HKSAR v. LEE TAK PO AND ANOTHER

DCCC 536/2023

[2024] HKDC 728

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 536 OF 2023

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REASONS FOR SENTENCE

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1.  D1 and D2 pleaded guilty before me to a joint charge of Conspiracy to defraud, contrary to Common Law and punishable under section 159C(6)  of the Crimes Ordinance, Cap 200. Particulars are that they, between 8 and 9 November 2022, both dates inclusive, in Hong Kong, conspired together with other persons unknown to defraud Ho Hxx Kxxx (full name redacted)  (“Ho”)  by falsely representing that the son of Ho was detained by the Police in Mainland China and needed money, thereby dishonestly inducing Ho to part with a cash sum of 200,000 Yuan Renminbi and $220,000 Hong Kong currency.

FACTS ADMITTED BY D1 AND D2

The 1^st collection of money

2.  On 8 November 2022, at about 8:45 pm, PW1 Ho (aged 74 according to the prosecution)  received a phone call on his landline telephone from an unknown male caller claiming to be his son and claiming that he has changed his mobile phone number to 9562 6436 (“the Number”).  PW1 later called the Number and chatted with his purported son.

3.  On 9 November 2022, at about 8:40 am, PW1’s wife PW2 received a phone call on the landline telephone from an unknown male caller claiming to be her son and claiming that he has been arrested by the Mainland police for visiting a prostitute and required bail money.  At about 10 am on the same day, PW1 returned home and called the Number.  PW1 was told the same story and that his son required HK$100,000 as bail money or else he would be detained for 15 days.  His purported son said that a friend named Ah Fung would come to collect money as Ah Fung was reliable and has already helped bail out two other people involved in the case.

4.  Some 10 minutes later, PW1 received a phone call on his landline from a person claiming to be Ah Fung.  PW1 provided his home address to the caller.  Just before 11 am, a person claiming to be Ah Fung attended PW1’s home at Ngan On House, Yue On Court, Yue On Court Road, Aberdeen.  PW1 passed over cash of RMB100,000 Yuan to Ah Fung.

5.  CCTV at or in the vicinity of Yue On Court captured the following salient events:-

(a)  At around 10:57 am, D1 entered Ngan On House and took the lift up to 29/F;

(b)  At around 11:02 am, D1 took the lift from 30/F to G/F; D1 was carrying a dark coloured recycle bag when he entered the lift; he then left Ngan On House and walked along Yue On Court Road; and

(c)  At around 11:06 am, D1 passed the said recycle bag to an unknown male and he continued to walk alone towards Lei Tung Estate Road; the said unknown male walked along Lei Tung Estate Road and was then joined by D2, who was wearing a grey jacket, black pants, white sneakers, a dark coloured cap, and a dark coloured sling bag (“the Outfit”); they boarded a taxi together and left.

The 2^nd collection of money

6.  About half an hour later, PW1 received another phone call on his landline from a caller purporting to be his son claiming that his case escalated to the senior officers and now he needed bail money to the tune of HK$300,000 or else he would be detained, have a conviction record and be restricted in entry to the Mainland.  PW1 therefore promised to prepare an additional sum of HK$200,000.  PW1 was told that Ah Fung would attend his home to collect money again.

7.  At around 12:15 pm the same day, Ah Fung attended PW1’s home again and collected a total of HK$120,000 and RMB100,000 Yuan cash prepared by PW1.

8.  After Ah Fung left, PW1 felt suspicious.  PW1 and PW2 therefore contacted their son by WeChat and was informed by him that he has never been arrested nor has ever needed bail money.  Case was reported to the police.

9.  CCTV at or in the vicinity of Yue On Court captured the following salient events:-

(a)  At around 12:13 pm, D1 entered Ngan On House and took the lift to 30/F;

(b)  At around 12:19 pm, D1 took the lift from 30/F to G/F and left Ngan On House; and

(c)  At around 12:24 pm, D2, who was wearing the Outfit, walked along Yue On Court Road towards Lei Tung Estate Road; D1 met with D2 at the junction of Yue On Court Road and Lei Tung Estate Road; they left together on foot.

The 3^rd collection of money and the arrest of D1

10.  Subsequently, on the instructions of police officers, PW1 dialed the Number again.  PW1 said to the male at the other end that he has already paid up and asked when his son could be released.  The male told PW1 that the case now involved not only prostitution but also some dangerous drugs; that the case has been passed to an Officer Wong.  Another person claiming to be Officer Wong told PW1 on the phone that bail money was now set at HK$500,000.  After some negotiation during the same telephone conversation, the purported son of PW1 agreed that an additional HK$100,000 would be sufficient.

11.  On the instructions of police officers, PW1 called the Number again to tell his purported son that he has prepared HK$100,000.  Around 10 minutes later, PW1 received a phone call and was informed that Ah Fung would attend his home again to collect the money.  On the instructions of police officers, PW1 stuffed some newspaper as dummy cash inside a paper bag.

12.  Some 10 minutes later, D1 attended PW1’s home claiming to be Ah Fung.  When PW1 passed the paper bag with dummy cash inside to D1, police officers on ambush duty inside PW1’s home intercepted D1.  PW1 identified to police officers that D1 was the same person who had claimed to be Ah Fung and had collected money from him earlier the same day.  D1 was arrested.

13.  Under caution for “Fraud”, D1 stated that he received instructions on the telephone to come and collect money.

14.  Police found that on one of the mobile phones seized from D1, there were frequent contacts with a phone number 6410 5093.

The arrest of D2

15.  Based on the CCTV footage at Yue On Court, police identified two other persons who seemed to have had dealings with D1 during the 1^st and 2^nd collections of money earlier on the same day.

16.  At around 3:15 pm, whilst investigating this case, DPC 20846 (“PW6”)  spotted D2 acting furtively on Lei Tung Estate Road so he kept D2 under observation.  At around 3:32 pm, after being informed via communications that D1 had been arrested at PW1’s home, PW6 went ahead to intercept D2 at a footbridge.  At the time, D2 had with him a total of 4 mobile phones including one bearing a phone number 6410 5093.

17.  At that time, D2 was wearing the Outfit.

18.  D2 was arrested for “Fraud”.  Under caution, D2 stated that somebody paid him to act as a lookout; that he was not related to other matters.

19.  Upon analysis, it was found that one of the phones seized from D1 (bearing phone number 9769 1067)  had a total of 41 incoming and outgoing calls with the phone number 6410 5093 between 9:35 am and 3:26 pm on 9 November 2022.  There were also frequent call records between the two phone numbers on 7 and 8 November 2022.

20.  D1 and D2 now admit that at all material times, they conspired together with other persons unknown to defraud PW1 by falsely representing that PW1’s son was detained by the police in the Mainland and needed money, thereby dishonestly inducing PW1 to part with a cash sum of RMB200,000 Yuan and HK$220,000.

CRIMINAL RECORD

21.  D1 has 10 previous convictions one of which was for Theft which was recorded in 2003 (when he was 15).

22.  D2 has a clear record.

ANTECEDENTS

23.  D1 is aged 36 (almost 35 at the time of the offence), educated to F3 level, was a construction worker.  He lived in private housing in Sham Shui Po.

24.  D2 is aged 28 (27 at the time of the offence), working intermittently in bars at the time of the offence.  He lived in Kwai Chung Estate.

MITIGATION

D1

25.  Mr Lau Hon Wang of counsel assigned by the Director of Legal Aid mitigated on behalf of D1.  The following is a summary of the mitigation submissions.

26.  Mr Lau referred to the cases of HKSAR v Hung Yung Chun [2011] 2 HKLRD 167 (English translation at 174), HKSAR v Yang Chia Cheng & Anor (Chinese judgment), [2011] 3 HKLRD 602, and Secretary for Justice v Chan Ho Kit, CAAR 1/2024 (Chinese judgment), and submitted that 4 years’ imprisonment as the appropriate starting point for telephone deception cases.

27.  D1 pleaded guilty and he is remorseful for his wrongdoing.  On 26 July 2023, D1 had through his legal representative notified the Department of Justice of his willingness and intention to assist by providing information and to testify against D2.  However, Mr Lau accepted that there is nothing to indicate the prosecution had followed that up; nor is there evidence to show that the offer to assist was either communicated to D2 or was instrumental to D2 changing his position as regards plea.

28.  At the time of the incident, D1 was working as a part-time construction worker, earning approximately $15,000 per month.

29.  His parents are respectively 71 and 64.  D1 made financial contribution to them from time to time.

30.  D1 had separated from his wife; their son and daughter lived with the ex-wife.

31.  At the time of the incident, he learned about and accepted the work of collecting money from an online job advertisement.  On the day of the incident, he was given a mobile phone and was instructed to collect money from the victim’s home.  Before collecting the money, he was knowingly informed of the false storyline that the money was purported to assist the victim’s son.

32.  The person who called the victim was not D1.  D1 did not play a leading role.  D1 played the role of attending the victim’s home to collect money.

33.  The circumstances of this case are similar to those in Hung Yung Chun.  The court is urged to adopt a starting point of 4 years.

34.  Mr Lau did not object to the court’s reception of the information furnished under section 27 of OSCO.  Mr Lau understands that the number of cases of this type, and the amount of money involved are growing in recent years.  D1 understands this information may justify an enhancement but hopes for the best treatment for him.

D2

35.  Mr Kwan Tong Lee of counsel mitigated on behalf of D2.  The following is a summary of the mitigation submissions.

36.  D2’s mother, grandmother, his girlfriend and her mother are in court to give their support to D2.

37.  D2 indicated his plea of guilty after the case had been set down for trial.  By virtue of Ngo Van Nam, D2 is entitled to only 25% sentencing discount.

38.  After the victim parted with CNY200,000 and HKD120,000 which were not recovered, the net loss was therefore HKD340,000 odd.

39.  D2 was arrested near the victim’s home shortly after D1 was arrested.  Under caution, D2 said, “Somebody paid me to act as a lookout; I am not related to other matters.”

40.  D2 has a clear record.  He obtained a top-up BA degree in “Festival and Event Management” from Edinburgh Napier University in March 2018 after obtaining Higher Diploma in a similar programme from HKU SPACE in 2015.

41.  He has been gainfully employed as an apprentice in an engineering company and a waiter in bars and restaurants.  During his studies, he worked as a part-time construction worker in construction sites.  COVID 19 had a great impact on his income from 2020 to 2022.  The bar and restaurant he was working at shut down too.

42.  D2 has a pleasant character and an unblemished record.  The incident is a single fall from grace.  He is now deeply remorseful and he promises not to break any law in future.

43.  D2 became acquainted with some undesirable peers who persuaded him to act as a lookout for the collector(s)  in the present incident.  By pleading guilty to the charge, he admitted he had knowledge of the scam.

44.  D2 only acted as a “lookout”.  There is no evidence he was the one who made phone calls to the victim’s phone or to victim’s wife and pretended to be the victim’s son.  Nor is there evidence he was the mastermind of the scheme.

45.  D1 was the collector of the stolen property whereas D2 was only in the vicinity of the building the victim lived in.

46.  Mr Kwan also referred to the Court of Appeal’s adoption of 4 years as the starting point in HKSAR v Hung Yung Chun, supra.

47.  As D2 only acted as a lookout, his role may be said to be less culpable than the demander of money.

48.  Mr Kwan referred to para 46 of HKSAR v Wong Fung Ming & Anor, CACC 515/2001:-

“The power to enhance a sentence under section 27(11)  is an extraordinary power. It enables a judge, as we have set out already, to pass a more severe sentence for a specified offence if one or more of a number of factors itemized in section 27 of OSCO has been established. We think that the power given to a judge to add to the sentence he has otherwise considered to be appropriate, which will often already have incorporated an element for deterrence, can only have been intended to spell out to others who might otherwise commit the same type of offence in the future that to do so will entail a particularly severe penalty. Inevitably, it is a power which ought to be utilized sparingly.”

49.  Mr Kwan did not object to the court’s reception of the information furnished under section 27 of OSCO.  He however submits the court should be slow to enhance the sentence.

50.  In any event, Mr Kwan submits the enhancement should not be more than 20% in order not to inflict too harsh a punishment on this young degree holder of clear record.

51.  Mr Kwan submitted on D2’s behalf three mitigation letters written in Chinese respectively by D2 himself, his mother and a pastor.  The contents are generally that D2 committed the offence out of momentary greed; he is now remorseful and regretful; he is determined to turn over a new leaf and will not re-offend; he feels sorry for the loss of the victim; D2 grew up in a single-parent family; and D2 is a filial son and grandson.  The letter writers asked for a lenient sentence so D2 may re-join society earlier and waste no more time.

52.  Mr Kwan also submitted a number of certificates showing D2’s completion of secondary and tertiary education, his achievement in playing the violin, and his participation in voluntary work (the latter in Chinese).  Mr Kwan submitted two photos showing D2’s achievements in the sports of basketball, and a Chinese essay written by D2 in his secondary schooldays showing his disposition to help others.

SENTENCE

53.  Conspiracy to defraud is a serious offence with a maximum penalty of 14 years’ imprisonment.

54.  The recent case of Secretary for Justice v Chan Ho Kit (transliteration), CAAR 1/2024, Chinese Reasons for Judgment dated 30 April 2024, endorsed the starting point of 4 years adopted in Hung Yung Chun, supra, for telephone deception cases.  Furthermore, the Court of Appeal rejected the submission that the lack of a threat to use violence against the supposedly detained relative should call for a lighter sentence (see paras 16 and 21 of Chan Ho Kit).

55.  I take into account the unrecovered loss to the victim was RMB200,000 Yuan and HK$120,000.  D1 and D2 are co-conspirators and they conspired with other persons unknown to take part in the joint fraudulent enterprise.  There must have been a substantial degree of planning behind the execution aspect to make the whole thing work although there is no evidence that either of the two defendants was the mastermind of the scam.  As such, each of the defendants would be endowed only with a basic starting point of 4 years’ imprisonment.

56.  D1 indicated his guilty plea at the earliest time.  He shall be entitled to the customary 1/3 discount in sentence.  I do not detect any other factors that would mitigate his sentence further.

57.  D2 indicated his guilty plea only after trial dates have been fixed but well before those dates.  Having considered all relevant circumstances, I will give him ¼ discount in sentence.  D2 has a previous clear record; for this factor, I will give him one more month’s deduction after the quarter discount.  I do not detect any other factors that would mitigate his sentence further.

58.  Having read the witness statement of CIP Tang Kai Wing dated 18 April 2024, I am satisfied beyond reasonable doubt that (a)  telephone deception related specified offences (of which the present specified offence – conspiracy to defraud – is one)  are prevalent and on the rise; and (b)  the nature and extent of any harm, whether direct or indirect, caused to the community by recent occurrences of telephone deception related specified offences (of which the present specified offence – conspiracy to defraud – is one)  are widespread in terms of categories of target victims and huge in terms of monetary loss.

59.  I am satisfied that I may under section 27(11)  of OSCO and indeed am required under my judicial duty to enhance the sentences of the two defendants because of the above factors.

60.  Having considered all relevant circumstances, I shall enhance the sentences by 1/3 and round them down to the nearest whole month.

(D1 and D2, please stand)

61.  The sentence for D1 is 42 months’ imprisonment.

62.  The sentence for D2 is 46 months’ imprisonment.