HKSAR v. TUNG CHUN WAI

DCCC 68/2023

[2024] HKDC 735

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 68 OF 2023

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REASONS FOR SENTENCE

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1.  The defendant pleaded guilty to one count of attempted fraud, contrary to section 16A of the Theft Ordinance, Cap. 210 and sections 159G and 159J of the Crimes Ordinance, Cap. 200.

Facts

2.  Around 1030 hours on 17 October 2022, Mr. Ng Shing Kui received a phone call from an unfamiliar telephone number.  The caller (“WP”)  asked Mr. Ng if he recognized his voice and Mr. Ng guessed it was his nephew “Ah Cheong”.  WP told Mr. Ng that his guess was right.  Then they had a short chat over the phone. 

3.  On 18 October 2022, WP phoned Mr. Ng again, alleging that he and his friends were arrested and detained by the police, and each of them was required to pay bail money in the sum of HK$50,000 (“Bail Money”).  Mr. Ng told WP that he would lend the Bail Money to WP but not his friends.  WP asked Mr. Ng to withdraw money from a bank nearby and he would arrange someone to collect the Bail Money.  In the telephone conversation, WP specifically asked Mr. Ng not to tell anyone about the alleged arrest as the whole affair was rather shameful. Suspecting WP was a fraudster, Mr. Ng reported to the police.

4.  At 1247 hours on 18 October 2022, Mr. Ng received a phone call from WP while he was inside Mong Kok police station.  He was told by WP to meet him outside the Bank of China at 689 – 693 Shanghai Street, Mong Kok, Kowloon (“Location”)  with the Bail Money.  The police thus mounted a covert operation near the Location.

5.  Around 1308 hours, Mr. Ng received a phone call from an unknown telephone number.  The caller claimed that he was asked by “Ah Cheong” to collect money on his behalf.  Around a minute later, the defendant approached Mr. Ng outside the Location and said that he was sent by “Ah Cheong” to collect money.  To prove that he was the caller of the unknown number, the defendant phoned Mr. Ng again in his presence.

6.  The police operation turned overt and Mr. Ng did not sustain any loss. The defendant was arrested and two mobile phones were seized from him.

7.  Examination of the mobile phones shows that one of the phones bears the unknown number.  Details of the scam including the telephone number of Mr. Ng, relationship between Mr. Ng and “Ah Cheong”, the alleged reason of “Ah Cheong” being arrested, and the amount to be collected, etc. were found in a message delivered to the defendant’s mobile phone at 1301 hours on 18 October 2022.

Mitigation

8.  The defendant, aged 31, is single and lives with his father.  He was brought up in a single family and has never met his mother.  He is now working in a logistic company and earning about HK$40,000 per month. He is the breadwinner of the family, making a contribution of HK$10,000 to his father each month.  He has 2 criminal convictions, which are not similar to the nature of the present offence.  Those convictions were more than 10 years ago.  The defence invited this Court not to take into consideration the 2 convictions when sentencing.

9.  It was submitted that 2 weeks prior to the incident, the defendant saw an employment advertisement on social media with a lucrative offer of a monthly wage of HK$100,000 per month.  He only knew he was required to collect money from unknown clients.  He had no prior knowledge of the scam and believed that the money he was going to collect was legitimate.  Only right before his first collection, about 10 minutes earlier, he was told the money to be collected is bail money.  He then understood the collection in fact was not for bail money. Nonetheless, he foolishly went ahead.  He is not the ringleader and his involvement is low.  He did not receive any promised remuneration.

10.  The defence referred to HKSAR v Hung Yung Chun [2011] 2 HKLRD 174 and HKSAR v Wu Jianbing [2012] 1 HKLRD 781 and submitted that the potential fraud in this case is on the lower end of this type of cases.  It was also submitted that Hung Yung Chun case is far more sophisticated than this case.  Therefore, the sentence in this case should reflect the minimum culpability of the crime. 

11.  The defence did not oppose the application for enhancement of sentence under section 27 of the Organized and Serious Crimes Ordinance, Cap. 455.  The defence accepted this type of offence is prevalent.  Nevertheless, the defence urged this Court to consider a lower extent of enhancement.

12.  The defence submitted that the defendant is willing to bear the consequence of his wrongdoing.  He is remorseful and his chance of re-offending is low.  

13.  Mitigation letter from the employer states that the defendant is hardworking.  His employer is supportive and will assist him to turn over a new leaf.

Sentence

14.  I note the defendant has 2 criminal conviction records.  Given they are of different nature from the present offence and they were more than 10 years ago, I will not consider these two conviction records when considering the appropriate starting point. 

15.  This case is a typical case of telephone deception. 

16.  In Hung Yung Chun case, in relation to a case of conspiracy to defraud involving phone deception cases, the Court of Appeal held phone deception case was more serious than a common street deception case and the court should adopt a higher starting point in sentencing for deterrence.  In that case, the court held that the appropriate starting point should be 4 years’ imprisonment and an enhancement of one-third would be appropriate.

17.  I accept the defendant is not the ringleader in this case. Nevertheless, the defendant played an important role in the fraud.  Further, he knew the details of the scam and went ahead to meet Mr. Ng with a view to collect the money.  It is only fortunate that Mr. Ng was smart enough to avoid any loss.  Having considered the circumstances of the case, the defendant’s mitigation and the aforesaid authorities, I am of the view that the appropriate starting point is 4 years’ imprisonment.  Given the defendant’s plea, it is reduced to 32 months’ imprisonment.

18.  The prosecution produced a statement from Detective Chief Inspector Tang Kai Wing to support their application for enhancement of sentence.  The defence did not oppose the application and accepted the offence is prevalent.

19.  According to Mr. Tang’s statement, the present case was classified as “Guess Who” telephone deception in view of the modus operandi of the case. Statistics in the statement show an upward trend of both telephone deception and “Guess Who” telephone deception since 2018 with a sharp increase in 2022 and 2023.  The accumulated monetary loss of “Guess Who” telephone deception is around HK$114 million in 2022 and around HK$188 million in 2023.

20.  I am satisfied beyond reasonable doubt the prevalence and the nature and extent of harm caused to the community by this type of telephone deception. With reference to Hung Yung Chun case, the sentence should be enhanced due to the prevalence and nature and extent of harm of the deception, not the defendant’s role.  I am of the view that the sentence should be enhanced by 1/3.  Therefore, the enhanced sentence is 42 months’ imprisonment.  The defendant is thus sentenced to 42 months’ imprisonment.