A DCCC 1045/2014 A
IN THE DISTRICT COURT OF THE
B HONG KONG SPECIAL ADMINISTRATIVE REGION B
CRIMINAL CASE NO 1045 OF 2014
C C
----------------------
D HKSAR D
v
E E
Wu Xiaopeng
F F
----------------------
G Before: HH Judge C P Pang G
Date: 22 January 2015
Present: Mr Joe Hui, PP of the Department of Justice, for HKSAR
H Mr Tse Lin-fung, Charles, of Yip, Tse & Tang, assigned H
by the Director of Legal Aid, for the defendant
I Offence: (1) Conspiracy to defraud (串謀詐騙) I
(2) Resisting police officers in the execution of
their duties (抗拒執行職責的警務人員)
J J
K
--------------------- K
Reasons for Sentence
L L
---------------------
M 1. The defendant pleads guilty to one charge of M
conspiracy to defraud （Charge 1）, and one charge of resisting
N N
police officers （Charge 2）.
O O
2. The facts of the case show a telephone deception scam.
P At around 1 pm on 17 October 2014, Madam Yeung, the victim, P
received a call from an unknown male (“the male”) at her home.
Q Q
The male told the victim that her son had made someone pregnant
and the male demanded a sum of HK$180,000 for the release of her
R R
son. After negotiation, the male agreed to accept $30,000.
S S
3. The victim then headed for the bank together with her
T relative, one Mr Yeung, to withdraw money. At the bank Mr Yeung T
revealed the incident to the staff member of the bank who then
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CRT24/22.1.2015/SY 1 DCCC 1045/2014/Sentence
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A reported the case to the police. The police contacted the A
victim’s son who confirmed that he was safe.
B B
4. The police then mounted an operation. On the
C C
instruction of the male, the victim eventually entered the
McDonald Restaurant at Smithfield Road at about 3.30 pm. While
D D
the victim was talking on the phone with the male, the defendant
E approached the victim and said to her, “Madam, it is me. You E
pass the money to me. Your son and my brother are in McDonald’s
F Restaurant. After you give me the money, you can see your son.” F
The victim then passed the envelope purporting to contain the
G G
ransom money to the defendant.
H H
5. Police officers laying ambush nearby intercepted the
I
defendant and declared arrest. The defendant tried to flee from I
the scene. A police officer gave chase to the defendant, but the
J defendant pushed him away. They struggled on the ground. J
Another officer gave assistance and they finally subdued the
K defendant. K
L L
6. Under caution, upon arrest, the defendant admitted
having committed a telephone deception. He also said he did not
M M
intend to injure the police officers and his act was just normal
N reaction. N
O 7. Upon arrest, a mobile phone was found being dropped O
from the defendant onto the ground. The envelope was found near
P P
the mobile phone. Another mobile phone was found on the
defendant.
Q Q
R 8. In the subsequent video-recorded interview, the R
defendant admitted that he had tried to deceive the victim and
S had resisted the police officers. S
T T
9. The two police officers were sent to hospital. One was
found sustaining abrasions on his right elbow and left and right
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CRT24/22.1.2015/SY 2 DCCC 1045/2014/Sentence
V V
A knees. Another one was found sustaining tenderness, haematoma A
and abrasions on his forehead and abrasions on his right arm.
B B
10. Immigration records show that the defendant entered
C C
Hong Kong as a visitor on 13 October 2014 being permitted to
stay for a week.
D D
E 11. The prosecution applies for enhancement of sentence E
under section 27(2) of the Organised and Serious Crimes
F Ordinance, Cap 454. The application is not opposed to by the F
defendant.
G G
12. The defendant is aged 29 with no criminal record in
H H
Hong Kong. He is a resident in the mainland.
I I
13. In mitigation Mr Tse, solicitor for the defendant,
J tells the court that the defendant is a decoration worker in the J
mainland earning 2,000 renminbi a month. He received education
K up to secondary one. He came to Hong Kong for sightseeing but K
was asked by a relative to participate in the crime. He is now
L L
remorseful and he already apologised for causing injuries to the
police officers in the interview with the police.
M M
N 14. In respect of the application for enhancement of N
sentence, while accepting telephone deception is still prevalent
O in Hong Kong, Mr Tse points out that according to the statement O
of Chief Inspector Lam, which is admitted under section 65B of
P P
the Criminal Procedure Ordinance, the number of telephone
deception cases in 2014 (ie 183 cases), was lower than that in
Q Q
2013 (ie 200 cases). The total amount of loss in the crime has
R also dropped from $13.74 million in 2013 to $12.87 million in R
2014.
S S
15. Mr Tse refers me to the case of HKSAR v Hung Yung Chun
T T
CACC 453/2009. In that case the Court of Appeal stated that
phone deception case is more serious than a common street
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V V
A deception case and the general starting point for a phone A
deception case should be 4 years’ imprisonment and an
B enhancement by one-third would be appropriate. B
C C
16. In the present case, the defendant admitted under
caution having committed the telephone deception. He is a party
D D
in that crime. He is not a Hong Kong resident. The original
E ransom asked for was $180,000 which was eventually negotiated E
down to $30,000. The victim suffered no actual loss of money
F though. F
G G
17. I am satisfied that the general starting point of 4
years for Charge 1 is appropriate in the circumstances of the
H H
case. I will take 3 months’ imprisonment as the starting point
I
for Charge 2. Apart from the defendant’s plea of guilty, I I
cannot find any mitigating factors in the case. The defendant
J will have the full one-third reduction for his plea of guilty. J
K 18. The sentences for the two charges should be 32 months K
and 2 months respectively.
L L
19. The application for enhancement of sentence is not
M M
opposed to. Noting the slight decrease in the number of
N telephone deception cases in 2014, I am satisfied that the N
prosecution has proved that telephone deception cases are still
O prevalent in Hong Kong and the crime causes harm to the O
community by its repeated occurrence.
P P
20. Enhancement of the sentence in Charge 1 is necessary.
Q Q
However, in my view, an increase by 25 per cent, ie 8 months,
R would be sufficient in all the circumstances. R
S 21. Having considered the totality principle, the sentence S
in Charge 2 can run concurrently with Charge 1. The defendant is
T T
therefore sentenced as follows: Charge 1, 40 months’
imprisonment; Charge 2, 2 months’ imprisonment, to run
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V V
A concurrently with the sentence in Charge 1, making a total term A
of 3 years and 4 months’ imprisonment.
B B
C C
D D
E (C. P. Pang) E
District Judge
F F
G G
H H
I I
J J
K K
L L
M M
N N
O O
P P
Q Q
R R
S S
T T
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CRT24/22.1.2015/SY 5 DCCC 1045/2014/Sentence
V V
A DCCC 1045/2014 A
IN THE DISTRICT COURT OF THE
B HONG KONG SPECIAL ADMINISTRATIVE REGION B
CRIMINAL CASE NO 1045 OF 2014
C C
----------------------
D HKSAR D
v
E E
Wu Xiaopeng
F F
----------------------
G Before: HH Judge C P Pang G
Date: 22 January 2015
Present: Mr Joe Hui, PP of the Department of Justice, for HKSAR
H Mr Tse Lin-fung, Charles, of Yip, Tse & Tang, assigned H
by the Director of Legal Aid, for the defendant
I Offence: (1) Conspiracy to defraud (串謀詐騙) I
(2) Resisting police officers in the execution of
their duties (抗拒執行職責的警務人員)
J J
K
--------------------- K
Reasons for Sentence
L L
---------------------
M 1. The defendant pleads guilty to one charge of M
conspiracy to defraud （Charge 1）, and one charge of resisting
N N
police officers （Charge 2）.
O O
2. The facts of the case show a telephone deception scam.
P At around 1 pm on 17 October 2014, Madam Yeung, the victim, P
received a call from an unknown male (“the male”) at her home.
Q Q
The male told the victim that her son had made someone pregnant
and the male demanded a sum of HK$180,000 for the release of her
R R
son. After negotiation, the male agreed to accept $30,000.
S S
3. The victim then headed for the bank together with her
T relative, one Mr Yeung, to withdraw money. At the bank Mr Yeung T
revealed the incident to the staff member of the bank who then
U U
CRT24/22.1.2015/SY 1 DCCC 1045/2014/Sentence
V V
A reported the case to the police. The police contacted the A
victim’s son who confirmed that he was safe.
B B
4. The police then mounted an operation. On the
C C
instruction of the male, the victim eventually entered the
McDonald Restaurant at Smithfield Road at about 3.30 pm. While
D D
the victim was talking on the phone with the male, the defendant
E approached the victim and said to her, “Madam, it is me. You E
pass the money to me. Your son and my brother are in McDonald’s
F Restaurant. After you give me the money, you can see your son.” F
The victim then passed the envelope purporting to contain the
G G
ransom money to the defendant.
H H
5. Police officers laying ambush nearby intercepted the
I
defendant and declared arrest. The defendant tried to flee from I
the scene. A police officer gave chase to the defendant, but the
J defendant pushed him away. They struggled on the ground. J
Another officer gave assistance and they finally subdued the
K defendant. K
L L
6. Under caution, upon arrest, the defendant admitted
having committed a telephone deception. He also said he did not
M M
intend to injure the police officers and his act was just normal
N reaction. N
O 7. Upon arrest, a mobile phone was found being dropped O
from the defendant onto the ground. The envelope was found near
P P
the mobile phone. Another mobile phone was found on the
defendant.
Q Q
R 8. In the subsequent video-recorded interview, the R
defendant admitted that he had tried to deceive the victim and
S had resisted the police officers. S
T T
9. The two police officers were sent to hospital. One was
found sustaining abrasions on his right elbow and left and right
U U
CRT24/22.1.2015/SY 2 DCCC 1045/2014/Sentence
V V
A knees. Another one was found sustaining tenderness, haematoma A
and abrasions on his forehead and abrasions on his right arm.
B B
10. Immigration records show that the defendant entered
C C
Hong Kong as a visitor on 13 October 2014 being permitted to
stay for a week.
D D
E 11. The prosecution applies for enhancement of sentence E
under section 27(2) of the Organised and Serious Crimes
F Ordinance, Cap 454. The application is not opposed to by the F
defendant.
G G
12. The defendant is aged 29 with no criminal record in
H H
Hong Kong. He is a resident in the mainland.
I I
13. In mitigation Mr Tse, solicitor for the defendant,
J tells the court that the defendant is a decoration worker in the J
mainland earning 2,000 renminbi a month. He received education
K up to secondary one. He came to Hong Kong for sightseeing but K
was asked by a relative to participate in the crime. He is now
L L
remorseful and he already apologised for causing injuries to the
police officers in the interview with the police.
M M
N 14. In respect of the application for enhancement of N
sentence, while accepting telephone deception is still prevalent
O in Hong Kong, Mr Tse points out that according to the statement O
of Chief Inspector Lam, which is admitted under section 65B of
P P
the Criminal Procedure Ordinance, the number of telephone
deception cases in 2014 (ie 183 cases), was lower than that in
Q Q
2013 (ie 200 cases). The total amount of loss in the crime has
R also dropped from $13.74 million in 2013 to $12.87 million in R
2014.
S S
15. Mr Tse refers me to the case of HKSAR v Hung Yung Chun
T T
CACC 453/2009. In that case the Court of Appeal stated that
phone deception case is more serious than a common street
U U
CRT24/22.1.2015/SY 3 DCCC 1045/2014/Sentence
V V
A deception case and the general starting point for a phone A
deception case should be 4 years’ imprisonment and an
B enhancement by one-third would be appropriate. B
C C
16. In the present case, the defendant admitted under
caution having committed the telephone deception. He is a party
D D
in that crime. He is not a Hong Kong resident. The original
E ransom asked for was $180,000 which was eventually negotiated E
down to $30,000. The victim suffered no actual loss of money
F though. F
G G
17. I am satisfied that the general starting point of 4
years for Charge 1 is appropriate in the circumstances of the
H H
case. I will take 3 months’ imprisonment as the starting point
I
for Charge 2. Apart from the defendant’s plea of guilty, I I
cannot find any mitigating factors in the case. The defendant
J will have the full one-third reduction for his plea of guilty. J
K 18. The sentences for the two charges should be 32 months K
and 2 months respectively.
L L
19. The application for enhancement of sentence is not
M M
opposed to. Noting the slight decrease in the number of
N telephone deception cases in 2014, I am satisfied that the N
prosecution has proved that telephone deception cases are still
O prevalent in Hong Kong and the crime causes harm to the O
community by its repeated occurrence.
P P
20. Enhancement of the sentence in Charge 1 is necessary.
Q Q
However, in my view, an increase by 25 per cent, ie 8 months,
R would be sufficient in all the circumstances. R
S 21. Having considered the totality principle, the sentence S
in Charge 2 can run concurrently with Charge 1. The defendant is
T T
therefore sentenced as follows: Charge 1, 40 months’
imprisonment; Charge 2, 2 months’ imprisonment, to run
U U
CRT24/22.1.2015/SY 4 DCCC 1045/2014/Sentence
V V
A concurrently with the sentence in Charge 1, making a total term A
of 3 years and 4 months’ imprisonment.
B B
C C
D D
E (C. P. Pang) E
District Judge
F F
G G
H H
I I
J J
K K
L L
M M
N N
O O
P P
Q Q
R R
S S
T T
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CRT24/22.1.2015/SY 5 DCCC 1045/2014/Sentence
V V