DCCC446/2023

DCCC446/2023

A A B B DCCC 446/2023 C [2024] HKDC 380 C D D IN THE DISTRICT COURT OF THE E HONG KONG SPECIAL ADMINISTRATIVE REGION E CRIMINAL CASE NO 446 OF 2023 F F G -------------------------------- G HKSAR H H v I HO WAI LOK (D1) I *1 (D2) J J -------------------------------- K K Before: His Honour Judge Tam L L Date: 4 March 2024 M Present: Mr Lai Kai Yeung, Anson, Public Prosecutor of Department M of Justice, for HKSAR N N Mr Chan Ka Sing, instructed by Edmund W H Chow & Co, O for the defendant O Offences: [1] , [3] & [5] Conspiracy to defraud（串謀詐騙） P P [2] & [4] Dealing with property known or believed to Q Q represent proceeds of an indictable offence（處理已知道或 R 相信為代表從可公訴罪行的得益的財產） R S S T T 1 There is a gag and anonymity order in force to protect D2’s identity: see para 10 herein. U U V V  -2- A A B B [6] Attempting to deal with property known or believed to C represent proceeds of an indictable offence（企圖處理已知 C 道或相信為代表從可公訴罪行的得益的財產） D D -------------------------------------- E REASONS FOR SENTENCE E -------------------------------------- F F G 1. D1 and D2 appeared before me. They faced a Charge Sheet G consisting of six charges as follows. H H I I 2. Charge 1 against D1 only: Conspiracy to defraud, contrary to J Common Law and punishable under section 159C(6) of the Crimes J Ordinance, Cap 200. K K L 3. Charge 2 against D1 only (alternative to Charge 1): Dealing L with property known or believed to represent proceeds of an indictable M M offence, contrary to section 25(1) and (3) of the Organized and Serious N Crimes Ordinance, Cap 455. N O O 4. Charge 3 against D1 only: Conspiracy to defraud, contrary to P Common Law and punishable under section 159C(6) of the Crimes P Ordinance, Cap 200. Q Q R 5. Charge 4 against D1 only (alternative to Charge 3): Dealing R with property known or believed to represent proceeds of an indictable S S offence, contrary to section 25(1) and (3) of the Organized and Serious T Crimes Ordinance, Cap 455. T U U V V  -3- A A B B 6. Charge 5 against D1 & D2: Conspiracy to defraud, contrary C to Common Law and punishable under section 159C(6) of the Crimes C Ordinance, Cap 200. D D 7. Charge 6 against D1 & D2: Attempting to deal with property E E known or believed to represent proceeds of an indictable offence, contrary F to section 25(1) and (3) of the Organized and Serious Crimes Ordinance, F Cap 455, and sections 159G and 159J of the Crimes Ordinance, Cap 200. G G H 8. D1 pleaded guilty to Charges 1, 3 and 5. No pleas were taken H from D1 on Charges 2, 4 and 6 because they were alternative charges I I against D1. After the relevant facts were admitted by D1, he was convicted J of Charges 1, 3 and 5. J K K 9. D2 pleaded not guilty to Charge 5 but guilty to the alternative L charge of Charge 6. After the relevant facts were admitted by D2, he was L convicted of Charge 6. Prosecution advised that they would not proceed M M against D2 on Charge 5; as a result, D2 was acquitted of Charge 5. N N O Special procedures relating to D2 O P P 10. Because of D2’s age (14 at the time of the offence and 15 Q now), there is a gag and anonymity order in force in relation to him for the Q purpose of protecting his identity. R R S 11. Because of his age, this court is obliged, unless satisfied it S would be undesirable to do so, under section 3F(1) of the Juvenile T T U U V V  -4- A A B B Offenders Ordinance, Cap 226, to remit D2’s case to a juvenile court in C order for him to be further dealt with according to law. C D D 12. There was no objection from either the prosecution or D2 for E such remission. Indeed, it was the wish of D2 to be so remitted. I for my E part did not see anything undesirable for such remission to take place. I F F therefore ordered D2’s case be remitted to the juvenile court (return day G being 1 March 2024) for him to be further dealt with according to law. I G further ordered that his bail be extended on the same terms until 1 March H H 2024; and that a certificate under section 3F(3) of Cap 226 was to issue. I I Procedure in relation to D1 only J J K 13. Hereinbelow, I shall deal only with the procedure relating to K D1. L L M 14. Only particulars of Charges 1, 3, 5 will be provided below. M N N 15. Particulars of Charge 1 are that D1, on a day unknown in or O around October 2022, in Hong Kong, conspired with a person known as O “Tsz Yeung” and other persons unknown, to defraud an unspecified elderly P P woman by dishonestly falsely representing that family member(s) of the Q said elderly woman was in need of bail money, thereby inducing the said Q elderly woman to part with a total cash sum of $20,000 Hong Kong R R currency. S S 16. Particulars of Charge 3 are that D1, on a day unknown in or T T around October 2022, in Hong Kong, conspired with a person known as U U V V  -5- A A B B “Tsz Yeung” and other persons unknown, to defraud an unspecified elderly C man by dishonestly falsely representing that family member(s) of the said C elderly man was in need of bail money, thereby inducing the said elderly D D man to part with a total cash sum of $20,000 Hong Kong currency. E E 17. Particulars of Charge 5 are that D1 and D2, between about 29 F F November 2022 and about 1 December 2022, both dates inclusive, in Hong G Kong, conspired together with a person known as “Tsz Yeung” and other G persons unknown, to defraud Lam Chu Wan Tai by dishonestly falsely H H representing that the said Lam Chu Wan Tai’s grandson was in need of I money for bail, thereby inducing the said Lam Chu Wan Tai to part with a I cash sum of $100,000 Hong Kong currency. J J K Facts admitted by D1 K L L Charge 5 M M 18. On 30 November 2022, at around 8:45 pm, Madam Lam (aged N N 89) (PW1) received a call from an unknown male caller (WP1) purporting O to be her grandson. On the phone, WP1 claimed to have been arrested by O the police and asked PW1 not to tell others before ending the call. P P Q 19. On 1 December 2022, at around 11:50 am, PW1 received Q another call from WP1 asking for HK$100,000 cash as bail money. WP1 R R also said others would come to collect the money from PW1. PW1 S received several other calls on the same day from WP1 urging for money. S Upon clarification with her daughter-in-law, PW1 discovered the scam. T T PW1’s daughter-in-law reported the matter to the police. U U V V  -6- A A B B C 20. PW1 agreed to participate in a controlled operation with the C police. Later, PW1 told WP1 that she could hand over the cash at a car D D park in Sha Chau Lei Tsuen, Tin Shui Wai. PW1 then carried a red plastic E bag containing a brown envelope containing newspapers to the car park E and waited for persons to collect the “cash”, with police lying in ambush. F F G 21. At about 4 pm the same day, D1 and D2 arrived at the car park G by taxi. They approached PW1. PW1 was told to return home to wait for H H calls. D2 boarded the taxi. D1 stayed at the car park. After PW1 returned I home, she picked up a call and was asked to hand over the money to D1 I and D2 at the car park. PW1 returned to the car park and handed over the J J red plastic bag to D1, who then proceeded to board the taxi. At this K moment, the operation turned overt. Both D1 and D2 were arrested by the K police. L L M Arrest and caution M N N 22. Upon arrest and caution, D1 said he was acting under the O instructions of his boss to collect the money being proceeds of a scam O performed by his boss against the old lady. P P Q 23. Two cautioned VRIs were taken from D1 in the presence of Q his mother as an appropriate adult. D1 stated that:- R R S (a) He got acquainted with D2 as they studied at the same S secondary school and they played basketball together; T T U U V V  -7- A A B B (b) he knew his boss (known as “Tsz Yeung”) would C swindle money out of the elderly and his boss would C ask him to collect the money; however, he has never D D met Tsz Yeung; E E (c) D2 called him (D1) at around 2:30 pm on 1 December F F 2022 and asked him to meet at Po Tin Estate and then G go to Tsing Yi (sic) for collecting money; a taxi ordered G by D2 picked him (D1) up in Tin Shing Court and then H H picked up D2 in Po Tin Estate; D2 then told the driver I to go to Tin Shui Wai; I J J (d) The two of them alighted from the taxi; D2 chatted with K PW1 who returned home afterwards; later, PW1 K returned to the scene whereupon he (D1) took a red L L plastic bag with a brown envelope from her; he did not M check the contents but knew there was money inside it; M (Charge 5) N N O (e) He had participated in two other similar incidents O previously: (i) in or around October 2022, he collected P P $20,000 from an elderly lady in Chai Wan (Charge 1); Q (ii) also in or around October 2022, he collected Q $20,000 from an elderly man in Tai Wai (Charge 3); R R during these incidents, his boss instructed him to collect S money from the elderly and go to a currency exchange S in Sham Shui Po to hand over the money; and T T U U V V  -8- A A B B (f) In each of these two incidents, he got a reward of C $2,500 for his labour. C D D Phone subscriber checks E E 24. Phone subscriber checks revealed that D1 and D2 had a series F F of phone calls commencing 1 December 2022. D2 first called D1 at 3:18 G pm on 1 December 2022. G H H Present admissions I I 25. D1 reiterates he admits the particulars of offence under J J Charges 1, 3 and 5. In particular, D1 admits that he committed the offence K subject of Charge 5 together with D2. K L L Criminal record of D1 M M 26. D1 has one dissimilar previous conviction recorded in N N September 2023 ie post the present offences. O O Antecedents of D1 P P Q 27. D1 is aged 18 (17 at the time of the offences), educated to F4, Q now working as salon assistant. He has previously worked as a part-time R R warehouse worker at the time of arrest. D1 is single and lives with his S mother and maternal aunt in Tin Shui Wai. S T T U U V V  -9- A A B B Mitigation of D1 C C 28. Mr Chan Ka Sing of counsel mitigated on behalf of D1. The D D following is a summary of the mitigation submissions. E E 29. D1’s parents divorced in 2018. D1 lives with his mother and F F maternal aunt. D1’s mother suffered a heart attack in early 2023. G G 30. D1 was a part-time warehouse worker at the time of the H H offences earning a monthly income of $9,000. He now works part-time in I a hair salon as a junior hairstyling assistant. I J J 31. D1 made frank admissions to the police and he pleads guilty K at the earliest opportunity. He had a clear record at the time of the offences. K L L 32. During the investigation of the present case, police discovered M he was involved in an “Affray” offence that took place in October 2022. M As a result, when D1 appeared in Tuen Mun Magistracy, his bail was N N objected to and he was remanded in custody. O O 33. D1 was detained from 1 December 2022 until 27 January P P 2023 before he finally obtained bail. Later, on 21 September 2023, he was Q bound over for 36 months in the sum of $2,000 in respect of the Affray Q offence. R R S 34. D1 committed the present offences out of greed and S foolishness. He was rebellious at the time. A man named “Tsz Yeung” T T introduced by D2 took advantage of D1 and persuaded him to work for him U U V V  - 10 - A A B B and commit the offences in return for easy money. D1 was not the C mastermind but was used as a foot soldier by the major player Tsz Yeung C who orchestrated the fraud. D1’s culpability is probably the least within D D the syndicate. E E 35. The victim of Charge 5 ie PW1 did not suffer any loss. F F G 36. But for his admissions to offences subject of Charges 1 and 3, G there would have been no evidence against D1 on those charges. H H I 37. D1 was only 17 when he committed the present offences. I J J 38. D1’s mother and aunt support him. He has finally learnt a K lesson. He decides to turn over a new leaf. K L L 39. Mr Chan acknowledged there are aggravating factors in the M case: syndicate targeting elderly people or people with vulnerabilities; M offences committed by more than one person; prevalent offences. N N O 40. Mr Chan referred to section 109A of the Criminal Procedure O Ordinance, Cap 221. P P Q 41. Mr Chan cited at length passages from the following cases:- Q R R (a) Secretary for Justice v SHY [2020] 1 HKLRD 694, at S para 2, per Poon CJHC; S T T U U V V  - 11 - A A B B (b) R v Chau Ho Wan, CACC 389/1993, at pages 2-32; C C (c) Wong Chun Cheong v HKSAR (2001) 4 HKCFAR 12, D D 24C-H, per Ribeiro PJ; E E (d) R v Cheung Wing Wai & Ors, CACC 289/1992, at page F F 5, per Bokhary JA (as he then was); G G (e) HKSAR v Wong Tsz Hin, CACC 38/2012, at paras 22- H H 26, 36-37, per Yeung VP; I I (f) HKSAR v Fung Ka Nok, HCMA 1138/1998, at page 7, J J per V Bokhary J; K K (g) Secretary for Justice v Huang Long Wei [2009] 3 L L HKLRD 136, at para 16, per Cheung JA; M M (h) Secretary for Justice v CMT & Anor [2021] 1 HKLRD N N 1, at paras 20 & 70, per Poon CJHC; O O (i) Secretary for Justice v Li Cheuk Ming [1999] 1 P P HKLRD 63, 65E-G, per Chan CJHC (as he then was); Q Q (j) Secretary for Justice v Wong Chi Fung & Ors [2018] 2 R R HKLRD 699, at paras 138-139 & 141, per Poon JA (as S Poon CJHC then was); S T T 2 In court, it was mistakenly said that this was “per P Chan J (as he then was)”: this is incorrect. U U V V  - 12 - A A B B (k) R v Brown (1981) 3 Cr App R (S) 294, 295, per C McCullough J; and C D (l) HKSAR v Chan Pak Yin & Ors [2021] HKDC 1621, at D paras 72-76, per HHJ G Lam. E E F 42. Mr Chan has no particular submission to make on the F prosecution’s intention to furnish information pursuant to section 27(2) of G G Cap 455 with a view to asking for enhanced sentence. H H 43. Mr Chan also referred to HKSAR v Tsang Kai On, I I CACC 79/2010, and asked for a further discount because the offences J subject of Charges 1 and 3 only came to light as a result of D1’s admissions J to the police; there was no evidence against him otherwise. K K L 44. Mr Chan asked the court to impose a lenient sentence on D1. L Mr Chan also asked the court not to impose a prison term on D1 due to his M M age. N N O 45. Mr Chan asked the court to consult the Young Offender O Assessment Panel before sentence. Mr Chan asked the court to obtain P P reports on Rehabilitation Centre, Detention Centre, Training Centre and Q Community Service Order. Q R R 46. Mr Chan submitted on behalf of D1 a total of 7 mitigation S letters all written in Chinese with English translation. The writers were S respectively D1’s employer, a social worker, D1 himself, his mother, his T T maternal aunt, a District Councilor and finally a Mr Leung, holder of SBS. U U V V  - 13 - A A B B The contents are generally that D1 was a sincere, punctual, responsible C person; that he will be re-employed by the same employer after serving his C sentence; that D1 took advantage of “Youth Employment and Training D D Programme” offered by the Labour Dept and worked part-time in a hair E salon since November 2023. Most if not all of the letter writers asked for E a lenient sentence on behalf of D1 so that he may turn over a new leaf. F F G 47. Mr Chan also submitted 3 medical reports on D1 showing that G he has been suffering thyrotoxicosis for a long time. H H I 48. After the obtaining of the reports, Mr Chan further submitted I that the contents of the reports have been explained to D1 and his family; J J that D1 agreed with them. K K 49. Mr Chan said that D1 is willing to attend the “Short, Sharp, L L Shock” programme offered by the Detention Centre; and that D1’s M employer has reserved a vacancy for D1 once he has finished the M programme. N N O 50. Mr Chan urged the court to give D1 one last chance so that he O may turn over a new leaf. Mr Chan assured the court that D1 has already P P cut off his ties with his baneful peers and wants to reform himself. Q Q Reports R R S 51. Because of D1’s age, I called for Training Centre, Detention S Centre, and Rehabilitation Centre suitability reports on him. I also made T T U U V V  - 14 - A A B B an order that the Young Offender Assessment Panel (“YOAP”) be C consulted. C D D 52. Two reports came back: one the Combined Multiple-Centres E suitability report (the first report), the other YOAP report (the second E report). F F G 53. The first report concluded that D1 is mentally and physically G fit for detention in all of those centres; that from the information available H H and after a general assessment of his behavior and attitude whilst on I remand, D1 was considered to be more suitable for detention in a Detention I Centre. J J K 54. The second report stated that “the Panel opines that “Short, K Sharp and Shock” disciplinary training of Detention Centre followed by a L L one-year statutory supervision upon release would be effective to deter him M from re-offending and strengthen his law-abiding sense. Hence the Panel M recommends Detention Centre Programme for this case.” N N O Sentence O P P 55. Under a Notice of Intention to furnish information pursuant to Q section 27(2) of OSCO, Cap 455, the prosecution submitted a witness Q statement dated 6 February 2024 under the hand of CIP Tang Kai Wing. R R S 56. Having read the witness statement, I am satisfied that S telephone deception cases are prevalent, and the extent of the harm caused T T to the community by recent occurrences of these cases is substantial. U U V V  - 15 - A A B B C 57. I have considered the various cases referred to by Mr Chan. C D D 58. Although Conspiracy to defraud is a serious offence, and there E are aggravating features in this case as acknowledged by Mr Chan, I cannot E ignore the fact that D1 is a young offender for whom imprisonment F F sentence is a last resort: section 109A of Cap 221 refers. G G 59. Both reports that have been called for speak with one voice: a H H recommendation that D1 be detained in a Detention Centre rather than any I other centres for which he is also mentally and physically fit. I J J 60. Striking a balance among the various sentencing principles of K deterrence, prevention, punishment, rehabilitation and retribution, I am of K the opinion that, in the circumstances of the case, and having regard to D1’s L L character and previous conduct, it is in his interest and the public interest M that he should undergo a period of detention in a Detention Centre. M N N 61. Therefore, I am minded to accept the recommendation of the O reports and make a detention order against D1, in lieu of imposing any O other sentence on him. P P Q 62. I impose the following sentences on D1. Q R R (D1, please stand) S S T T U U V V  - 16 - A A B B 63. On each of Charges 1, 3 and 5, I impose an order of detention C in a Detention Centre against D1, all to be served concurrently. C D D E E ( Isaac Tam ) F District Judge F G G H H I I J J K K L L M M N N O O P P Q Q R R S S T T U U V V