A A
B B
DCCC 672/2017
C C
IN THE DISTRICT COURT OF THE
D D
HONG KONG SPECIAL ADMINISTRATIVE REGION
E CRIMINAL CASE NO 672 OF 2017 E
F F
---------------------
G HKSAR G
v
H H
LI QIN FANG
I --------------------- I
J J
Before: His Honour Judge Edmond Lee
K Date: 17 November 2017 K
Present: Miss Sheroy Tam Ka Wing, Senior Public Prosecutor of the
L L
Department of Justice, for HKSAR
M Miss Tsang Oi Kei Olivia, instructed by Tsangs, assigned by M
the Director of Legal Aid, for the defendant
N N
Offences: [1] Fraud (欺詐罪)
O O
[2] Loitering with intent to commit an arrestable offence (意
P 圖犯可逮捕的罪行而遊蕩) P
[3] Remaining in Hong Kong without the authority of the
Q Q
Director of Immigration after having landed unlawfully in
R Hong Kong (在香港非法入境後未得入境事務處處長授權 R
S
而留在香港) S
T T
U U
V V
-2-
A A
B B
-----------------------------------------
C REASONS FOR SENTENCE C
-----------------------------------------
D D
E 1. The defendant is convicted upon her pleas and admissions of E
the facts of three charges:-
F F
G (a) Charge 1, fraud, contrary to section 16A of the Theft G
Ordinance, Cap 210;
H H
I (b) Charge 2, loitering with intent to commit an arrestable I
offence, contrary to section 160(1) of the Crimes
J J
Ordinance, Cap 200;
K K
(c) Charge 3, remaining in Hong Kong without the
L L
authority of the Director of Immigration after having
M landed unlawfully in Hong Kong, contrary to section M
38(1)(b) of the Immigration Ordinance, Cap 115.
N N
O THE FACTS O
P P
Incident 1
Q Q
2. On 5 June 2017, when Ng Yuk Ming (PW1) was on the way
R R
to market, she met the defendant, who was a stranger to her, asking her if
S she knew how to find the well-known retired British doctor nearby. An S
unidentified female (WP1) joined in and added that the British doctor could
T T
cure any disease and persuaded PW1 to find the doctor together. PW1
U U
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A A
B B
agreed. When they were on the way, WP1 asked PW1 about her surname,
C age and family. C
D D
3. They met another unknown female (WP2). WP1 claimed to
E PW1 that WP2 was the granddaughter-in-law of the British doctor. WP2 E
claimed that the British doctor was busy and not able to meet them, but
F F
they could have a discussion on PW1’s problem at a park nearby.
G G
4. At the park, WP2 was able to tell PW1’s surname, age and
H H
family composition. WP2 added that PW1’s son was occupied by a spirit
I and would die within three days as a result of traffic accident. PW1 was I
led into believing that WP2 possessed magical power. WP2 then said if
J J
PW1 wanted to solve the problem, she had to hand over all valuables to
K WP2 for spiritual blessing. K
L L
5. PW1 later withdrew two sums totalling HK$93,000 from two
M separate bank accounts and handed over the money to WP2 for the M
blessing. WP2 placed the cash of HK$93,000 into a black plastic bag and
N N
then placed it into PW1’s handbag. WP2 instructed PW1 not to open her
O handbag until 5 July 2017 or the whole ritual would fail. O
P P
6. The next day, ie 6 June 2017, PW1 felt that she had been
Q deceived, opened her handbag, only to find two bottles of water, two Q
packets of soft drink and some newspapers inside. She reported the case
R R
to the police.
S S
T T
U U
V V
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A A
B B
7. On 10 June 2017, on an identification parade, PW1 positively
C identified the defendant as the one who asked her how to locate the well- C
known doctor.
D D
E Incident 2 E
F F
8. This is in relation to Charges 2 and 3. On 9 June 2017,
G DPC7757 (PW2), while conducting an operation in Wong Tai Sin area, G
spotted three females, namely the defendant, Lee Choi Wan and Li Wan,
H H
and a male, namely Li An, acting suspiciously at a park. Then PW2 spotted
I Li Wan and Li An entered a restaurant in San Po Kong. Lee Choi Wan and I
the defendant followed. Later, Li Wan and Li An came out of the
J J
restaurant. Lee Choi Wan and the defendant also came out and chatted
K with them. K
L L
9. The party of four then split into two groups and took two taxis
M to Kowloon Tong MTR station. They chatted for a while on the platform M
before they boarded the same train, though the three females, including the
N N
defendant, entered the first-class compartment while the male, Li An,
O boarded the ordinary class compartment. O
P P
10. Upon arrival at Sha Tin Wai station, the three females,
Q including the defendant, formed a group, followed by Li An. They loitered Q
at Sha Kok Estate area, looking at some aged citizens.
R R
S 11. According to PW2’s observation, outside Yue Shing Court, S
Tin Sum, Lee Choi Wan approached an old lady asking her if she knew a
T T
famous magical doctor who could cure any diseases. The defendant joined
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A A
B B
in and claimed that she knew the doctor, emphasising that the doctor was
C powerful. Li Wan joined in and claimed herself to be the granddaughter of C
the doctor and suggested the old lady to meet the doctor with them. The
D D
old lady, however, refused their invitation.
E E
12. Li An followed the old lady up to Sand Martin House’s
F F
entrance. The three females, including the defendant, arrived at the open
G car park next to Ming Shun House. The defendant was then arrested. G
H H
13. The Immigration Department confirmed that defendant had no
I movement record in Hong Kong. I
J J
CAUTIONED INTERVIEWS
K K
14. In the first cautioned video recorded interview on 9 June 2017,
L L
the defendant admitted that she came to Hong Kong by boat on 3 June
M 2017, as arranged by Ah Chan. Ah Chan had introduced Lee Choi Wan M
and Li Wan to her in Shenzhen. On 9 June 2017, Lee Choi Wan, Li Wan
N N
and the defendant took MTR from Mong Kok to Shatin where they
O approached the old lady in Shatin but their deception was unsuccessful. O
P P
15. In the second cautioned video recorded interview on 10 June
Q 2017, the defendant admitted that she came to Hong Kong as arranged by Q
Ah Chan to work at a rate of a few hundred dollars a day. The defendant
R R
came to know Lee Choi Wan a month ago in Shenzhen, but she only knew
S Li Wan after coming to Hong Kong. On 6 June 2017, the defendant met S
two females named Ah Yung and Ah Ying and they worked together to
T T
deceive money from PW1. The defendant was responsible for asking PW1
U U
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A A
B B
if she knew a magical doctor, then Ah Yung would lead their way to find
C the doctor. Finally, Ah Ying claimed to be the granddaughter of the C
magical doctor. The defendant left after asking PW1 the question and
D D
earned HK$700 from Ah Chan. On 9 June 2017, it was the second time
E that the defendant worked. She, together with Lee Choi Wan and Li Wan, E
tried to deceive the old lady, but in vain.
F F
G 16. In the third cautioned video recorded interview later on 10 G
June 2017, the defendant said she did not have the contacts of Ah Yung
H H
and Ah Ying. She knew that working for Ah Chan was to deceive others
I and she could earn if the deception was successful. I
J J
DEFENDANT’S BACKGROUND
K K
17. The defendant is 61 years old, born in Mainland China, a
L L
widow, of secondary education in Mainland China, unemployed prior to
M the offences, living with her son and daughter in Guangdong province. She M
has a clear record in Hong Kong.
N N
O MITIGATION O
P P
18. Miss Tsang, counsel for the defendant, has helpfully
Q submitted a written submission to mitigate on the defendant’s behalf. The Q
antecedents submitted by the prosecution are admitted, except that prior to
R R
the present offences the defendant was in fact living with the son and the
S daughter-in-law and that she is suffering from diabetes. S
T T
U U
V V
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A A
B B
19. Very briefly, it was submitted as mitigation that the
C defendant’s husband was seriously ill in 2011 and the family therefore ran C
into financial difficulties by borrowing money for medical expenses. Her
D D
husband passed away in 2015. The family is still seriously troubled by the
E financial debts and the burden is solely on the shoulder of her son. E
F F
20. It was said by the defendant that she came across two people
G in a restaurant and was told to try to come to Hong Kong for work. With G
a view to earning money to clear the family’s debt, the defendant agreed.
H H
I 21. The defendant was then led to a boss called Ah Chan and was I
told to go to Hong Kong to work as a casual worker in a restaurant and, on
J J
the arrangement of Ah Chan, the defendant on 3 June came to Hong Kong
K illegally by boat. K
L L
22. After arrival in Hong Kong, the defendant claimed that she
M came to realise that she was not to work as a casual worker in a restaurant, M
but to work to cheat elderly people’s money for wages of $500 a day. The
N N
defendant claimed that, out of greed and stupidity, she agreed.
O O
23. Defence counsel submitted the case HKSAR v Ng Sau Lan
P P
(transliteration), CACC 396/2008, which is a case of street deception and,
Q on that occasion, the Court of Appeal has summarised various previous Q
cases involving similar charges and facts, and it is submitted that the usual
R R
starting point for a street deception of this sort should be 3 to 3½ years’
S imprisonment. S
T T
U U
V V
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A A
B B
24. Defence counsel invited the court to adopt a lenient starting
C point as the defendant is very regretful for what she did, she missed her C
family, and would very much like to go back as soon as possible. It was
D D
also submitted on the defendant’s behalf that she was not an active player
E in this case and asked the court for leniency. Defence counsel also E
submitted that the sentences for the three charges could be ordered to run
F F
wholly concurrently or partly concurrent, partly consecutive.
G G
SENTENCE
H H
I 25. Before the plea was taken, I made enquiries with the I
prosecution about Charge 2 of loitering with intent, arising from Incident
J J
2. My observations were that the culprits did nearly the same to perpetrate
K the fraud respectively in Incidents 1 and 2, except that the victim in the K
Incident 2 did not get cheated. I raised the issue as to why a charge of
L L
different nature instead of an inchoate offence or conspiracy was laid for
M Incident 2. M
N N
26. Miss Tam for the prosecution, after seeking an indulgence to
O consider the matter, informed me of the prosecution’s stance to proceed O
with the charges as they were.
P P
Q Charge 1 Q
R R
27. I first deal with Charge 1. Arising from Incident 1, I am given
S to understand from the prosecution, upon my enquiry, that these cases of S
street deception are less prevalent than they used to be in the last decade.
T T
That perhaps explains why no application under the Organized and Serious
U U
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A A
B B
Crimes Ordinance, Cap 455, for any enhancement of the sentence was
C made. I bear that in mind in the sentencing process. C
D D
28. There were a number of Court of Appeal decisions in similar
E cases. Apart from the one Ng Sau Lan mentioned above, in HKSAR v E
Onyang Guilan & 2 Ors, CACC 251/2008, the Court of Appeal differently
F F
constituted also endorsed a range of 3 to 3½ years as a starting point for a
G single offence where a gang was involved. G
H H
29. In a more recent decision, HKSAR v Yang Tulian, CACC
I 177/2012, judgment handed down on 7 March 2013, the Court of Appeal I
confirmed that range of 3 to 3½ years’ starting point.
J J
K 30. I have considered all the circumstances of this case, which is K
a typical street deception of its kind, involving a gang of several culprits
L L
coming unlawfully to Hong Kong, preying on the elderly and lone ladies,
M and cheating them of substantial amount of money. M
N N
31. The background of this defendant, including her age, lack of
O previous conviction in Hong Kong and her claim of committing the O
offences out of greed and stupidity, do not amount to any significant
P P
mitigation, though they do not disclose any aggravating factors either.
Q Q
32. Time and again, as said by the Court of Appeal, the lack of
R R
previous conviction should be subsumed in the credit given for a plea of
S guilty. See, for instance, SJ v Ko Wai Kit [2001] 3 HKLRD 751. S
T T
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A A
B B
33. Bearing in mind the fact that these kind of offences is not as
C prevalent as they used to be, not only that I do not seek to enhance the C
sentence at all, but I am also prepared to adopt a lenient starting point of 3
D D
years, which is the lowest in the range as suggested by the Court of Appeal
E in the cases mentioned above. E
F F
34. As said, apart from the guilty plea, I do not find any other
G mitigating factor. I would give the full one-third discount to the defendant G
to reflect her early plea. The final sentence for Charge 1 is one of 2 years’
H H
imprisonment.
I I
Charge 2
J J
K 35. I now deal with Charge 2, arising from Incident 2. During the K
exchange with counsel for both sides, I was given to understand that
L L
another culprit in Incident 2, Lee Choi Wan was also arrested, charged and
M convicted of the same offence of loitering with intent, for which she was M
sentenced to 2 months’ imprisonment after her guilty plea; 1 month of
N N
which was made to run consecutively to the other offence she was
O convicted. O
P P
36. I have to say that the defendant should count herself very
Q fortunate for being charged with the current offence of loitering with intent, Q
which only carried a maximum penalty of 6 months, for what she and her
R R
accomplices had done came very close to, if not constituting, an offence of
S attempted fraud or conspiracy to defraud. If charged with those offences S
of attempted fraud or conspiracy, the court can impose an additional 9
T T
months’ imprisonment, wholly consecutive, as suggested in HKSAR v Tan
U U
V V
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A A
B B
Meiyuan & 2 Ors, CACC 360/2008, or at least 6 months’ imprisonment,
C consecutive, as in Onyang Guilan & 2 Ors mentioned above. C
D D
37. The defendant is even more fortunate to have her accomplice,
E Lee Choi Wan, who had been treated extremely leniently by another E
sentencing court. Even for the current offence of loitering with intent, it
F F
disclosed serious circumstances. For other loitering offences of much less
G serious circumstances, for example, in HKSAR v Yeung Kwan Hung, G
CACC 217/2010, where the applicant was convicted of the same charge of
H H
loitering with intent by merely pulling handles of vehicles parked in meter-
I parking spaces, the Court of Appeal considered an appropriate starting I
point to be one of 3 months’ imprisonment and had the sentence to run
J J
wholly consecutively to the other sentences of the applicant. No doubt the
K circumstances of Incident 2 were much more serious. K
L L
38. Here, in view of what happened to the accomplice of the
M defendant, Lee Choi Wan, to avoid any sense of grievance or unfairness, I M
am left with no better alternatives but to adopt the same starting point,
N N
namely, 3 months’ imprisonment, reduce it by one-third for the guilty plea
O to make it 2 months, and order 1 month of which to run consecutively to O
the sentence of Charge 1.
P P
Q Charge 3 Q
R R
39. Finally, I shall deal with Charge 3 of unlawful remaining. It
S is a well-established sentencing guideline under So Man King & Ors S
[1989] 1 HKLR 142 that a sentence of 15 months’ imprisonment to be
T T
imposed after guilty plea for the defendants of this offence. Such sentence
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A A
B B
will usually be ordered to run consecutively to that of other offence(s)
C committed by the defendant. See the more recent decision in HKSAR v Lee C
Chiu Yui [2015] 1 HKC 323, where the 18 months’ imprisonment for the
D D
unlawful remaining offence was ordered to run completely consecutively
E to the 16 months’ imprisonment for the burglary offence committed by the E
appellant.
F F
G 40. Even on the authority submitted by the defence, HKSAR v G
Tong Fuk Sing [1999] 3 HKLRD 710, it was said by the Court of Appeal
H H
that, unless there were compelling circumstances, such as strong
I humanitarian reasons, the sentence for the immigration offence should I
normally be imposed consecutively for the offence which accompanied it.
J J
K 41. I do not see any of those compelling circumstances in this K
case, so I order the sentence of Charge 3 to run consecutively to that of
L L
Charge 1.
M M
42. To conclude, I sentence the defendant to 2 years’
N N
imprisonment for Charge 1; 2 months’ imprisonment for Charge 2, 1 month
O out of which to run consecutively to the sentence of Charge 1; 15 months’ O
imprisonment for Charge 3, to run consecutively to the sentence of Charge
P P
1. The total sentence of the defendant is one of 3 years and 4 months’
Q imprisonment. Q
R R
S S
( Edmond Lee )
T T
District Judge
U U
V V
A A
B B
DCCC 672/2017
C C
IN THE DISTRICT COURT OF THE
D D
HONG KONG SPECIAL ADMINISTRATIVE REGION
E CRIMINAL CASE NO 672 OF 2017 E
F F
---------------------
G HKSAR G
v
H H
LI QIN FANG
I --------------------- I
J J
Before: His Honour Judge Edmond Lee
K Date: 17 November 2017 K
Present: Miss Sheroy Tam Ka Wing, Senior Public Prosecutor of the
L L
Department of Justice, for HKSAR
M Miss Tsang Oi Kei Olivia, instructed by Tsangs, assigned by M
the Director of Legal Aid, for the defendant
N N
Offences: [1] Fraud (欺詐罪)
O O
[2] Loitering with intent to commit an arrestable offence (意
P 圖犯可逮捕的罪行而遊蕩) P
[3] Remaining in Hong Kong without the authority of the
Q Q
Director of Immigration after having landed unlawfully in
R Hong Kong (在香港非法入境後未得入境事務處處長授權 R
S
而留在香港) S
T T
U U
V V
-2-
A A
B B
-----------------------------------------
C REASONS FOR SENTENCE C
-----------------------------------------
D D
E 1. The defendant is convicted upon her pleas and admissions of E
the facts of three charges:-
F F
G (a) Charge 1, fraud, contrary to section 16A of the Theft G
Ordinance, Cap 210;
H H
I (b) Charge 2, loitering with intent to commit an arrestable I
offence, contrary to section 160(1) of the Crimes
J J
Ordinance, Cap 200;
K K
(c) Charge 3, remaining in Hong Kong without the
L L
authority of the Director of Immigration after having
M landed unlawfully in Hong Kong, contrary to section M
38(1)(b) of the Immigration Ordinance, Cap 115.
N N
O THE FACTS O
P P
Incident 1
Q Q
2. On 5 June 2017, when Ng Yuk Ming (PW1) was on the way
R R
to market, she met the defendant, who was a stranger to her, asking her if
S she knew how to find the well-known retired British doctor nearby. An S
unidentified female (WP1) joined in and added that the British doctor could
T T
cure any disease and persuaded PW1 to find the doctor together. PW1
U U
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A A
B B
agreed. When they were on the way, WP1 asked PW1 about her surname,
C age and family. C
D D
3. They met another unknown female (WP2). WP1 claimed to
E PW1 that WP2 was the granddaughter-in-law of the British doctor. WP2 E
claimed that the British doctor was busy and not able to meet them, but
F F
they could have a discussion on PW1’s problem at a park nearby.
G G
4. At the park, WP2 was able to tell PW1’s surname, age and
H H
family composition. WP2 added that PW1’s son was occupied by a spirit
I and would die within three days as a result of traffic accident. PW1 was I
led into believing that WP2 possessed magical power. WP2 then said if
J J
PW1 wanted to solve the problem, she had to hand over all valuables to
K WP2 for spiritual blessing. K
L L
5. PW1 later withdrew two sums totalling HK$93,000 from two
M separate bank accounts and handed over the money to WP2 for the M
blessing. WP2 placed the cash of HK$93,000 into a black plastic bag and
N N
then placed it into PW1’s handbag. WP2 instructed PW1 not to open her
O handbag until 5 July 2017 or the whole ritual would fail. O
P P
6. The next day, ie 6 June 2017, PW1 felt that she had been
Q deceived, opened her handbag, only to find two bottles of water, two Q
packets of soft drink and some newspapers inside. She reported the case
R R
to the police.
S S
T T
U U
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A A
B B
7. On 10 June 2017, on an identification parade, PW1 positively
C identified the defendant as the one who asked her how to locate the well- C
known doctor.
D D
E Incident 2 E
F F
8. This is in relation to Charges 2 and 3. On 9 June 2017,
G DPC7757 (PW2), while conducting an operation in Wong Tai Sin area, G
spotted three females, namely the defendant, Lee Choi Wan and Li Wan,
H H
and a male, namely Li An, acting suspiciously at a park. Then PW2 spotted
I Li Wan and Li An entered a restaurant in San Po Kong. Lee Choi Wan and I
the defendant followed. Later, Li Wan and Li An came out of the
J J
restaurant. Lee Choi Wan and the defendant also came out and chatted
K with them. K
L L
9. The party of four then split into two groups and took two taxis
M to Kowloon Tong MTR station. They chatted for a while on the platform M
before they boarded the same train, though the three females, including the
N N
defendant, entered the first-class compartment while the male, Li An,
O boarded the ordinary class compartment. O
P P
10. Upon arrival at Sha Tin Wai station, the three females,
Q including the defendant, formed a group, followed by Li An. They loitered Q
at Sha Kok Estate area, looking at some aged citizens.
R R
S 11. According to PW2’s observation, outside Yue Shing Court, S
Tin Sum, Lee Choi Wan approached an old lady asking her if she knew a
T T
famous magical doctor who could cure any diseases. The defendant joined
U U
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A A
B B
in and claimed that she knew the doctor, emphasising that the doctor was
C powerful. Li Wan joined in and claimed herself to be the granddaughter of C
the doctor and suggested the old lady to meet the doctor with them. The
D D
old lady, however, refused their invitation.
E E
12. Li An followed the old lady up to Sand Martin House’s
F F
entrance. The three females, including the defendant, arrived at the open
G car park next to Ming Shun House. The defendant was then arrested. G
H H
13. The Immigration Department confirmed that defendant had no
I movement record in Hong Kong. I
J J
CAUTIONED INTERVIEWS
K K
14. In the first cautioned video recorded interview on 9 June 2017,
L L
the defendant admitted that she came to Hong Kong by boat on 3 June
M 2017, as arranged by Ah Chan. Ah Chan had introduced Lee Choi Wan M
and Li Wan to her in Shenzhen. On 9 June 2017, Lee Choi Wan, Li Wan
N N
and the defendant took MTR from Mong Kok to Shatin where they
O approached the old lady in Shatin but their deception was unsuccessful. O
P P
15. In the second cautioned video recorded interview on 10 June
Q 2017, the defendant admitted that she came to Hong Kong as arranged by Q
Ah Chan to work at a rate of a few hundred dollars a day. The defendant
R R
came to know Lee Choi Wan a month ago in Shenzhen, but she only knew
S Li Wan after coming to Hong Kong. On 6 June 2017, the defendant met S
two females named Ah Yung and Ah Ying and they worked together to
T T
deceive money from PW1. The defendant was responsible for asking PW1
U U
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A A
B B
if she knew a magical doctor, then Ah Yung would lead their way to find
C the doctor. Finally, Ah Ying claimed to be the granddaughter of the C
magical doctor. The defendant left after asking PW1 the question and
D D
earned HK$700 from Ah Chan. On 9 June 2017, it was the second time
E that the defendant worked. She, together with Lee Choi Wan and Li Wan, E
tried to deceive the old lady, but in vain.
F F
G 16. In the third cautioned video recorded interview later on 10 G
June 2017, the defendant said she did not have the contacts of Ah Yung
H H
and Ah Ying. She knew that working for Ah Chan was to deceive others
I and she could earn if the deception was successful. I
J J
DEFENDANT’S BACKGROUND
K K
17. The defendant is 61 years old, born in Mainland China, a
L L
widow, of secondary education in Mainland China, unemployed prior to
M the offences, living with her son and daughter in Guangdong province. She M
has a clear record in Hong Kong.
N N
O MITIGATION O
P P
18. Miss Tsang, counsel for the defendant, has helpfully
Q submitted a written submission to mitigate on the defendant’s behalf. The Q
antecedents submitted by the prosecution are admitted, except that prior to
R R
the present offences the defendant was in fact living with the son and the
S daughter-in-law and that she is suffering from diabetes. S
T T
U U
V V
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A A
B B
19. Very briefly, it was submitted as mitigation that the
C defendant’s husband was seriously ill in 2011 and the family therefore ran C
into financial difficulties by borrowing money for medical expenses. Her
D D
husband passed away in 2015. The family is still seriously troubled by the
E financial debts and the burden is solely on the shoulder of her son. E
F F
20. It was said by the defendant that she came across two people
G in a restaurant and was told to try to come to Hong Kong for work. With G
a view to earning money to clear the family’s debt, the defendant agreed.
H H
I 21. The defendant was then led to a boss called Ah Chan and was I
told to go to Hong Kong to work as a casual worker in a restaurant and, on
J J
the arrangement of Ah Chan, the defendant on 3 June came to Hong Kong
K illegally by boat. K
L L
22. After arrival in Hong Kong, the defendant claimed that she
M came to realise that she was not to work as a casual worker in a restaurant, M
but to work to cheat elderly people’s money for wages of $500 a day. The
N N
defendant claimed that, out of greed and stupidity, she agreed.
O O
23. Defence counsel submitted the case HKSAR v Ng Sau Lan
P P
(transliteration), CACC 396/2008, which is a case of street deception and,
Q on that occasion, the Court of Appeal has summarised various previous Q
cases involving similar charges and facts, and it is submitted that the usual
R R
starting point for a street deception of this sort should be 3 to 3½ years’
S imprisonment. S
T T
U U
V V
-8-
A A
B B
24. Defence counsel invited the court to adopt a lenient starting
C point as the defendant is very regretful for what she did, she missed her C
family, and would very much like to go back as soon as possible. It was
D D
also submitted on the defendant’s behalf that she was not an active player
E in this case and asked the court for leniency. Defence counsel also E
submitted that the sentences for the three charges could be ordered to run
F F
wholly concurrently or partly concurrent, partly consecutive.
G G
SENTENCE
H H
I 25. Before the plea was taken, I made enquiries with the I
prosecution about Charge 2 of loitering with intent, arising from Incident
J J
2. My observations were that the culprits did nearly the same to perpetrate
K the fraud respectively in Incidents 1 and 2, except that the victim in the K
Incident 2 did not get cheated. I raised the issue as to why a charge of
L L
different nature instead of an inchoate offence or conspiracy was laid for
M Incident 2. M
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26. Miss Tam for the prosecution, after seeking an indulgence to
O consider the matter, informed me of the prosecution’s stance to proceed O
with the charges as they were.
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Q Charge 1 Q
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27. I first deal with Charge 1. Arising from Incident 1, I am given
S to understand from the prosecution, upon my enquiry, that these cases of S
street deception are less prevalent than they used to be in the last decade.
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That perhaps explains why no application under the Organized and Serious
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Crimes Ordinance, Cap 455, for any enhancement of the sentence was
C made. I bear that in mind in the sentencing process. C
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28. There were a number of Court of Appeal decisions in similar
E cases. Apart from the one Ng Sau Lan mentioned above, in HKSAR v E
Onyang Guilan & 2 Ors, CACC 251/2008, the Court of Appeal differently
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constituted also endorsed a range of 3 to 3½ years as a starting point for a
G single offence where a gang was involved. G
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29. In a more recent decision, HKSAR v Yang Tulian, CACC
I 177/2012, judgment handed down on 7 March 2013, the Court of Appeal I
confirmed that range of 3 to 3½ years’ starting point.
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K 30. I have considered all the circumstances of this case, which is K
a typical street deception of its kind, involving a gang of several culprits
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coming unlawfully to Hong Kong, preying on the elderly and lone ladies,
M and cheating them of substantial amount of money. M
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31. The background of this defendant, including her age, lack of
O previous conviction in Hong Kong and her claim of committing the O
offences out of greed and stupidity, do not amount to any significant
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mitigation, though they do not disclose any aggravating factors either.
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32. Time and again, as said by the Court of Appeal, the lack of
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previous conviction should be subsumed in the credit given for a plea of
S guilty. See, for instance, SJ v Ko Wai Kit [2001] 3 HKLRD 751. S
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33. Bearing in mind the fact that these kind of offences is not as
C prevalent as they used to be, not only that I do not seek to enhance the C
sentence at all, but I am also prepared to adopt a lenient starting point of 3
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years, which is the lowest in the range as suggested by the Court of Appeal
E in the cases mentioned above. E
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34. As said, apart from the guilty plea, I do not find any other
G mitigating factor. I would give the full one-third discount to the defendant G
to reflect her early plea. The final sentence for Charge 1 is one of 2 years’
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imprisonment.
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Charge 2
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K 35. I now deal with Charge 2, arising from Incident 2. During the K
exchange with counsel for both sides, I was given to understand that
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another culprit in Incident 2, Lee Choi Wan was also arrested, charged and
M convicted of the same offence of loitering with intent, for which she was M
sentenced to 2 months’ imprisonment after her guilty plea; 1 month of
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which was made to run consecutively to the other offence she was
O convicted. O
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36. I have to say that the defendant should count herself very
Q fortunate for being charged with the current offence of loitering with intent, Q
which only carried a maximum penalty of 6 months, for what she and her
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accomplices had done came very close to, if not constituting, an offence of
S attempted fraud or conspiracy to defraud. If charged with those offences S
of attempted fraud or conspiracy, the court can impose an additional 9
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months’ imprisonment, wholly consecutive, as suggested in HKSAR v Tan
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Meiyuan & 2 Ors, CACC 360/2008, or at least 6 months’ imprisonment,
C consecutive, as in Onyang Guilan & 2 Ors mentioned above. C
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37. The defendant is even more fortunate to have her accomplice,
E Lee Choi Wan, who had been treated extremely leniently by another E
sentencing court. Even for the current offence of loitering with intent, it
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disclosed serious circumstances. For other loitering offences of much less
G serious circumstances, for example, in HKSAR v Yeung Kwan Hung, G
CACC 217/2010, where the applicant was convicted of the same charge of
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loitering with intent by merely pulling handles of vehicles parked in meter-
I parking spaces, the Court of Appeal considered an appropriate starting I
point to be one of 3 months’ imprisonment and had the sentence to run
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wholly consecutively to the other sentences of the applicant. No doubt the
K circumstances of Incident 2 were much more serious. K
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38. Here, in view of what happened to the accomplice of the
M defendant, Lee Choi Wan, to avoid any sense of grievance or unfairness, I M
am left with no better alternatives but to adopt the same starting point,
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namely, 3 months’ imprisonment, reduce it by one-third for the guilty plea
O to make it 2 months, and order 1 month of which to run consecutively to O
the sentence of Charge 1.
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Q Charge 3 Q
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39. Finally, I shall deal with Charge 3 of unlawful remaining. It
S is a well-established sentencing guideline under So Man King & Ors S
[1989] 1 HKLR 142 that a sentence of 15 months’ imprisonment to be
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imposed after guilty plea for the defendants of this offence. Such sentence
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will usually be ordered to run consecutively to that of other offence(s)
C committed by the defendant. See the more recent decision in HKSAR v Lee C
Chiu Yui [2015] 1 HKC 323, where the 18 months’ imprisonment for the
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unlawful remaining offence was ordered to run completely consecutively
E to the 16 months’ imprisonment for the burglary offence committed by the E
appellant.
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G 40. Even on the authority submitted by the defence, HKSAR v G
Tong Fuk Sing [1999] 3 HKLRD 710, it was said by the Court of Appeal
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that, unless there were compelling circumstances, such as strong
I humanitarian reasons, the sentence for the immigration offence should I
normally be imposed consecutively for the offence which accompanied it.
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K 41. I do not see any of those compelling circumstances in this K
case, so I order the sentence of Charge 3 to run consecutively to that of
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Charge 1.
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42. To conclude, I sentence the defendant to 2 years’
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imprisonment for Charge 1; 2 months’ imprisonment for Charge 2, 1 month
O out of which to run consecutively to the sentence of Charge 1; 15 months’ O
imprisonment for Charge 3, to run consecutively to the sentence of Charge
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1. The total sentence of the defendant is one of 3 years and 4 months’
Q imprisonment. Q
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( Edmond Lee )
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District Judge
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