. Defendant failed to deliver the goods on receipt of payments nor did he make any refund.  He then became out of reach.

7.  6 victims were involved in the 6 incidents covered by this offence and the money lost in total $10,800.  The incident happened within a period of 3½ months.

Offence 3

8.  The defendant used the same modus operandi as in the first and second offence.  He defrauded the victims in 16 incidents, ie incident 9 to incident 24, by falsely representing to them that he would deliver vehicles to them after payment by these victims and, with intent to defraud, induced them to make advance payments or down payments in the total sum of $140,400, which resulted in benefit to the defendant and prejudice to the victims.  There are a total 16 victims involved and the duration of the offence is 6½ months.

Offence 4

9.  The victim in incident 11 overpaid the defendant the sum of $7,500.  The defendant failed to return the same to him and became out of reach.

Offence 5

10.  Between 30 August 2018 and 19 September 2018, in Hong Kong, defendant, by deceit, namely by falsely representing to the victims that he would deliver vehicles to the victims after payments by them and, with intent to defraud, induced the said victims to effect advance payments or down payments in the total sum of $69,000, which resulted in benefit to the defendant and prejudice to the victims.

11.  In these 7 incidents, the defendant posted an advertisement on “www.28car.com” for selling of the vehicles.  The victims then contacted the defendant by phone calls and WhatsApp messages and, after agreeing with the victims price for these vehicles, the defendant would then request the victims to make advance payment or part payment to his bank account.  Later he failed to deliver the car and became out of reach.  These victims were defrauded a total sum of $69,000 and defendant committed the offence within a period of nearly a month.

Offence 6

12.  Between 15 August 2018 and 22 February 2019, in Hong Kong, defendant, by deceit, namely by falsely representing to the victims that he would deliver vehicles to the said victims after payments by them and, with intent to defraud, induced them to effect advance payments or down payments in the total sum of $257,500, which resulted in benefit to the defendant and prejudice to the said victims.

13.  The modus operandi of the defendant in this offence is similar to that of the offence 3, except that, in each of the 22 incidents covered under this offence, the defendant did meet each of the victims.  He would sometimes also sign sale and purchase agreements for these vehicles.  The commission of this offence took place over a period of over 6 months.

14.  The defendant showed his own identity card to these victims, purporting to be the car owner, except in incident 51, where he held out another person’s identity card.  On these occasions, he purported himself to be the car owner or selling these vehicles on behalf of the car owner, and, after receipt of the payment from the victims, the defendant failed to deliver the vehicle and became out of reach.

Offence 7 to 10

15.  Registered owner of motorcycle bearing registration number UF914 discovered that her car plate was lost on 19 February 2019 and was given by the defendant to the victim in incident 52. (offence 7)

16.  Later, the victim of incident 51 saw an advertisement on “www.28car.com” for selling of a motorcycle and he suspected that the said advertiser was the same person as the culprit for incident 51 and 52.  He therefore told the registered owner of UF914.  The latter called the defendant and the defendant asked her to make down payment for the vehicle. They arranged to meet in Wan Chai.  Defendant then showed her the vehicle licence of VJ8049 and defendant’s own identity card.  They signed the sale and purchase agreement, with defendant’s name and identity card, stating defendant sold VJ8049 to her for $29,000. (offence 8)

17.  The owner of VJ8049 confirmed he did not know the defendant nor did he offer the said vehicle for sale and that the car plate VJ8049 was stolen from his vehicle. (offence 9)

18.  Victims of incident 51 and 52 positively identified defendant as the culprit in the incidents.  Upon body search, defendant was found to have, inter alia, an identity card belonging to a man called “Chung Yat Ming”.  Mr Chung confirmed that he lost his identity card on 11 November 2018, ie about 3 months ago. (offence 10)

Criminal record

19.  Defendant has 12 previous criminal records involving convictions of 44 charges, mostly fraud and obtaining property by deception or evasion of liability charges, between the years 2009 and 2018.

Mitigation

20.  Defendant was born in Hong Kong.

21.  He is aged 38.  He had received education up to higher diploma in computer-related course.

22.  He was a casual worker at the time of arrest and he worked as an information technology technician. 

23.  He got married in 2006 and has one son aged 9. 

24.  His wife suffered from mental problems since the year 2015.  She was diagnosed to have brain cancer and she had received an operation at the end of November 2020.

25.  His son is now, under the care and protection order, admitted to the care of his parents-in-law.

26.  Defendant’s parents are both aged around 70 and are retired persons living apart from the defendant.  His younger brothers also live apart.

27.  Defence counsel submitted that the defendant committed the present offences because of overspending.  He committed the offences to earn quick money.  It was said that from the end of year 2011 to October 2014 he spent his time in prison and when he was discharged from prison, he was determined to turn a new leaf.  Yet, because of his criminal record, he had difficulty looking for a decent job and had to engage in casual work.

28.  It is said that his wife, who suffers from mental problem, kept demanding defendant for money.  Being unable to meet his wife’s demand, defendant then resorted to fraudulent practice.  It is said that defendant had severe financial problems, so much so that on one occasion he had to steal baby milk powder for his son in year 2018.  As a result of which, he was charged for shoplifting and sentenced to 7 days’ imprisonment.

29.  It is also submitted by defence counsel that there is no sentencing guideline for the offence of fraud and this court is referred to the case of HKSAR v Wong Chun Hin, DCCC 265/2019, where the case of HKSAR v Cheung Mee Kiu, CACC 99/2006, was considered.

30.  The defendant in that case pleaded guilty to 5 counts of fraud, 1 count of attempted fraud, and 3 counts of theft.  The case involved a total sum of $496,050.  There is no breach of trust element and the court made a downward adjustment to the guideline in Cheung Mee Kiu case. According to the Cheung Mee Kiu case, if the value of property is between $0.25 million to $1 million, the sentencing guideline is between 2 to 3 years’ imprisonment.

31.  Defence counsel submitted that an appropriate sentencing starting point, after considering the totality principle, would be around 2 to 2½ years.  For the 3 counts of theft and 1 count of possession of an identity card relating to another person, defence counsel submitted that they are just part and parcel of the other counts and he asked this court to consider a concurrent sentence with the other counts.

32.  For the attempted fraud (ie 8^th charge), it is said that it involved a sum of $29,000 and there was no actual loss because there was no deal at all.  It is submitted by defence counsel the sentence of which should not be more than 4 months. 

33.  Defence counsel concluded that, as defendant has numerous similar convictions which constituted an aggravating factor, the final sentence should be enhanced with a nominal term of imprisonment. 

34.  It was further conceded that, as part of the offences were committed whilst the defendant was on bail, which again constituted another aggravating factor, this court should enhance the final sentence with a nominal term of imprisonment.

35.  He further asked the court to consider totality principle when considering the appropriate sentence.  He submitted that the total sentence should be 24 months’ imprisonment, with the aggravating factors as aforesaid, a 6 months’ enhancement would be appropriate, making a total sentence of 30 months’ imprisonment.

36.  He said, as the defendant pleaded guilty, he would be entitled to one-third sentencing discount, making the final sentence 20 months’ imprisonment. 

37.  In addition, he submitted that, taking into consideration the sentence in DCCC 346/2019 & DCCC 625/2019 (consolidated) and the totality principle, 6 months sentence in the present case is to run consecutive to the sentence in the other case, and the rest to run concurrent.

Discussion

38.  Before sentencing the defendant, this court has carefully considered the mitigation submitted by defence counsel.   Although the present case does not involve a breach of trust, there is seriousness in the commission of these offences by reason of the modus operandi. 

39.  It is said in the case cited by the prosecution, HKSAR v Leung Yiu Fai, CACC 100/2014, that fraud on Internet is serious for the following reasons.  Firstly, 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.  Secondly, the crimes committed by the defendant had 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.  Thirdly, 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.  Fourthly, Internet transactions did not involve face-to-face encounters, the offender could easily use different method to hide his identity, which made it difficult for the crime to be solved.  Fifthly, it is generally difficult for the victims to recover their loss. 

40.  In that case, the court adopted the ultimate sentencing starting point of 27 months before the sentence is aggravated or adjusted under the Organized and Serious Crimes Ordinance for an offender with numerous previous convictions involving dishonesty.  The total amount of monies defrauded in that case was $63,180 and the number of victims involved was 36. 

41.  In our case here, the defendant posted advertisement either in the relevant website or on Facebook.  For the first 5 charges, the defendant did not meet the victim.  It is noted, however, as pointed out by defence counsel, that on all of these occasions, defendant asked the victim to deposit money into bank account held under his own name and he identified himself either as “Chung Lam” or “Stephen Lam”.  For commission of the offence under the 6^th charge and the 8^th charge, the defendant did meet the victims and did use his own Hong Kong identity card to identify himself (except for incident 51).  Accordingly, the fourth reason in the Leung Yiu Fai case may not be applicable in our case here.

42.  We now consider the sentences in the fraud charges (1^st, 2^nd, 3^rd, 5^th and 6^th charge). 

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

1^st charge

44.  Defendant is the sole perpetrator of this offence. There are 2 victims here and the total amount involved was $10,850.  Defendant committed the first incident in early May 2017 and the second incident in May 2018.  Defendant never appeared during these transactions and he preyed on the victims on the Internet but he did post the name of “Stephen Lam” and “Chung Lam” in the commission of this offence.

45.  Considering all the circumstances of the case, this court considers the appropriate sentencing starting point is 5 months’ imprisonment.

46.  Defendant has numerous previous convictions relating to dishonesty and, accordingly, his culpability in the commission of the present offence is aggravated.  Sentencing starting point is enhanced by 2 months to 7 months.  Further, defendant committed the second incident whilst he was on bail.  This aggravates his culpability and, accordingly, the sentencing starting point is enhanced by 2 months to 9 months’ imprisonment.

47.  The court finds that the most valid mitigating factor is that of his guilty plea, of which he is entitled to a full one-third sentencing discount, accordingly, for this offence, defendant is sentenced to 6 months’ imprisonment.

2^nd charge

48.  The modus operandi of the defendant under this charge is similar to that of the 1^st charge, except that electrical appliances are involved as opposed to cartoon figures in the 1^st charge. There are 6 victims here and the total sums involved is $10,800. 

49.  Offence was committed over a period of 3½ months and the defendant had committed incident 8 while he was on bail.  This is again another aggravating factor in sentencing.  Therefore, adopting the same sentencing starting point as the 1^st charge (5 months’ imprisonment), enhancing the same by 2 months as he is a persistent offender, the sentencing starting point further enhanced by 2 months to 9 months by reason of his committing the offence whilst on bail. 

50.  Defendant is again entitled to full one-third sentencing discount by reason of his guilty plea and is sentenced to 6 months’ imprisonment.

3^rd charge

51.  Defendant adopted the same modus operandi as in the 1^st charge and the 2^nd charge.  There are 16 incidents involving 16 victims here, and the total amount was $140,400.  The period within which the offence was committed were longer, ie about 7 months. Further, commission of this offence took place partly during the period when the defendant was on bail and partly during the period when he has jumped bail and yet to be re-arrested by the issue of the warrant of arrest.  The culpability of the defendant for this offence is much more serious than the 1^st and 2^nd charge.

52.  Considering the circumstances under which the offence was committed, appropriate sentencing starting point for this case is 12 months’ imprisonment.  The same is enhanced by 3 months because he is a persistent offender and further 3 months by reason of his committing the offence whilst he was on bail/jumped bail, bringing the total sentencing starting point to 18 months’ imprisonment.

53.  Again, he is afforded one-third sentencing discount by reason of his guilty plea and is sentenced to 12 months’ imprisonment for this charge.

4^th charge

54.  As for the theft of the overpayment of $7,500, the court considers the culpability of the defendant less serious than that in the 1^st and 2^nd charge.  Appropriate sentencing starting point is 4 months’ imprisonment.  The same being enhanced by 1 month by reason of the defendant being a persistent offender, and further enhanced by 1 month to 6 months’ imprisonment by reason that he committed the offence while he was on bail/jumped bail.  After giving the full one-third sentencing discount by reason of his guilty plea, he is sentenced to 4 months’ imprisonment for this charge.

5^th charge

55.  Instead of posting on Facebook, the defendant here posted an advertisement on the “www.28car.com”, purporting to sell cars. There are 7 victims under this charge and the total involved is $69,000.  The defendant committed this offence over a period of roughly 20 days.  He committed the incident 25 and 26 on the same day (ie 30 August 2018) and on consecutive days for incident 29 and 30 (ie 10 and 11 September 2018).  He was on bail when he committed incident 25, 26 and 27 and he had jumped bail by the time he committed incidents 28 to 31.

56.  Considering all the circumstances under which the offence was committed, the appropriate sentencing starting point for this case is 9 months’ imprisonment.  The same is enhanced by 3 months by reason that he is a persistent offender, another 3 months by reason that he has jumped bail or on bail when he committed the offence, leading to a total sentencing starting point of 15 months’ imprisonment.

57.  Again, he is afforded a one-third sentencing discount by reason of guilty plea and he is sentenced to 10 months’ imprisonment for this charge.

6^th charge

58.  The modus operandi of the defendant in this charge is similar to the 3^rd charge except that in all the 22 incidents the defendant did actually meet the 22 victims when they signed the sale and purchase agreement for the vehicle, mostly with his own name and identity card number (except incident 51, when he used another’s identity card), purporting to be selling on behalf of the car owner.  The total amount involved here is $257,500.  Defendant committed this offence over a period of 6 months.

59.  Having regard to the circumstances of this case, in particular the number of victims and the prolonged period during which the offence was committed, appropriate sentencing starting point is 18 months’ imprisonment. 

60.  Again, the same is enhanced by 3 months by reason that he is a persistent offender and a further 3 months by reason of his committing the offence while he was on bail or had jumped bail, and bringing the total sentencing starting point to 24 months’ imprisonment.

61.  By reason of defendant’s guilty plea, the defendant is sentenced to 16 months’ imprisonment after his one-third sentencing discount.

7^th charge

62.  The theft of the vehicle licence plate would attract a sentencing starting point of 4 weeks’ imprisonment, but, coupled with the aggravating factor of defendant being a persistent offender and defendant committing the offence whilst he has jumped bail.  The same is enhanced by 1 week each, bringing the total sentencing starting point to 6 weeks’ imprisonment. 

63.  Defendant is therefore sentenced to 4 weeks’ imprisonment after his sentencing discount.

9^th charge

64.  For the same reasons in the 7^th charge, the defendant is sentenced to 4 weeks’ imprisonment.

8^th charge

65.  The defendant had failed in this attempt.  No loss was suffered by the victim.  The sum at stake was $29,000.  There is one victim involved. 

66.  The appropriate sentencing starting point is 5 months’ imprisonment.  The same is enhanced by 2 months by reason that he is a persistent offender and again 2 months by reason that he has jumped bail at the time which indicated total disregard and fearless for the law, bringing the total sentencing starting point to 9 months’ imprisonment. 

67.  Defendant is sentenced therefore to 6 months’ imprisonment after his one-third sentencing discount by reason of his guilty plea.

10^th charge

68.  The defendant possessed the identity card belonging to another.  Defence counsel said that defendant used this identity card in commission of the other offence.  Although the victim in incident 51 did say defendant used someone else’s identity card when he committed that offence, there is no evidence to show that he did use this particular identity card then, ie on 19 February 2019.  Therefore this court did not consider this issue when sentencing the defendant in relation to commission of incident 51. 

69.  Further, when the defendant was found to be in possession of this identity card on 22 February 2019, he had used his own identity card to sign the sale and purchase agreement earlier on the day, which therefore meant that defendant had intended this identity card for further use and other purpose. 

70.  Accordingly, following the case HKSAR v Li Chang Li, HCMA 935/2004, upon guilty plea of the defendant, this court now sentence the defendant to 12 months’ imprisonment for this charge.

Overall sentence

71.  Now, coming to consider the totality principle in relation to the 5 fraud charges and 1 attempted fraud charge.  As said earlier, although the amount involved is only $525,050, the actual loss of these victims being $496,050, there are altogether 53 victims involved.  During the period covering the commission of the 54 incidents covered by the 6 charges, mostly the defendant was either on bail or had jumped bail with warrant of arrest issued against him when he committed the 48 incidents out of the 54 incidents.  He is also a persistent offender of offences involving dishonesty, with 44 previous convictions all relating to dishonesty offences.

72.  Defendant committed these offences over a period of 21 months, ie from the May 2017 to February 2019.  One could see that defendant, on a number of occasions, practised fraud on more than 1 victim on a single day and also practised fraud on consecutive days in a row.  He preyed on these victims on Facebook or website and treated them as his ATM machine.

73.  In sentencing, whilst this court considers the amount at stake was relevant, this court considers, for the 4 reasons out of 5 in the case of Leung Yiu Fai, that the present case is one that is serious.  The total disregard of the law when the defendant committed the offences repeatedly whilst he had jumped bail is a very significant feature in this case.  The large number of victims, and the use of Internet, coupled further with his very poor record of dishonesty in the past, which added to his culpability in the commission of these offences. 

74.  But this court reminds itself that the court has to consider the overall culpability of the defendant in this case.  This court finds that, for the 6 fraud/attempt fraud charges, that the just and proportionate sentence after plea would be 26 months’ imprisonment. 

75.  Accordingly, 1 month’s imprisonment of each of the sentence for the 1^st and 8^th charge, 2 months of the sentence for the 2^nd charge, 3 months of each of the sentence for the 3^rd and 5^th charge, is to run consecutive to the sentence for the 6^th charge.  The rest of the sentence for these charges shall run concurrent to the sentence for the 6^th charge, making a total of 26 months’ imprisonment for the total 6 charges of fraud/attempted fraud.

76.  As for the theft charge, the total sentence of 4 weeks’ imprisonment is appropriate for the 3 theft charges.  Therefore the sentence of the 4^th charge is to run wholly concurrent to the sentence of the 6^th charge, while the sentence for the 7^th and the 9^th charge is to run wholly concurrent with each other, and being consecutive to the sentence of the 6^th charge.

77.  As for the sentence for the 10^th charge, the nature of this offence is entirely separate and distinct from the other charges, but considering the overall culpability of defendant, this court considers now that 4 months of the sentence of this charge is to run consecutive to the sentence for the 6^th charge, the rest to run concurrent to the sentence for the 6^th charge.

78.  Total sentence of the defendant for the 10 charges is therefore 30 months and 4 weeks’ imprisonment.

79.  The defendant had earlier in the previous case of DCCC 346/2019 & DCCC 625/2019 (consolidated) been sentenced by this court in respect of a total of 35 charges, including 16 charges of fraud, to a total sentence of 56 months and 120 days’ imprisonment after plea.  The total sentence for the 16 fraud charges is 42 months in that case.  There are 16 victims, 9 of which were car-owners cheated of their cars.  Therefore, 9 cars were involved.  The total money at stake was $456,500 and these offences were committed within March 2017, March 2018 and April 2018. 

80.  In that case, the 3 theft charges were committed in the months of September and October 2017.  The period within which the defendant committed the fraud and theft charges in the previous case did not overlap with the period within which the defendant committed the fraud and theft charges in our present case.  None of the present 10 offences occurred within April or March 2018 nor within March 2017, September or October 2017.

81.  The modus operandi in the commission of these offences in the other case is also different from the present case.  Apart from the fraud or theft charges, the other charges for which the defendant was convicted in the other case were also either of a different nature, for example, driving-related offences, or committed in an entirely different setting, ie theft from employer.

82.  The defendant in this case had committed numerous offences, as said earlier, sometimes involving more than 1 victim on a day or committed fraud on victims on consecutive days, and even after he was granted bail or jumped bail, and defendant used Internet as his platform for searching his prey, his victims.

83.  Considering the totality principle and having regard to the defendant’s culpability in the 2 cases, this court finds that the total sentence for the 21 fraud charges in the 2 cases involving 7 cars, affecting 70 victims, and sum of around $1 million, now 68 months’ imprisonment be reduced to 55 months’ imprisonment. Accordingly, 13 months’ imprisonment of the sentence in the present case is to run concurrent to the sentence in the previous case, the rest to run consecutive to the sentence in the previous case of DCCC 346/2019 & DCCC 625/2019 (consolidated). 

84.  As this court said earlier, this is a case where the court finds to be extremely serious in view of the defendant’s persistence in committing offences repeatedly and frantically, involving dishonesty conduct since the year 2009, and clearly the sentence passed on him in the past did not deter him from further commission of these offences.