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CACC 446/2007
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF APPEAL
CRIMINAL APPEAL NO. 446 OF 2007
(ON APPEAL FROM DCCC No. 617 of 2007)
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| BETWEEN |
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HKSAR |
Respondent |
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and |
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ZHENG YOUWEN (鄭游文) |
Applicant |
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YANG MEIYING (楊梅英) |
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CHEN XIAOLIA (陳小麗) |
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LAI HUIYING (賴惠英) |
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Before: Hon Stuart-Moore VP, Yeung JA and Hartmann JA
Date of Hearing: 22 April 2009
Date of Judgment: 22 April 2009
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J U D G M E N T
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Hon Yeung JA (giving the judgment of the Court):
Background Facts
1. This is yet another “street deception” case involving the use of a “spiritual healer”, committed by Mainlanders who came to Hong Kong for the sole purpose of perpetrating the crime.
2. The applicants, Zheng Youwen (A1), Yang Meiying (A2), and Chen Xiaolia (A3) came to Hong Kong via Lo Wu together on 14 May 2007 whilst Lai Yuiying (A4) came to Hong Kong via the same checkpoint the next day.
3. On 17 May 2007 at around 7.30 a.m. in Sai Kung, the applicants, each playing a different role, targeted the victim, a 76-year old woman, with a view to defraud her.
4. A4 first accosted the victim and after the victim disclosed that she suffered from a lot of ailments, A2 appeared, saying her grandfather was a great doctor/healer. A3 then also appeared and they purported to take the victim to look for the great doctor/healer.
5. In the meantime, A1 was in the vicinity and was in frequent contact with A2.
6. A2 subsequently said her grandfather was busy. She then suggested that they should go to have tea first and she would arrange for the victim to see her grandfather later.
7. On the way to the restaurant, the applicants told the victim that her son was being troubled by evil spirits and unless they were driven out, the victim would have no son to attend her funeral upon her death, a dreadful event according to Chinese traditions.
8. At the restaurant, A2 made a call allegedly to her grandfather and then passed the phone to the victim. Over the phone, the victim was told by a man at the other end that he could cure rheumatism. The victim was further told that her son was in grave danger as he was being haunted by evil spirit, and that if the matter were not fixed, the victim would have no son to attend her funeral upon her death. The man said he could drive away the evil spirit to cure the victim’s son. A2 then told the victim to give her a chain and to make a trip to Taiwan in order that her son could be cured.
9. Fortunately for the victim, the applicants’ behaviour aroused the suspicions of an off-duty police sergeant whose timely intervention led to the arrest of the applicants.
10. Upon their arrests, each of the applicants was found to have an Octopus card and a mobile phone. Octopus card records showed that the applicants traveled together from Prince Edward MTR station to Sai Kung in the morning of 17 May 2007. The call records of their mobile telephones further showed that they were in frequent contacts with one another at the material times.
11. The applicants were charged with conspiracy to defraud and appeared before Judge Stanley Chan in the District Court. The applicants pleaded not guilty to the charge, but were all convicted after trial.
12. The judge adopted a basic starting point of 36 months for each of A1, A2 and A4, and an increased one of 3 ½ years for A3 as she had a previous conviction for an identical offence for which she was sentenced to 3 years’ imprisonment in 2003.
13. The judge further enhanced the starting points by 50% under s 27(2) of the Organised and Serious Crimes Ordinance, Cap 455 because the offence was prevalent.
14. In the end, the judge sentenced A1, A2 and A4 to 54 months’ imprisonment, and A3 to 63 months’ imprisonment.
15. The applicants all complain that their sentences were manifestly excessive and seek leave to appeal against sentence, having abandoned their earlier applications for leave to appeal against conviction. The applications of A2, A3 and A4 are out of time and they seek an extension of time to pursue their applications.
Grounds of Appeal
A1
16. A1, in his letter to the court, did not say why his sentence is excessive. He just points out his family’s difficulties and says he is remorseful. He asks for leniency.
A2
17. A2 suggests that the 50% sentence enhancement is excessive and arbitrary. Pointing out that street deception offence was actually on the decline, A2 emphasizes that there were similar cases where the court did not enhance the sentence. He mentioned the cases of HKSAR v He Qiu (CACC 868/2007) and HKSAR v Huang Zhijuan & Others (CACC 501/2008), in which the trial judge had not enhanced the sentences imposed on the defendants.
18. A2 further says that she knows what she did is wrong and asks for a chance to start afresh. She claims to be ignorant of the law.
A3
19. A3 points out the financial difficulties that her family faces in trying to support her children who had been admitted to universities. She says she is remorseful and asks for leniency. She also suggests that the 50% sentence enhancement is excessive.
A4
20. A4 also emphasizes her family difficulties and asks to be given a chance. She claims to have been cheated by a lawyer who told her not to plead guilty. She pleads for a more lenient sentence.
Discussion
21. Ms Winsome Chan, led by Mr Robert SK Lee, SC, for the respondent, has helpfully provided us with the relevant papers in HKSAR v He Qiu and HKSAR v Huang Zhijuan, the two cases referred to by A2. In He Qiu, the judge sentenced the defendant, who pleaded guilty to two counts of obtaining property by deception, to 26 months’ imprisonment. In Huang Zhijuan & Others, the judge adopted a starting point of 3 ½ years for a charge of conspiracy to defraud.
22. Whilst He Qiu and Huang Zhijuan are both “street deception” cases, there is no indication that the prosecution had applied for a sentence enhancement under the Organized and Serious Crimes Ordinance. The “more lenient” sentences imposed in those two cases have no bearing on the sentences imposed on the applicants and the only issue we have to consider is whether the sentences imposed on the applicants are proper.
23. We want to repeat what this Court said in HKSAR v Ye Yaliu and Others (unreported, CACC 85/2008):
“The offences in question are very serious offences. The applicants preyed upon the naivety, gullibility and superstition of the victims by frightening them with ill fates to their loved ones. The victims suffered or would suffer heavy financial losses. More importantly, the losses to the victims were, very often, losses of their entire life savings and they would not be compensated.
Despite widespread publicity exposing ‘street deception’ cases, they remain prevalent. The judge rightly emphasized, as an aggravating factor, that the applicants were visitors coming to Hong Kong for the sole purpose of furthering their criminal enterprises.
The applicants and others who continue to commit ‘street deceptions’ must be deterred. The offences call for heavy sentences. The personal backgrounds and family circumstances of the applicants are not mitigating factors. If they are concerned about their families, they should not have come to Hong Kong to commit the offences in the first place.”
24. In HKSAR v Liang Yaqiong and another [2009] 1 HKLRD 334, this Court held that a proper starting point for a single offence of “street deception” is three years’ imprisonment. This Court also stated at para 19:
“If the applicants had been previously sentenced for a scam of this type following an earlier visit to Hong Kong, there would have been very justification for an increased starting point in precisely the same way that an earlier conviction will often amount to an aggravating factor when an offender has previously committed an offence of the same kind (see HKSAR v Chan Pui-chi [1999] 2 HKLRD 830).”
25. Whether “street deception” cases are on the decline or not, they remain prevalent on the evidence before the judge and the judge was entitled to enhance the sentence under the Organised and Serious Crimes Ordinance. A 50% enhancement is a proper one (see HKSAR v Ma Suet-chun & others [2001] 4 HKC 337).
26. The starting points adopted by the judge, 3 years for A1, A2 and A4, and 3 ½ years for A3 are entirely appropriate. The 50% enhancement of sentence under the Organized and Serious Crimes Ordinance is justified.
27. We are satisfied that the sentences imposed on the applicants are not manifestly excessive and their applications are dismissed.
| (M. Stuart-Moore) |
(W Yeung) |
(M.J. Hartmann) |
| Vice-President |
Justice of Appeal |
Justice of Appeal |
Mr Robert S K Lee, SC, SADPP and Ms Winsome Chan, SPP of the Department of Justice for the Respondent.
1st , 2nd ,3rd and 4th Applicant: In person.
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