區域法院（刑事）Deputy District Judge Peony Wong9/10/2024[2024] HKDC 1743
DCCC1073/2023
A A
B B
DCCC 1073/2023
C [2024] HKDC 1743 C
D D
IN THE DISTRICT COURT OF THE
E HONG KONG SPECIAL ADMINISTRATIVE REGION E
CRIMINAL CASE NO 1073 OF 2023
F F
G ------------------------------ G
HKSAR
H H
v
I JHAMAL-AZAD (1st Defendant) I
------------------------------
J J
K Before: Deputy District Judge Peony Wong K
Date: 10 October 2024
L L
Present: Ms Chung Wing Sze Natalie, Public Prosecutor, for HKSAR/
M Director of Public Prosecutions M
Ms Maria P M So, instructed by Tang, Wong & Cheung,
N N
st
assigned by the Director of Legal Aid, for the 1 Defendant
O Offences: [1], [6], [13] & [15] Obtaining service by deception (以欺騙 O
P 手段取得服務) P
[2], [4], [8] & [12] Conspiracy to deal with property known or
Q Q
believed to represent proceeds of an indictable offence (串謀
R 處理已知道或相信為代表從可公訴罪行的得益的財產) R
S [3] Dealing with property known or believed to represent S
proceeds of an indictable offence (處理已知道或相信為代
T T
表從可公訴罪行的得益的財產)
U U
V V
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A A
B B
[5] & [14] Knowingly misleading a police officer by giving
C false information (明知地提供虛假資料以誤導警務人員) C
[9] & [10] Fraud (欺詐罪)
D D
[11] Theft (盜竊罪)
E E
[16] Possession of false instruments (管有虛假文書)
F [17] Using an identity card relating to another person (使用他 F
人的身分證)
G G
[18] Driving without a valid driving licence (駕駛時無有效
H H
駕駛執照)
I [19] Using a motor vehicle without third party insurance (沒 I
有第三者保險而使用汽車)
J J
[20] Going equipped for stealing (外出時備有偷竊用的物
K K
品)
L L
---------------------------------------------
M M
REASONS FOR SENTENCE
N --------------------------------------------- N
O O
1. The 1 Defendant (hereinafter referred to as “D1”) pleaded
st
P P
guilty to 19 charges before me: -
Q Q
(a) Charge 1: Obtaining service by deception, contrary to
R R
section 18A(1) of the Theft Ordinance, Cap 210;
S S
(b) Charge 2: Conspiracy to deal with property known or believed
T T
to represent proceeds of an indictable offence, contrary to
U U
V V
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A A
B B
section 25(1) and (3) of the Organized and Serious Crimes
C Ordinance, Cap 455 and sections 159A and 159C of the C
Crimes Ordinance, Cap 200;
D D
E (c) Charge 3: Dealing with property known or believed to E
represent proceeds of an indictable offence, contrary to
F F
section 25(1) and (3) of the Organized and Serious Crimes
G Ordinance, Cap 455; G
H H
(d) Charge 4: Conspiracy to deal with property known or believed
I to represent proceeds of an indictable offence; I
J J
(e) Charge 5: Knowingly misleading a police officer by giving
K false information, contrary to section 64(b) of the Police K
Force Ordinance, Cap 232;
L L
M (f) Charge 6: Obtaining service by deception; M
N N
(g) Charge 8: Conspiracy to deal with property known or believed
O to represent proceeds of an indictable offence; O
P P
(h) Charge 9: Fraud, contrary to section 16A of the Theft
Q Ordinance, Cap 210; Q
R R
(i) Charge 10: Fraud;
S S
T
(j) Charge 11: Theft, contrary to section 9 of the Theft T
Ordinance, Cap 210;
U U
V V
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A A
B B
(k) Charge 12: Conspiracy to deal with property known or
C believed to represent proceeds of an indictable offence; C
D D
(l) Charge 13: Obtaining service by deception;
E E
(m) Charge 14: Knowingly misleading a police officer by giving
F F
false information;
G G
(n) Charge 15: Obtaining service by deception;
H H
I (o) Charge 16: Possession of false instruments, contrary to I
section 75(1) of the Crimes Ordinance, Cap 200;
J J
K (p) Charge 17: Using an identity card relating to another person, K
contrary to section 7A(1A) of the Registration of Persons
L L
Ordinance, Cap 177;
M M
(q) Charge 18: Driving without a valid driving licence, contrary
N N
to section 42(1) and (4) of the Road Traffic Ordinance, Cap
O 374; O
P P
(r) Charge 19: Using a motor vehicle without third party
Q insurance, contrary to section 4(1) and (2)(a) of the Motor Q
Vehicles Insurance (Third Party Risks) Ordinance, Cap 272;
R R
and
S S
T
(s) Charge 20: Going equipped for stealing, contrary to T
section 27(1) of the Theft Ordinance, Cap 210.
U U
V V
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A A
B B
Facts of the Case
C C
Charges 1 to 6 and 8 to 15
D D
E 2. Charges 1 to 6 and 8 to 15 arose from cryptocurrency sale and E
item sale scams with similar modus operandi. Involved in these charges
F F
were: -
G G
(a) 3 telephone numbers belonging to 2 cryptocurrency trading
H H
companies (hereinafter referred to as the “trading company
I numbers”), which were linked to their WhatsApp I
applications;
J J
K (b) 3 telephone numbers belonging to 3 other individuals K
(hereinafter referred to collectively as the “other numbers”);
L L
M (c) 4 bank accounts, with 2 of them linked respectively to the M
other numbers through the FPS system; 1 of them linked to
N N
one of the other numbers and also one of the trading company
O numbers through the FPS system; and 1 of them belonging to O
D5; and
P P
Q (d) 2 QR codes for Tap & Go and Alipay accounts. Q
R R
3. Out of the 6 telephone numbers involved, D1 reported loss of
S S
2 telephone numbers belonging to the 2 cryptocurrency trading companies
T
and 2 other individuals, either at the telecom shop (Charge 1; Charge 13) T
or both at the police station and the telecom shop (Charges 5 and 6; Charges
U U
V V
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A A
B B
14 and 15), thereby enabling him to take over the use of the telephone
C numbers. C
D D
4. In addition, D1 claimed to be a person with the name
E Mohammad Ali Javed (hereinafter referred to as “Mr Javed”) when he E
reported the loss of one of the telephone numbers of the 2 nd cryptocurrency
F F
trading company at the police station and the telecom shop. The lost
G identity card of the said Mr Javed was later produced by D1 to the police G
upon enquiries prior to his arrest (Charge 17). Mr Javed had lost his bag
H H
containing his ID card on 9 May 2022, and he did not know that someone
I had used his ID card to report loss of a telephone number on 27 July 2022 I
at the police station.
J J
K Cryptocurrency Sale Scams K
L L
5. For the cryptocurrency sale scams, D1 waited for the
M customers of the 2 cryptocurrency trading companies to approach the M
relevant telephone numbers by WhatsApp, and impersonated the staff,
N N
agreeing to transfer cryptocurrencies to the customers in return for
O payment, and providing the customers with bank accounts, which included O
the 3 bank accounts that were linked to the 3 telephone numbers in the
P P
manner stated hereinabove, and D5’s bank account. The amounts involved
Q in these frauds were HK$500,000 (Charge 9 fraud) and HK$8,000 (Charge Q
R
10 fraud). R
S S
T T
U U
V V
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A A
B B
Item Sale Scams
C C
6. For the item sale scams, 4 buyers had purchased different
D D
kinds of items through Facebook including clothing, commemorative
E banknote and figure, involving purchase price of HK$1,300, HK$1,200, E
HK$5,800 and HK$600, totaling HK$8,900, being deposited into one of
F F
the said bank accounts linked to one of the other numbers. There are no
G substantive fraud charges for these scams, but the conspiracy to money G
launder charge relating to this bank account is Charge 12, which includes
H H
the said item sales scams purchase price and other sums, totaling
I HK$116,853.60. I
J J
Money Laundering Charges
K K
7. The 5 bank accounts relating to the conspiracy to money
L L
launder and money launder charges relate to the following: -
M M
(a) Charge 4: D4’s bank account, involving 10 deposits of
N N
HK$259,616.85 and 34 withdrawals of HK$259,746.99
O between 6 April and 7 May 2022; O
P P
(b) Charge 2: Account of Lin Hiu-man, involving 15 deposits of
Q HK$216,596 and 17 withdrawals of HK$206,385.71 between Q
26 March and 17 May 2022 (from which HK$189,922 were
R R
transferred from this account into D1’s account on 3 May
S S
2022, the same day when HK$200,000 in relation to Charge
T
9 was deposited into this account by the victim); T
U U
V V
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A A
B B
(c) Charge 12: Account of Lin Hiu-man, involving 49 deposits of
C HK$116,853.60 and 67 withdrawals of HK$116,853.60 C
between 12 May and 4 July 2022;
D D
E (d) Charge 8: D5’s bank account, involving 1 deposit of E
HK$100,000 on 3 May 2022 from the victim of the
F F
cryptocurrency scam of Charge 9, and 3 successful
G withdrawals totaling HK$97,900 were made through FPS; G
and
H H
I (e) Charge 3: D1’s bank account, involving 240 deposits of I
HK$850,708.44 and 576 withdrawals of HK$845,791.56
J J
between 26 March and 2 July 2022. The account balance
K remained at HK$1 from 17 May 2021 to 26 March 2022, i.e. K
before the relevant deposits.
L L
M (f) The total amount of money dealt with under these charges M
amounts to HK$1,543,774.89.
N N
O D1’s Admission Concerning Charges 1 to 15 O
P P
8. D1 was intercepted by the police on 8 August 2022 as he
Q entered a hotel in Mongkok. Under arrest and caution, D1 admitted that he Q
found one of the cryptocurrency trading companies’ numbers (the number
R R
involved in Charges 5, 6, 9 and 10) and one of the other numbers (the
S S
number involved in Charges 1 and 2), from a cryptocurrency trading
T
platform called Binance. He reported the loss of the said telephone T
numbers at the police station and the telecom company in order to get a
U U
V V
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A A
B B
SIM card replacement, so that the customers would seek him out and he
C could defraud money from them by asking for transfer of money in C
exchange for cryptocurrency which never materialized.
D D
E 9. D1 also admitted that he had purchased D4’s account E
(involved in Charge 4 Conspiracy to Money Launder) and another account
F F
(involved in Charge 2 Conspiracy to Money Launder) for HK$1,000 each,
G and had control over these accounts. D5’s account (involved in Charge 8 G
Conspiracy to Money Launder) was given by a friend and he had sent the
H H
account number to the victim in one of the cryptocurrency scam (Charge 9
I Fraud). D1 admitted having withdrawn or spent the money transferred into I
these 3 accounts, and also transferring some of the money in those accounts
J J
into his own bank account.
K K
10. D1 also admitted having sent the 2 QR codes to the victim in
L L
the 2nd Cryptocurrency Scam. He had purchased the accounts relating to
M these 2 QR codes for HK$1,000 each. He had transferred the HK$8,000 M
from the victim (Charge 10 Fraud) into another bank account and
N N
withdrawn the cash.
O O
11. He stated under caution that he was unemployed and had no
P P
income, except for some temporary job. He also stated that his family
Q members were on CSSA. Q
R R
Charge 16
S S
T
12. A raid was conducted on D1’s home, where 3 forged salary T
statements and 3 forged utility bills were found. D1 admitted under caution
U U
V V
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A A
B B
that he had engaged someone online to make the said documents, by
C altering the name and address, for the purposes of income or address proof C
to the bank, so that the account’s deposit upper limit can be increased to
D D
receive more money. The said documents were submitted to the bank in
E digital form, but were not accepted, and hence the plan failed. E
F F
Charges 17 to 20
G G
13. D1 had arrived at the hotel on 8 August 2022 from the driver’s
H H
seat of a private car, and asked the hotel valet to park the car for him as he
I was a guest of the hotel. D1 produced an identity card belong to Mr Javed I
to the police officer (Charge 17). He was then brought to a hotel room for
J J
enquiries. His true identity was revealed.
K K
14. For Charges 18 and 19, he admitted under caution that he had
L L
bought the private car several months ago, and used his friend’s name for
M registration purposes. He had no driving licence, and had asked his friends M
with driving licence to drive for him. He had driven the car himself on the
N N
day of the arrest as he couldn’t find any driver.
O O
15. At his arrest, 3 mobile phones and 5 SIM card jackets were
P P
found on D1. 2 of the SIM card jackets relate to the 2 numbers stated above
Q of one of the cryptocurrency trading companies, and were still active. The Q
rest of the SIM cards were no longer active. Charge 20 concerns the 2 SIM
R R
cards that were still active.
S S
T T
U U
V V
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A A
B B
D1’s Antecedent Statement and Mitigation
C C
16. D1 is 27 years old and has a long term girlfriend (D2 who was
D D
a housewife), a daughter and a son of 8 and 6 years old. He lived with his
E family, his parents and younger brothers and younger sister. He had E
studied up to Form 3, and his latest employment was food delivery work
F F
earning around HK$5,000 a month. He was also the recipient of CSSA of
G HK$3,000 per month. The Defence states that D1 was financially G
responsible for the entire household, and had committed the offences due
H H
to financial reasons.
I I
17. He has 6 conviction records, which includes 4 charges of theft
J J
(the last 2 charges on 6 September 2021) and 1 charge of fraud (on 17
K December 2018). He was sentenced to DATC order for the theft K
convictions in 2021, but he was wanted from 4 May 2022 (i.e. 3 months
L L
before the arrest for the present case) for breach of supervision order under
M the DATC order. M
N N
18. The Defence urges the Court to consider D1’s guilty plea, his
O cooperation with the police, his desire to be a good role model to his O
children and spend time with them. Defence also highlights that Charges
P P
1 to 6 and 8 to 15 were committed within around 4 months. The rest of the
Q charges, i.e. Charges 16 to 20 arose from the arrest of D1 and search upon Q
R
his premises. R
S S
T T
U U
V V
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A A
B B
Sentencing Considerations
C C
Charges 1, 6, 13 and 15 – Obtaining Service by Deception
D D
E 19. I have considered D1’s plea of guilty concerning Charges 1, E
6, 13 and 15, the nature of service involved, the sophistication in which the
F F
scheme was devised, D1’s role as mastermind, all mitigation advanced on
G his behalf, his criminal conviction record which include offences of G
dishonesty of theft and fraud, and commission of the present offences not
H H
long after release from similar convictions.
I I
20. I shall adopt 6 months’ each as the starting points for Charges
J J
1, 6, 13 and 15. Taking into account the guilty plea, the sentences are
K reduced by 1/3, making the sentences for Charges 1, 6, 13 and 15 to be 4 K
months’ imprisonment each.
L L
M Charges 2, 3, 4, 8 and 12 – Money Laundering and Conspiracy to Money M
Launder Charges
N N
O 21. In HKSAR v Boma [2012] 2 HKLRD 33, the Court of Appeal O
indicated factors which should be taken into account when sentencing
P P
money laundering charges: -
Q Q
(a) the nature of the predicate offence, if known, and the penalty
R R
available for the predicate offence;
S S
T
(b) the state of knowledge of the offender: the question of T
knowledge of the offender as to the nature of the predicate
U U
V V
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A A
B B
offence is relevant in that the person who knows the nature of
C the predicate offence is more culpable than the person who C
does not;
D D
E (c) an international dimension will always be a significant E
aggravating feature;
F F
G (d) the sophistication of the offence, including the degree of G
planning and whether deceit is practised to achieve the
H H
objective;
I I
(e) offence is committed by or on behalf of an organized criminal
J J
syndicate is an aggravating fact;
K K
(f) whether there is one transaction or many and the length of
L L
time over which the offence was committed;
M M
(g) it will be an aggravating feature where the offender continues
N N
to launder funds after he has discovered that the funds are the
O proceeds of an offence or after he has discovered the nature of O
an offence which is serious; and
P P
Q (h) the role of the offender and the acts performed by him. Q
R R
22. In the present case, D1 is the mastermind of the
S S
cryptocurrency scams. As for the Item Sale Scams, there is no evidence as
T
to whether D1 made the relevant posts on the internet. He agreed that he T
had received the money from one of the Item Sale Scams in one of the
U U
V V
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A A
B B
accounts, although there is no information on whether he knew about the
C predicate offences. C
D D
23. No matter whether he knew of the predicate offences, D1 had
E a crucial role in devising the deceptive scheme of obtaining some of the E
telephone numbers by impersonating the owner at the police station or the
F F
telecom shop, and linking one of the deceptively obtained cryptocurrency
G trading company telephone number with a bank account, in order for there G
to be more credibility to the account to victims. He had also acquired the
H H
bank accounts for the scheme. The entire scheme including the money
I laundering part was elaborate and well thought out. I
J J
24. There is no international element, nor is there any evidence of
K a syndicate behind these charges. There is also no information on the K
source and predicate offence for the remainder of the funds in the accounts
L L
relating to these charges. The offences lasted for a few months.
M M
25. I have considered D1’s plea of guilty concerning Charges 2,
N N
3, 4, 8 and 12, the factors discussed in this section, the amounts involved
O in each of these charges, the duration of the offence, the number of O
transactions, all mitigation advanced on his behalf, and his criminal
P P
conviction record.
Q Q
26. I shall adopt the following as the starting points for Charges
R R
2, 3, 4, 8 and 12:
S S
T
Charge 2: 21 months T
Charge 3: 33 months
U U
V V
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A A
B B
Charge 4: 21 months
C Charge 8: 18 months C
Charge 12: 42 months
D D
E 27. Applying the 1/3 discount for guilty plea, the sentences shall E
be reduced to:
F F
G Charge 2: 14 months G
Charge 3: 22 months
H H
Charge 4: 14 months
I Charge 8: 12 months I
Charge 12: 28 months
J J
K 28. The Court has been asked by the Prosecution to enhance the K
sentence of the Defendant under section 27 of the Organized and Serious
L L
Crimes Ordinance, Cap 455. The Prosecution had furnished information
M to the Court on the following matters under section 27(2) of the said M
Ordinance: -
N N
O “(c) the prevalence of that specified offence; and O
(d) the nature and extent of any harm, whether direct or
P P
indirect, caused to the community by recent occurrences
of that specified offence.”
Q Q
29. Notice of intention to furnish information pursuant to section
R R
27(2) of the said Ordinance had been duly filed and served on 16 August
S 2024. S
T T
U U
V V
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A A
B B
30. I am satisfied that the Prosecution has proved beyond
C reasonable doubt of the information stated in the witness statement of Chief C
Inspector Li Yiu-nam dated 7 August 2024. I will therefore enhance the
D D
sentence of Charges 2, 3, 4, 8 and 12 by about 1/3.
E E
31. The enhanced sentences are:
F F
G Charge 2: 18 months G
Charge 3: 29 months
H H
Charge 4: 18 months
I Charge 8: 16 months I
Charge 12: 37 months
J J
K 32. As the total amount of money dealt with under these charges K
amounts to HK$1,543,774.89, I consider that a global starting point of 42
L L
months is appropriate. Applying 1/3 discount, the global sentence for these
M charges should be 28 months’ imprisonment. With enhancement of about M
1/3, the global enhanced sentence should be 37 months. I will therefore
N N
order that the sentences of Charges 2, 3, 4 and 8 be served concurrently
O with the sentence of Charge 12. The total sentence for these charges shall O
be 37 months’ imprisonment.
P P
Q Charges 5 & 14 – Knowingly Misleading a Police Officer by Giving False Q
R
Information R
S S
33. There is no evidence as to the no. of hours used due to D1’s
T
false reports and impersonation as the true owner of the relevant telephone T
U U
V V
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A A
B B
numbers. It would seem that the bulk of the work would be involved in the
C report which should be relatively simple. C
D D
34. I shall therefore adopt a starting point of 3 weeks’
E imprisonment. Due to the guilty pleas, the sentences for Charges 5 and 14 E
will be reduced by 1/3 to 2 weeks each.
F F
G Charges 9 and 10 – Fraud Charges G
H H
35. Defence submitted that the case of HKSAR v Li Suet Ying
I DCCC 980/2023 has similar facts as the present case, involving victims I
who were cryptocurrency investors, and in that authority, the amount
J J
involved is higher than the present charges.
K K
36. In Li Suet Ying, the victims saw an advertisement on
L L
Instagram, and had agreed with the Defendant that an agreed sum would
M be paid in exchange for their cryptocurrency. The Court in that case M
adopted a starting point of 36 months’ imprisonment.
N N
O 37. Although Li Suet Ying involved a single transaction with 1 or O
2 victims for a short period of time, which are similar to the present case,
P P
the Court has noticed certain material differences between the facts of Li
Q Suet Ying and the present case. In Li Suet Ying, although the sums involved Q
were close to HK$1,000,000, it was said in the Reasons for Sentence that
R R
apart from the use of the fake banknotes, the act of deception is fairly
S S
simple and of limited sophistication. The defendant in that case was also
T
not the mastermind. The transaction was conducted face to face, and the T
U U
V V
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A A
B B
fraud was therefore described as not an internet fraud, as the use of the
C internet was purely for communication between the parties. C
D D
38. In the present case, however, D1 is the mastermind behind the
E fraud charges. He had devised a sophisticated scheme whereby he gained E
knowledge from a cryptocurrency trading platform of the telephone
F F
number of a company used for trading cryptocurrency, and reported loss to
G the police and the telecom shop, in order to gain control over the G
company’s telephone number and WhatsApp account.
H H
I 39. For Charge 9, D1 instructed the victims to deposit monies into I
2 bank accounts linked to 2 other telephone numbers, and a 3 rd bank
J J
account which belonged to D5. For Charge 10, D1 asked the victim to
K deposit money through 2 QR codes. D1 had acquired these bank accounts K
linked to the 2 telephone numbers and QR codes for the purposes of
L L
receiving these crime proceeds, with the obvious intention of creating
M difficulty in tracing the funds and identifying the culprit. One of the M
telephone numbers linked to the bank account was also acquired by
N N
deceiving the telecom shop into believing that D1 was the owner of that
O telephone number and that it had been lost. Part of the monies gained in O
those accounts had been further transferred into D1’s own account, causing
P P
more difficulty with tracing.
Q Q
R
40. The present fraud charges, although they might not be R
described as internet fraud, do bear some similarities in that the transaction
S S
was not performed face to face, and there was the additional element of
T
disguise as the cryptocurrency trading company staff. This makes T
U U
V V
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A A
B B
identification of the culprit very difficult. This is also one of the major
C dissimilarities from Li Suet Ying. C
D D
41. The Defendant in Li Suet Ying had 1 previous conviction of
E theft for which she was fined. D1 in the present case has multiple theft E
convictions and a fraud conviction record. I am therefore of the view that
F F
Li Suet Ying has limited persuasive value in the present case.
G G
42. I have considered D1’s plea of guilty concerning Charges 9
H H
and 10, the amount involved in the respective charges, the sophistication
I in which the scheme was devised, D1’s role as mastermind, all mitigation I
advanced on his behalf, his criminal conviction record which include
J J
offences of dishonesty of theft and fraud, and commission of the present
K offences not long after release from similar convictions. I shall adopt 42 K
months and 18 months as the starting points for Charges 9 and 10. Taking
L L
into account the guilty pleas, the sentences are reduced by 1/3.
M M
43. The sentences for Charge 9 and Charge 10 shall be: -
N N
O Charge 9: 28 months’ imprisonment O
Charge 10: 12 months’ imprisonment
P P
Q Charge 11 – Theft Q
R R
44. D1 claimed that he had picked up and kept the identity card
S S
of another. He had in fact used the identity card in the circumstances of
T
Charge 17 when he was intercepted by the police. The card was also used T
U U
V V
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A A
B B
by him in reporting the loss of a telephone SIM Card at the police station
C and telecom shop, in connection with a cryptocurrency fraud. C
D D
45. There is no sentencing guidelines for theft of this type. I shall
E adopt 6 months as the starting point for Charge 11, and due to D1’s guilty E
plea, 1/3 discount will be applied on the sentence. He is sentenced to 4
F F
months’ imprisonment for Charge 11.
G G
Charge 16 – Possession of False Instruments
H H
I 46. Charge 16 involves 6 false instruments relating to D4 and Lin I
Hiu-man that D1 had asked others to prepare, in order to serve as address
J J
and employment proof of D4 and Lin Hiu-man to apply to MOX Bank for
K increasing the upper limit of deposits of their bank accounts. Although the K
attempt did not succeed and the upper limit was not increased, it should be
L L
borne in mind that D4 and Lin Hiu-man’s MOX Bank accounts had been
M used in receiving crime proceeds of this case. It is obvious that had the M
bank approved the increase, D1 would have continued or even expanded
N N
his illegal scheme.
O O
47. Considering D1’s guilty plea, the facts of the charge, his
P P
previous conviction record, and all mitigation, I shall adopt a starting point
Q of 15 months’ imprisonment. 1/3 discount shall be applied due to his guilty Q
plea. He is sentenced to 10 months’ imprisonment for this charge.
R R
S S
T T
U U
V V
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A A
B B
Charge 17 – Using Identity Card Relating to Another Person
C C
48. D1 had produced the identity card of another person to the
D D
police officer making enquiries with him, with the intention of concealing
E his true identity. According to the sentencing guidelines of HKSAR v Li E
Chang Li HCMA 935/2004, the sentence after plea ought to be 15 months’
F F
imprisonment.
G G
49. I have considered D1’s guilty plea, the facts of the charge, his
H H
previous conviction record, the circumstances under which he had used the
I identity card, and all mitigation. I do not find any matters justifying I
departure from the sentencing guideline. I shall adopt a starting point of
J J
22.5 months’ imprisonment, and after applying 1/3 discount for the guilty
K plea, D1 is sentenced to 15 months’ imprisonment for Charge 17. K
L L
Charge 18 – Driving Without a Valid Driving Licence
M M
Charge 19 – Using a Motor Vehicle Without Third Party Insurance
N N
O 50. I have considered D1’s guilty plea, the facts of the charge, his O
previous conviction record, and all mitigation. I do not find any urgent
P P
need or mitigation concerning the reason for D1 to drive on the material
Q day. I bear in mind that there had not been any accident concerning the Q
driving, nor was there any problematic driving manner.
R R
S
51. For Charge 18, I shall adopt a starting point of 6 weeks’ S
T
imprisonment, and reduce it by 1/3 due to his guilty plea. D1 is sentenced T
to 4 weeks’ imprisonment for Charge 18.
U U
V V
- 22 -
A A
B B
52. For Charge 19, I shall adopt a starting point of 4.5 months’
C imprisonment, and reduce it by 1/3 due to his guilty plea. D1 is sentenced C
to 3 months’ imprisonment, and a disqualification order of 12 months for
D D
Charge 19.
E E
53. As these 2 charges arise from the same act, I shall order that
F F
the Sentences for Charges 18 and 19 shall run concurrently. The total
G sentence for these 2 charges shall be 3 months’ imprisonment, with a G
disqualification order of 12 months.
H H
I Charge 20 – Going Equipped for Stealing I
J J
54. This charge concerns 2 SIM cards of 2 telephone numbers that
K were registered for a cryptocurrency trading company’s business. These 2 K
numbers were used in connection with cryptocurrency scam, and the
L L
subject matter of charges 14 and 15 of this case.
M M
55. I shall adopt a starting point of 18 months’ imprisonment.
N N
Applying 1/3 discount for the guilty plea, D1 shall be sentenced to 12
O months’ imprisonment for charge 20. O
P P
Totality
Q Q
56. As Charges 5 & 14 of Knowingly Misleading a Police Officer
R R
by Giving False Information relates to the obtaining services by deception
S S
charges of Charges 6 and 15 respectively, I shall order that the sentence of
T
Charge 5 shall be served concurrently with the sentence of Charge 6, and T
U U
V V
- 23 -
A A
B B
that the sentence of Charge 14 shall be served concurrently with the
C sentence of Charge 15. C
D D
57. As the money laundering charges and fraud charges relate to
E the same events, I shall order that the sentences of Charges 9 and 10 be E
served concurrently with the total sentence of 37 months for the money
F F
laundering charges of Charges 2, 3, 4, 8, and 12.
G G
58. As Charges 11 (Theft) and 17 (Using another’s ID card) relate
H H
to the same series of events, I shall order that the sentence of Charge 11 be
I served concurrently with Charge 17. I
J J
59. After considering the totality principle, I shall also order the
K following to be served consecutively to the total sentence of 37 months of K
Charges 2, 3, 4, 8 and 12: -
L L
M 1 month of Charge 1 M
1 month of the total sentence of Charge 5 & Charge 6
N N
1 month of Charge 13
O 1 month of the total sentence of Charge 14 & Charge 15 O
2 months of Charge 16
P P
2 months of the total sentence of Charge 11 & Charge 17
Q 1 month of the total sentence of Charges 18 and 19 Q
2 months of Charge 20.
R R
The total sentence for all charges shall be 4 years.
S S
T T
U ( Peony Wong ) U
Deputy District Judge
V V
A A
B B
DCCC 1073/2023
C [2024] HKDC 1743 C
D D
IN THE DISTRICT COURT OF THE
E HONG KONG SPECIAL ADMINISTRATIVE REGION E
CRIMINAL CASE NO 1073 OF 2023
F F
G ------------------------------ G
HKSAR
H H
v
I JHAMAL-AZAD (1st Defendant) I
------------------------------
J J
K Before: Deputy District Judge Peony Wong K
Date: 10 October 2024
L L
Present: Ms Chung Wing Sze Natalie, Public Prosecutor, for HKSAR/
M Director of Public Prosecutions M
Ms Maria P M So, instructed by Tang, Wong & Cheung,
N N
st
assigned by the Director of Legal Aid, for the 1 Defendant
O Offences: [1], [6], [13] & [15] Obtaining service by deception (以欺騙 O
P 手段取得服務) P
[2], [4], [8] & [12] Conspiracy to deal with property known or
Q Q
believed to represent proceeds of an indictable offence (串謀
R 處理已知道或相信為代表從可公訴罪行的得益的財產) R
S [3] Dealing with property known or believed to represent S
proceeds of an indictable offence (處理已知道或相信為代
T T
表從可公訴罪行的得益的財產)
U U
V V
-2-
A A
B B
[5] & [14] Knowingly misleading a police officer by giving
C false information (明知地提供虛假資料以誤導警務人員) C
[9] & [10] Fraud (欺詐罪)
D D
[11] Theft (盜竊罪)
E E
[16] Possession of false instruments (管有虛假文書)
F [17] Using an identity card relating to another person (使用他 F
人的身分證)
G G
[18] Driving without a valid driving licence (駕駛時無有效
H H
駕駛執照)
I [19] Using a motor vehicle without third party insurance (沒 I
有第三者保險而使用汽車)
J J
[20] Going equipped for stealing (外出時備有偷竊用的物
K K
品)
L L
---------------------------------------------
M M
REASONS FOR SENTENCE
N --------------------------------------------- N
O O
1. The 1 Defendant (hereinafter referred to as “D1”) pleaded
st
P P
guilty to 19 charges before me: -
Q Q
(a) Charge 1: Obtaining service by deception, contrary to
R R
section 18A(1) of the Theft Ordinance, Cap 210;
S S
(b) Charge 2: Conspiracy to deal with property known or believed
T T
to represent proceeds of an indictable offence, contrary to
U U
V V
-3-
A A
B B
section 25(1) and (3) of the Organized and Serious Crimes
C Ordinance, Cap 455 and sections 159A and 159C of the C
Crimes Ordinance, Cap 200;
D D
E (c) Charge 3: Dealing with property known or believed to E
represent proceeds of an indictable offence, contrary to
F F
section 25(1) and (3) of the Organized and Serious Crimes
G Ordinance, Cap 455; G
H H
(d) Charge 4: Conspiracy to deal with property known or believed
I to represent proceeds of an indictable offence; I
J J
(e) Charge 5: Knowingly misleading a police officer by giving
K false information, contrary to section 64(b) of the Police K
Force Ordinance, Cap 232;
L L
M (f) Charge 6: Obtaining service by deception; M
N N
(g) Charge 8: Conspiracy to deal with property known or believed
O to represent proceeds of an indictable offence; O
P P
(h) Charge 9: Fraud, contrary to section 16A of the Theft
Q Ordinance, Cap 210; Q
R R
(i) Charge 10: Fraud;
S S
T
(j) Charge 11: Theft, contrary to section 9 of the Theft T
Ordinance, Cap 210;
U U
V V
-4-
A A
B B
(k) Charge 12: Conspiracy to deal with property known or
C believed to represent proceeds of an indictable offence; C
D D
(l) Charge 13: Obtaining service by deception;
E E
(m) Charge 14: Knowingly misleading a police officer by giving
F F
false information;
G G
(n) Charge 15: Obtaining service by deception;
H H
I (o) Charge 16: Possession of false instruments, contrary to I
section 75(1) of the Crimes Ordinance, Cap 200;
J J
K (p) Charge 17: Using an identity card relating to another person, K
contrary to section 7A(1A) of the Registration of Persons
L L
Ordinance, Cap 177;
M M
(q) Charge 18: Driving without a valid driving licence, contrary
N N
to section 42(1) and (4) of the Road Traffic Ordinance, Cap
O 374; O
P P
(r) Charge 19: Using a motor vehicle without third party
Q insurance, contrary to section 4(1) and (2)(a) of the Motor Q
Vehicles Insurance (Third Party Risks) Ordinance, Cap 272;
R R
and
S S
T
(s) Charge 20: Going equipped for stealing, contrary to T
section 27(1) of the Theft Ordinance, Cap 210.
U U
V V
-5-
A A
B B
Facts of the Case
C C
Charges 1 to 6 and 8 to 15
D D
E 2. Charges 1 to 6 and 8 to 15 arose from cryptocurrency sale and E
item sale scams with similar modus operandi. Involved in these charges
F F
were: -
G G
(a) 3 telephone numbers belonging to 2 cryptocurrency trading
H H
companies (hereinafter referred to as the “trading company
I numbers”), which were linked to their WhatsApp I
applications;
J J
K (b) 3 telephone numbers belonging to 3 other individuals K
(hereinafter referred to collectively as the “other numbers”);
L L
M (c) 4 bank accounts, with 2 of them linked respectively to the M
other numbers through the FPS system; 1 of them linked to
N N
one of the other numbers and also one of the trading company
O numbers through the FPS system; and 1 of them belonging to O
D5; and
P P
Q (d) 2 QR codes for Tap & Go and Alipay accounts. Q
R R
3. Out of the 6 telephone numbers involved, D1 reported loss of
S S
2 telephone numbers belonging to the 2 cryptocurrency trading companies
T
and 2 other individuals, either at the telecom shop (Charge 1; Charge 13) T
or both at the police station and the telecom shop (Charges 5 and 6; Charges
U U
V V
-6-
A A
B B
14 and 15), thereby enabling him to take over the use of the telephone
C numbers. C
D D
4. In addition, D1 claimed to be a person with the name
E Mohammad Ali Javed (hereinafter referred to as “Mr Javed”) when he E
reported the loss of one of the telephone numbers of the 2 nd cryptocurrency
F F
trading company at the police station and the telecom shop. The lost
G identity card of the said Mr Javed was later produced by D1 to the police G
upon enquiries prior to his arrest (Charge 17). Mr Javed had lost his bag
H H
containing his ID card on 9 May 2022, and he did not know that someone
I had used his ID card to report loss of a telephone number on 27 July 2022 I
at the police station.
J J
K Cryptocurrency Sale Scams K
L L
5. For the cryptocurrency sale scams, D1 waited for the
M customers of the 2 cryptocurrency trading companies to approach the M
relevant telephone numbers by WhatsApp, and impersonated the staff,
N N
agreeing to transfer cryptocurrencies to the customers in return for
O payment, and providing the customers with bank accounts, which included O
the 3 bank accounts that were linked to the 3 telephone numbers in the
P P
manner stated hereinabove, and D5’s bank account. The amounts involved
Q in these frauds were HK$500,000 (Charge 9 fraud) and HK$8,000 (Charge Q
R
10 fraud). R
S S
T T
U U
V V
-7-
A A
B B
Item Sale Scams
C C
6. For the item sale scams, 4 buyers had purchased different
D D
kinds of items through Facebook including clothing, commemorative
E banknote and figure, involving purchase price of HK$1,300, HK$1,200, E
HK$5,800 and HK$600, totaling HK$8,900, being deposited into one of
F F
the said bank accounts linked to one of the other numbers. There are no
G substantive fraud charges for these scams, but the conspiracy to money G
launder charge relating to this bank account is Charge 12, which includes
H H
the said item sales scams purchase price and other sums, totaling
I HK$116,853.60. I
J J
Money Laundering Charges
K K
7. The 5 bank accounts relating to the conspiracy to money
L L
launder and money launder charges relate to the following: -
M M
(a) Charge 4: D4’s bank account, involving 10 deposits of
N N
HK$259,616.85 and 34 withdrawals of HK$259,746.99
O between 6 April and 7 May 2022; O
P P
(b) Charge 2: Account of Lin Hiu-man, involving 15 deposits of
Q HK$216,596 and 17 withdrawals of HK$206,385.71 between Q
26 March and 17 May 2022 (from which HK$189,922 were
R R
transferred from this account into D1’s account on 3 May
S S
2022, the same day when HK$200,000 in relation to Charge
T
9 was deposited into this account by the victim); T
U U
V V
-8-
A A
B B
(c) Charge 12: Account of Lin Hiu-man, involving 49 deposits of
C HK$116,853.60 and 67 withdrawals of HK$116,853.60 C
between 12 May and 4 July 2022;
D D
E (d) Charge 8: D5’s bank account, involving 1 deposit of E
HK$100,000 on 3 May 2022 from the victim of the
F F
cryptocurrency scam of Charge 9, and 3 successful
G withdrawals totaling HK$97,900 were made through FPS; G
and
H H
I (e) Charge 3: D1’s bank account, involving 240 deposits of I
HK$850,708.44 and 576 withdrawals of HK$845,791.56
J J
between 26 March and 2 July 2022. The account balance
K remained at HK$1 from 17 May 2021 to 26 March 2022, i.e. K
before the relevant deposits.
L L
M (f) The total amount of money dealt with under these charges M
amounts to HK$1,543,774.89.
N N
O D1’s Admission Concerning Charges 1 to 15 O
P P
8. D1 was intercepted by the police on 8 August 2022 as he
Q entered a hotel in Mongkok. Under arrest and caution, D1 admitted that he Q
found one of the cryptocurrency trading companies’ numbers (the number
R R
involved in Charges 5, 6, 9 and 10) and one of the other numbers (the
S S
number involved in Charges 1 and 2), from a cryptocurrency trading
T
platform called Binance. He reported the loss of the said telephone T
numbers at the police station and the telecom company in order to get a
U U
V V
-9-
A A
B B
SIM card replacement, so that the customers would seek him out and he
C could defraud money from them by asking for transfer of money in C
exchange for cryptocurrency which never materialized.
D D
E 9. D1 also admitted that he had purchased D4’s account E
(involved in Charge 4 Conspiracy to Money Launder) and another account
F F
(involved in Charge 2 Conspiracy to Money Launder) for HK$1,000 each,
G and had control over these accounts. D5’s account (involved in Charge 8 G
Conspiracy to Money Launder) was given by a friend and he had sent the
H H
account number to the victim in one of the cryptocurrency scam (Charge 9
I Fraud). D1 admitted having withdrawn or spent the money transferred into I
these 3 accounts, and also transferring some of the money in those accounts
J J
into his own bank account.
K K
10. D1 also admitted having sent the 2 QR codes to the victim in
L L
the 2nd Cryptocurrency Scam. He had purchased the accounts relating to
M these 2 QR codes for HK$1,000 each. He had transferred the HK$8,000 M
from the victim (Charge 10 Fraud) into another bank account and
N N
withdrawn the cash.
O O
11. He stated under caution that he was unemployed and had no
P P
income, except for some temporary job. He also stated that his family
Q members were on CSSA. Q
R R
Charge 16
S S
T
12. A raid was conducted on D1’s home, where 3 forged salary T
statements and 3 forged utility bills were found. D1 admitted under caution
U U
V V
- 10 -
A A
B B
that he had engaged someone online to make the said documents, by
C altering the name and address, for the purposes of income or address proof C
to the bank, so that the account’s deposit upper limit can be increased to
D D
receive more money. The said documents were submitted to the bank in
E digital form, but were not accepted, and hence the plan failed. E
F F
Charges 17 to 20
G G
13. D1 had arrived at the hotel on 8 August 2022 from the driver’s
H H
seat of a private car, and asked the hotel valet to park the car for him as he
I was a guest of the hotel. D1 produced an identity card belong to Mr Javed I
to the police officer (Charge 17). He was then brought to a hotel room for
J J
enquiries. His true identity was revealed.
K K
14. For Charges 18 and 19, he admitted under caution that he had
L L
bought the private car several months ago, and used his friend’s name for
M registration purposes. He had no driving licence, and had asked his friends M
with driving licence to drive for him. He had driven the car himself on the
N N
day of the arrest as he couldn’t find any driver.
O O
15. At his arrest, 3 mobile phones and 5 SIM card jackets were
P P
found on D1. 2 of the SIM card jackets relate to the 2 numbers stated above
Q of one of the cryptocurrency trading companies, and were still active. The Q
rest of the SIM cards were no longer active. Charge 20 concerns the 2 SIM
R R
cards that were still active.
S S
T T
U U
V V
- 11 -
A A
B B
D1’s Antecedent Statement and Mitigation
C C
16. D1 is 27 years old and has a long term girlfriend (D2 who was
D D
a housewife), a daughter and a son of 8 and 6 years old. He lived with his
E family, his parents and younger brothers and younger sister. He had E
studied up to Form 3, and his latest employment was food delivery work
F F
earning around HK$5,000 a month. He was also the recipient of CSSA of
G HK$3,000 per month. The Defence states that D1 was financially G
responsible for the entire household, and had committed the offences due
H H
to financial reasons.
I I
17. He has 6 conviction records, which includes 4 charges of theft
J J
(the last 2 charges on 6 September 2021) and 1 charge of fraud (on 17
K December 2018). He was sentenced to DATC order for the theft K
convictions in 2021, but he was wanted from 4 May 2022 (i.e. 3 months
L L
before the arrest for the present case) for breach of supervision order under
M the DATC order. M
N N
18. The Defence urges the Court to consider D1’s guilty plea, his
O cooperation with the police, his desire to be a good role model to his O
children and spend time with them. Defence also highlights that Charges
P P
1 to 6 and 8 to 15 were committed within around 4 months. The rest of the
Q charges, i.e. Charges 16 to 20 arose from the arrest of D1 and search upon Q
R
his premises. R
S S
T T
U U
V V
- 12 -
A A
B B
Sentencing Considerations
C C
Charges 1, 6, 13 and 15 – Obtaining Service by Deception
D D
E 19. I have considered D1’s plea of guilty concerning Charges 1, E
6, 13 and 15, the nature of service involved, the sophistication in which the
F F
scheme was devised, D1’s role as mastermind, all mitigation advanced on
G his behalf, his criminal conviction record which include offences of G
dishonesty of theft and fraud, and commission of the present offences not
H H
long after release from similar convictions.
I I
20. I shall adopt 6 months’ each as the starting points for Charges
J J
1, 6, 13 and 15. Taking into account the guilty plea, the sentences are
K reduced by 1/3, making the sentences for Charges 1, 6, 13 and 15 to be 4 K
months’ imprisonment each.
L L
M Charges 2, 3, 4, 8 and 12 – Money Laundering and Conspiracy to Money M
Launder Charges
N N
O 21. In HKSAR v Boma [2012] 2 HKLRD 33, the Court of Appeal O
indicated factors which should be taken into account when sentencing
P P
money laundering charges: -
Q Q
(a) the nature of the predicate offence, if known, and the penalty
R R
available for the predicate offence;
S S
T
(b) the state of knowledge of the offender: the question of T
knowledge of the offender as to the nature of the predicate
U U
V V
- 13 -
A A
B B
offence is relevant in that the person who knows the nature of
C the predicate offence is more culpable than the person who C
does not;
D D
E (c) an international dimension will always be a significant E
aggravating feature;
F F
G (d) the sophistication of the offence, including the degree of G
planning and whether deceit is practised to achieve the
H H
objective;
I I
(e) offence is committed by or on behalf of an organized criminal
J J
syndicate is an aggravating fact;
K K
(f) whether there is one transaction or many and the length of
L L
time over which the offence was committed;
M M
(g) it will be an aggravating feature where the offender continues
N N
to launder funds after he has discovered that the funds are the
O proceeds of an offence or after he has discovered the nature of O
an offence which is serious; and
P P
Q (h) the role of the offender and the acts performed by him. Q
R R
22. In the present case, D1 is the mastermind of the
S S
cryptocurrency scams. As for the Item Sale Scams, there is no evidence as
T
to whether D1 made the relevant posts on the internet. He agreed that he T
had received the money from one of the Item Sale Scams in one of the
U U
V V
- 14 -
A A
B B
accounts, although there is no information on whether he knew about the
C predicate offences. C
D D
23. No matter whether he knew of the predicate offences, D1 had
E a crucial role in devising the deceptive scheme of obtaining some of the E
telephone numbers by impersonating the owner at the police station or the
F F
telecom shop, and linking one of the deceptively obtained cryptocurrency
G trading company telephone number with a bank account, in order for there G
to be more credibility to the account to victims. He had also acquired the
H H
bank accounts for the scheme. The entire scheme including the money
I laundering part was elaborate and well thought out. I
J J
24. There is no international element, nor is there any evidence of
K a syndicate behind these charges. There is also no information on the K
source and predicate offence for the remainder of the funds in the accounts
L L
relating to these charges. The offences lasted for a few months.
M M
25. I have considered D1’s plea of guilty concerning Charges 2,
N N
3, 4, 8 and 12, the factors discussed in this section, the amounts involved
O in each of these charges, the duration of the offence, the number of O
transactions, all mitigation advanced on his behalf, and his criminal
P P
conviction record.
Q Q
26. I shall adopt the following as the starting points for Charges
R R
2, 3, 4, 8 and 12:
S S
T
Charge 2: 21 months T
Charge 3: 33 months
U U
V V
- 15 -
A A
B B
Charge 4: 21 months
C Charge 8: 18 months C
Charge 12: 42 months
D D
E 27. Applying the 1/3 discount for guilty plea, the sentences shall E
be reduced to:
F F
G Charge 2: 14 months G
Charge 3: 22 months
H H
Charge 4: 14 months
I Charge 8: 12 months I
Charge 12: 28 months
J J
K 28. The Court has been asked by the Prosecution to enhance the K
sentence of the Defendant under section 27 of the Organized and Serious
L L
Crimes Ordinance, Cap 455. The Prosecution had furnished information
M to the Court on the following matters under section 27(2) of the said M
Ordinance: -
N N
O “(c) the prevalence of that specified offence; and O
(d) the nature and extent of any harm, whether direct or
P P
indirect, caused to the community by recent occurrences
of that specified offence.”
Q Q
29. Notice of intention to furnish information pursuant to section
R R
27(2) of the said Ordinance had been duly filed and served on 16 August
S 2024. S
T T
U U
V V
- 16 -
A A
B B
30. I am satisfied that the Prosecution has proved beyond
C reasonable doubt of the information stated in the witness statement of Chief C
Inspector Li Yiu-nam dated 7 August 2024. I will therefore enhance the
D D
sentence of Charges 2, 3, 4, 8 and 12 by about 1/3.
E E
31. The enhanced sentences are:
F F
G Charge 2: 18 months G
Charge 3: 29 months
H H
Charge 4: 18 months
I Charge 8: 16 months I
Charge 12: 37 months
J J
K 32. As the total amount of money dealt with under these charges K
amounts to HK$1,543,774.89, I consider that a global starting point of 42
L L
months is appropriate. Applying 1/3 discount, the global sentence for these
M charges should be 28 months’ imprisonment. With enhancement of about M
1/3, the global enhanced sentence should be 37 months. I will therefore
N N
order that the sentences of Charges 2, 3, 4 and 8 be served concurrently
O with the sentence of Charge 12. The total sentence for these charges shall O
be 37 months’ imprisonment.
P P
Q Charges 5 & 14 – Knowingly Misleading a Police Officer by Giving False Q
R
Information R
S S
33. There is no evidence as to the no. of hours used due to D1’s
T
false reports and impersonation as the true owner of the relevant telephone T
U U
V V
- 17 -
A A
B B
numbers. It would seem that the bulk of the work would be involved in the
C report which should be relatively simple. C
D D
34. I shall therefore adopt a starting point of 3 weeks’
E imprisonment. Due to the guilty pleas, the sentences for Charges 5 and 14 E
will be reduced by 1/3 to 2 weeks each.
F F
G Charges 9 and 10 – Fraud Charges G
H H
35. Defence submitted that the case of HKSAR v Li Suet Ying
I DCCC 980/2023 has similar facts as the present case, involving victims I
who were cryptocurrency investors, and in that authority, the amount
J J
involved is higher than the present charges.
K K
36. In Li Suet Ying, the victims saw an advertisement on
L L
Instagram, and had agreed with the Defendant that an agreed sum would
M be paid in exchange for their cryptocurrency. The Court in that case M
adopted a starting point of 36 months’ imprisonment.
N N
O 37. Although Li Suet Ying involved a single transaction with 1 or O
2 victims for a short period of time, which are similar to the present case,
P P
the Court has noticed certain material differences between the facts of Li
Q Suet Ying and the present case. In Li Suet Ying, although the sums involved Q
were close to HK$1,000,000, it was said in the Reasons for Sentence that
R R
apart from the use of the fake banknotes, the act of deception is fairly
S S
simple and of limited sophistication. The defendant in that case was also
T
not the mastermind. The transaction was conducted face to face, and the T
U U
V V
- 18 -
A A
B B
fraud was therefore described as not an internet fraud, as the use of the
C internet was purely for communication between the parties. C
D D
38. In the present case, however, D1 is the mastermind behind the
E fraud charges. He had devised a sophisticated scheme whereby he gained E
knowledge from a cryptocurrency trading platform of the telephone
F F
number of a company used for trading cryptocurrency, and reported loss to
G the police and the telecom shop, in order to gain control over the G
company’s telephone number and WhatsApp account.
H H
I 39. For Charge 9, D1 instructed the victims to deposit monies into I
2 bank accounts linked to 2 other telephone numbers, and a 3 rd bank
J J
account which belonged to D5. For Charge 10, D1 asked the victim to
K deposit money through 2 QR codes. D1 had acquired these bank accounts K
linked to the 2 telephone numbers and QR codes for the purposes of
L L
receiving these crime proceeds, with the obvious intention of creating
M difficulty in tracing the funds and identifying the culprit. One of the M
telephone numbers linked to the bank account was also acquired by
N N
deceiving the telecom shop into believing that D1 was the owner of that
O telephone number and that it had been lost. Part of the monies gained in O
those accounts had been further transferred into D1’s own account, causing
P P
more difficulty with tracing.
Q Q
R
40. The present fraud charges, although they might not be R
described as internet fraud, do bear some similarities in that the transaction
S S
was not performed face to face, and there was the additional element of
T
disguise as the cryptocurrency trading company staff. This makes T
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A A
B B
identification of the culprit very difficult. This is also one of the major
C dissimilarities from Li Suet Ying. C
D D
41. The Defendant in Li Suet Ying had 1 previous conviction of
E theft for which she was fined. D1 in the present case has multiple theft E
convictions and a fraud conviction record. I am therefore of the view that
F F
Li Suet Ying has limited persuasive value in the present case.
G G
42. I have considered D1’s plea of guilty concerning Charges 9
H H
and 10, the amount involved in the respective charges, the sophistication
I in which the scheme was devised, D1’s role as mastermind, all mitigation I
advanced on his behalf, his criminal conviction record which include
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offences of dishonesty of theft and fraud, and commission of the present
K offences not long after release from similar convictions. I shall adopt 42 K
months and 18 months as the starting points for Charges 9 and 10. Taking
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into account the guilty pleas, the sentences are reduced by 1/3.
M M
43. The sentences for Charge 9 and Charge 10 shall be: -
N N
O Charge 9: 28 months’ imprisonment O
Charge 10: 12 months’ imprisonment
P P
Q Charge 11 – Theft Q
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44. D1 claimed that he had picked up and kept the identity card
S S
of another. He had in fact used the identity card in the circumstances of
T
Charge 17 when he was intercepted by the police. The card was also used T
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B B
by him in reporting the loss of a telephone SIM Card at the police station
C and telecom shop, in connection with a cryptocurrency fraud. C
D D
45. There is no sentencing guidelines for theft of this type. I shall
E adopt 6 months as the starting point for Charge 11, and due to D1’s guilty E
plea, 1/3 discount will be applied on the sentence. He is sentenced to 4
F F
months’ imprisonment for Charge 11.
G G
Charge 16 – Possession of False Instruments
H H
I 46. Charge 16 involves 6 false instruments relating to D4 and Lin I
Hiu-man that D1 had asked others to prepare, in order to serve as address
J J
and employment proof of D4 and Lin Hiu-man to apply to MOX Bank for
K increasing the upper limit of deposits of their bank accounts. Although the K
attempt did not succeed and the upper limit was not increased, it should be
L L
borne in mind that D4 and Lin Hiu-man’s MOX Bank accounts had been
M used in receiving crime proceeds of this case. It is obvious that had the M
bank approved the increase, D1 would have continued or even expanded
N N
his illegal scheme.
O O
47. Considering D1’s guilty plea, the facts of the charge, his
P P
previous conviction record, and all mitigation, I shall adopt a starting point
Q of 15 months’ imprisonment. 1/3 discount shall be applied due to his guilty Q
plea. He is sentenced to 10 months’ imprisonment for this charge.
R R
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T T
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B B
Charge 17 – Using Identity Card Relating to Another Person
C C
48. D1 had produced the identity card of another person to the
D D
police officer making enquiries with him, with the intention of concealing
E his true identity. According to the sentencing guidelines of HKSAR v Li E
Chang Li HCMA 935/2004, the sentence after plea ought to be 15 months’
F F
imprisonment.
G G
49. I have considered D1’s guilty plea, the facts of the charge, his
H H
previous conviction record, the circumstances under which he had used the
I identity card, and all mitigation. I do not find any matters justifying I
departure from the sentencing guideline. I shall adopt a starting point of
J J
22.5 months’ imprisonment, and after applying 1/3 discount for the guilty
K plea, D1 is sentenced to 15 months’ imprisonment for Charge 17. K
L L
Charge 18 – Driving Without a Valid Driving Licence
M M
Charge 19 – Using a Motor Vehicle Without Third Party Insurance
N N
O 50. I have considered D1’s guilty plea, the facts of the charge, his O
previous conviction record, and all mitigation. I do not find any urgent
P P
need or mitigation concerning the reason for D1 to drive on the material
Q day. I bear in mind that there had not been any accident concerning the Q
driving, nor was there any problematic driving manner.
R R
S
51. For Charge 18, I shall adopt a starting point of 6 weeks’ S
T
imprisonment, and reduce it by 1/3 due to his guilty plea. D1 is sentenced T
to 4 weeks’ imprisonment for Charge 18.
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B B
52. For Charge 19, I shall adopt a starting point of 4.5 months’
C imprisonment, and reduce it by 1/3 due to his guilty plea. D1 is sentenced C
to 3 months’ imprisonment, and a disqualification order of 12 months for
D D
Charge 19.
E E
53. As these 2 charges arise from the same act, I shall order that
F F
the Sentences for Charges 18 and 19 shall run concurrently. The total
G sentence for these 2 charges shall be 3 months’ imprisonment, with a G
disqualification order of 12 months.
H H
I Charge 20 – Going Equipped for Stealing I
J J
54. This charge concerns 2 SIM cards of 2 telephone numbers that
K were registered for a cryptocurrency trading company’s business. These 2 K
numbers were used in connection with cryptocurrency scam, and the
L L
subject matter of charges 14 and 15 of this case.
M M
55. I shall adopt a starting point of 18 months’ imprisonment.
N N
Applying 1/3 discount for the guilty plea, D1 shall be sentenced to 12
O months’ imprisonment for charge 20. O
P P
Totality
Q Q
56. As Charges 5 & 14 of Knowingly Misleading a Police Officer
R R
by Giving False Information relates to the obtaining services by deception
S S
charges of Charges 6 and 15 respectively, I shall order that the sentence of
T
Charge 5 shall be served concurrently with the sentence of Charge 6, and T
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A A
B B
that the sentence of Charge 14 shall be served concurrently with the
C sentence of Charge 15. C
D D
57. As the money laundering charges and fraud charges relate to
E the same events, I shall order that the sentences of Charges 9 and 10 be E
served concurrently with the total sentence of 37 months for the money
F F
laundering charges of Charges 2, 3, 4, 8, and 12.
G G
58. As Charges 11 (Theft) and 17 (Using another’s ID card) relate
H H
to the same series of events, I shall order that the sentence of Charge 11 be
I served concurrently with Charge 17. I
J J
59. After considering the totality principle, I shall also order the
K following to be served consecutively to the total sentence of 37 months of K
Charges 2, 3, 4, 8 and 12: -
L L
M 1 month of Charge 1 M
1 month of the total sentence of Charge 5 & Charge 6
N N
1 month of Charge 13
O 1 month of the total sentence of Charge 14 & Charge 15 O
2 months of Charge 16
P P
2 months of the total sentence of Charge 11 & Charge 17
Q 1 month of the total sentence of Charges 18 and 19 Q
2 months of Charge 20.
R R
The total sentence for all charges shall be 4 years.
S S
T T
U ( Peony Wong ) U
Deputy District Judge
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