HKSAR v. CHEUNG KWUN CHING AND ANOTHER

CACC 220/2001

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 220 OF 2001

(ON APPEAL FROM DCCC 350 OF 2001)

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J U D G M E N T

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Hon Woo JA (giving the judgment of the Court):

There are two appeals against sentence made respectively by two of the three defendants who were D1 and D2 before Judge Wong in the District Court. Leave to appeal was granted to them by Cheung JA on 5 October 2001. D1 and D2 are women in their thirties and together with D3, a male, they faced two charges of conspiracy to defraud. D1 and D3 faced the first charge, being conspiracy to defraud, contrary to Common Law and punishable under section 159C(6) of the Crimes Ordinance, Cap 200 in that on 10 January 2001, D1 and D3 conspired together with another person unknown to defraud LEE Lan-far ("Lee") one gold pendant and cash $16,273 by dishonestly falsely representing to Lee that the money and the gold pendant would be returned in full to Lee after completion of a blessing ritual which D1 and D3 represented to Lee would be performed by D3's grandfather with the money and the gold pendant in order to change the bad fate of the grandson of Lee.

2. All the defendants faced the second charge which was an identical conspiracy to defraud except that the date of the offence was 27 February 2001, the victim was POON Shun, and the amount deceived was $718,005, and 19 items of jewelleries.

3. The two victims were elderly ladies, who were, on the separate occasions mentioned in the charges, approached by D1 in the street. D1 asked the victim if she knew the whereabouts of a fortune-teller or a "fung shui" master, represented to be over 100 years of age and located somewhere in the neighbourhood. Conversation between D1 and the victim would develop and shortly thereafter, another conspirator would join in the conversation. These conversations were to impress upon the victim that the fortune-teller or "fung shui" master possessed supernatural powers and was able to change the fate or luck of a person. After talking and walking for a while, D3 would emerge as the grandson of the fortune-teller or "fung shui" master. D3 would then be asked whether his grandfather was agreeable to see D1 who was looking for him. D3 would leave for a while allegedly to see if his grandfather would be willing and return to say that his grandfather had told him that he knew about the bad fate of the family members of the victim. D3 would tell the victim that his grandfather would be able to change the bad fate or luck of the victim's family members by blessing her valuables. As a result, both victims under the two charges provided their respective valuable properties to D3, who promised to return them after the blessing ritual. D3 then told the victims to go home to burn a joss stick. After they complied, they would return to the meeting place where D3 and the other co-conspirators were not to be found.

4. In D1's application, only one ground of appeal appear, which is that she feels that the term of imprisonment is too long. In the notice of application of D2, the ground of appeal advanced is that she has three very young children and her father-in-law is suffering from apoplexy and dementia, and that her imprisonment results in no one taking care the young and the old.

5. All the three defendants were two-way permit holders from the Mainland. They committed the crimes during their sojourn in Hong Kong.

6. When passing sentence, the Judge said:

"Simple-minded, elderly people need to be protected from people like you. Just think of the consequences of these two elderly ladies had their savings been stripped and their ornaments been taken away and they became destitute. What are they going to do? Who can they resort to if they need money should they become ill?

For the 2nd defendant, if you say that you need money to buy medicine for your father, have you ever thought that if the old lady were in need of money to buy medicine in due course, what is she going to do? Losing money in mahjong is not an excuse for you to embark on such enterprise.

Deception crimes have become too prevalent these days. For other sort of deceptions, like buying electronic parts, pills and all these, the victims are partly to blame because of their greed. But for this sort of spiritual deception, you played on the kind heart of these elderly ladies who really have the interest of their children and grandchildren in mind. This is unforgivable.

...

Crimes of this sort are becoming too prevalent and a deterrent sentence is necessary. Normally for cases of this sort the starting point will be 3 years, but in view of its prevalence I adopt a starting point of 4 years. And in particular you deceived elderly ladies. So I give you a one-third reduction for your plea and for each charge each of you will serve 2 years and 8 months' imprisonment.

In respect of the 1st and the 3rd defendants, the sentence on the 2nd charge will start to run after you've served 8 months in respect of the 1st charge, making a total of 3 years and 4 months."

7. This morning, both appellants try to impress upon us with their family circumstances - what hardship their incarceration has caused to the members of their respective families. This is not a matter that should properly be taken into account as a mitigating factor. They had taken advantage of their two-way permits to come to Hong Kong to commit the crimes and they should have anticipated what was to happen to their family members if they were caught.

8. However, it is necessary to examine whether the 3 years starting point mentioned by the Judge is normal for cases of this sort and whether his increasing the starting point to 4 years was justified.

9. In the case of HKSAR v Ma Suet-chun and others CACC 1/2001 (26 July 2001, unreported), which was a conspiracy to defraud by representing to the victim that she could buy very valuable medicine that could cure cancer and resell it almost immediately at a big profit. The deception was a pre-planned action and it was a kind of operation of a so-called "tonic medicine gang" usually directed at unsuspecting elderly women of low education level. In that case where the failed deception attempt involved $250,000, the trial judge took a starting point of 2 years' imprisonment. He also granted the prosecution's application for enhancement of sentence after the prosecution produced evidence of prevalence of the specific kind of offence and he enhanced the starting point by 50% and imposed a sentence of 3 years' imprisonment in the end.

10. After referring to HKSAR v LEE Sai-wing [1998] 4 HKC 281, the Court of Appeal in MA Suet-chun took the view that it would be appropriate to enhance the sentence by 50% in order to deter the commission of similar crimes. However, there was no precedent prior to the case to indicate that the court would enhance the sentence by 50% for similar cases. In such circumstances, the court was of the opinion that if the sentence would suddenly be enhanced by 50%, the defendants would feel a sense of unfairness. In the result, the court altered the enhancement from 50% to 25%, making the sentence one of 2 years and 6 months.

11. MA Suet-chun, like the instant case, was a street deception case, directed at unsuspected and uneducated elderly persons, albeit that the nature of the deception was different. MA Suet-chun's deception aimed at exploiting the chance-taking attitude of victims who hoped to reap a big profit in a very short time. On the other hand, as the Judge said, the deception in the instant case was spiritual deception, preying on the kind heart of the elderly victims who had the interest of their family members in mind. No greed of the victims was involved, making this case more serious than MA Suet-chun.

12. This case should also be viewed against cases where deception was practised on job seekers such as HKSAR v CHIANG Chun-wai and Anr CACC 11/2001 (12 October 2001, unreported) and HKSAR v LAU Chung-yee and Anr CACC 420/2000 (27 November 2001, unreported). In those cases, the defendants were operating a company advertising the availability of jobs. Job seekers responding to their advertisements were employed with an attractive salary for an unskilled job. They were then enticed to invest either in local London gold or silver trading on a margin account or in alleged profit-producing schemes of the company. The two cases were quite similar on facts, and indeed, some defendants appeared in both cases. The companies involved were shams which had been set up solely for the purpose of deceiving unsuspecting members of the public who were seeking employment into parting with their money. The scam was a sophisticated one involving detailed planning and not inconsiderable expense. In those two cases, the trial judges adopted a starting point of 4 years' imprisonment, which was upheld by the Court of Appeal. These cases differ from the present one in that they involved deception of job seekers and sophisticated and detailed planning operated under the guise of a legitimate business. That was, of course, more serious than the present case. In all the circumstances of this case, we are of the view that the 3 years starting point adopted by the Judge is on the high side. That in fact is the submission of Mr Poon, counsel for the respondent. We think that a starting point of about 2½ years would have been appropriate, taking into account that over three-quarters of a million dollars was involved.

13. MA Suet-chun is also the authority for the court to accept evidence adduced by the prosecution to show the prevalence of the offence with which the court has to deal, and such evidence is not confined to the evidence admissible by rules of evidence in the trial of the issue of guilt or innocence of the defendant. In MA Suet-chun, the prosecution provided through police witnesses material about the number of street deception cases that had taken place in various police districts in the northern part of Hong Kong, and the amounts involved in such cases. The adduction of evidence was pursuant to section 27 of the Organised and Serious Crimes Ordinance, Cap 455. However, the prosecution is not always required to produce evidence to demonstrate how prevalent the offence is. That may be a matter of public knowledge. Appellate courts may defer to the firsthand knowledge acquired by trial courts through past experience of sentencing patterns. Although a court may, through its judicial notice, be well aware that an offence is indeed on the increase, it is perhaps the safer course for it to act only upon hard and specific evidence to that effect. See Cross and Cheung: Sentencing in Hong Kong, 3rd Ed, page 340.

14. The sentences imposed by the Judge on the defendants in this case were passed on 15 June 2001. That was before this Court's decision in MA Suet-chun which was made on 26 July 2001. What was said in MA Suet-chun, that if the sentence were to be suddenly enhanced by 50% the defendants would feel a sense of unfairness, apply similarly in that case as in this case. In the circumstances, the proper enhancement imposed should be in the region of 25% instead of the 1/3 adopted by the Judge. Although the enhancement adopted by the Judge was not wrong in principle or inappropriate but for the absence of notice aspect and in itself would not have made the sentence manifestly excessive, it was on the high side. Mr Poon also accepts this.

15. When comparing with a proper starting point of about 2½ years for each of the charges, and a proper enhancement of 25% instead of the 33%, a proper starting point of about 37 months would have been appropriate, before a discount of 1/3 for the guilty plea. That differs very substantially from the 4 years starting point adopted by the Judge. In the circumstances, we are of the view that the 4 years starting point, inclusive of the enhancement, is manifestly excessive. We therefore allow the appeals. We substitute a sentence of 2 years' imprisonment for each of the charges. That will be the sentence for D2, who was convicted of only the second charge. Regarding D1, who was convicted of both of the charges, 2 years' imprisonment is imposed for each of those two charges, and 8 months of the sentence for the second charge will be consecutive to that for the first charge, making a total of 2 years and 8 months' imprisonment. To this extent, the appeals succeed.