HKSAR v. ZOU YAXUE AND OTHERS

DCCC 1361/2024

[2025] HKDC 756

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 1361 OF 2024

________________________

________________________

REASONS FOR SENTENCE

D1 and D2 are jointly charged with an offence of "Obtaining property by deception" (Charge 1). D2 and D3 are jointly charged with an offence of "Obtaining property by deception" (Charge 2). They all pleaded guilty to the respective charges.

Summary of Facts

Charge 1 (against D1 and D2)

2.  About 10:00 a.m. on 12 October 2023, Madam Chan (PW1)  was at Pak Wo Road in Sheung Shui.  A female (Fraudster 1A)  approached her asking if she knew any good Chinese medicine practitioner for recommendation.  PW1 said "No".  Another female (Fraudster 1B)  then approached PW1 saying that she knew a good Chinese medicine practitioner and invited PW1 to visit that practitioner together.  PW1 agreed and followed Fraudsters 1A and 1B.

3.  As the 3 ladies were walking on the street, a third female (Fraudster 1C)  approached them telling them that the Chinese medicine practitioner was her grandfather. Fraudster 1C told PW1 that her feng shui was bad since she had stepped on a ghost, causing pain all over her body.

4.  During their chat, Fraudster 1C offered to conduct spiritual blessing for PW1.  She asked PW1 to bring all her money and gold vessels from home.  Fraudster 1C told PW1 that everything would be returned to her after the ritual.  PW1 then went home to get money and gold vessels.

5.  About 11:00 in the same morning, PW1 returned to meet up with Fraudsters 1B and 1C. CCTV footage captured the presence of PW1, D2 and an unknown female.  Fraudster 1A also showed up a moment later.  Fraudster 1C asked PW1 to put her money and gold vessels in an eco-bag provided by Fraudster 1C and then put the eco-bag into a black plastic bag.  PW1 then put RMB70,000 cash, HK$30,000 cash, 5 bracelets, 2 rings and 1 necklace in the black plastic bag.  Fraudster 1C held the black plastic bag purporting to conduct spiritual blessing for PW1.  In the course of the ritual, Fraudster 1C said something to PW1, which diverted her attention.

6.  When finished, Fraudster 1C told PW1 that the spiritual blessing was completed and returned the black plastic bag to her.  PW1 then left.  CCTV footage captured D1, D2 and 2 unknown females leaving the scene at 11:26 a.m. on the same day.

7.  Upon returning home, PW1 discovered that all the properties she had put inside the black plastic bag were missing.  The black plastic bag contained only 2 bottles of water and some trash.  The total value of the lost properties was about HK$170,000. PW1 reported the matter to the Police.

8.  On 22 December 2023, PW1 identified D2 as one of the fraudsters she encountered on 12 October 2023.  The prosecution alleges that D1, D2 and an unknown female were respectively Fraudsters 1A, 1B and 1C.  D2 was either Fraudster 1B or 1C.

Charge 2 (against D2 and D3)

9.  About 8:50 a.m. on 13 December 2023, Madam Luo (PW2)  was at a park at Ching Tin Estate, Tuen Mun.  A female (Fraudster 2A)  approached her asking if she knew any doctor for recommendation.  They started to chat.  Another female (Fraudster 2B)  approached them claiming that she had a doctor to recommend.  CCTV footage captured the presence of PW2, D2 and an unknown female.

10.  As the 3 ladies were chatting and walking, they bumped into an unknown male (Fraudster 2C).  Fraudster 2B introduced him as the doctor's son.  The 4 of them continued to chat.  Another female (Fraudster 2D)  showed up claiming to be the doctor's wife.  Fraudster 2D told PW2 that if she wanted help from the doctor, she must give all her savings as remuneration, and put them in a black bag for spiritual blessing.  By doing so, she could alleviate her disease.  At the same time, Fraudster 2B kept persuading PW2 to bring money.  CCTV footage captured PW2, D2 and an unknown male being together; whereas D3 was tailing them.

11.  Eventually, PW2 went home.  She took a gold ring, RMB2,400 cash and HK$3,300 cash with her. She returned to meet up with Fraudsters 2B and 2D.  Fraudster 2D took out a black plastic bag and asked PW2 to put all her properties inside.  PW2 complied.  Fraudster 2D then performed some hand gestures.  Afterwards, she gave the plastic bag to PW2 and told her to go home without looking at Fraudster 2D.  PW2 complied.

12.  Upon returning home, PW2 discovered that all the properties she had put inside the plastic bag were missing.  She alerted the Police.

13.  On 22 December 2023, PW2 identified D2 as one of the fraudsters she encountered on 13 December 2023.  The prosecution alleges that D2 was either Fraudster 2A or 2B; and D3 acted as a lookout.

Arrest

14.  On 21 December 2023, D1 to D3 were arrested for "Obtaining property by deception".  D1 was found at Lok Ma Chau Control Point; whereas D2 and D3 were found together at a guesthouse in Mongkok.  Under caution, they all remained silent.

Mitigation

D1

15. She is 57 and has 1 conviction record, which is a "Theft" offence (dated 2005; and was fined $1,000). Her counsel Ms. Tin informed me that D1 is married with 2 adult children. After retirement, D1 worked as a part-time nanny earning about RMB1,000 per month. Her father (aged 93)  has dementia; father-in-law (aged 87)  has tuberculosis; and husband suffers from stomach bleeding. D1 had tuberculosis and received surgery in 2022. In October 2024, whilst in jail custody, there was blood in her stool. Her body weight was dropping as well. She is waiting for a gastroscopy.

16. In mitigation, Ms. Tin submitted that D1 and her husband have incurred debts in the range of RMB60,000 to RMB70,000 for their own medical expenses as well as their parents'. Out of greed, she agreed to take part in the scam for a reward of $500.

D2

17. She is 56 and has a clear record. Her counsel Mr. Chan informed me that D2 is an illiterate person. She was a farmer and received no education. In mitigation, Mr. Chan submitted that D2 has a grandfather, who is deaf and dumb. She wishes to return to the mainland as soon as possible to look after him.

D3

18. He is 71 and has a clear record. His solicitor Mr. Hui informed me that D3 is married. He and his wife (aged 67)  are both retired. They rely on a monthly pension of RMB3,400. In mitigation, Mr. Hui submitted that D3 has hypertension and had 2 strokes. His wife suffers from diabetes and heart disease.

Sentence

19. Time after time, the courts in Hong Kong have expressed in very clear terms that being in financial difficulty (however serious)  or having a sick family member (however ill)  is no mitigating factor for committing a crime, needless to say mainlanders coming to Hong Kong as a fraud syndicate.

20. In HKSAR v Yang Tulian & others[1] CACC 177/2012, Yeung V-P held :-

The seriousness of street deception has been touched upon in many similar cases and there is no need for this court to emphasize it again. Such crimes not only cause the victims to lose their properties, but also frighten them without valid reasons. In HKSAR v Onyang Guilan & others CACC 251/2008, this Court held that the starting point for street deception involving a syndicate should be between 3 and 3.5 years, depending on the seriousness of the case, and that an additional 6 months should be considered for each additional charge.

…the victim's loss was not huge, not because the applicant and her accomplice had sympathy for the victim, but rather they had deceived the victim of all her properties. Therefore, this court takes the view that the quantum of property loss sustained by the victim is not the most important factor to be considered when sentencing. The victim of the second charge suffered no financial loss, all because the police officers were able to detect the applicant's crime in a timely manner. Therefore, the victim did not sustain any property loss is not a reason for reducing the sentence[2].

Finally, Yeung V-P held that street deception must carry a severe punishment, so that there is a deterrent effect[3].

21. For the purpose of sentencing, I treat all defendants in the present case as fresh offenders. They might have played different roles in each scam, but each person's culpability is the same because each role had its own contribution towards the success of the scam. Since D1 to D3 are all mainlanders who came to Hong Kong to deceive passersby on the street, I consider a starting point of 3.5 years' imprisonment, which I would adopt, appropriate and just for each charge.

D1

22. For Charge 1, with the guilty plea, the sentence becomes 28 months. I am aware of D1's health issues, but they are not life-threatening or terminal at this stage. She is entitled to receive and is receiving proper medical treatment whilst in prison. I do not see the need to grant her any discount on medical grounds. I sentence D1 to 28 months' imprisonment.

D2

23. For Charges 1 and 2, with the guilty pleas, the sentence becomes 28 months each. Apart from this, I see no other mitigating factors which warrant any further reduction. I sentence D2 to 28 months' imprisonment for each charge. Bearing in mind the totality principle, I order 6 months in Charge 2 to run consecutive to Charge 1, arriving at a total prison term of 34 months for both charges.

D3

24. For Charge 2, with the guilty plea, the sentence becomes 28 months. I am aware of D3's age. If he could come to Hong Kong from the mainland to commit a crime, he is young and physically fit enough to serve his sentence. I do not see the need to grant him any discount for his old age. I sentence D3 to 28 months' imprisonment.