HKSAR v. HUANG YU HUAN AND ANOTHER

CACC 336/2001

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 336 OF 2001

(ON APPEAL FROM DCCC 666 OF 2001)

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J U D G M E N T

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Hon Lugar-Mawson J: (giving the judgment of the Court)

1. On 3 September 2001, the two Applicants, Wang Yu Wan and Key Go Meng, pleaded guilty before Deputy Judge Ian Candy in the District Court to one count of conspiracy to Defraud, contrary to Common Law and punishable under section 159C(6) of the Crimes Ordinance Cap.200.

2. The Applicants are both from the Mainland. They are low-level confidence tricksters who practised what has become colloquially known as a 'street deception' offence. By a charade, involving themselves and a man still at large , they set out to deceive the intended victim, a woman of 57, of her savings by pretending that scrap electronic components, which they had picked up in the street, were valuable ones that could be sold at a substantial profit. Fortunately the intended victim became suspicious of them and spoke to her son, who in turn contacted the police. Both Applicants were arrested before any money changed hands. Had the fraud been successful the victim stood to lose between $100,000 to $50,000.

3. The maximum sentence for an offence of Conspiracy to Defraud is 14 years' imprisonment. In sentencing the Applicants, the Deputy Judge adopted a starting point of 3 years' imprisonment; as both had pleaded guilty and had no known previous convictions, they were given the now usual one-third reduction in sentence, reducing the starting point to 2 years' imprisonment.

4. The prosecution applied for an enhancement of sentence under the provisions of s.27(11) of the Organised and Serious Crimes Ordinance and invited the Deputy Judge to consider statements and a table prepared by a Woman Senior Inspector from the Operations Section of the Crime Prevention Bureau. This gave statistics for, and an analysis of, 'street deception' cases in the whole of Hong Kong. From the Deputy Judge's Reasons for Sentence we see these showed that in 1999, there were 455 reported 'street deception' cases, with a total of $26.24 million stolen from the victims. Of those 455 reported cases, only 24 were successfully detected. In 2000 there were 617 reported cases, of which only 57 were successfully detected. The total amount stolen in those 617 cases was just less than $42.5 million. In the first six months of 2001 there were 251 cases reported, of which only 27 were detected. The total amount stolen in those six months was $15.3 million.

5. Of the 617 cases reported in 2000, 110 involved deceptions relating to bogus electronic components, with a total of $11.6 million stolen from the victims. Of the 251 cases reported in the first six months of 201, 40 involved deceptions involving electronic components, resulting in a loss of just less than $4.7 million to the victims.

6. In 2000, of the 107 persons arrested, 98 were from the Mainland. In the first six months of 2001, of the 61 persons arrested, 58 were Mainlanders.

7. Looked at comparatively, between 1999 and 2000, there was an increase in all types of crime of 0.62%. However, in the same period, the number of 'street deception' cases increased by 35.6%.

8. After considering this evidence the Deputy Judge observed that this type of offence is extremely prevalent in Hong Kong and that its victims lose a great deal of money. He considered the case of HKSAR v MA Suet Chun & O'rs [2001] 4 HKC 337, where this court suggested that for future 'street deception' offences an enhancement of sentence of 50% would be appropriate and enhanced the sentence of 2 years by 25%, resulting in both Applicants being sentenced to serve 2½ years' imprisonment.

9. He considered - rightly in our view - that as their offence pre-dated the decision in Ma Suet Chun he could not enhance their sentences by as much as 50%. We note that in Ma Suet Chun, this court imposed a 25% enhancement on a 2 years' starting point sentence, considering that the Appellants in that case would feel a justifiable sense of grievance if their sentences were enhanced by as much as 50% without prior warning from the court.

10. The Applicants now seek leave to appeal their sentences. Ms Sabrina See of counsel represents them on the instructions of the Director of Legal Aid. Ms See does not challenge the correctness of the 25% enhancement of sentence; her complaint, on the Applicants' behalf, is that the 3 years' starting point is too high and should have been no more than 2 years.

11. For obvious reasons, as the circumstances of the commission of such offences can vary greatly, there are no sentencing guidelines for 'street deception' cases. Our attention, however, has been drawn to two recent appellate cases for the purposes of illustrating the current level of sentence for these offences.

12. Ma Suet Chun, the case referred to by the Deputy Judge in his reasons for sentence, involved a confidence trick to sell a cancer-curing pill. The argument on appeal revolved around the admissibility of evidence under s.27 of the Organised & Serious Crimes Ordinance and the appropriate enhancement percentage to be taken in arriving at a sentence under subsection (11) of that section. The correctness of the level of the starting point itself appears not to have been questioned.

13. HKSAR v Cheung Kwun Ching & Anor CACC 220/2001 (unreported) involved a confidence trick in which two gullible middle-aged women were persuaded to hand over their jewellery to the tricksters so that it could be 'blessed'. The only 'blessing' it received was that the tricksters helped themselves to it. The trial judge took a starting point sentence of 3 years' imprisonment, added an Organised & Serious Crimes Ordinance enhancement of 33% - one year - making a total of 4 years' imprisonment and then reduced that by one-third to 2 years' & 8 months' imprisonment to reflect the guilty pleas. This court held that the starting point should have been 2½ years, with an enhancement of 25%, instead of 33%, as the offences were committed before the decision in Ma Suet Chun, making a total starting point of 37 months' imprisonment. This was then reduced to 2 years (24 months) to reflect the Appellants' guilty pleas.

14. Ms See argued that a distinction could be drawn for the purposes of sentencing between cases such as Cheung Kwun Ching where the tricksters play upon the religious or superstitious beliefs of the victims in inducing them to part with their property and those such as Ma Suet Chun, and this present application, where the tricksters appeal to the 'greed' or desire of the victims to make an easy profit. She also argued that - as can be seen from Cheung Kwun Ching - even in those cases where the tricksters' appeal has been directed at the victim's superstitious beliefs this court has opined that the starting point sentence should be no more than 2½years and hence, in this case, it should have been no more than 2 years.

15. We have to say that we do not agree with this submission. As we have already said, there is no tariff sentence for this type of offence. The gravamen of the offence is the fraud itself, not the likely motive of the victim that the tricksters appeal to and anything that may have been said by this court in Cheung Kwun Ching indicating to the contrary appears to have been said in error. All the offences of this type employ the same modus operandi: two or three tricksters acting in concert, each playing pre-assigned roles, and no doubt using well-honed psychological tricks, prey on the credulity of unsophisticated middle-aged or elderly people in the hope of relieving them of substantial sums of money. The offences, of necessity, have to be both premeditated and well planned. They are certainly cynical and heartless crimes. If the fraud is successful, the consequences for the victim can be exceptionally distressing. They stand to lose the whole or a substantial part of their life savings upon which they are dependent for their living. This is something which could reduce them to penury.

16. Further, as the figures presented to the Deputy Judge show - and as he commented in his Reasons for sentence -this type of offence remains exceptionally prevalent. Such offences appear to be committed mainly by Mainlanders, as the two Applicants are, and those who fall victim to such offenders are still losing a great deal of money.

17. Although we acknowledge that the 3 years' starting point taken by the Deputy Judge was higher than that taken in the cases to which we have been referred, it can in no way be regarded as wrong in itself. Neither is the resulting sentence of 2½years' imprisonment, arrived at after a reduction for plea, but after an Organised & Serious Crimes Ordinance enhancement, in any way wrong in principle or manifestly excessive. Indeed, the Applicants should consider themselves fortunate that their offence pre-dated the decision in Ma Suet Chun, for, had it not, we would not have interfered with an enhancement of 50% on the starting point sentence.

18. Both Applicants' applications for leave to appeal against their sentences are dismissed.