DCCC886/2019 HKSAR v. HUI WING YIN, VANESSA AND ANOTHER - LawHero
DCCC886/2019
HKSAR v. HUI WING YIN, VANESSA AND ANOTHER
區域法院（刑事）H.H. Judge G. Lam1/7/2020[2020] HKDC 506
DCCC886/2019
由此
A A
B DCCC 886/2019 B
[2020] HKDC 506
C C
IN THE DISTRICT COURT OF THE
D HONG KONG SPECIAL ADMINISTRATIVE REGION D
CRIMINAL CASE NO. 886 OF 2019
E E
____________
F F
G HKSAR G
v
H H
HUI Wing-yin, Vanessa (D1)
LEE Chi-ming (D2)
I I
____________
J J
K Before : H.H. Judge G. Lam K
Date : 2 July 2020
L Present : Mr. Michael Leung, counsel on fiat, for HKSAR. L
Mr. Tien Kei Rui instructed by M/s Cheung &
M Yeung, assigned by the Director of Legal Aid, for M
D1.
N
Mr. But Sun Wai instructed by M/s Johnnie Yam, N
Jacky Lee & Co., assigned by the Director of
Legal Aid, for D2.
O O
Offences : (1) to (13) Fraud（欺詐）
(14) Failure to produce proof of identity on
P demand （未能在規定下出示身分證明文件） P
Q Q
R
REASONS FOR SENTENCE R
S S
D1 and D2 are jointly charged with 5 offences of "Fraud"
T T
(Charges 1, 4, 5, 6 and 13); whereas D1 alone faces 8 charges of "Fraud"
U U
V V
由此
- 2 -
A A
(Charges 2, 3, 7, 8, 9, 10, 11 and 12) and 1 charge of "Failure to produce
B B
proof of identity on demand1" (Charge 14).
C C
D D
2. D1 pleaded guilty to Charges 1 to 6 and 10 to 14; and D2,
E E
Charges 1, 4, 5, 6 and 13. I granted the prosecution's application to leave
F F
Charges 7 to 9 in the court file; not to be proceeded against D1 without leave
G of court. G
H H
I Summary of Facts I
J J
3. The modus operandi of the scam involved in Charges 1 to 13
K K
was basically the same.
L L
M Charge 1 M
N N
4. About 1:00 a.m. on 1 March 2019, Madam Kwok (PW1; aged
O O
32) saw a post on Facebook by "Anv Jessica" ("FB Account 1") about
P P
earning good income with nothing illegal involved. PW1 responded to the
Q post. D1 then called PW1 saying she could introduce her to "Ah Keung", a Q
R boss in the food and beverage business, and arranged to meet up with PW1. R
S S
T T
1
Contrary to section 17C(3) of the Immigration Ordinance (Cap.115).
U U
V V
由此
- 3 -
A A
5. About 8:45 p.m. on the same day, D1 and D2 met PW1 in Kwai
B B
Fong. D1 identified herself as the user of FB Account 1; whereas D2 was
C C
introduced as Ah Keung. They then took PW1 to a SmarTone shop situated
D D
at Metroplaza.
E E
F F
6. D1 and D2 falsely represented to PW1 that they would pay
G PW1 $2,000 if she would enter into mobile phone purchase cum service G
H agreements with SmarTone and hand over the mobile phones purchased to H
I them. They also told PW1 that she would bear no liability under the I
J
agreements since they would settle the payments for her. J
K K
7. As a result, PW1 entered into 2 mobile phone purchase cum
L L
service agreements with SmarTone. D2 completed and signed a direct debit
M M
authorization form for the monthly payments of the service fees. The bank
N N
account number put down on the form did not belong to PW1.
O O
P P
8. Under the 2 agreements, PW1 purchased 2 iPhone XS Max at
Q $580 each, the total sum of $1,160 was paid by D1 upfront; 2 years of Q
R mobile service for PW1's existing mobile number at $970 per month; and a R
S
further extension of 2 years of mobile service for the same number at $970 S
T T
U U
V V
由此
- 4 -
A A
per month. PW1 handed over the 2 newly purchased phones to D1 and
B B
received $2,000 from D1.
C C
D D
9. None of the agreements entered into by PW1 was cancelled nor
E E
any of the monthly service fees was settled by D1 or D2. Thus, SmarTone
F F
demanded $37,685.85 from PW1 in June 2019.
G G
H Charges 2 and 3 H
I I
10. On 26 February 2019, Madam Leung (PW2; aged 36) saw a
J J
post on FB Account 1 about earning quick money legally. She responded to
K K
the post and was asked about her current mobile phone service provider and
L existing service contract. L
M M
N 11. About 9:00 p.m. on 11 March 2019, D1 and a male (WP) met N
PW2 at a CSL shop situated at Tuen Mun Town Plaza. D1 identified herself
O O
as the user of FB Account 1. Employing a scam similar to the one in Charge
P P
1, D1 and WP lured PW2 into purchasing 2 iPhone XS Max (the purchase
Q Q
price of which were paid by D1) and entering into 2 mobile service
R R
agreements. PW2 handed over the 2 newly purchased phones to D1 and
S S
received $3,800 from D1.
T T
U U
V V
由此
- 5 -
A A
12. None of the agreements entered into by PW2 was cancelled nor
B B
any of the monthly service fees was settled by D1. In April 2019, upon
C C
demand by CSL, PW2 paid $2,361 as mobile service fees. After negotiation,
D D
PW2 paid CSL a further sum of $19,879 to terminate the 2 agreements. This
E E
is Charge 2.
F F
G 13. Soon after the purchase of the iPhones, PW2 felt suspicious G
H and told D1 that she wanted to terminate the agreements. D1 falsely told H
I PW2 that she had to transfer money to D1 in order to cancel the agreements. I
J
Thus, between 13 and 22 March 2019, PW2 paid a total sum of $8,762 into J
the Alipay and TNG accounts nominated by D1. This is Charge 3.
K K
L L
Charges 4, 5, 6 and 10
M M
N 14. On 10 March 2019, Mr. Cheng (PW3; aged 20) saw a post on N
Facebook by "ChiLee" ("FB Account 2") about a job with a $2,000 to
O O
$5,000 pay. He responded to the post and was asked about his current
P P
mobile phone service provider.
Q Q
R R
15. About 8:00 p.m. on 18 March 2019, D1, D2 and WP met with
S S
PW3. D1 identified herself as the user of FB Account 2. They took PW3 to
T T
a Wilson shop situated at Tuen Mun Town Plaza. Employing a scam similar
U U
V V
由此
- 6 -
A A
to the one in Charge 1, D1, D2 and WP lured PW3 into purchasing 1
B B
Samsung Galaxy S9 at $4,498 and 1 vivo V9 at $2,098 using his own credit
C C
card. PW3 handed over the 2 newly purchased phones to D1 and received
D D
$2,500 from D1. This is Charge 4.
E E
F F
16. About 3:55 p.m. on 19 March 2019, PW3 communicated with
G the user of FB Account 2 via Facebook Messenger. PW3 asked about the G
H possibility of furthering their "business". They agreed to meet up. H
I I
J
17. About 6:30 p.m. on the same day, D1, D2, WP and PW3 went J
to a China Mobile shop situated at KOLOUR in Yuen Long and then a "3"
K K
shop nearby. Employing a scam similar to the one in Charge 1, D1, D2 and
L L
WP lured PW3 into purchasing 1 Samsung A8S at $800 with 2 years of
M M
mobile service from China Mobile; 1 iPhone XS Max at $3,280 with 2 years
N N
of mobile service and 2 additional SIM cards at $200 from "3"; 1 PALM
O O
phone at $2,744 (by instalments) with 2 years of mobile service from "3";
P P
and 1 Apple watch at $4,032 (by instalments) with 2 years of mobile service
Q from "3" using his own credit card or cash. PW3 handed over the 4 newly Q
R purchased devices to D1 and received $3,500 from D1. This is Charge 5. R
S S
T T
U U
V V
由此
- 7 -
A A
18. On 19 March 2019, shortly before PW3 entered into the mobile
B B
service agreement for the iPhone XS Max, D1, D2 and WP persuaded him to
C C
borrow $19,720 from WeLend online and to use the loan to settle the
D D
payment for the service plan and the price of the iPhone XS Max. They
E E
falsely told PW3 that he would not need to repay the loan as they would
F F
transfer it to another person and settle the loan. Under the loan agreement,
G PW3 had to repay a total sum of $32,972 in 4 years. On 20 March 2019, D1, G
H D2, WP and PW3 met in Mongkok. They persuaded PW3 to borrow H
I $15,000 from Thousand Fortune, a money lending company in Yau Ma Tei. I
J
They falsely told PW3 that the money would be used for business and they J
would pay PW3 interest. Furthermore, the loan would be transferred to
K K
another person so that PW3 would not be liable. Under the loan agreement,
L L
PW3 had to repay a total sum of $17,245 in 5 months. After negotiation
M M
with Thousand Fortune, PW3 settled the loan on 9 April 2019 by paying
N N
$16,025. This is Charge 6.
O O
P P
19. On 21 March 2019, D1 asked PW3 to lend her $200. PW3
Q agreed and deposited $200 into an Alipay account nominated by D1. Q
R Between 22 and 25 March 2019, D1 falsely told PW3 that she would R
S
arrange for settlement of his liabilities under the agreements if he pays her S
$13,500. PW3 told D1 to take the $200 which she previously borrowed and
T T
U U
V V
由此
- 8 -
A A
deposited a total sum of $13,300 into the accounts nominated by D1. None
B B
of the agreements entered into by PW3 was cancelled or settled. This is
C C
Charge 10.
D D
E E
Charges 11 and 12
F F
20. Mr. Chan (PW4; aged 22) is a friend of PW3.
G G
H H
21. D1 falsely told PW3 that his liabilities under the agreements
I I
could be settled if he could find a friend to buy mobile phones for her; and
J J
his friend would not bear any liabilities either. On 23 March 2019, PW3
K K
told PW4 about the "money-earning plan" of buying mobile phones for D1.
L However, something went wrong; PW3's liabilities could only be settled if L
M PW4 took up a job similar to PW3's. Believing PW3's false representation, M
N PW4 agreed to help. N
O O
22. About 7:00 p.m. on 23 March 2019, D1, PW3 and PW4 went to
P P
a FORTRESS shop situated at Wai Fung Centre in Mongkok. D1 lured
Q Q
PW4 into borrowing $19,720 and $10,000 from WeLend online. As a result,
R R
PW4 had to repay a total sum of $34,466 in 2 years. This is Charge 11.
S S
T T
U U
V V
由此
- 9 -
A A
23. Employing a scam similar to the one in Charge 1, D1 lured
B B
PW4 into purchasing 1 iPhone XS Max at $10,799 from FORTRESS. PW4
C C
paid $10,000 in cash using one of the 2 loans from WeLend and D1 paid the
D D
remaining $799. Afterwards, they went to a "3" shop nearby. D1 lured
E E
PW4 into purchasing 1 iPhone XS Max at $3,280 with 2 years of mobile
F F
service from "3". PW4 paid the entire price of $19,720 in cash using one of
G the 2 loans from WeLend. D1 paid PW3 and PW4 $500 each as their G
H rewards. This is Charge 12. H
I I
J
Charge 13 J
K K
24. About 10:00 a.m. on 30 March 2019, Mr. Ho (PW5; aged 31)
L saw a post on FB Account 2 about earning quick money. He responded to L
M the post and D1 called him to arrange for a meeting. M
N N
25. About 4:00 p.m. on the same day, D1 and PW5 visited a "3"
O O
shop, a China Mobile shop and a SmarTone shop, all situated at Metroplaza
P P
in Kwai Fong. D2 joined in when they had just left the "3" shop. D1 left
Q Q
early when D2 and PW5 were still at the SmarTone shop.
R R
S S
26. Employing a scam similar to the one in Charge 1, D1 and D2
T T
lured PW5 into purchasing 1 PALM phone at $2,744 and 1 Huawei Y9 (free
U U
V V
由此
- 10 -
A A
of charge) with 2 years of mobile service from "3"; 1 Samsung A8S at $800
B B
with 2 years of mobile service from China Mobile; and 2 iPhone XS Max at
C C
$2,980 each with 2 years of mobile service for each phone from SmarTone.
D D
PW5 handed over the 4 newly purchased phones to D1 and D2, but did not
E E
receive any reward. This is Charge 13.
F F
G Arrest and admissions G
H H
27. About 10:00 a.m. on 31 March 2019, PW5 alerted the Police.
I I
When PW5 as at the police station, D1 called him to arrange for a meeting.
J J
K K
28. About 11:00 a.m. on the same day, D1 and D2 were arrested at
L Tsuen Wan Plaza. D1 failed to produce proof of her identity. Under caution, L
M she claimed that she lost her identity card in Sham Shui Po 2 months ago, M
N but did not have money to obtain a replacement. This is Charge 14. N
O O
29. In her cautioned interviews, D1 admitted, inter alia, that she
P P
did everything pursuant to the instructions of WP (also known as "Fei Jai" or
Q Q
"Fei Ting"). She met both WP and D2 on Facebook. She claimed that Fei
R R
Jai taught her how to deceive people into buying new mobile phones for
S S
them. The phones were then resold for money. The Facebook accounts
T T
which were used for contacting the victims were shared by Fei Jai, D2 and
U U
V V
由此
- 11 -
A A
D1. Regarding the e-accounts which were used for receiving payments
B B
from PW2 and PW3, D1 claimed that they were given to her by Fei Jai.
C C
D D
30. In his cautioned interviews, D2 made admissions similar to
E E
D1's. He admitted that after D1 had sold the mobile phones purchased by
F F
PW5, she gave D2 $1,500 as his reward. He also admitted having deceived
G PW1 and PW3 together with D1. The "cheating scheme" was managed by G
H D1, D2 and Fei Ting. H
I I
J
Mitigation J
K K
D1
L L
31. She is 38 and has 1 conviction record which involved a total of
M M
8 offences of "Fraud". For those 8 offences, she was sentenced to a total of 9
N N
months' imprisonment in June 2019. Her counsel Mr. Tien informed me
O O
that D1 has a daughter (aged 10) with her ex-boyfriend. With her current
P P
boyfriend, D1 gave birth to a pair of twins in mid-2016. In mid-2019, she
Q consented to the Adoption Order of the twins. Q
R R
S
32. In mitigation, Mr. Tien submitted that D1 made full and frank S
admissions right after her arrest. Mr. Tien suggested that D1 had only
T T
U U
V V
由此
- 12 -
A A
received $1,000 from Fei Jai for each newly purchased mobile phone she
B B
turned in. She had received about $16,000 in total. Mr. Tien informed me
C C
that owing to his immigration status, D1's boyfriend is unable to work in
D D
Hong Kong. D1 has been detained for this case since her arrest in late
E E
March 2019. She had to rely on her 80-year-old mother to look after her
F F
10-year-old daughter.
G G
H D2 H
I I
33. He is 40 and has 4 conviction records, which included 1
J J
offence of Theft (Shoplifting). His counsel Mr. But did not say much about
K K
D2's personal background.
L L
M 34. In mitigation, Mr. But submitted that the offences in the M
N present case are not internet crimes. Facebook was used merely to invite N
interested persons to come out to meet. The false representations were made
O O
to the victims face to face when the party met. Furthermore, the victims
P P
were not elderly people or people with certain vulnerabilities. The scam
Q Q
employed cannot be classified as "street deception" either. Mr. But further
R R
submitted that D2 made full and frank admissions right after his arrest.
S S
T T
U U
V V
由此
- 13 -
A A
Sentence
B B
C 35. Both defence counsel acknowledged that this case does not C
D involve the Barrick type of breach of trust. They, however, accepted that the D
E
sentencing guidelines laid down by the Court of Appeal in HKSAR v Ng E
Kwok Wing [2008] 4 HKLRD 1017 may nevertheless be relevant.
F F
Prosecuting counsel Mr. Leung submitted that the guidelines in Ng Kwok
G G
Wing are perhaps simply a yardstick. For cases which are not of the Barrick
H H
type, the court may still follow the guidelines in Ng Kwok Wing or impose a
I I
sentence which is higher or lower than the guidelines, depending on the
J J
facts of each case.
K K
L 36. I accept that the present case is not strictly a cybercrime, which L
M normally deceives victims of their money directly online. Mr. But was M
N correct in pointing out that the false representations were made to the N
victims in person. I also accept that the syndicate did not appear to target at
O O
elderly people or people with certain vulnerabilities; at least the 5 victims in
P P
this case were not. Mr. Tien submitted that the scam is not a sophisticated
Q Q
one. I agree. The "deal" was just too good to be true ― purchasing brand
R R
new mobile phones and subscribing to mobile service plans in return for
S S
cash with no liabilities attached.
T T
U U
V V
由此
- 14 -
A A
37. Mr. But submitted that D2 played a lesser role than D1;
B B
whereas Mr. Tien submitted that the ring leader was Fei Jai. For the purpose
C C
of sentencing, I need not determine who played a lesser role. As revealed in
D D
the Summary of Facts (dated 2 June 2020), what each culprit did is clear.
E E
They might have played different roles, but they each contributed to the
F F
planning and/or execution of the scam and are equally culpable. There is no
G need to distinguish their roles or to apportion their culpability. G
H H
I 38. According to the Summary of Facts, the net loss suffered by all I
J
5 victims is about $245,000 in total. D1 and D2 are jointly responsible for J
about $170,000; and D1 is also responsible for the remaining $75,000.
K K
L L
39. Based on the scam employed in the present case, I consider the
M M
seriousness of this case commensurate with the sentencing guidelines in Ng
N N
Kwok Wing. Hence, I will follow those guidelines.
O O
P P
40. I am aware that the sum involved in each charge varies;
Q however, each charge arose from the same type of deception. It is Q
R unnecessary to set the sentence for each charge based on the individual R
S
monetary value. Other than Charge 14, which I will deal with in due course, S
T T
U U
V V
由此
- 15 -
A A
I adopt a starting point of 9 months' imprisonment for each charge. With the
B B
timely guilty plea, the sentence for each charge is reduced to 6 months.
C C
D D
41. For D1, I sentence her to 6 months' imprisonment each for
E E
Charges 1 to 6 and 10 to 13. Since she is responsible for the net loss suffered
F F
by all 5 victims (i.e. $245,000), I consider a global starting point of 22.5
G months' imprisonment appropriate for all 10 charges. With the timely guilty G
H pleas, the overall sentence is reduced to 15 months. To achieve this, I order H
I the sentences to run in the following manner :- I
J J
(i) Charges 2 and 3 concurrent;
K K
(ii) 2 months in Charge 1 consecutive to Charges 2 and 3;
L L
(iii) Charges 4, 5, 6 and 10 concurrent;
M M
(iv) 2 months in Charges 4, 5, 6 and 10 consecutive to Charges 1 to
N N
3;
O O
(v) Charges 11 and 12 concurrent;
P P
(vi) 2 months in Charges 11 and 12 consecutive to Charges 1 to 6
Q Q
and 10; and
R R
(vii) 3 months in Charge 13 consecutive to Charges 1 to 6 and 10 to
S 12. S
T T
U U
V V
由此
- 16 -
A A
42. For D2, I sentence him to 6 months' imprisonment each for
B B
Charges 1, 4, 5, 6 and 13. Since he is responsible for the net loss suffered by
C C
3 victims (i.e. $170,000), I consider a global starting point of 15 months'
D D
imprisonment appropriate for all 5 charges. With the timely guilty pleas, the
E E
overall sentence is reduced to 10 months. To achieve this, I order the
F F
sentences to run in the following manner :-
G G
(i) Charges 4, 5 and 6 concurrent;
H H
(ii) 2 months in Charge 1 consecutive to Charges 4, 5 and 6; and
I I
(iii) 2 months in Charge 13 consecutive to Charges 1, 4, 5 and 6.
J J
K K
43. The maximum penalty for Charge 14 is a fine at Level 2 (i.e.
L L
2
$5,000 ). In my view, it is unnecessary to lay this charge against D1. I will
M M
impose a nominal fine of $200, to be paid forthwith.
N N
O O
P P
Q (G. Lam) Q
District Judge
R R
S S
T T
2
See section 113B and Schedule 8 of Cap.221.
U U
V V
由此
A A
B DCCC 886/2019 B
[2020] HKDC 506
C C
IN THE DISTRICT COURT OF THE
D HONG KONG SPECIAL ADMINISTRATIVE REGION D
CRIMINAL CASE NO. 886 OF 2019
E E
____________
F F
G HKSAR G
v
H H
HUI Wing-yin, Vanessa (D1)
LEE Chi-ming (D2)
I I
____________
J J
K Before : H.H. Judge G. Lam K
Date : 2 July 2020
L Present : Mr. Michael Leung, counsel on fiat, for HKSAR. L
Mr. Tien Kei Rui instructed by M/s Cheung &
M Yeung, assigned by the Director of Legal Aid, for M
D1.
N
Mr. But Sun Wai instructed by M/s Johnnie Yam, N
Jacky Lee & Co., assigned by the Director of
Legal Aid, for D2.
O O
Offences : (1) to (13) Fraud（欺詐）
(14) Failure to produce proof of identity on
P demand （未能在規定下出示身分證明文件） P
Q Q
R
REASONS FOR SENTENCE R
S S
D1 and D2 are jointly charged with 5 offences of "Fraud"
T T
(Charges 1, 4, 5, 6 and 13); whereas D1 alone faces 8 charges of "Fraud"
U U
V V
由此
- 2 -
A A
(Charges 2, 3, 7, 8, 9, 10, 11 and 12) and 1 charge of "Failure to produce
B B
proof of identity on demand1" (Charge 14).
C C
D D
2. D1 pleaded guilty to Charges 1 to 6 and 10 to 14; and D2,
E E
Charges 1, 4, 5, 6 and 13. I granted the prosecution's application to leave
F F
Charges 7 to 9 in the court file; not to be proceeded against D1 without leave
G of court. G
H H
I Summary of Facts I
J J
3. The modus operandi of the scam involved in Charges 1 to 13
K K
was basically the same.
L L
M Charge 1 M
N N
4. About 1:00 a.m. on 1 March 2019, Madam Kwok (PW1; aged
O O
32) saw a post on Facebook by "Anv Jessica" ("FB Account 1") about
P P
earning good income with nothing illegal involved. PW1 responded to the
Q post. D1 then called PW1 saying she could introduce her to "Ah Keung", a Q
R boss in the food and beverage business, and arranged to meet up with PW1. R
S S
T T
1
Contrary to section 17C(3) of the Immigration Ordinance (Cap.115).
U U
V V
由此
- 3 -
A A
5. About 8:45 p.m. on the same day, D1 and D2 met PW1 in Kwai
B B
Fong. D1 identified herself as the user of FB Account 1; whereas D2 was
C C
introduced as Ah Keung. They then took PW1 to a SmarTone shop situated
D D
at Metroplaza.
E E
F F
6. D1 and D2 falsely represented to PW1 that they would pay
G PW1 $2,000 if she would enter into mobile phone purchase cum service G
H agreements with SmarTone and hand over the mobile phones purchased to H
I them. They also told PW1 that she would bear no liability under the I
J
agreements since they would settle the payments for her. J
K K
7. As a result, PW1 entered into 2 mobile phone purchase cum
L L
service agreements with SmarTone. D2 completed and signed a direct debit
M M
authorization form for the monthly payments of the service fees. The bank
N N
account number put down on the form did not belong to PW1.
O O
P P
8. Under the 2 agreements, PW1 purchased 2 iPhone XS Max at
Q $580 each, the total sum of $1,160 was paid by D1 upfront; 2 years of Q
R mobile service for PW1's existing mobile number at $970 per month; and a R
S
further extension of 2 years of mobile service for the same number at $970 S
T T
U U
V V
由此
- 4 -
A A
per month. PW1 handed over the 2 newly purchased phones to D1 and
B B
received $2,000 from D1.
C C
D D
9. None of the agreements entered into by PW1 was cancelled nor
E E
any of the monthly service fees was settled by D1 or D2. Thus, SmarTone
F F
demanded $37,685.85 from PW1 in June 2019.
G G
H Charges 2 and 3 H
I I
10. On 26 February 2019, Madam Leung (PW2; aged 36) saw a
J J
post on FB Account 1 about earning quick money legally. She responded to
K K
the post and was asked about her current mobile phone service provider and
L existing service contract. L
M M
N 11. About 9:00 p.m. on 11 March 2019, D1 and a male (WP) met N
PW2 at a CSL shop situated at Tuen Mun Town Plaza. D1 identified herself
O O
as the user of FB Account 1. Employing a scam similar to the one in Charge
P P
1, D1 and WP lured PW2 into purchasing 2 iPhone XS Max (the purchase
Q Q
price of which were paid by D1) and entering into 2 mobile service
R R
agreements. PW2 handed over the 2 newly purchased phones to D1 and
S S
received $3,800 from D1.
T T
U U
V V
由此
- 5 -
A A
12. None of the agreements entered into by PW2 was cancelled nor
B B
any of the monthly service fees was settled by D1. In April 2019, upon
C C
demand by CSL, PW2 paid $2,361 as mobile service fees. After negotiation,
D D
PW2 paid CSL a further sum of $19,879 to terminate the 2 agreements. This
E E
is Charge 2.
F F
G 13. Soon after the purchase of the iPhones, PW2 felt suspicious G
H and told D1 that she wanted to terminate the agreements. D1 falsely told H
I PW2 that she had to transfer money to D1 in order to cancel the agreements. I
J
Thus, between 13 and 22 March 2019, PW2 paid a total sum of $8,762 into J
the Alipay and TNG accounts nominated by D1. This is Charge 3.
K K
L L
Charges 4, 5, 6 and 10
M M
N 14. On 10 March 2019, Mr. Cheng (PW3; aged 20) saw a post on N
Facebook by "ChiLee" ("FB Account 2") about a job with a $2,000 to
O O
$5,000 pay. He responded to the post and was asked about his current
P P
mobile phone service provider.
Q Q
R R
15. About 8:00 p.m. on 18 March 2019, D1, D2 and WP met with
S S
PW3. D1 identified herself as the user of FB Account 2. They took PW3 to
T T
a Wilson shop situated at Tuen Mun Town Plaza. Employing a scam similar
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由此
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A A
to the one in Charge 1, D1, D2 and WP lured PW3 into purchasing 1
B B
Samsung Galaxy S9 at $4,498 and 1 vivo V9 at $2,098 using his own credit
C C
card. PW3 handed over the 2 newly purchased phones to D1 and received
D D
$2,500 from D1. This is Charge 4.
E E
F F
16. About 3:55 p.m. on 19 March 2019, PW3 communicated with
G the user of FB Account 2 via Facebook Messenger. PW3 asked about the G
H possibility of furthering their "business". They agreed to meet up. H
I I
J
17. About 6:30 p.m. on the same day, D1, D2, WP and PW3 went J
to a China Mobile shop situated at KOLOUR in Yuen Long and then a "3"
K K
shop nearby. Employing a scam similar to the one in Charge 1, D1, D2 and
L L
WP lured PW3 into purchasing 1 Samsung A8S at $800 with 2 years of
M M
mobile service from China Mobile; 1 iPhone XS Max at $3,280 with 2 years
N N
of mobile service and 2 additional SIM cards at $200 from "3"; 1 PALM
O O
phone at $2,744 (by instalments) with 2 years of mobile service from "3";
P P
and 1 Apple watch at $4,032 (by instalments) with 2 years of mobile service
Q from "3" using his own credit card or cash. PW3 handed over the 4 newly Q
R purchased devices to D1 and received $3,500 from D1. This is Charge 5. R
S S
T T
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由此
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A A
18. On 19 March 2019, shortly before PW3 entered into the mobile
B B
service agreement for the iPhone XS Max, D1, D2 and WP persuaded him to
C C
borrow $19,720 from WeLend online and to use the loan to settle the
D D
payment for the service plan and the price of the iPhone XS Max. They
E E
falsely told PW3 that he would not need to repay the loan as they would
F F
transfer it to another person and settle the loan. Under the loan agreement,
G PW3 had to repay a total sum of $32,972 in 4 years. On 20 March 2019, D1, G
H D2, WP and PW3 met in Mongkok. They persuaded PW3 to borrow H
I $15,000 from Thousand Fortune, a money lending company in Yau Ma Tei. I
J
They falsely told PW3 that the money would be used for business and they J
would pay PW3 interest. Furthermore, the loan would be transferred to
K K
another person so that PW3 would not be liable. Under the loan agreement,
L L
PW3 had to repay a total sum of $17,245 in 5 months. After negotiation
M M
with Thousand Fortune, PW3 settled the loan on 9 April 2019 by paying
N N
$16,025. This is Charge 6.
O O
P P
19. On 21 March 2019, D1 asked PW3 to lend her $200. PW3
Q agreed and deposited $200 into an Alipay account nominated by D1. Q
R Between 22 and 25 March 2019, D1 falsely told PW3 that she would R
S
arrange for settlement of his liabilities under the agreements if he pays her S
$13,500. PW3 told D1 to take the $200 which she previously borrowed and
T T
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A A
deposited a total sum of $13,300 into the accounts nominated by D1. None
B B
of the agreements entered into by PW3 was cancelled or settled. This is
C C
Charge 10.
D D
E E
Charges 11 and 12
F F
20. Mr. Chan (PW4; aged 22) is a friend of PW3.
G G
H H
21. D1 falsely told PW3 that his liabilities under the agreements
I I
could be settled if he could find a friend to buy mobile phones for her; and
J J
his friend would not bear any liabilities either. On 23 March 2019, PW3
K K
told PW4 about the "money-earning plan" of buying mobile phones for D1.
L However, something went wrong; PW3's liabilities could only be settled if L
M PW4 took up a job similar to PW3's. Believing PW3's false representation, M
N PW4 agreed to help. N
O O
22. About 7:00 p.m. on 23 March 2019, D1, PW3 and PW4 went to
P P
a FORTRESS shop situated at Wai Fung Centre in Mongkok. D1 lured
Q Q
PW4 into borrowing $19,720 and $10,000 from WeLend online. As a result,
R R
PW4 had to repay a total sum of $34,466 in 2 years. This is Charge 11.
S S
T T
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由此
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A A
23. Employing a scam similar to the one in Charge 1, D1 lured
B B
PW4 into purchasing 1 iPhone XS Max at $10,799 from FORTRESS. PW4
C C
paid $10,000 in cash using one of the 2 loans from WeLend and D1 paid the
D D
remaining $799. Afterwards, they went to a "3" shop nearby. D1 lured
E E
PW4 into purchasing 1 iPhone XS Max at $3,280 with 2 years of mobile
F F
service from "3". PW4 paid the entire price of $19,720 in cash using one of
G the 2 loans from WeLend. D1 paid PW3 and PW4 $500 each as their G
H rewards. This is Charge 12. H
I I
J
Charge 13 J
K K
24. About 10:00 a.m. on 30 March 2019, Mr. Ho (PW5; aged 31)
L saw a post on FB Account 2 about earning quick money. He responded to L
M the post and D1 called him to arrange for a meeting. M
N N
25. About 4:00 p.m. on the same day, D1 and PW5 visited a "3"
O O
shop, a China Mobile shop and a SmarTone shop, all situated at Metroplaza
P P
in Kwai Fong. D2 joined in when they had just left the "3" shop. D1 left
Q Q
early when D2 and PW5 were still at the SmarTone shop.
R R
S S
26. Employing a scam similar to the one in Charge 1, D1 and D2
T T
lured PW5 into purchasing 1 PALM phone at $2,744 and 1 Huawei Y9 (free
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由此
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A A
of charge) with 2 years of mobile service from "3"; 1 Samsung A8S at $800
B B
with 2 years of mobile service from China Mobile; and 2 iPhone XS Max at
C C
$2,980 each with 2 years of mobile service for each phone from SmarTone.
D D
PW5 handed over the 4 newly purchased phones to D1 and D2, but did not
E E
receive any reward. This is Charge 13.
F F
G Arrest and admissions G
H H
27. About 10:00 a.m. on 31 March 2019, PW5 alerted the Police.
I I
When PW5 as at the police station, D1 called him to arrange for a meeting.
J J
K K
28. About 11:00 a.m. on the same day, D1 and D2 were arrested at
L Tsuen Wan Plaza. D1 failed to produce proof of her identity. Under caution, L
M she claimed that she lost her identity card in Sham Shui Po 2 months ago, M
N but did not have money to obtain a replacement. This is Charge 14. N
O O
29. In her cautioned interviews, D1 admitted, inter alia, that she
P P
did everything pursuant to the instructions of WP (also known as "Fei Jai" or
Q Q
"Fei Ting"). She met both WP and D2 on Facebook. She claimed that Fei
R R
Jai taught her how to deceive people into buying new mobile phones for
S S
them. The phones were then resold for money. The Facebook accounts
T T
which were used for contacting the victims were shared by Fei Jai, D2 and
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由此
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A A
D1. Regarding the e-accounts which were used for receiving payments
B B
from PW2 and PW3, D1 claimed that they were given to her by Fei Jai.
C C
D D
30. In his cautioned interviews, D2 made admissions similar to
E E
D1's. He admitted that after D1 had sold the mobile phones purchased by
F F
PW5, she gave D2 $1,500 as his reward. He also admitted having deceived
G PW1 and PW3 together with D1. The "cheating scheme" was managed by G
H D1, D2 and Fei Ting. H
I I
J
Mitigation J
K K
D1
L L
31. She is 38 and has 1 conviction record which involved a total of
M M
8 offences of "Fraud". For those 8 offences, she was sentenced to a total of 9
N N
months' imprisonment in June 2019. Her counsel Mr. Tien informed me
O O
that D1 has a daughter (aged 10) with her ex-boyfriend. With her current
P P
boyfriend, D1 gave birth to a pair of twins in mid-2016. In mid-2019, she
Q consented to the Adoption Order of the twins. Q
R R
S
32. In mitigation, Mr. Tien submitted that D1 made full and frank S
admissions right after her arrest. Mr. Tien suggested that D1 had only
T T
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由此
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A A
received $1,000 from Fei Jai for each newly purchased mobile phone she
B B
turned in. She had received about $16,000 in total. Mr. Tien informed me
C C
that owing to his immigration status, D1's boyfriend is unable to work in
D D
Hong Kong. D1 has been detained for this case since her arrest in late
E E
March 2019. She had to rely on her 80-year-old mother to look after her
F F
10-year-old daughter.
G G
H D2 H
I I
33. He is 40 and has 4 conviction records, which included 1
J J
offence of Theft (Shoplifting). His counsel Mr. But did not say much about
K K
D2's personal background.
L L
M 34. In mitigation, Mr. But submitted that the offences in the M
N present case are not internet crimes. Facebook was used merely to invite N
interested persons to come out to meet. The false representations were made
O O
to the victims face to face when the party met. Furthermore, the victims
P P
were not elderly people or people with certain vulnerabilities. The scam
Q Q
employed cannot be classified as "street deception" either. Mr. But further
R R
submitted that D2 made full and frank admissions right after his arrest.
S S
T T
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由此
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A A
Sentence
B B
C 35. Both defence counsel acknowledged that this case does not C
D involve the Barrick type of breach of trust. They, however, accepted that the D
E
sentencing guidelines laid down by the Court of Appeal in HKSAR v Ng E
Kwok Wing [2008] 4 HKLRD 1017 may nevertheless be relevant.
F F
Prosecuting counsel Mr. Leung submitted that the guidelines in Ng Kwok
G G
Wing are perhaps simply a yardstick. For cases which are not of the Barrick
H H
type, the court may still follow the guidelines in Ng Kwok Wing or impose a
I I
sentence which is higher or lower than the guidelines, depending on the
J J
facts of each case.
K K
L 36. I accept that the present case is not strictly a cybercrime, which L
M normally deceives victims of their money directly online. Mr. But was M
N correct in pointing out that the false representations were made to the N
victims in person. I also accept that the syndicate did not appear to target at
O O
elderly people or people with certain vulnerabilities; at least the 5 victims in
P P
this case were not. Mr. Tien submitted that the scam is not a sophisticated
Q Q
one. I agree. The "deal" was just too good to be true ― purchasing brand
R R
new mobile phones and subscribing to mobile service plans in return for
S S
cash with no liabilities attached.
T T
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由此
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A A
37. Mr. But submitted that D2 played a lesser role than D1;
B B
whereas Mr. Tien submitted that the ring leader was Fei Jai. For the purpose
C C
of sentencing, I need not determine who played a lesser role. As revealed in
D D
the Summary of Facts (dated 2 June 2020), what each culprit did is clear.
E E
They might have played different roles, but they each contributed to the
F F
planning and/or execution of the scam and are equally culpable. There is no
G need to distinguish their roles or to apportion their culpability. G
H H
I 38. According to the Summary of Facts, the net loss suffered by all I
J
5 victims is about $245,000 in total. D1 and D2 are jointly responsible for J
about $170,000; and D1 is also responsible for the remaining $75,000.
K K
L L
39. Based on the scam employed in the present case, I consider the
M M
seriousness of this case commensurate with the sentencing guidelines in Ng
N N
Kwok Wing. Hence, I will follow those guidelines.
O O
P P
40. I am aware that the sum involved in each charge varies;
Q however, each charge arose from the same type of deception. It is Q
R unnecessary to set the sentence for each charge based on the individual R
S
monetary value. Other than Charge 14, which I will deal with in due course, S
T T
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由此
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A A
I adopt a starting point of 9 months' imprisonment for each charge. With the
B B
timely guilty plea, the sentence for each charge is reduced to 6 months.
C C
D D
41. For D1, I sentence her to 6 months' imprisonment each for
E E
Charges 1 to 6 and 10 to 13. Since she is responsible for the net loss suffered
F F
by all 5 victims (i.e. $245,000), I consider a global starting point of 22.5
G months' imprisonment appropriate for all 10 charges. With the timely guilty G
H pleas, the overall sentence is reduced to 15 months. To achieve this, I order H
I the sentences to run in the following manner :- I
J J
(i) Charges 2 and 3 concurrent;
K K
(ii) 2 months in Charge 1 consecutive to Charges 2 and 3;
L L
(iii) Charges 4, 5, 6 and 10 concurrent;
M M
(iv) 2 months in Charges 4, 5, 6 and 10 consecutive to Charges 1 to
N N
3;
O O
(v) Charges 11 and 12 concurrent;
P P
(vi) 2 months in Charges 11 and 12 consecutive to Charges 1 to 6
Q Q
and 10; and
R R
(vii) 3 months in Charge 13 consecutive to Charges 1 to 6 and 10 to
S 12. S
T T
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由此
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A A
42. For D2, I sentence him to 6 months' imprisonment each for
B B
Charges 1, 4, 5, 6 and 13. Since he is responsible for the net loss suffered by
C C
3 victims (i.e. $170,000), I consider a global starting point of 15 months'
D D
imprisonment appropriate for all 5 charges. With the timely guilty pleas, the
E E
overall sentence is reduced to 10 months. To achieve this, I order the
F F
sentences to run in the following manner :-
G G
(i) Charges 4, 5 and 6 concurrent;
H H
(ii) 2 months in Charge 1 consecutive to Charges 4, 5 and 6; and
I I
(iii) 2 months in Charge 13 consecutive to Charges 1, 4, 5 and 6.
J J
K K
43. The maximum penalty for Charge 14 is a fine at Level 2 (i.e.
L L
2
$5,000 ). In my view, it is unnecessary to lay this charge against D1. I will
M M
impose a nominal fine of $200, to be paid forthwith.
N N
O O
P P
Q (G. Lam) Q
District Judge
R R
S S
T T
2
See section 113B and Schedule 8 of Cap.221.
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