區域法院（刑事）Deputy District Judge Casewell10/11/2024[2024] HKDC 1959
DCCC1015/2023
A A
B B
DCCC 1015/2023
C [2024] HKDC 1959 C
D D
IN THE DISTRICT COURT OF THE
E HONG KONG SPECIAL ADMINISTRATIVE REGION E
CRIMINAL CASE NO 1015 OF 2023
F F
G ----------------------------------- G
HKSAR
H H
V
I SIN HO WAI I
-----------------------------------
J J
K Before: Deputy District Judge Casewell K
Date: 11 November 2024
L L
Present: Ms Leung Christine, Counsel on fiat, for HKSAR
M Mr Chan Chun Hei, Ryan, instructed by Lam & Partners, M
assigned by the Director of Legal Aid, for the defendant
N N
Offences: [1], [4] & [6] Conspiracy to defraud（串謀詐騙）
O O
[3] Dealing with property known or believed to represent
P
proceeds of an indictable offence（處理已知道或相信為 P
代表從可公訴罪行的得益的財產）
Q Q
R -------------------------------------- R
REASONS FOR SENTENCE
S S
--------------------------------------
T T
U U
V V
-2-
A A
B B
1. In this case on this indictment the defendant has pleaded
C guilty to four separate charges, Charge 1, of conspiracy to defraud, Charge C
3, of dealing with property known or believed to represent proceeds of an
D D
indictable offence, Charges 4 and 6, two further conspiracies to defraud. I
E shall not go into the details of the offences because they are very similar E
and have a similar modus operandi by way of perpetrating telephone
F F
deceptions where someone pretends to be a family member and money is
G requested to release them from some form of control, whether it is being in G
a hospital or aborted arrested by police or other authorities or a detention,
H H
money is taken then from the victims who are deceived in that way, usually
I and often in Hong Kong those victims are elderly. They are serious I
offences.
J J
K 2. Insofar as this indictment is concerned, three of the incidents K
that represent Charges 1, 4 and 6 can be seen from the facts. Money was
L L
taken from elderly Hong Kong citizens by representations claiming to be
M their son in this case. On each occasion, a sum of money was given to the M
defendant for in one case an operation, in other cases bail money following
N N
an arrest. The defendant admits that he was the person who collected the
O moneys as part of the deception. We can see that from both the Admitted O
Facts and the charges.
P P
Q 3. After the defendant was arrested, he made full admissions that Q
showed in some more detail how this had come about. He had been
R R
recruited on a Telegram group which is some form of internet social media.
S He would collect money and be reimbursed afterwards. He was well aware S
that this was a fraudulent undertaking and this underlay the collection of
T T
money by him.
U U
V V
-3-
A A
B B
C 4. In respect of Charge 1, he says he was paid $1,500 to collect C
the money from an elderly person. He later learnt the money he collected
D D
in respect of that charge was about $30,000 to $40,000. In Charge 3, he
E made an admission that he collected $30,000 to $40,000 from an elderly E
lady in Kwai Shing between the 14th and 16 March 2023, he was paid
F F
$1,500 in that case.
G G
5. In respect of Charge 4, he admitted he was instructed to
H H
collect money at Wah Fu Estate on 16 March 2023. He collected money
I from an elderly lady and was again paid around $1,500. In that case he I
knew in that case he was collecting some $60,000 from the elderly lady.
J J
She was defrauded on the basis that her son needed bail money.
K K
6. In respect of Charge 6, the defendant collected further moneys
L L
on 17 and 18 March which amounted to quite a considerable amount of
M money in this case which was $290,000. In each case the defendant would M
pass over the money allocated to him.
N N
O 7. As far as this defendant’s background is concerned, he is now O
aged 19 years old. He is a person of clear record hitherto. Because of the
P P
defendant’s age, I have obtained a number of reports on him from the
Q Correctional Services Department including a report from the Young Q
Offender Assessment Panel. I deal with those in a little bit more detail later
R R
on.
S S
8. As far as the defendant’s mitigation on these charges is
T T
concerned, he tells me he is genuinely remorseful for his actions. He
U U
V V
-4-
A A
B B
committed the subject offences as described foolishly while his debts were
C accumulating in the light of a reduced income during the Covid-19 C
pandemic. The mitigating factors I refer to in this case are the defendant’s
D D
full cooperation with investigators, full and frank admissions upon arrest -
E that does appear to be the case - defendant’s plea of guilty to the earliest E
available opportunity. He is not a mastermind of any of the offences, he is
F F
what is described as a “foot soldier”, that is the person who collects the
G money, there is no international element. G
H H
9. The amounts of money are described in this case by the
I defence as relatively low in the context of cases of conspiracy to defraud I
and money laundering that the courts routinely deal with and the court is
J J
urged to take into account principle of totality in this case, the four offences
K are closely linked and they arise out of similar Telegram group where he K
was tasked with collecting money in exchange for remuneration. The
L L
modus operandi by which the defendant committed these four offences are
M effectively, I am told, identical. M
N N
10. Finally, I am referred to the fact the defendant is a young
O offender for whom imprisonment is described as a last resort and I refer to O
Section 109A of the Criminal Procedure Ordinance, Cap 221. I am also
P P
referred to a similar case in 2024 where a person committing similar
Q offences at the age of 17 years old was sentenced to a Detention Centre Q
Order.
R R
S 11. As a result of the defendant’s age, as I have indicated already, S
I have obtained reports upon him. The prosecution in this case of terms as
T T
far as sentence is concerned has also applied for an enhanced sentence
U U
V V
-5-
A A
B B
pursuant to Section 27(2)(c), (d) and (e) of the Organised and Serious
C Crimes Ordinance, Cap 445, on the basis of prevalence, the nature and C
extent of harm caused to the community and the nature and extent of the
D D
total benefit gained from the present offence. No objection has been made
E to the application by the prosecution. E
F F
12. I have been referred to the evidence of Chief Inspector Tang
G Kai-wing, Hong Kong Police Force, of a witness statement made by him G
recently as at 7 November 2023. I am satisfied that in 2023 telephone
H H
deception cases were prevalent in Hong Kong in terms of the number of
I cases as well as the total value of monetary loss. The particular mode of I
telephone deception always involves someone picking up the money left
J J
behind by the victim at a public place or collecting the money directly from
K the victim. The money collection portion is part and parcel of any type of K
phone deception. Although the collector may not have knowledge of the
L L
underlying phone deception, the circumstances in which he picks up or
M collects the money are usually peculiar and would thus arouse their M
suspicion. The defendant here has admitted that he is aware that this is an
N N
underlying fraudulent operation. There is clear evidence that this mode of
O phone deception is still widespread commonly being practiced in Hong O
Kong today. Of course people who play the role of collectors should
P P
receive severe punishment so that there is a deterrent effect.
Q Q
13. When I impose a sentence of imprisonment I would consider
R R
enhancement of that sentence by between 20 and 25 per cent. However, I
S have to consider other factors in this particular set of circumstances. I do S
also have to acknowledge that there are aggravating factors in this case
T T
given that the syndicate was targeting elderly people, people with
U U
V V
-6-
A A
B B
vulnerabilities and there were other people involved in the commission of
C these offences besides the defendant. C
D D
14. Now I will deal with the reports that I have obtained upon the
E defendant. I obtained reports relevant to a person of his age which would E
involve a custodial element, that is Detention Centre, Training Centre and
F F
Rehabilitation Centre. It is clear that the defendant is not suitable for a
G Detention Centre due to his inability to complete the programme because G
of his physical reasons. He is, however, suitable for the programme set up
H H
by the Rehabilitation Centre and the Training Centre. I called for a Young
I Offenders Assessment Panel report on him because in this case he was I
recommended for more than one form of custodial sentencing. The Young
J J
Offenders Assessment Panel has met and considered the case so I will read
K their conclusion: K
L L
“The defendant attributed his commission of the present offence
to greed and to earn quick money without considering the
M serious legal consequences of his law-transgressing behaviour. M
He showed remorse for his contravention of the law and
N
expressed determination to cut off his ties with his triad peers. N
During the panel interview, in view of the defendant’s
susceptibility to adverse influence of dubious peers and loose-
O living pattern in the past, the panel views that defendant requires O
a period of strict disciplinary training in a confined setting to
deter him from re-offending, help him to develop a regulated
P P
law-abiding life. Hence the panel recommends the
Rehabilitation Centre programme for this case as alternatively
Q to recommending the Training Centre programme.” Q
R So that is the option presented to me by the Young Offenders Assessment R
Panel.
S S
T 15. The question in this case, is it appropriate, having regard to T
the offences the defendant has committed and the nature of the offence, his
U U
V V
-7-
A A
B B
age and the general overall consideration, for the court to impose this
C recommended order on this defendant? C
D D
16. The defendant is covered by the statutory restriction on
E sentencing contained in Section 109A of the Criminal Procedure E
Ordinance which briefly enjoins the court not to sentence a person between
F F
the age of 16 and 21 to imprisonment unless what is described as “No other
G method of dealing with him is appropriate. The imprisonment of a young G
person is a sentencing measure of last resort”. The defendant falls within
H H
that category of consideration. The fact of the defendant’s youth is a
I powerful factor in determining the appropriate sentence for him. Young I
age can be a mitigating factor.
J J
K 17. I bear in mind also the nature of these offences because it has K
been established that youth, notwithstanding the court must keep in mind
L L
the classical principles of sentencing which are part rehabilitation include
M retribution, deterrence and prevention and the interests of the community M
as a whole must be considered. For example, a youth who commits a
N N
serious offence such as robbery, his youth will count for little and the
O similar approach is taken in respect of trafficking in dangerous drugs and O
that in reference to the Re Application for Review of Sentences [1972]
P P
HKLR 370 is said that:
Q Q
“The personality, youth or personal circumstances of the
R offender may pale into insignificance because of the magnitude R
or prevalence of the offence in question. If serious crimes are
S committed by young persons they cannot expect to turn their age S
to the advantage upon convictions.”
T T
U U
V V
-8-
A A
B B
18. I must consider in this case the prevalence of the offence,
C which has been established by evidence in this case, and also the fact that C
it would appear the defendant was recruited through a Telegram group
D D
which may possibly mean that the recruitment is made amongst younger
E persons who are cognisant of social media, thus the factors I must consider. E
F F
19. Clearly the defendant is of an age, he is of previous clear
G record. He committed these offences when he was young and has a solid G
recommendation that he be sent to a Rehabilitation Centre because of its
H H
strict disciplinary training pattern. This would satisfy the requirements of
I deterrence in respect of him. On the other hand, I have the fact he has I
committed a serious offence which is prevalent. I do have to note that at
J J
this stage there is no authority from an appellate court binding on me to say
K that this form of offence and offending, namely this form of telephone K
deception, is too serious for the imposition of sentences such as Detention
L L
Centre Training Centre or Rehabilitation Centre.
M M
20. In the absence of such a clear direction, I feel I must follow
N N
the restrictions placed on me by the Criminal Procedure Ordinance in
O sentencing of young people. Accordingly, the sentence I will impose on O
this defendant in respect of the four offences for which he has pleaded
P P
guilty is one that he be sent to a Rehabilitation Centre in respect of them
Q and that will be the order of the court. Q
R R
S ( Casewell ) S
Deputy District Judge
T T
U U
V V
A A
B B
DCCC 1015/2023
C [2024] HKDC 1959 C
D D
IN THE DISTRICT COURT OF THE
E HONG KONG SPECIAL ADMINISTRATIVE REGION E
CRIMINAL CASE NO 1015 OF 2023
F F
G ----------------------------------- G
HKSAR
H H
V
I SIN HO WAI I
-----------------------------------
J J
K Before: Deputy District Judge Casewell K
Date: 11 November 2024
L L
Present: Ms Leung Christine, Counsel on fiat, for HKSAR
M Mr Chan Chun Hei, Ryan, instructed by Lam & Partners, M
assigned by the Director of Legal Aid, for the defendant
N N
Offences: [1], [4] & [6] Conspiracy to defraud（串謀詐騙）
O O
[3] Dealing with property known or believed to represent
P
proceeds of an indictable offence（處理已知道或相信為 P
代表從可公訴罪行的得益的財產）
Q Q
R -------------------------------------- R
REASONS FOR SENTENCE
S S
--------------------------------------
T T
U U
V V
-2-
A A
B B
1. In this case on this indictment the defendant has pleaded
C guilty to four separate charges, Charge 1, of conspiracy to defraud, Charge C
3, of dealing with property known or believed to represent proceeds of an
D D
indictable offence, Charges 4 and 6, two further conspiracies to defraud. I
E shall not go into the details of the offences because they are very similar E
and have a similar modus operandi by way of perpetrating telephone
F F
deceptions where someone pretends to be a family member and money is
G requested to release them from some form of control, whether it is being in G
a hospital or aborted arrested by police or other authorities or a detention,
H H
money is taken then from the victims who are deceived in that way, usually
I and often in Hong Kong those victims are elderly. They are serious I
offences.
J J
K 2. Insofar as this indictment is concerned, three of the incidents K
that represent Charges 1, 4 and 6 can be seen from the facts. Money was
L L
taken from elderly Hong Kong citizens by representations claiming to be
M their son in this case. On each occasion, a sum of money was given to the M
defendant for in one case an operation, in other cases bail money following
N N
an arrest. The defendant admits that he was the person who collected the
O moneys as part of the deception. We can see that from both the Admitted O
Facts and the charges.
P P
Q 3. After the defendant was arrested, he made full admissions that Q
showed in some more detail how this had come about. He had been
R R
recruited on a Telegram group which is some form of internet social media.
S He would collect money and be reimbursed afterwards. He was well aware S
that this was a fraudulent undertaking and this underlay the collection of
T T
money by him.
U U
V V
-3-
A A
B B
C 4. In respect of Charge 1, he says he was paid $1,500 to collect C
the money from an elderly person. He later learnt the money he collected
D D
in respect of that charge was about $30,000 to $40,000. In Charge 3, he
E made an admission that he collected $30,000 to $40,000 from an elderly E
lady in Kwai Shing between the 14th and 16 March 2023, he was paid
F F
$1,500 in that case.
G G
5. In respect of Charge 4, he admitted he was instructed to
H H
collect money at Wah Fu Estate on 16 March 2023. He collected money
I from an elderly lady and was again paid around $1,500. In that case he I
knew in that case he was collecting some $60,000 from the elderly lady.
J J
She was defrauded on the basis that her son needed bail money.
K K
6. In respect of Charge 6, the defendant collected further moneys
L L
on 17 and 18 March which amounted to quite a considerable amount of
M money in this case which was $290,000. In each case the defendant would M
pass over the money allocated to him.
N N
O 7. As far as this defendant’s background is concerned, he is now O
aged 19 years old. He is a person of clear record hitherto. Because of the
P P
defendant’s age, I have obtained a number of reports on him from the
Q Correctional Services Department including a report from the Young Q
Offender Assessment Panel. I deal with those in a little bit more detail later
R R
on.
S S
8. As far as the defendant’s mitigation on these charges is
T T
concerned, he tells me he is genuinely remorseful for his actions. He
U U
V V
-4-
A A
B B
committed the subject offences as described foolishly while his debts were
C accumulating in the light of a reduced income during the Covid-19 C
pandemic. The mitigating factors I refer to in this case are the defendant’s
D D
full cooperation with investigators, full and frank admissions upon arrest -
E that does appear to be the case - defendant’s plea of guilty to the earliest E
available opportunity. He is not a mastermind of any of the offences, he is
F F
what is described as a “foot soldier”, that is the person who collects the
G money, there is no international element. G
H H
9. The amounts of money are described in this case by the
I defence as relatively low in the context of cases of conspiracy to defraud I
and money laundering that the courts routinely deal with and the court is
J J
urged to take into account principle of totality in this case, the four offences
K are closely linked and they arise out of similar Telegram group where he K
was tasked with collecting money in exchange for remuneration. The
L L
modus operandi by which the defendant committed these four offences are
M effectively, I am told, identical. M
N N
10. Finally, I am referred to the fact the defendant is a young
O offender for whom imprisonment is described as a last resort and I refer to O
Section 109A of the Criminal Procedure Ordinance, Cap 221. I am also
P P
referred to a similar case in 2024 where a person committing similar
Q offences at the age of 17 years old was sentenced to a Detention Centre Q
Order.
R R
S 11. As a result of the defendant’s age, as I have indicated already, S
I have obtained reports upon him. The prosecution in this case of terms as
T T
far as sentence is concerned has also applied for an enhanced sentence
U U
V V
-5-
A A
B B
pursuant to Section 27(2)(c), (d) and (e) of the Organised and Serious
C Crimes Ordinance, Cap 445, on the basis of prevalence, the nature and C
extent of harm caused to the community and the nature and extent of the
D D
total benefit gained from the present offence. No objection has been made
E to the application by the prosecution. E
F F
12. I have been referred to the evidence of Chief Inspector Tang
G Kai-wing, Hong Kong Police Force, of a witness statement made by him G
recently as at 7 November 2023. I am satisfied that in 2023 telephone
H H
deception cases were prevalent in Hong Kong in terms of the number of
I cases as well as the total value of monetary loss. The particular mode of I
telephone deception always involves someone picking up the money left
J J
behind by the victim at a public place or collecting the money directly from
K the victim. The money collection portion is part and parcel of any type of K
phone deception. Although the collector may not have knowledge of the
L L
underlying phone deception, the circumstances in which he picks up or
M collects the money are usually peculiar and would thus arouse their M
suspicion. The defendant here has admitted that he is aware that this is an
N N
underlying fraudulent operation. There is clear evidence that this mode of
O phone deception is still widespread commonly being practiced in Hong O
Kong today. Of course people who play the role of collectors should
P P
receive severe punishment so that there is a deterrent effect.
Q Q
13. When I impose a sentence of imprisonment I would consider
R R
enhancement of that sentence by between 20 and 25 per cent. However, I
S have to consider other factors in this particular set of circumstances. I do S
also have to acknowledge that there are aggravating factors in this case
T T
given that the syndicate was targeting elderly people, people with
U U
V V
-6-
A A
B B
vulnerabilities and there were other people involved in the commission of
C these offences besides the defendant. C
D D
14. Now I will deal with the reports that I have obtained upon the
E defendant. I obtained reports relevant to a person of his age which would E
involve a custodial element, that is Detention Centre, Training Centre and
F F
Rehabilitation Centre. It is clear that the defendant is not suitable for a
G Detention Centre due to his inability to complete the programme because G
of his physical reasons. He is, however, suitable for the programme set up
H H
by the Rehabilitation Centre and the Training Centre. I called for a Young
I Offenders Assessment Panel report on him because in this case he was I
recommended for more than one form of custodial sentencing. The Young
J J
Offenders Assessment Panel has met and considered the case so I will read
K their conclusion: K
L L
“The defendant attributed his commission of the present offence
to greed and to earn quick money without considering the
M serious legal consequences of his law-transgressing behaviour. M
He showed remorse for his contravention of the law and
N
expressed determination to cut off his ties with his triad peers. N
During the panel interview, in view of the defendant’s
susceptibility to adverse influence of dubious peers and loose-
O living pattern in the past, the panel views that defendant requires O
a period of strict disciplinary training in a confined setting to
deter him from re-offending, help him to develop a regulated
P P
law-abiding life. Hence the panel recommends the
Rehabilitation Centre programme for this case as alternatively
Q to recommending the Training Centre programme.” Q
R So that is the option presented to me by the Young Offenders Assessment R
Panel.
S S
T 15. The question in this case, is it appropriate, having regard to T
the offences the defendant has committed and the nature of the offence, his
U U
V V
-7-
A A
B B
age and the general overall consideration, for the court to impose this
C recommended order on this defendant? C
D D
16. The defendant is covered by the statutory restriction on
E sentencing contained in Section 109A of the Criminal Procedure E
Ordinance which briefly enjoins the court not to sentence a person between
F F
the age of 16 and 21 to imprisonment unless what is described as “No other
G method of dealing with him is appropriate. The imprisonment of a young G
person is a sentencing measure of last resort”. The defendant falls within
H H
that category of consideration. The fact of the defendant’s youth is a
I powerful factor in determining the appropriate sentence for him. Young I
age can be a mitigating factor.
J J
K 17. I bear in mind also the nature of these offences because it has K
been established that youth, notwithstanding the court must keep in mind
L L
the classical principles of sentencing which are part rehabilitation include
M retribution, deterrence and prevention and the interests of the community M
as a whole must be considered. For example, a youth who commits a
N N
serious offence such as robbery, his youth will count for little and the
O similar approach is taken in respect of trafficking in dangerous drugs and O
that in reference to the Re Application for Review of Sentences [1972]
P P
HKLR 370 is said that:
Q Q
“The personality, youth or personal circumstances of the
R offender may pale into insignificance because of the magnitude R
or prevalence of the offence in question. If serious crimes are
S committed by young persons they cannot expect to turn their age S
to the advantage upon convictions.”
T T
U U
V V
-8-
A A
B B
18. I must consider in this case the prevalence of the offence,
C which has been established by evidence in this case, and also the fact that C
it would appear the defendant was recruited through a Telegram group
D D
which may possibly mean that the recruitment is made amongst younger
E persons who are cognisant of social media, thus the factors I must consider. E
F F
19. Clearly the defendant is of an age, he is of previous clear
G record. He committed these offences when he was young and has a solid G
recommendation that he be sent to a Rehabilitation Centre because of its
H H
strict disciplinary training pattern. This would satisfy the requirements of
I deterrence in respect of him. On the other hand, I have the fact he has I
committed a serious offence which is prevalent. I do have to note that at
J J
this stage there is no authority from an appellate court binding on me to say
K that this form of offence and offending, namely this form of telephone K
deception, is too serious for the imposition of sentences such as Detention
L L
Centre Training Centre or Rehabilitation Centre.
M M
20. In the absence of such a clear direction, I feel I must follow
N N
the restrictions placed on me by the Criminal Procedure Ordinance in
O sentencing of young people. Accordingly, the sentence I will impose on O
this defendant in respect of the four offences for which he has pleaded
P P
guilty is one that he be sent to a Rehabilitation Centre in respect of them
Q and that will be the order of the court. Q
R R
S ( Casewell ) S
Deputy District Judge
T T
U U
V V