HKSAR v. CHO AH MUI

CACC 83/2003

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 83 OF 2003

(ON APPEAL FROM DCCC 1302 OF 2002)

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J U D G M E N T

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1. The applicant Cho Ah-mui was convicted on her own plea before Deputy District Judge W C Li on 13 February 2003 on a charge of conspiracy to defraud. She was sentenced to 3 years' imprisonment. She now applies for leave to appeal against sentence.

2. She was the second defendant in the case before the Judge. She was charged, together with the first and third defendants to have conspired together with another person or persons unknown to defraud the victim of a sum of $246,000. The offence is commonly called street deception, which has been prevalent in Hong Kong in recent years. The deception takes various forms, by selling electronic goods, magic cure medicine, gold rings or ornaments, etc. that were in fact worthless articles, or by inducing people to part with their money or valuables for religious rituals to be performed for their well-being and fortune or for the benefit of their relatives.

3. The deception perpetrated in this case was to prey on the superstition of the victim to induce her to pass all her money to the perpetrators so that a religious ritual would be performed for her well-being or that of her relatives.

4. The Judge adopted a starting point of 3 years' imprisonment and reduced it by 1/3 because of the plea and enhanced the resultant sentence by 50% to arrive at the sentence of 3 years' imprisonment.

5. In HKSAR v Hwang Yu-huan and another [2002] 2 HKC 682, a case of street deception by way of selling electronic goods, the Court of Appeal said that a starting point of 3 years was not manifestly excessive or wrong in principle.

6. In HKSAR v Ma Suet-chun and others [2001] 4 HKC 337, at 343F, the Court of Appeal said:

"Because of the rising trend of similar cases, this court takes the view that it would be appropriate to enhance the sentence by 50% in order to deter the commission of such crimes."

Ma Suet-chun was also a street deception case by way of the sale of medicine to the victim. At page 344A, the Court of Appeal said:

"... this court would point out that in future, it would not interfere with decisions to enhance the original sentence by 50% in similar cases."

7. In view of the above authorities, the Judge was correct to adopt a starting point of 3 years' imprisonment, reduce it for the plea by one-third and enhance it by 50% to reach a sentence of 3 years' imprisonment.

8. The applicant's grounds of appeal, as written by her on 3 March 2003, are as follows:

"It is because my mother is hospitalised. Presently she is still in coma in a hospital, and her life is in a critical condition. In addition, there is no one to handle the funeral affair of my deceased adopted son, to take care of my many daughters. I have gone astray just because I was greedy momentarily and was abetted by others. Presently, my children and my aged mother have fallen into various difficulties since I lost my job. In order not to let my children have the same encounter as I do in the years to come, I beg your Lordship to grant me leave to appeal against sentence. Thank you."

9. Today, the applicant handed to me a letter from her work unit on the Mainland and a letter of her own, stressing the same points.

10. Apparently, on 13 February 2003, before the Judge passed sentence on her, the applicant mentioned the same family circumstances to seek leniency. The Judge said:

"8. The defendants, I am asked to consider their family background and the hardship which would be caused to the family members when they are sent to prison in Hong Kong. While this is not a matter in mitigation, in many previous cases it has been said that these criminals have come to Hong Kong on the strength of their two-way permit and have taken advantage of their status here to commit the crimes and they should have anticipated what were to happen to their families if they were caught.

9. The family circumstances of the defendants were existing state of affairs or existing state of events prior to the crimes being committed, so they knew well beforehand the risk they were taking before committing the crimes."

11. In my view, the Judge was clearly right. While I have great sympathy with the family members of the applicant, that they might have been thrown into difficulties because of the applicant's absence in jail in Hong Kong from them, such sympathy should not, in my view, amount to mitigation or be reflected in any way in the sentence that the applicant herself fully deserves.

12. In the circumstances, I refuse leave.

13. I also take the opportunity to remind the applicant that she is entitled to renew her application to be determined by the Court of Appeal. Such fresh application, if she is minded to making it, must be made within 14 days from today. I also warn the applicant that if the Court of Appeal has to deal with her fresh application, and if it is of the view that her application has no merit it can order a loss of time, and it can also increase sentence.