A A
B B
DCCC 844/2018
C [2019] HKDC 346 C
D D
IN THE DISTRICT COURT OF THE
E HONG KONG SPECIAL ADMINISTRATIVE REGION E
CRIMINAL CASE NO 844 OF 2018
F F
G ---------------------------- G
HKSAR
H H
v
I DWEH JOJO I
----------------------------
J J
K Before: HH Judge K Lo K
Date: 31 January 2019
L L
Present: Ms Yuen Wai Yee Angel, Senior Public Prosecution (Acting)
M of the Department of Justice, for HKSAR M
Mr Ian Hastings Polson, instructed by James W L Li & Co,
N N
for the defendant
O Offence: [1] Conspiracy to defraud (串謀詐騙) O
P
[2] Conspiracy to steal (串謀偷竊) P
[3] Breach of condition of stay (違反逗留條件)
Q Q
R -------------------------------------- R
REASONS FOR SENTENCE
S S
--------------------------------------
T T
U U
V V
-2-
A A
B B
1. Defendant was convicted, on his own plea, to a charge of
C conspiracy to defraud, contrary to Common Law and punishable under C
section 159C(6) of the Crimes Ordinance, Cap 200 (first charge), and
D D
another charge of breach of condition of stay, contrary to section 41 of the
E Immigration Ordinance, Cap 115 (third charge). E
F F
Facts
G G
2. According to the agreed amended summary of facts, in around
H H
2014, the victim (PW1) met a male named “William” online and they
I communicated via WhatsApp and Hangouts. PW1 had never met him in I
person but they became involved romantically.
J J
K 3. On 26 August 2017, William told PW1 on WhatsApp that he K
would come to Hong Kong to marry her and would arrange for one
L L
“Johnson Schmid” to deliver a trunk containing US$2,800,000 worth of
M banknotes to her. M
N N
4. On an unknown day in October 2017, defendant sent PW1 a
O message on WhatsApp saying that he was a staff member of the United O
Nations and had been entrusted by William to pass a trunk of cash to her.
P P
He falsely represented to PW1 that the trunk containing the cash had been
Q detained by the Hong Kong Customs and Excise Department at the Hong Q
Kong International Airport and payment had to be made for its redemption.
R R
S 5. PW1 was then asked to deposit money into an HSBC bank S
account numbered 819-516097-833 held by Fu Hui and Mo Wenbin
T T
(“Account”) to redeem the trunk of banknotes. As PW1 did not have
U U
V V
-3-
A A
B B
enough cash and she was afraid that the trunk of cash would be confiscated,
C she borrowed money from her friend (PW2). C
D D
6. Induced partly by the defendant’s false representations, PW1
E deposited HK$70,416 into the Account on 30 November 2017; US$3,000 E
on 4 December 2017; US$1,950 on 18 December 2017 and US$24,000 on
F F
10 December 2017.
G G
7. Further, on an unknown day in December 2017 and 2 January
H 2018, PW1 met up with the defendant in Tsim Sha Tsui and passed him H
cash of HK$123,000 and HK$60,000 respectively.
I I
J 8. After making the above payments, defendant informed PW1 J
that the payment was sufficient and that he would deliver the trunk of
K K
banknotes to her in Yau Ma Tei.
L L
9. In the evening of 2 January 2018, defendant went to PW1’s
M M
home with an unknown male who was pulling a suitcase. Defendant
N N
opened the suitcase and took out a few pieces of black-coloured paper
O
therefrom. He falsely represented to PW1 that these were US banknotes O
and that William had dyed them black in order to avoid the suspicion of
P P
customs. The defendant also falsely represented to PW1 that a special
Q solution had to be purchased and applied to remove the black dye from the Q
US banknotes and demonstrated it to PW1 using five pieces of the black
R R
notes from the suitcase.
S S
10. Defendant then asked PW1 to pay money to purchase the
T T
special solution and left with the unknown male. They left the suitcase at
U U
V V
-4-
A A
B B
her home and told her that it could only be opened by a United Nations
C officer. Induced by the defendant’s false representations, PW1 asked PW2 C
to help her transfer US$120,000 to a US bank account held under the name
D D
of “First City Bolder Alpha Enterprises” as instructed by defendant. PW2
E did so on 12 January 2018. E
F F
11. On 15 January 2018, defendant went to PW1’s home alone
G and demonstrated her as to how the black notes could be rinsed with special G
solutions. However, he was unsuccessful and claimed that there was
H H
something wrong with the solution. He then left without taking the suitcase
I with him. I
J J
12. On 16 January 2018, PW2 went to PW1’s home, asking when
K she had planned to repay him. PW1 told PW2 about the incident. PW2 K
inspected the suitcase left behind by the defendant, which contained a
L L
silver trunk lined with cotton wool and contained 6,630 pieces of ordinary
M black paper. M
N N
13. In the afternoon of 22 January 2018, PW1 reported the case to
O the police. At around 10 pm that night, PW1 and 2 went to Chungking O
Mansions, Tsim Sha Tsui, with a photo of the defendant that PW1 had
P P
secretly taken earlier. They then found the defendant at the 1st floor
Q corridor of Chungking Mansions and called the police. Q
R R
14. Defendant was arrested and he failed to provide any identity
S document upon request. Under caution, he stated that he had entered Hong S
Kong on 1 July 2017 but lost his passport on 7 July 2017.
T T
U U
V V
-5-
A A
B B
15. Arrival / Departure records confirmed that defendant had
C entered Hong Kong as a visitor on 1 July 2017 and was only permitted to C
remain until 15 July 2017 (Charge 3).
D D
E 16. Defendant had no fixed abode and no house search could be E
conducted.
F F
G 17. The forensic scientist examined 10 pieces of the black paper G
seized from PW1’s home, which were found to be pieces of black-coloured
H H
paper stained with white powder. The papers were found to agree in
I general appearance and size with each other and measured 6 cm by 15 cm. I
The powder samples were found to contain talc, widely used as a major
J J
constituent of baby powder.
K K
18. At all material times, defendant had conspired with William,
L L
Fu Hui, Mo Wenbin and other persons unknown to defraud PW1, by
M dishonestly making a series of false representations and inducing PW1 to M
make payments in the total sum of HK$253,416 and US$148,950 (Charge
N N
1); and the defendant contravened a condition of stay in respect of his visit,
O in that, being permitted to remain in Hong Kong as a visitor until 15 July O
2017, he remained in Hong Kong after that date.
P P
Q Criminal record Q
R R
19. Defendant has a clear record in Hong Kong.
S S
T T
U U
V V
-6-
A A
B B
Mitigation
C C
20. Defendant is a Liberian national. He entered Hong Kong on
D D
1 July 2017 as a visitor and had overstayed since 15 July 2017.
E E
21. He is aged 42 years old, married with a wife aged 28 and a
F F
son aged 3 back in Liberia.
G G
22. He was a self-employed trader before he came to Hong Kong.
H At the time of offence, he was unemployed. H
I I
23. He received education up to secondary school level.
J J
24. Mr Polson, Counsel for the defendant, submitted that
K K
defendant had pleaded guilty when he appeared before the court on 4
L December 2018. He asked this court to give the defendant a sentencing L
discount on his early plea.
M M
N 25. It was also said that the victim in the present case was greedy, N
hoping to have an enormous return on the payment of relatively small
O O
amount of money and that the case was different from where the victim
P was an old lady cheated on false pretence of blessings for family. P
Q Q
26. He accepted that fairly large amount of money was involved
R in this case. He urged this court to adopt the sentence imposed by this court R
in the case of DCCC 917/2017 case, which was later affirmed in CACC
S S
230/2018.
T T
U U
V V
-7-
A A
B B
Discussion
C C
First charge
D D
E 27. The maximum sentence on conviction of the first charge is 14 E
years’ imprisonment.
F F
G 28. The facts of the present case is very much similar to the facts G
in the cited case by Mr Polson, the case of HKSAR v Uamusse Elias Filipe
H H
& Ors, DCCC 917/2017, where a lot of cases were cited and considered,
I like the present case. I
J J
29. The present case was a deception case preceded by the victim
K befriended by a “William” online romantically since few years back. K
L 30. Defendant here sent WhatsApp messages containing L
misrepresentations to the victim, partly on reliance of which, the victim
M M
had paid about HK$300,000 in total. He later met the victim and collected
N N
other sum totally approximately HK$ 200,000 from her.
O O
31. Further, it was the defendant who delivered the suitcase of
P P
black-coloured “US banknotes” to the victim and made further false
Q representations to her and asked her to pay further sums for purchase of the Q
special solution, subsequent to which US$120,000 was paid by the victim.
R R
S 32. The role of the defendant in the present case was manifold and S
indispensable in the whole scheme. The amount of money at stake was
T T
also few times more than that in the Uamusse case. The defendant was a
U U
V V
-8-
A A
B B
key member, no doubt, of a gang, that had perpetrated a “black money”
C fraud on the victim, who was swindled out of HK$1.4 million. None of C
the money was recovered. In fact, most of these money the victim had
D D
borrowed from her friend and she did not have the money back and she is
E now left in debt. E
F F
33. As noted by the Court of Appeal in the Uamusse case on
G appeal, CACC 230/2018, this was “an extremely elaborate and well- G
planned fraud involving the grooming of the victim over the Internet, with
H H
extensive role-playing by the gang members in order to beguile the victim
I into believing the whole arrangement was real”. I
J J
34. The Court of Appeal commented in that case that this court
K should have enhanced the sentence of the defendant by the reason that he K
is coming to Hong Kong to commit the crime.
L L
M 35. The defendant in the cited case was convicted of conspiracy M
to obtain property by deception, the maximum sentence of which is 10
N N
years’ imprisonment.
O O
36. In the present case, defendant was convicted of conspiracy to
P P
defraud, the maximum sentence of which is 14 years’ imprisonment.
Q Q
37. Secondly, as said earlier, the amount involved in the present
R R
case is about four times as much as the amount involved in the cited case,
S of which, in this case, as said earlier, most of these are victim’s borrowed S
money.
T T
U U
V V
-9-
A A
B B
38. Having considered the circumstances under which the present
C offence was committed, loss suffered by the victim, role of the defendant, C
level of sophistication and the deception scheme, the sentencing starting
D D
point for the first charge is 4 years.
E E
39. Defendant has pleaded guilty, though not at the first available
F F
opportunity, but he indicated his guilty plea before trial was fixed. This
G court consider appropriate sentencing discount afforded to defendant G
should remain at one-third, and I am not minded to enhance his sentence
H H
by reason he is a visitor, over-stayer in Hong Kong.
I I
40. Accordingly, for the first charge, the defendant is sentenced
J J
to 2 years and 8 months’ imprisonment.
K K
The third charge
L L
M 41. Maximum sentence for this offence is fine at level 5 and M
imprisonment for 2 years.
N N
O 42. Defendant is over-stayer in Hong Kong when he was arrested, O
ie 22 January 2018. He had already overstayed for 6 months. Defendant
P P
is sentenced in this case to 6 weeks’ imprisonment.
Q Q
43. In reaching this sentence, the court had not considered that he
R R
had committed the first charge offence within this period. Again,
S considering the guilty plea, he is entitled to one-third sentencing discount. S
T T
U U
V V
- 10 -
A A
B B
44. Accordingly, he is sentenced to 4 weeks’ imprisonment for
C this charge. C
D D
45. The third charge is a separate, distinct offence from the first
E charge. The sentence for the third charge therefore should run consecutive E
to the sentence in the first charge.
F F
G 46. This court has also considered the totality principle and is of G
the view that the total sentence of 2 years 8 months and 4 weeks imposed
H H
on the defendant for the first and the third charge are appropriate, just and
I proportionate to the criminality of the defendant in the present case. I
J J
47. Accordingly, defendant is sentenced to a total of 2 years 8
K months and 4 weeks, ie 2 years 8 months for the first charge, the same to K
serve consecutive to the sentence in the third charge, which is 4 weeks.
L L
M M
N N
O O
( K Lo )
P P
District Judge
Q Q
R R
S S
T T
U U
V V
A A
B B
DCCC 844/2018
C [2019] HKDC 346 C
D D
IN THE DISTRICT COURT OF THE
E HONG KONG SPECIAL ADMINISTRATIVE REGION E
CRIMINAL CASE NO 844 OF 2018
F F
G ---------------------------- G
HKSAR
H H
v
I DWEH JOJO I
----------------------------
J J
K Before: HH Judge K Lo K
Date: 31 January 2019
L L
Present: Ms Yuen Wai Yee Angel, Senior Public Prosecution (Acting)
M of the Department of Justice, for HKSAR M
Mr Ian Hastings Polson, instructed by James W L Li & Co,
N N
for the defendant
O Offence: [1] Conspiracy to defraud (串謀詐騙) O
P
[2] Conspiracy to steal (串謀偷竊) P
[3] Breach of condition of stay (違反逗留條件)
Q Q
R -------------------------------------- R
REASONS FOR SENTENCE
S S
--------------------------------------
T T
U U
V V
-2-
A A
B B
1. Defendant was convicted, on his own plea, to a charge of
C conspiracy to defraud, contrary to Common Law and punishable under C
section 159C(6) of the Crimes Ordinance, Cap 200 (first charge), and
D D
another charge of breach of condition of stay, contrary to section 41 of the
E Immigration Ordinance, Cap 115 (third charge). E
F F
Facts
G G
2. According to the agreed amended summary of facts, in around
H H
2014, the victim (PW1) met a male named “William” online and they
I communicated via WhatsApp and Hangouts. PW1 had never met him in I
person but they became involved romantically.
J J
K 3. On 26 August 2017, William told PW1 on WhatsApp that he K
would come to Hong Kong to marry her and would arrange for one
L L
“Johnson Schmid” to deliver a trunk containing US$2,800,000 worth of
M banknotes to her. M
N N
4. On an unknown day in October 2017, defendant sent PW1 a
O message on WhatsApp saying that he was a staff member of the United O
Nations and had been entrusted by William to pass a trunk of cash to her.
P P
He falsely represented to PW1 that the trunk containing the cash had been
Q detained by the Hong Kong Customs and Excise Department at the Hong Q
Kong International Airport and payment had to be made for its redemption.
R R
S 5. PW1 was then asked to deposit money into an HSBC bank S
account numbered 819-516097-833 held by Fu Hui and Mo Wenbin
T T
(“Account”) to redeem the trunk of banknotes. As PW1 did not have
U U
V V
-3-
A A
B B
enough cash and she was afraid that the trunk of cash would be confiscated,
C she borrowed money from her friend (PW2). C
D D
6. Induced partly by the defendant’s false representations, PW1
E deposited HK$70,416 into the Account on 30 November 2017; US$3,000 E
on 4 December 2017; US$1,950 on 18 December 2017 and US$24,000 on
F F
10 December 2017.
G G
7. Further, on an unknown day in December 2017 and 2 January
H 2018, PW1 met up with the defendant in Tsim Sha Tsui and passed him H
cash of HK$123,000 and HK$60,000 respectively.
I I
J 8. After making the above payments, defendant informed PW1 J
that the payment was sufficient and that he would deliver the trunk of
K K
banknotes to her in Yau Ma Tei.
L L
9. In the evening of 2 January 2018, defendant went to PW1’s
M M
home with an unknown male who was pulling a suitcase. Defendant
N N
opened the suitcase and took out a few pieces of black-coloured paper
O
therefrom. He falsely represented to PW1 that these were US banknotes O
and that William had dyed them black in order to avoid the suspicion of
P P
customs. The defendant also falsely represented to PW1 that a special
Q solution had to be purchased and applied to remove the black dye from the Q
US banknotes and demonstrated it to PW1 using five pieces of the black
R R
notes from the suitcase.
S S
10. Defendant then asked PW1 to pay money to purchase the
T T
special solution and left with the unknown male. They left the suitcase at
U U
V V
-4-
A A
B B
her home and told her that it could only be opened by a United Nations
C officer. Induced by the defendant’s false representations, PW1 asked PW2 C
to help her transfer US$120,000 to a US bank account held under the name
D D
of “First City Bolder Alpha Enterprises” as instructed by defendant. PW2
E did so on 12 January 2018. E
F F
11. On 15 January 2018, defendant went to PW1’s home alone
G and demonstrated her as to how the black notes could be rinsed with special G
solutions. However, he was unsuccessful and claimed that there was
H H
something wrong with the solution. He then left without taking the suitcase
I with him. I
J J
12. On 16 January 2018, PW2 went to PW1’s home, asking when
K she had planned to repay him. PW1 told PW2 about the incident. PW2 K
inspected the suitcase left behind by the defendant, which contained a
L L
silver trunk lined with cotton wool and contained 6,630 pieces of ordinary
M black paper. M
N N
13. In the afternoon of 22 January 2018, PW1 reported the case to
O the police. At around 10 pm that night, PW1 and 2 went to Chungking O
Mansions, Tsim Sha Tsui, with a photo of the defendant that PW1 had
P P
secretly taken earlier. They then found the defendant at the 1st floor
Q corridor of Chungking Mansions and called the police. Q
R R
14. Defendant was arrested and he failed to provide any identity
S document upon request. Under caution, he stated that he had entered Hong S
Kong on 1 July 2017 but lost his passport on 7 July 2017.
T T
U U
V V
-5-
A A
B B
15. Arrival / Departure records confirmed that defendant had
C entered Hong Kong as a visitor on 1 July 2017 and was only permitted to C
remain until 15 July 2017 (Charge 3).
D D
E 16. Defendant had no fixed abode and no house search could be E
conducted.
F F
G 17. The forensic scientist examined 10 pieces of the black paper G
seized from PW1’s home, which were found to be pieces of black-coloured
H H
paper stained with white powder. The papers were found to agree in
I general appearance and size with each other and measured 6 cm by 15 cm. I
The powder samples were found to contain talc, widely used as a major
J J
constituent of baby powder.
K K
18. At all material times, defendant had conspired with William,
L L
Fu Hui, Mo Wenbin and other persons unknown to defraud PW1, by
M dishonestly making a series of false representations and inducing PW1 to M
make payments in the total sum of HK$253,416 and US$148,950 (Charge
N N
1); and the defendant contravened a condition of stay in respect of his visit,
O in that, being permitted to remain in Hong Kong as a visitor until 15 July O
2017, he remained in Hong Kong after that date.
P P
Q Criminal record Q
R R
19. Defendant has a clear record in Hong Kong.
S S
T T
U U
V V
-6-
A A
B B
Mitigation
C C
20. Defendant is a Liberian national. He entered Hong Kong on
D D
1 July 2017 as a visitor and had overstayed since 15 July 2017.
E E
21. He is aged 42 years old, married with a wife aged 28 and a
F F
son aged 3 back in Liberia.
G G
22. He was a self-employed trader before he came to Hong Kong.
H At the time of offence, he was unemployed. H
I I
23. He received education up to secondary school level.
J J
24. Mr Polson, Counsel for the defendant, submitted that
K K
defendant had pleaded guilty when he appeared before the court on 4
L December 2018. He asked this court to give the defendant a sentencing L
discount on his early plea.
M M
N 25. It was also said that the victim in the present case was greedy, N
hoping to have an enormous return on the payment of relatively small
O O
amount of money and that the case was different from where the victim
P was an old lady cheated on false pretence of blessings for family. P
Q Q
26. He accepted that fairly large amount of money was involved
R in this case. He urged this court to adopt the sentence imposed by this court R
in the case of DCCC 917/2017 case, which was later affirmed in CACC
S S
230/2018.
T T
U U
V V
-7-
A A
B B
Discussion
C C
First charge
D D
E 27. The maximum sentence on conviction of the first charge is 14 E
years’ imprisonment.
F F
G 28. The facts of the present case is very much similar to the facts G
in the cited case by Mr Polson, the case of HKSAR v Uamusse Elias Filipe
H H
& Ors, DCCC 917/2017, where a lot of cases were cited and considered,
I like the present case. I
J J
29. The present case was a deception case preceded by the victim
K befriended by a “William” online romantically since few years back. K
L 30. Defendant here sent WhatsApp messages containing L
misrepresentations to the victim, partly on reliance of which, the victim
M M
had paid about HK$300,000 in total. He later met the victim and collected
N N
other sum totally approximately HK$ 200,000 from her.
O O
31. Further, it was the defendant who delivered the suitcase of
P P
black-coloured “US banknotes” to the victim and made further false
Q representations to her and asked her to pay further sums for purchase of the Q
special solution, subsequent to which US$120,000 was paid by the victim.
R R
S 32. The role of the defendant in the present case was manifold and S
indispensable in the whole scheme. The amount of money at stake was
T T
also few times more than that in the Uamusse case. The defendant was a
U U
V V
-8-
A A
B B
key member, no doubt, of a gang, that had perpetrated a “black money”
C fraud on the victim, who was swindled out of HK$1.4 million. None of C
the money was recovered. In fact, most of these money the victim had
D D
borrowed from her friend and she did not have the money back and she is
E now left in debt. E
F F
33. As noted by the Court of Appeal in the Uamusse case on
G appeal, CACC 230/2018, this was “an extremely elaborate and well- G
planned fraud involving the grooming of the victim over the Internet, with
H H
extensive role-playing by the gang members in order to beguile the victim
I into believing the whole arrangement was real”. I
J J
34. The Court of Appeal commented in that case that this court
K should have enhanced the sentence of the defendant by the reason that he K
is coming to Hong Kong to commit the crime.
L L
M 35. The defendant in the cited case was convicted of conspiracy M
to obtain property by deception, the maximum sentence of which is 10
N N
years’ imprisonment.
O O
36. In the present case, defendant was convicted of conspiracy to
P P
defraud, the maximum sentence of which is 14 years’ imprisonment.
Q Q
37. Secondly, as said earlier, the amount involved in the present
R R
case is about four times as much as the amount involved in the cited case,
S of which, in this case, as said earlier, most of these are victim’s borrowed S
money.
T T
U U
V V
-9-
A A
B B
38. Having considered the circumstances under which the present
C offence was committed, loss suffered by the victim, role of the defendant, C
level of sophistication and the deception scheme, the sentencing starting
D D
point for the first charge is 4 years.
E E
39. Defendant has pleaded guilty, though not at the first available
F F
opportunity, but he indicated his guilty plea before trial was fixed. This
G court consider appropriate sentencing discount afforded to defendant G
should remain at one-third, and I am not minded to enhance his sentence
H H
by reason he is a visitor, over-stayer in Hong Kong.
I I
40. Accordingly, for the first charge, the defendant is sentenced
J J
to 2 years and 8 months’ imprisonment.
K K
The third charge
L L
M 41. Maximum sentence for this offence is fine at level 5 and M
imprisonment for 2 years.
N N
O 42. Defendant is over-stayer in Hong Kong when he was arrested, O
ie 22 January 2018. He had already overstayed for 6 months. Defendant
P P
is sentenced in this case to 6 weeks’ imprisonment.
Q Q
43. In reaching this sentence, the court had not considered that he
R R
had committed the first charge offence within this period. Again,
S considering the guilty plea, he is entitled to one-third sentencing discount. S
T T
U U
V V
- 10 -
A A
B B
44. Accordingly, he is sentenced to 4 weeks’ imprisonment for
C this charge. C
D D
45. The third charge is a separate, distinct offence from the first
E charge. The sentence for the third charge therefore should run consecutive E
to the sentence in the first charge.
F F
G 46. This court has also considered the totality principle and is of G
the view that the total sentence of 2 years 8 months and 4 weeks imposed
H H
on the defendant for the first and the third charge are appropriate, just and
I proportionate to the criminality of the defendant in the present case. I
J J
47. Accordingly, defendant is sentenced to a total of 2 years 8
K months and 4 weeks, ie 2 years 8 months for the first charge, the same to K
serve consecutive to the sentence in the third charge, which is 4 weeks.
L L
M M
N N
O O
( K Lo )
P P
District Judge
Q Q
R R
S S
T T
U U
V V