DCCC720/2024 HKSAR v. MIO CHIU HING AND OTHERS - LawHero
DCCC720/2024
區域法院（刑事）Deputy District Judge Terence Wai14/4/2025[2025] HKDC 680
DCCC720/2024
A A
B B
DCCC 720/2024
C [2025] HKDC 680 C
D IN THE DISTRICT COURT OF THE D
HONG KONG SPECIAL ADMINISTRATIVE REGION
E E
CRIMINAL CASE NO 720 OF 2024
F F
----------------------------
G G
HKSAR
H v H
MIO CHIU HING 1st Defendant
I I
nd
EDWARDS WAI LAM 2 Defendant
J CHAN WING CHUNG 3rd Defendant J
----------------------------
K K
L Before: Deputy District Judge Terence Wai L
Date: 15 April 2025
M M
Present: Mr Wan Pui Hin, Herman, Public Prosecutor, for HKSAR
N N
Mr Pannu Peter, instructed by Cheung, Yeung & Lee,
O
Solicitors, assigned by the Director of Legal Aid, for the 1st O
defendant
P P
Mr Cheung Albert K H, instructed by Keith Lam Lau & Chan,
Q assigned by the Director of Legal Aid, for the 2nd defendant Q
Mr Leung Richard W K, instructed by Fan Wong & Tso,
R R
assigned by the Director of Legal Aid, for the 3rd defendant
S Offence: Conspiracy to defraud（串謀詐騙） S
T T
U U
V V
-2-
A A
B B
-----------------------------------------
C REASONS FOR SENTENCE C
-----------------------------------------
D D
E 1. All three defendants pleaded guilty to one count of E
Conspiracy to defraud with which they were jointly charged, contrary
F F
common law and punishable under section 159C (6) of the Crimes
G Ordinance, Cap 200. G
H H
Facts
I I
2. SIM cards obtained through online applications to China
J J
Mobile Hong Kong (CMHK) were used in conjunction with a modem pool
K to send out a vast amount of phishing SMS messages which appeared to K
have been sent from legitimate courier companies such as SF Express
L L
regarding failed parcel deliveries. These phishing messages were sent with
M a view to luring the recipients to provide their credit card credentials to a M
phishing website set out in the messages. Credentials stolen in this way
N N
were used to set up on mobile phones virtual wallets which were then used
O to make unauthorized purchases without producing the credit cards. O
P P
3. On 8 November 2022, 3 recipients (the victims) of such
Q phishing messages were asked to and did input their credit card credentials Q
and the one-time password (OTP) in a phishing website which was made
R R
to look like the webpage of “SF Express” in the belief that such credentials
S were needed to effect payment of a handling fee of HK$6 to the courier. S
Later that day, their credit cards were used by others to carry out
T T
unauthorized transactions, which resulted in a total loss of HK$19,399 to
U U
V V
-3-
A A
B B
the victims. The known credit limit of these cards amounted to
C HK$313,000. C
D D
D1’s role
E E
4. D1 was responsible for redeeming SIM cards with QR codes
F F
that he received from other people, setting up and configuring a modem
G pool and inserting SIM cards into the pool. G
H H
5. He was arrested on 8 November 2022 in a hotel room in Mong
I Kok (the Hotel Room). The police found in the Hotel Room a modem pool I
with 32 slots, 20 of which were inserted with SIM cards (3 of which were
J J
linked to the victims’ phone numbers), a router inserted with one SIM card,
K 53 other SIM cards and 3 mobile phones. K
L L
6. Under caution, D1 stated that he was recruited online to
M operate modem pool to defraud others, and that he did it for money. M
N N
7. In subsequent cautioned video-recorded interviews, D1 said
O that about a week ago D2, his friend for 3 to 4 years, introduced him for a O
job and obtained from him his personal information and residential address.
P P
Around 3 November 2022, D2 added him to a Telegram group called
Q “Router” （the TG group）. Members of this group included “Yau”, “KK” Q
R
and others. Yau asked D1 to expect delivery of a parcel, the contents of R
which would be used for committing fraud. Around 5 November 2022, the
S S
parcel was delivered to D1’s home. The parcel contained a modem pool,
T a router and around 10 CMHK SIM cards. D1 set up the equipment as T
instructed by Yau. The following day, D1 collected a laptop computer
U U
V V
-4-
A A
B B
(laptop) and about 10 CMHK SIM cards from KK. He brought these items
C home, connected the modem pool to the laptop and installed a programme C
on the laptop, which was then operated remotely by Yau for about an hour.
D D
Later that day, he rented the Hotel Room. On 7 November 2022, he
E returned home where, under the instructions of Yau, he operated the E
modem pool by inserting 15 SIM cards into it. Later, he returned the laptop
F F
to KK and took the router and the modem pool to the Hotel Room and set
G them up there. On 8 November 2022, after redeeming 15 CMHK SIM G
cards with QR codes that he received from KK, he went to the Hotel Room,
H H
removed the SIM cards that were already in the modem pool and put in 22
I new SIM cards. He was arrested later that day. He admitted that he knew I
the scheme involved fraudulently obtaining credit card credentials
J J
belonging to others. Up to the time of his arrest, he had not received any
K remuneration. K
L L
D2’s role
M M
8. D2 was responsible for redeeming SIM cards, monitoring the
N N
modem pool, making fraudulent purchases with virtual wallets, reselling
O the purchased goods, recruiting D1, liaising with and handing over the O
crime proceeds to D3.
P P
Q 9. He was arrested by the police in a hotel in Causeway Bay on Q
8 November 2022. 2 mobile phones were seized from him. Under caution,
R R
D2 stated that he and his friends stole credit card credentials belonging to
S others, linked the credit cards with Samsung Pay to make purchases, then S
sold the purchased goods for cash. He had purchased SIM cards and
T T
U U
V V
-5-
A A
B B
inserted them into the modem pool in order to obtain other people’s credit
C card credentials. C
D D
10. In subsequent cautioned video-recorded interviews, D2 said
E that in mid-October 2022, he was invited by someone in a bar for a job E
involving operating a modem pool and making credit card purchases. He
F F
knew the scheme involved inserting SIM cards into modem pool for
G sending out phishing messages requiring victims to input their credit card G
credentials which would be linked to mobile phones for making purchases.
H H
On 6 to 7 occasions in October 2022, he was given by D3 mobile phones
I linked to credit cards belonging to others and he used those phones to I
purchase Apple products, which he later sold. He would keep 10% of the
J J
sale proceeds. The rest of the proceeds along with the phones would be
K handed back to D3. On 4 November 2022, he was added to the TG group. K
His name in the group was “KK”. It was he who added D1 to the group,
L L
which included “Yau” and others as well. QR codes would be sent out via
M the TG group for redemption of SIM cards at convenience stores. On 7 M
November 2022, he redeemed 15 SIM cards which he passed to D1. He
N N
was asked via the TG group to redeem SIM cards for a reward of HK$500
O and to monitor the modem pool for a reward of HK$700. In total, he had O
obtained around HK$5,000 for making credit card purchases, HK$700 for
P P
operating the modem pool and HK$500 for redeeming SIM cards.
Q Q
D3’s role
R R
S 11. D3 was responsible for recruiting others to join the conspiracy, S
arranging tasks for other members, providing the necessary tools for
T T
carrying out the scheme and making payment to other members.
U U
V V
-6-
A A
B B
C 12. He was arrested in his own home on 9 November 2022. Under C
caution, he claimed that he had been instructed by D2 and others to register
D D
11 SIM cards for a reward of HK$800.
E E
13. In subsequent cautioned video-recorded interviews, D3 stated
F F
that on an unknown date, D2 introduced him to an unknown man who
G promised D3 a reward of $800 for the use of the Wi-Fi at his home to G
register CMHK SIM cards for elderly people. Using D3’s home Wi-Fi,
H H
that man did register CMHK SIM cards with the personal information of
I 11 elderly people. D3 claimed that he did not receive any reward for this I
in the end.
J J
K Other investigations K
L L
14. The SIM cards that were linked to the victims’ phone numbers
M were ordered online using the IP address of D3’s home. M
N N
15. Communication records of the TG group found on D2’s phone
O showed that D2 was added to the group on 4 November 2022. D1 was O
added by D2 to the group on the same day. The TG group had 6 members.
P P
Yau and other members gave instructions for redeeming SIM cards with
Q QR codes and instructions for setting up the modem pool, the router and Q
the laptop. The TG group contained 43 photos of the modem pool, the
R R
router and the laptop, and 34 photos of QR codes.
S S
T T
U U
V V
-7-
A A
B B
16. WhatsApp conversations between D2 and D3 showed that:
C C
(i) On 7 October 2022, D3 invited D2 to take part in the
D D
scheme by making credit card purchases for a daily
E reward of HK$600. D3 also asked D2 to recruit others E
to join in;
F F
G (ii) On 10 October 2022, D3 told D2 that HK$4,000 was G
available for collection. On 15 October 2022, D3
H H
further explained that he would give D2 money for
I “salary payment” to D2’s subordinates; I
J J
(iii) On 24 October 2022, D3 told D2 that a parcel would be
K delivered from overseas; K
L L
(iv) On 2 November 2022, D3 told D2 that the parcel had
M arrived. D2 provided D1’s name and contact M
information to D3 for delivery of the parcel. D3
N N
indicated that the parcel contained a modem pool. He
O explained that the scheme involved using a modem O
pool to obtain credit card credentials which would then
P P
be used to make purchases. He told D2 that when the
Q scheme started to operate, which would happen in a few Q
days, there would be a daily reward of HK$1,000. D3
R R
asked D2 to communicate using Telegram instead of
S WhatsApp, and not to place the router at home in order S
to avoid police detection.
T T
U U
V V
-8-
A A
B B
Defendants’ Backgrounds
C C
D1
D D
E 17. D1 has a conviction for theft for which a Rehabilitation Centre E
Order was made on 20 April 2023.
F F
G 18. He was born on 25 November 2004 in Hong Kong and was G
schooled to Form 4 level. At the time of this offence, he was aged 17. Now
H H
he is 20 years old.
I I
19. D1 never saw his father who had left his mother before D1
J J
was born. His mother later formed a relationship with another man who
K D1 regarded as his stepfather. His mother had drug and mental problems K
and never took part in his upbringing, which fell on the shoulders of the
L L
stepfather’s mother. The stepfather committed suicide when D1 was 6
M years old. When the stepfather’s mother became too old to look after D1, M
he was sent to a foster family. In 2022, D1’s mother committed suicide as
N N
well.
O O
D2
P P
Q 20. D2 has 3 convictions, one was committed before and 2 were Q
committed after the present offence. None of these convictions are of a
R R
similar nature to the present offence. None of them resulted in any
S sentence of imprisonment. S
T T
U U
V V
-9-
A A
B B
21. He was born on 17 August 2004 in Hong Kong. He dropped
C out of secondary school in 2020. At the time of this offence, he was aged C
18. Now he is 20 years old. His family consists of his parents and a younger
D D
sister.
E E
D3
F F
G 22. D3 has a conviction dated 16 October 2024 for trafficking in G
dangerous drugs for which he finished serving a sentence of 20 months’
H H
imprisonment on 15 November 2024.
I I
23. He was born on 10 December 2004 in Hong Kong and
J J
completed Form 6. At the time of this offence, he was aged 17. Now he
K is 20 years old. He is his parents’ only child. K
L L
Mitigation
M M
D1
N N
O 24. Counsel for D1 Mr Pannu asked the Court to note that the O
conspiracy lasted for about a month, that the loss caused was HK$19,399,
P P
and that D1’s role can be said to be a relatively minor cog in the
Q conspiratorial wheel. Q
R R
S S
T T
U U
V V
- 10 -
A A
B B
25. It appeared that D1 was involved in the conspiracy for seven
C odd days before his arrest, and his activities involved mainly gofer work C
such as picking things up from the mastermind and setting things up
D D
according to instructions given by others. He was not an IT expert but was
E just an expendable pair of hands hired by his friend D2. E
F F
26. Moreover, D1 was not involved in the setting up of virtual
G wallets with stolen credit card credentials, or in making purchases with G
those wallets.
H H
I 27. Mr Pannu further submitted that the statement produced by I
the prosecution in support of its application for enhancement of sentence
J J
does not prove beyond reasonable doubt the prevalence of the particular
K kind of conspiracy to defraud that this case is concerned with. Moreover, K
the figures in the statement do not show the actual harm done to the society.
L L
M 28. 3 mitigation letters coming respectively from D1’s foster M
parents, his former teacher and his former classmate were submitted. The
N N
foster parents spoke of D1’s sad and unfortunate family background,
O attested to D1’s fundamental goodness and took the view that his breaches O
of the law were partly driven by his misfortunes. D1’s former teacher said
P P
D1 was a simple, lovable and well-behaved student, and that D1 is now
Q truly remorseful. D1’s former classmate expressed a similar view of the Q
defendant.
R R
S S
T T
U U
V V
- 11 -
A A
B B
D2
C C
29. Mr Albert Cheung, counsel for D2, admitted that the biggest
D D
mitigating factor was his client’s early guilty plea. He pointed out that D2
E was co-operative with the authorities, has learned his lesson, is remorseful E
and understands the need to make a fresh start and stay out of trouble.
F F
G 30. D2’s mother said in her mitigation letter that she observed G
significant changes in her son since his remand. She pointed out that D2
H H
had become more mature and prudent, and he deeply regretted what he had
I done in this case. I
J J
31. Mr Cheung made no submission with regard to the application
K for enhancement of sentence. K
L L
D3
M M
32. Counsel for D3 Mr Richard Leung conceded that the
N N
fraudulent scheme involved in this case was quite sophisticated.
O Fortunately, the conspiracy did not last very long and the loss caused was O
not tremendous. Moreover, prior to the commission of the present offence,
P P
D3 had a clear record. Mr Leung urged the Court to consider a starting
Q point within the range of 3 years to 3 ½ years. Q
R R
33. D3 has been remanded in custody since 9 September 2023 for
S a drug-trafficking offence. Having served his sentence for that offence, he S
indicated his desire to plead guilty to the present offence, made no bail
T T
application and has since remained in custody. This course of action
U U
V V
- 12 -
A A
B B
demonstrates his remorse and his willingness to shoulder his
C responsibilities. D3’s remorse and determination to turn over a new leaf C
are borne out by the mitigation from him and his parents respectively.
D D
E 34. Mr Leung did not challenge the statement presented by the E
prosecution in support of its sentence enhancement application, but would
F F
like to point out that the number of phishing scam cases as well as credit
G card misuse cases have both been on the decline since 2023, indicating that G
both types of cases have become less prevalent by 2024. He therefore
H H
urged the Court not to enhance the sentence. However, should the Court
I accede to the application for enhancement, he asked that the sentence be I
increased by no more than 25%.
J J
K Sentencing considerations K
L L
35. The offence which the defendants admitted is a serious one.
M According to s.159C (6) of the Crimes Ordinance, the maximum penalty M
upon conviction on indictment is 14 years’ imprisonment.
N N
O 36. There are no sentencing tariffs for this kind of offence, which O
can be committed in a variety of ways. However, there are factors which
P P
can be taken into consideration in assessing sentence. Since this case
Q involves both internet fraud and credit card fraud, sentencing cases Q
concerning either or both of these types of fraud can be of assistance.
R R
S S
T T
U U
V V
- 13 -
A A
B B
37. On behalf of D1, Mr Pannu referred to the District Court case
C of HKSAR v Ait Benaoumar Yassine [2023] HKDC 341 where the C
defendant pleaded guilty to 21 counts of Theft and 2 counts of Fraud arising
D D
out of purchases made with credit card credentials obtained through
E phishing scams. The Court took the view that 45 months’ imprisonment E
was sufficient to reflect the defendant’s overall criminality. After giving a
F F
one-third discount for the guilty pleas, the eventual sentence was 30
G months. G
H H
38. Mr Pannu argued that D1’s role is incomparable to the all-
I inclusive criminality perpetrated by the defendant in Yassine case, who I
single-handedly played the role of the instigator, the participant in all roles,
J J
and eventually the purchaser of the items and the realization of the money.
K The scam in that case lasted over a year, involved 21 purchases and a total K
loss of well over $200,000.
L L
M 39. Mr Pannu suggested that a starting point of 20 to 30 months M
could not be faulted given D1’s limited role, and that guidelines are
N N
inappropriate for cases of this nature, as the superior courts have always
O indicated. O
P P
40. On behalf of D3, Mr Leung pointed out that there are no
Q sentencing tariffs and that the factors relevant to sentencing are the Q
sophistication and size of the fraudulent scheme, the number of victims,
R R
the length of time the scheme was perpetrated, the amount of money
S obtained or lost and individual defendant’s involvement and role in the S
scheme. The cases of HKSAR v Dai Chi Wai [2011] 4 HKLRD 534 [3]-[6]
T T
U U
V V
- 14 -
A A
B B
and R v Chan Sui To & Anor [1996] 2 HKCLR 128 were referred to for
C these sentencing factors. C
D D
41. Dai Chi Wai is a conspiracy to defraud case involving the use
E of false instruments to apply for letters of credit from banks. The Court of E
Appeal pointed out that sentencing factors should include “the amount of
F F
money involved, the number of banks deceived, the period over which the
G fraudulent act was committed, whether the banks had suffered any loss and G
the roles played by each of the defendants.”
H H
I 42. Chan Sui To was concerned with the use of counterfeit credit I
cards by criminal syndicates. The various factors to be taken into
J J
consideration in sentencing credit card fraud include: (i) the size of the
K operation; (ii) the planning that had gone into the perpetration of the fraud; K
(iii) whether there was an international dimension; (iv) the role played by
L L
the accused; and (v) whether there was a plea of guilty. After referring to
M a number of decisions, the Court of Appeal said: M
N N
“Allowing for the different facts and the varying degrees of
culpability, it is impossible to formulate a set of principles of
O sentencing from those decisions. We think however it would be O
helpful to the courts if they were guided by some criterion. We
P would therefore suggest that an accused who plays an active but P
not necessarily a key role in a medium size operation involving
between $50,000 and $150,000, with no elaborate planning and
Q equipment, and without an international dimension, should Q
receive a sentence of five to six years after trial. Sentences may
be adjusted upwards or downwards according to circumstances.”
R R
S S
T T
U U
V V
- 15 -
A A
B B
43. In the more recent case of Secretary for Justice v Chung Pui
C Kit Billy [2023] 2 HKLRD 825, when referring to the Chan Sui To C
guidelines, the Court of Appeal pointed out that “Clearly, these sentencing
D D
guidelines were addressing the particular type of credit card fraud that was
E then prevalent and were calculated on sums of money that were based on E
cost of living at the time. This needs to be borne in mind when referring
F F
to the sentencing guidelines in the context of current criminal conduct
G which may be not only different but more elaborate.”1 G
H H
44. The Court further warned that “The reliance on or reference
I to sentencing guidelines in this way does create problems, especially when I
they are dealing with a particular form of criminal activity and may now
J J
need updating because of the passage of time and changing circumstances.
K It is apparent that the criminality of credit card frauds has changed and K
there is less and less syndicated counterfeit credit card frauds but more
L L
online frauds where offenders are fraudulently using credit card
M information and other fraudulent methods to defraud others.”2 M
N N
45. HKSAR v Leung Yiu Fai CACC 100/2014 was concerned with
O fraudulent online sale of admission tickets to Halloween activities held by O
Ocean Park. The Court of Appeal pointed out that factors rendering the
P P
crime in question serious include: (i) its target being the public, any
Q member of the public will be exposed to the risk of being defrauded; (ii) Q
online frauds are easy to imitate and easy to carry out, and if not deterred,
R R
a large number of similar crimes may occur; (iii) since online transactions
S do not involve face-to-face transactions and the perpetrators can use S
T T
1
At [32].
2
At [35].
U U
V V
- 16 -
A A
B B
different methods to conceal their identities, these crimes are difficult to
C detect; (iv) victims’ losses are generally extremely difficult to recover. 3 C
D D
46. The Court went on to say that it would impose harsher
E sentences on certain unscrupulous, annoying and shameless fraud cases E
targeting the public, such as street scams, phone scams etc in the hope of
F F
deterring these crimes and preventing innocent people from being harmed.
G The amount of money involved in this type of crime is not necessarily too G
large, and even if the defendant has no criminal record, the court would
H H
adopt a starting point of 3 to 4 years. 4
I I
47. In Secretary for Justice v Kong Chi Kiu [2023] 1 HKRD 72,
J J
on the gravity of internet frauds, the Court of Appeal said, “…this was an
K internet fraud, which by its very nature has unlimited reach, is relatively K
easy to perpetrate but difficult to detect and from which it is often
L L
impossible to recover losses. As such, there must be a significant element
M of deterrence for those contemplating committing such offences.”5 M
N N
48. The conspiracy in our case lasted from 7 October 2022 to 8
O November 2022. It was on the last day of the conspiracy period that the 3 O
victims’ credit card credentials were stolen and used in unauthorized
P P
transactions, resulting in a loss totalling HK$19,399.
Q Q
R R
S S
T 3 T
See [43].
4
See [44].
5
See [46].
U U
V V
- 17 -
A A
B B
49. From the WhatsApp conversations between D2 and D3 and
C from D1’s confession, it seems that the tools and equipment for C
dissemination of the phishing SMS messages were set up and ready for
D D
deployment on or about 5 or 6 November 2022.
E E
50. It is not clear how many phishing messages were sent out, but
F F
according to the defendants’ confessions, it appears that no less than 41
G SIM cards had been redeemed (D1 and D2 each redeemed 15 cards G
whereas D3 redeemed 11 cards) for that purpose. This amount of SIM
H H
cards, coupled with the employment of a modem pool with a capacity for
I 32 SIM cards, give some idea as to the size of the operation. There is also I
the admission by D1 that at one stage, he had replaced the 15 SIM cards
J J
that were already in the modem pool with 22 cards.
K K
51. With regard to D1’s role, I agree with Mr Pannu’s submission
L L
that what D1 did was mainly gofer work – redeeming SIM cards, receiving
M and setting up the modem pool, router and the laptop, inserting SIM cards M
into the modem pool to enable someone else to operate the equipment
N N
remotely. These matters require little to no technical skills. Although
O playing a necessary role in the scheme, his skills and work are not so unique O
as to be irreplaceable. His role fits the description of “a cog in the wheel”.
P P
Q 52. However, I do not accept the submission that the fact that D1 Q
had received no remuneration underscores that his participation was not
R R
driven by personal gain but by a desire to help a friend. One must not lose
S sight of what he said under caution upon his arrest, namely he did it for S
money.
T T
U U
V V
- 18 -
A A
B B
53. This scam was aimed at members of the public at large. Given
C the popularity of online purchases these days, expecting deliveries from C
courier companies has become an experience shared by people from
D D
virtually all walks of life. Unsuspecting and even cautious individuals can
E fall prey to messages seemingly coming from legitimate courier companies E
alleging problems with delivery of parcels and requiring remedial actions
F F
to be taken to rectify the problems. This kind of phishing scam is just as
G unscrupulous, annoying and shameless as the scams mentioned in Leung G
Yiu Fai case, and the sentence for it should contain “a significant element
H H
of deterrence”.
I I
54. If D1 was an adult offender, I would adopt a starting point of
J J
3 years’ imprisonment.
K K
55. However, he is currently 20 years old, and was only 17 at the
L L
time of the offence. In view of section 109A(1) of the Criminal Procedure
M Ordinance, I called for a Detention Centre/Training Centre Suitability M
Report (the Report) to see if he can be dealt with otherwise than by way of
N N
imprisonment.
O O
56. The Report says D1 is mentally and physically fit for
P P
detention in either Centre, but is more suitable for detention in a Detention
Q Centre. Having considered the contents of the Report, which makes Q
reference to his personal background, his breaches of the law and his failure
R R
to comply with the institution’s rules while he was being remanded in Pik
S Uk Correctional Institution (PUCI) for the present case and his upcoming S
drug-trafficking case, it is obvious that he has limited realization of his
T T
problems and is in need of strict disciplinary training to enforce his rule-
U U
V V
- 19 -
A A
B B
and law-abiding concepts. I accept the assessment officer’s opinion and
C order that D1 is to be detained in a Detention Centre. C
D D
57. D2 was more extensively involved than D1. He played a part
E in the recruitment of members, redemption of SIM cards, monitoring of the E
modem pool, making purchases with mobile phones embedded with virtual
F F
wallets, reselling the purchased goods and handing over the proceeds to D3
G for distribution. If he was an adult offender, I would adopt a starting point G
of 3 years 6 months for the role he played in a scam which can be said to
H H
be a small but bordering on medium scale operation.
I I
58. In view of his current age, I also called for a DC/TC
J J
Suitability Report. His Report says he is mentally and physically fit for
K admission to either Centre, but is more suitable for detention in a Detention K
Centre.
L L
M 59. Having considered the whole report, in particular the parts M
about his repeated transgressions of the law and his resort to various
N N
criminal activities such as triad-related gang fights, drug trafficking and
O debt collection, and his failure to behave himself in accordance with the O
rules when he was being remanded for the current Report, it is obvious that
P P
this defendant has a weak law-abiding concept and little to no insight into
Q his problems. His alleged determination and readiness to reform himself Q
are open to doubt. He is obviously in need of strict discipline and a
R R
vigorous routine. The programmes available in the Detention Centre will
S hopefully mend his unruly ways and bring him back on the proper track. I S
accept the recommendation made by the assessment officer and order that
T T
D2 is to be detained in a Detention Centre.
U U
V V
- 20 -
A A
B B
C 60. D3 was involved in the recruitment of and payment of rewards C
to members of the scam, arrangement of tasks for members and provision
D D
of tools and equipment for the carrying out of the scam. He had also
E registered 11 SIM cards. E
F F
61. The WhatsApp conversations between D2 and him give the
G lie to D3’s claim under caution that he had been instructed by D2 and others G
to register 11 SIM cards for an $800 reward. He may have registered 11
H H
SIM cards, but it was extremely unlikely that he was acting under the
I instruction of D2 who, according to those conversations, had been recruited I
by himself.
J J
K 62. D3 is also 20 years old now. By reason of his previous drug- K
trafficking conviction, he is a person who has been convicted of an
L L
excepted offence. Section 109A(1A) of the Criminal Procedure Ordinance
M declares that section 109A(1) does not apply to such a person. In light of M
the information before me about this defendant’s condition and
N N
background, the facts of the case and the gravity of the offence, I am
O satisfied that a sentence of imprisonment is the right way of dealing with O
him.
P P
Q 63. For the part played by D3, I would adopt a starting point of 3 Q
years 6 months’ imprisonment. His guilty plea would reduce this to 2 years
R R
4 months.
S S
T T
U U
V V
- 21 -
A A
B B
64. As for the prosecution’s application for sentence
C enhancement under paragraphs (c) and (d) of section 27(2) of the C
Organized and Serious Crimes Ordinance (OSCO), Mr Pannu objected to
D D
the application on the ground that “prevalence” was not proved. He argued
E that the information and data set out in the statement relied on by the E
prosecution in proof of their application (the statement) 6 were based on
F F
generic figures and not specific ones.
G G
65. In support of his arguments, Mr Pannu cited HKSAR v Chan
H H
Ka Kin & Anor CACC 474/2004 where the Court of Appeal said,
I I
“Whilst the prosecution need not prove prevalence in terms of
J the numbers of the offences contrary to a particular statutory J
provision, which is a specified offence, the prosecution must
prove beyond reasonable doubt the prevalence of the conduct
K constituting the specified offence before s 27 of OSCO is K
triggered.” 7
L L
66. In HKSAR v Li Kin Keung [2012] 4 HKC 303, McWalters J
M M
(as he then was), giving the judgment of the Court of Appeal, said,
N N
“In dealing with the s 27(2) limb of prevalence it is first
O necessary to identify what it is that is said to be prevalent. As a O
matter of statutory construction, ‘prevalence’ must refer not to
an offence in its generic form such as ‘theft’ but to the specific
P P
form of theft, which is said to be prevalent.” 8
Q Q
R R
S S
6
A statement dated 17 March 2025 by Woman Detective Senior Inspector Chan Ching Mei of the
T T
Cyber Intelligence Division, Cyber Security and Technology Crime Bureau.
7
[100].
8
[30].
U U
V V
- 22 -
A A
B B
67. In our case, “Phishing Scam” is defined in the statement as
C cases involving the sending of unsolicited messages that mimic a trusted C
third party/organization. The aim is either: (a) to trick victims into clicking
D D
on a malicious website which allows the culprit to lure the victims into
E providing sensitive data such as personally identifiable information, E
banking and credit card details, login credentials and so on; or (b) to trick
F F
victims into providing personal information by responding to the messages.
G G
68. “Credit Card Misuse” is defined in the statement as any
H H
fraudulent online purchases made using the victim’s credit card
I information. I
J J
69. As for the MO of this case, the statement says it falls under
K the category of “Phishing Scam” with an element of “Credit Card Misuse” K
as the victims’ credit cards were misused in making fraudulent transactions.
L L
M 70. In my view, the figures and statistics provided in the statement M
of cases falling under the phishing scam and credit card misuse categories
N N
are relevant to the s 27 OSCO application. They relate to the prevalence
O of the acts carried out pursuant to the conspiracy we are concerned with, O
and they are about this specific kind of conspiracy to defraud, namely
P P
conspiring to steal credit card credentials by phishing and using the stolen
Q credentials for unauthorized purchases. Q
R R
71. As for the observation that the numbers of phishing scam
S cases and credit card misuse cases have both dropped in 2024, one should S
bear in mind what the Court of Appeal in paragraphs 15 and 16 of its
T T
judgment in HKSAR v Xu Mai Qing CACC 464/2005 said,
U U
V V
- 23 -
A A
B B
“Whilst the number of street deception cases might have
C C
decreased since its peak in 2002, it was still widespread and was
commonly being practiced in 2005. Under section 27(11) of
D OSCO, what the prosecution has to prove is the prevalence of D
the offence, not the increase in the number of such offences.”
E E
72. The number of cases and the amount of loss for both phishing
F F
scams and credit card misuse have indeed declined in 2024. However,
G
looking at the overall figures, the number of credit card misuse cases and G
the cumulative loss had both steadily been increasing since 2019, reaching
H H
the peak in 2023, and then declined in 2024. Moreover, the numbers for
I the year 2024 (656 cases and HK$10.3 million loss) are still higher than I
those for the year 2022 (544 cases and HK$8.7 million loss).
J J
K 73. It is true that the statement sets out only 2 years’ data and K
figures in respect of phishing scams, and these data show that for the year
L L
2023, there were 4,322 reported cases involving a total loss of HK$102.4
M million, whereas for 2024, there were 2,731 reported cases involving a total M
loss of HK$53.5 million. As for credit card misuse cases, data and figures
N N
are available from 2019 to 2024. Looking just at the figures for 2023 and
O 2024, there were 933 reported cases with a total loss of HK$11.4 million O
for 2023, and these figures declined to 656 reported cases and a total loss
P P
of HK$10.3 million for 2024.
Q Q
74. It is worth-noting that the number of phishing cases and the
R R
total loss resulting therefrom for 2024 (2,731 cases, total loss of HK$53.5
S million) are both higher than their corresponding figures for credit card S
misuse for its peak year of 2023 (933 cases and HK$11.4 million).
T T
U U
V V
- 24 -
A A
B B
75. Moreover, in 2024, there were 2,731 reports of phishing
C scams involving a total loss of HK$53.5 million and 656 reports of credit C
card misuse involving a total loss of HK$10.3 million. There were still a
D D
lot of such cases in 2024, resulting in significant losses.
E E
76. I find it proved beyond reasonable doubt that these means of
F F
committing crimes are still prevalent, causing significant harm to the
G community and raising obvious concerns. The bases for enhancement of G
sentence have been established.
H H
I 77. I am in agreement with parties’ view that a Detention Centre I
Order cannot be enhanced. There will therefore be no enhancement for
J J
D1’s and D2’s sentences.
K K
78. Although D3’s sentence of imprisonment can be enhanced,
L L
given that both D1 and D2 will not have their sentences enhanced, as a
M matter of fairness to D3 and to obviate an understandable sense of M
grievance that he might otherwise have if he was the only defendant in a
N N
joint charge to receive an enhanced sentence, I will not enhance his
O sentence, even though I am satisfied as to the prevalence of this mode of O
committing the present offence, which is a specified offence, and would
P P
otherwise consider an enhancement of one-third to be appropriate. D3’s
Q final sentence is 2 years 4 months’ imprisonment. Q
R R
S S
( Terence Wai )
T T
Deputy District Judge
U U
V V
A A
B B
DCCC 720/2024
C [2025] HKDC 680 C
D IN THE DISTRICT COURT OF THE D
HONG KONG SPECIAL ADMINISTRATIVE REGION
E E
CRIMINAL CASE NO 720 OF 2024
F F
----------------------------
G G
HKSAR
H v H
MIO CHIU HING 1st Defendant
I I
nd
EDWARDS WAI LAM 2 Defendant
J CHAN WING CHUNG 3rd Defendant J
----------------------------
K K
L Before: Deputy District Judge Terence Wai L
Date: 15 April 2025
M M
Present: Mr Wan Pui Hin, Herman, Public Prosecutor, for HKSAR
N N
Mr Pannu Peter, instructed by Cheung, Yeung & Lee,
O
Solicitors, assigned by the Director of Legal Aid, for the 1st O
defendant
P P
Mr Cheung Albert K H, instructed by Keith Lam Lau & Chan,
Q assigned by the Director of Legal Aid, for the 2nd defendant Q
Mr Leung Richard W K, instructed by Fan Wong & Tso,
R R
assigned by the Director of Legal Aid, for the 3rd defendant
S Offence: Conspiracy to defraud（串謀詐騙） S
T T
U U
V V
-2-
A A
B B
-----------------------------------------
C REASONS FOR SENTENCE C
-----------------------------------------
D D
E 1. All three defendants pleaded guilty to one count of E
Conspiracy to defraud with which they were jointly charged, contrary
F F
common law and punishable under section 159C (6) of the Crimes
G Ordinance, Cap 200. G
H H
Facts
I I
2. SIM cards obtained through online applications to China
J J
Mobile Hong Kong (CMHK) were used in conjunction with a modem pool
K to send out a vast amount of phishing SMS messages which appeared to K
have been sent from legitimate courier companies such as SF Express
L L
regarding failed parcel deliveries. These phishing messages were sent with
M a view to luring the recipients to provide their credit card credentials to a M
phishing website set out in the messages. Credentials stolen in this way
N N
were used to set up on mobile phones virtual wallets which were then used
O to make unauthorized purchases without producing the credit cards. O
P P
3. On 8 November 2022, 3 recipients (the victims) of such
Q phishing messages were asked to and did input their credit card credentials Q
and the one-time password (OTP) in a phishing website which was made
R R
to look like the webpage of “SF Express” in the belief that such credentials
S were needed to effect payment of a handling fee of HK$6 to the courier. S
Later that day, their credit cards were used by others to carry out
T T
unauthorized transactions, which resulted in a total loss of HK$19,399 to
U U
V V
-3-
A A
B B
the victims. The known credit limit of these cards amounted to
C HK$313,000. C
D D
D1’s role
E E
4. D1 was responsible for redeeming SIM cards with QR codes
F F
that he received from other people, setting up and configuring a modem
G pool and inserting SIM cards into the pool. G
H H
5. He was arrested on 8 November 2022 in a hotel room in Mong
I Kok (the Hotel Room). The police found in the Hotel Room a modem pool I
with 32 slots, 20 of which were inserted with SIM cards (3 of which were
J J
linked to the victims’ phone numbers), a router inserted with one SIM card,
K 53 other SIM cards and 3 mobile phones. K
L L
6. Under caution, D1 stated that he was recruited online to
M operate modem pool to defraud others, and that he did it for money. M
N N
7. In subsequent cautioned video-recorded interviews, D1 said
O that about a week ago D2, his friend for 3 to 4 years, introduced him for a O
job and obtained from him his personal information and residential address.
P P
Around 3 November 2022, D2 added him to a Telegram group called
Q “Router” （the TG group）. Members of this group included “Yau”, “KK” Q
R
and others. Yau asked D1 to expect delivery of a parcel, the contents of R
which would be used for committing fraud. Around 5 November 2022, the
S S
parcel was delivered to D1’s home. The parcel contained a modem pool,
T a router and around 10 CMHK SIM cards. D1 set up the equipment as T
instructed by Yau. The following day, D1 collected a laptop computer
U U
V V
-4-
A A
B B
(laptop) and about 10 CMHK SIM cards from KK. He brought these items
C home, connected the modem pool to the laptop and installed a programme C
on the laptop, which was then operated remotely by Yau for about an hour.
D D
Later that day, he rented the Hotel Room. On 7 November 2022, he
E returned home where, under the instructions of Yau, he operated the E
modem pool by inserting 15 SIM cards into it. Later, he returned the laptop
F F
to KK and took the router and the modem pool to the Hotel Room and set
G them up there. On 8 November 2022, after redeeming 15 CMHK SIM G
cards with QR codes that he received from KK, he went to the Hotel Room,
H H
removed the SIM cards that were already in the modem pool and put in 22
I new SIM cards. He was arrested later that day. He admitted that he knew I
the scheme involved fraudulently obtaining credit card credentials
J J
belonging to others. Up to the time of his arrest, he had not received any
K remuneration. K
L L
D2’s role
M M
8. D2 was responsible for redeeming SIM cards, monitoring the
N N
modem pool, making fraudulent purchases with virtual wallets, reselling
O the purchased goods, recruiting D1, liaising with and handing over the O
crime proceeds to D3.
P P
Q 9. He was arrested by the police in a hotel in Causeway Bay on Q
8 November 2022. 2 mobile phones were seized from him. Under caution,
R R
D2 stated that he and his friends stole credit card credentials belonging to
S others, linked the credit cards with Samsung Pay to make purchases, then S
sold the purchased goods for cash. He had purchased SIM cards and
T T
U U
V V
-5-
A A
B B
inserted them into the modem pool in order to obtain other people’s credit
C card credentials. C
D D
10. In subsequent cautioned video-recorded interviews, D2 said
E that in mid-October 2022, he was invited by someone in a bar for a job E
involving operating a modem pool and making credit card purchases. He
F F
knew the scheme involved inserting SIM cards into modem pool for
G sending out phishing messages requiring victims to input their credit card G
credentials which would be linked to mobile phones for making purchases.
H H
On 6 to 7 occasions in October 2022, he was given by D3 mobile phones
I linked to credit cards belonging to others and he used those phones to I
purchase Apple products, which he later sold. He would keep 10% of the
J J
sale proceeds. The rest of the proceeds along with the phones would be
K handed back to D3. On 4 November 2022, he was added to the TG group. K
His name in the group was “KK”. It was he who added D1 to the group,
L L
which included “Yau” and others as well. QR codes would be sent out via
M the TG group for redemption of SIM cards at convenience stores. On 7 M
November 2022, he redeemed 15 SIM cards which he passed to D1. He
N N
was asked via the TG group to redeem SIM cards for a reward of HK$500
O and to monitor the modem pool for a reward of HK$700. In total, he had O
obtained around HK$5,000 for making credit card purchases, HK$700 for
P P
operating the modem pool and HK$500 for redeeming SIM cards.
Q Q
D3’s role
R R
S 11. D3 was responsible for recruiting others to join the conspiracy, S
arranging tasks for other members, providing the necessary tools for
T T
carrying out the scheme and making payment to other members.
U U
V V
-6-
A A
B B
C 12. He was arrested in his own home on 9 November 2022. Under C
caution, he claimed that he had been instructed by D2 and others to register
D D
11 SIM cards for a reward of HK$800.
E E
13. In subsequent cautioned video-recorded interviews, D3 stated
F F
that on an unknown date, D2 introduced him to an unknown man who
G promised D3 a reward of $800 for the use of the Wi-Fi at his home to G
register CMHK SIM cards for elderly people. Using D3’s home Wi-Fi,
H H
that man did register CMHK SIM cards with the personal information of
I 11 elderly people. D3 claimed that he did not receive any reward for this I
in the end.
J J
K Other investigations K
L L
14. The SIM cards that were linked to the victims’ phone numbers
M were ordered online using the IP address of D3’s home. M
N N
15. Communication records of the TG group found on D2’s phone
O showed that D2 was added to the group on 4 November 2022. D1 was O
added by D2 to the group on the same day. The TG group had 6 members.
P P
Yau and other members gave instructions for redeeming SIM cards with
Q QR codes and instructions for setting up the modem pool, the router and Q
the laptop. The TG group contained 43 photos of the modem pool, the
R R
router and the laptop, and 34 photos of QR codes.
S S
T T
U U
V V
-7-
A A
B B
16. WhatsApp conversations between D2 and D3 showed that:
C C
(i) On 7 October 2022, D3 invited D2 to take part in the
D D
scheme by making credit card purchases for a daily
E reward of HK$600. D3 also asked D2 to recruit others E
to join in;
F F
G (ii) On 10 October 2022, D3 told D2 that HK$4,000 was G
available for collection. On 15 October 2022, D3
H H
further explained that he would give D2 money for
I “salary payment” to D2’s subordinates; I
J J
(iii) On 24 October 2022, D3 told D2 that a parcel would be
K delivered from overseas; K
L L
(iv) On 2 November 2022, D3 told D2 that the parcel had
M arrived. D2 provided D1’s name and contact M
information to D3 for delivery of the parcel. D3
N N
indicated that the parcel contained a modem pool. He
O explained that the scheme involved using a modem O
pool to obtain credit card credentials which would then
P P
be used to make purchases. He told D2 that when the
Q scheme started to operate, which would happen in a few Q
days, there would be a daily reward of HK$1,000. D3
R R
asked D2 to communicate using Telegram instead of
S WhatsApp, and not to place the router at home in order S
to avoid police detection.
T T
U U
V V
-8-
A A
B B
Defendants’ Backgrounds
C C
D1
D D
E 17. D1 has a conviction for theft for which a Rehabilitation Centre E
Order was made on 20 April 2023.
F F
G 18. He was born on 25 November 2004 in Hong Kong and was G
schooled to Form 4 level. At the time of this offence, he was aged 17. Now
H H
he is 20 years old.
I I
19. D1 never saw his father who had left his mother before D1
J J
was born. His mother later formed a relationship with another man who
K D1 regarded as his stepfather. His mother had drug and mental problems K
and never took part in his upbringing, which fell on the shoulders of the
L L
stepfather’s mother. The stepfather committed suicide when D1 was 6
M years old. When the stepfather’s mother became too old to look after D1, M
he was sent to a foster family. In 2022, D1’s mother committed suicide as
N N
well.
O O
D2
P P
Q 20. D2 has 3 convictions, one was committed before and 2 were Q
committed after the present offence. None of these convictions are of a
R R
similar nature to the present offence. None of them resulted in any
S sentence of imprisonment. S
T T
U U
V V
-9-
A A
B B
21. He was born on 17 August 2004 in Hong Kong. He dropped
C out of secondary school in 2020. At the time of this offence, he was aged C
18. Now he is 20 years old. His family consists of his parents and a younger
D D
sister.
E E
D3
F F
G 22. D3 has a conviction dated 16 October 2024 for trafficking in G
dangerous drugs for which he finished serving a sentence of 20 months’
H H
imprisonment on 15 November 2024.
I I
23. He was born on 10 December 2004 in Hong Kong and
J J
completed Form 6. At the time of this offence, he was aged 17. Now he
K is 20 years old. He is his parents’ only child. K
L L
Mitigation
M M
D1
N N
O 24. Counsel for D1 Mr Pannu asked the Court to note that the O
conspiracy lasted for about a month, that the loss caused was HK$19,399,
P P
and that D1’s role can be said to be a relatively minor cog in the
Q conspiratorial wheel. Q
R R
S S
T T
U U
V V
- 10 -
A A
B B
25. It appeared that D1 was involved in the conspiracy for seven
C odd days before his arrest, and his activities involved mainly gofer work C
such as picking things up from the mastermind and setting things up
D D
according to instructions given by others. He was not an IT expert but was
E just an expendable pair of hands hired by his friend D2. E
F F
26. Moreover, D1 was not involved in the setting up of virtual
G wallets with stolen credit card credentials, or in making purchases with G
those wallets.
H H
I 27. Mr Pannu further submitted that the statement produced by I
the prosecution in support of its application for enhancement of sentence
J J
does not prove beyond reasonable doubt the prevalence of the particular
K kind of conspiracy to defraud that this case is concerned with. Moreover, K
the figures in the statement do not show the actual harm done to the society.
L L
M 28. 3 mitigation letters coming respectively from D1’s foster M
parents, his former teacher and his former classmate were submitted. The
N N
foster parents spoke of D1’s sad and unfortunate family background,
O attested to D1’s fundamental goodness and took the view that his breaches O
of the law were partly driven by his misfortunes. D1’s former teacher said
P P
D1 was a simple, lovable and well-behaved student, and that D1 is now
Q truly remorseful. D1’s former classmate expressed a similar view of the Q
defendant.
R R
S S
T T
U U
V V
- 11 -
A A
B B
D2
C C
29. Mr Albert Cheung, counsel for D2, admitted that the biggest
D D
mitigating factor was his client’s early guilty plea. He pointed out that D2
E was co-operative with the authorities, has learned his lesson, is remorseful E
and understands the need to make a fresh start and stay out of trouble.
F F
G 30. D2’s mother said in her mitigation letter that she observed G
significant changes in her son since his remand. She pointed out that D2
H H
had become more mature and prudent, and he deeply regretted what he had
I done in this case. I
J J
31. Mr Cheung made no submission with regard to the application
K for enhancement of sentence. K
L L
D3
M M
32. Counsel for D3 Mr Richard Leung conceded that the
N N
fraudulent scheme involved in this case was quite sophisticated.
O Fortunately, the conspiracy did not last very long and the loss caused was O
not tremendous. Moreover, prior to the commission of the present offence,
P P
D3 had a clear record. Mr Leung urged the Court to consider a starting
Q point within the range of 3 years to 3 ½ years. Q
R R
33. D3 has been remanded in custody since 9 September 2023 for
S a drug-trafficking offence. Having served his sentence for that offence, he S
indicated his desire to plead guilty to the present offence, made no bail
T T
application and has since remained in custody. This course of action
U U
V V
- 12 -
A A
B B
demonstrates his remorse and his willingness to shoulder his
C responsibilities. D3’s remorse and determination to turn over a new leaf C
are borne out by the mitigation from him and his parents respectively.
D D
E 34. Mr Leung did not challenge the statement presented by the E
prosecution in support of its sentence enhancement application, but would
F F
like to point out that the number of phishing scam cases as well as credit
G card misuse cases have both been on the decline since 2023, indicating that G
both types of cases have become less prevalent by 2024. He therefore
H H
urged the Court not to enhance the sentence. However, should the Court
I accede to the application for enhancement, he asked that the sentence be I
increased by no more than 25%.
J J
K Sentencing considerations K
L L
35. The offence which the defendants admitted is a serious one.
M According to s.159C (6) of the Crimes Ordinance, the maximum penalty M
upon conviction on indictment is 14 years’ imprisonment.
N N
O 36. There are no sentencing tariffs for this kind of offence, which O
can be committed in a variety of ways. However, there are factors which
P P
can be taken into consideration in assessing sentence. Since this case
Q involves both internet fraud and credit card fraud, sentencing cases Q
concerning either or both of these types of fraud can be of assistance.
R R
S S
T T
U U
V V
- 13 -
A A
B B
37. On behalf of D1, Mr Pannu referred to the District Court case
C of HKSAR v Ait Benaoumar Yassine [2023] HKDC 341 where the C
defendant pleaded guilty to 21 counts of Theft and 2 counts of Fraud arising
D D
out of purchases made with credit card credentials obtained through
E phishing scams. The Court took the view that 45 months’ imprisonment E
was sufficient to reflect the defendant’s overall criminality. After giving a
F F
one-third discount for the guilty pleas, the eventual sentence was 30
G months. G
H H
38. Mr Pannu argued that D1’s role is incomparable to the all-
I inclusive criminality perpetrated by the defendant in Yassine case, who I
single-handedly played the role of the instigator, the participant in all roles,
J J
and eventually the purchaser of the items and the realization of the money.
K The scam in that case lasted over a year, involved 21 purchases and a total K
loss of well over $200,000.
L L
M 39. Mr Pannu suggested that a starting point of 20 to 30 months M
could not be faulted given D1’s limited role, and that guidelines are
N N
inappropriate for cases of this nature, as the superior courts have always
O indicated. O
P P
40. On behalf of D3, Mr Leung pointed out that there are no
Q sentencing tariffs and that the factors relevant to sentencing are the Q
sophistication and size of the fraudulent scheme, the number of victims,
R R
the length of time the scheme was perpetrated, the amount of money
S obtained or lost and individual defendant’s involvement and role in the S
scheme. The cases of HKSAR v Dai Chi Wai [2011] 4 HKLRD 534 [3]-[6]
T T
U U
V V
- 14 -
A A
B B
and R v Chan Sui To & Anor [1996] 2 HKCLR 128 were referred to for
C these sentencing factors. C
D D
41. Dai Chi Wai is a conspiracy to defraud case involving the use
E of false instruments to apply for letters of credit from banks. The Court of E
Appeal pointed out that sentencing factors should include “the amount of
F F
money involved, the number of banks deceived, the period over which the
G fraudulent act was committed, whether the banks had suffered any loss and G
the roles played by each of the defendants.”
H H
I 42. Chan Sui To was concerned with the use of counterfeit credit I
cards by criminal syndicates. The various factors to be taken into
J J
consideration in sentencing credit card fraud include: (i) the size of the
K operation; (ii) the planning that had gone into the perpetration of the fraud; K
(iii) whether there was an international dimension; (iv) the role played by
L L
the accused; and (v) whether there was a plea of guilty. After referring to
M a number of decisions, the Court of Appeal said: M
N N
“Allowing for the different facts and the varying degrees of
culpability, it is impossible to formulate a set of principles of
O sentencing from those decisions. We think however it would be O
helpful to the courts if they were guided by some criterion. We
P would therefore suggest that an accused who plays an active but P
not necessarily a key role in a medium size operation involving
between $50,000 and $150,000, with no elaborate planning and
Q equipment, and without an international dimension, should Q
receive a sentence of five to six years after trial. Sentences may
be adjusted upwards or downwards according to circumstances.”
R R
S S
T T
U U
V V
- 15 -
A A
B B
43. In the more recent case of Secretary for Justice v Chung Pui
C Kit Billy [2023] 2 HKLRD 825, when referring to the Chan Sui To C
guidelines, the Court of Appeal pointed out that “Clearly, these sentencing
D D
guidelines were addressing the particular type of credit card fraud that was
E then prevalent and were calculated on sums of money that were based on E
cost of living at the time. This needs to be borne in mind when referring
F F
to the sentencing guidelines in the context of current criminal conduct
G which may be not only different but more elaborate.”1 G
H H
44. The Court further warned that “The reliance on or reference
I to sentencing guidelines in this way does create problems, especially when I
they are dealing with a particular form of criminal activity and may now
J J
need updating because of the passage of time and changing circumstances.
K It is apparent that the criminality of credit card frauds has changed and K
there is less and less syndicated counterfeit credit card frauds but more
L L
online frauds where offenders are fraudulently using credit card
M information and other fraudulent methods to defraud others.”2 M
N N
45. HKSAR v Leung Yiu Fai CACC 100/2014 was concerned with
O fraudulent online sale of admission tickets to Halloween activities held by O
Ocean Park. The Court of Appeal pointed out that factors rendering the
P P
crime in question serious include: (i) its target being the public, any
Q member of the public will be exposed to the risk of being defrauded; (ii) Q
online frauds are easy to imitate and easy to carry out, and if not deterred,
R R
a large number of similar crimes may occur; (iii) since online transactions
S do not involve face-to-face transactions and the perpetrators can use S
T T
1
At [32].
2
At [35].
U U
V V
- 16 -
A A
B B
different methods to conceal their identities, these crimes are difficult to
C detect; (iv) victims’ losses are generally extremely difficult to recover. 3 C
D D
46. The Court went on to say that it would impose harsher
E sentences on certain unscrupulous, annoying and shameless fraud cases E
targeting the public, such as street scams, phone scams etc in the hope of
F F
deterring these crimes and preventing innocent people from being harmed.
G The amount of money involved in this type of crime is not necessarily too G
large, and even if the defendant has no criminal record, the court would
H H
adopt a starting point of 3 to 4 years. 4
I I
47. In Secretary for Justice v Kong Chi Kiu [2023] 1 HKRD 72,
J J
on the gravity of internet frauds, the Court of Appeal said, “…this was an
K internet fraud, which by its very nature has unlimited reach, is relatively K
easy to perpetrate but difficult to detect and from which it is often
L L
impossible to recover losses. As such, there must be a significant element
M of deterrence for those contemplating committing such offences.”5 M
N N
48. The conspiracy in our case lasted from 7 October 2022 to 8
O November 2022. It was on the last day of the conspiracy period that the 3 O
victims’ credit card credentials were stolen and used in unauthorized
P P
transactions, resulting in a loss totalling HK$19,399.
Q Q
R R
S S
T 3 T
See [43].
4
See [44].
5
See [46].
U U
V V
- 17 -
A A
B B
49. From the WhatsApp conversations between D2 and D3 and
C from D1’s confession, it seems that the tools and equipment for C
dissemination of the phishing SMS messages were set up and ready for
D D
deployment on or about 5 or 6 November 2022.
E E
50. It is not clear how many phishing messages were sent out, but
F F
according to the defendants’ confessions, it appears that no less than 41
G SIM cards had been redeemed (D1 and D2 each redeemed 15 cards G
whereas D3 redeemed 11 cards) for that purpose. This amount of SIM
H H
cards, coupled with the employment of a modem pool with a capacity for
I 32 SIM cards, give some idea as to the size of the operation. There is also I
the admission by D1 that at one stage, he had replaced the 15 SIM cards
J J
that were already in the modem pool with 22 cards.
K K
51. With regard to D1’s role, I agree with Mr Pannu’s submission
L L
that what D1 did was mainly gofer work – redeeming SIM cards, receiving
M and setting up the modem pool, router and the laptop, inserting SIM cards M
into the modem pool to enable someone else to operate the equipment
N N
remotely. These matters require little to no technical skills. Although
O playing a necessary role in the scheme, his skills and work are not so unique O
as to be irreplaceable. His role fits the description of “a cog in the wheel”.
P P
Q 52. However, I do not accept the submission that the fact that D1 Q
had received no remuneration underscores that his participation was not
R R
driven by personal gain but by a desire to help a friend. One must not lose
S sight of what he said under caution upon his arrest, namely he did it for S
money.
T T
U U
V V
- 18 -
A A
B B
53. This scam was aimed at members of the public at large. Given
C the popularity of online purchases these days, expecting deliveries from C
courier companies has become an experience shared by people from
D D
virtually all walks of life. Unsuspecting and even cautious individuals can
E fall prey to messages seemingly coming from legitimate courier companies E
alleging problems with delivery of parcels and requiring remedial actions
F F
to be taken to rectify the problems. This kind of phishing scam is just as
G unscrupulous, annoying and shameless as the scams mentioned in Leung G
Yiu Fai case, and the sentence for it should contain “a significant element
H H
of deterrence”.
I I
54. If D1 was an adult offender, I would adopt a starting point of
J J
3 years’ imprisonment.
K K
55. However, he is currently 20 years old, and was only 17 at the
L L
time of the offence. In view of section 109A(1) of the Criminal Procedure
M Ordinance, I called for a Detention Centre/Training Centre Suitability M
Report (the Report) to see if he can be dealt with otherwise than by way of
N N
imprisonment.
O O
56. The Report says D1 is mentally and physically fit for
P P
detention in either Centre, but is more suitable for detention in a Detention
Q Centre. Having considered the contents of the Report, which makes Q
reference to his personal background, his breaches of the law and his failure
R R
to comply with the institution’s rules while he was being remanded in Pik
S Uk Correctional Institution (PUCI) for the present case and his upcoming S
drug-trafficking case, it is obvious that he has limited realization of his
T T
problems and is in need of strict disciplinary training to enforce his rule-
U U
V V
- 19 -
A A
B B
and law-abiding concepts. I accept the assessment officer’s opinion and
C order that D1 is to be detained in a Detention Centre. C
D D
57. D2 was more extensively involved than D1. He played a part
E in the recruitment of members, redemption of SIM cards, monitoring of the E
modem pool, making purchases with mobile phones embedded with virtual
F F
wallets, reselling the purchased goods and handing over the proceeds to D3
G for distribution. If he was an adult offender, I would adopt a starting point G
of 3 years 6 months for the role he played in a scam which can be said to
H H
be a small but bordering on medium scale operation.
I I
58. In view of his current age, I also called for a DC/TC
J J
Suitability Report. His Report says he is mentally and physically fit for
K admission to either Centre, but is more suitable for detention in a Detention K
Centre.
L L
M 59. Having considered the whole report, in particular the parts M
about his repeated transgressions of the law and his resort to various
N N
criminal activities such as triad-related gang fights, drug trafficking and
O debt collection, and his failure to behave himself in accordance with the O
rules when he was being remanded for the current Report, it is obvious that
P P
this defendant has a weak law-abiding concept and little to no insight into
Q his problems. His alleged determination and readiness to reform himself Q
are open to doubt. He is obviously in need of strict discipline and a
R R
vigorous routine. The programmes available in the Detention Centre will
S hopefully mend his unruly ways and bring him back on the proper track. I S
accept the recommendation made by the assessment officer and order that
T T
D2 is to be detained in a Detention Centre.
U U
V V
- 20 -
A A
B B
C 60. D3 was involved in the recruitment of and payment of rewards C
to members of the scam, arrangement of tasks for members and provision
D D
of tools and equipment for the carrying out of the scam. He had also
E registered 11 SIM cards. E
F F
61. The WhatsApp conversations between D2 and him give the
G lie to D3’s claim under caution that he had been instructed by D2 and others G
to register 11 SIM cards for an $800 reward. He may have registered 11
H H
SIM cards, but it was extremely unlikely that he was acting under the
I instruction of D2 who, according to those conversations, had been recruited I
by himself.
J J
K 62. D3 is also 20 years old now. By reason of his previous drug- K
trafficking conviction, he is a person who has been convicted of an
L L
excepted offence. Section 109A(1A) of the Criminal Procedure Ordinance
M declares that section 109A(1) does not apply to such a person. In light of M
the information before me about this defendant’s condition and
N N
background, the facts of the case and the gravity of the offence, I am
O satisfied that a sentence of imprisonment is the right way of dealing with O
him.
P P
Q 63. For the part played by D3, I would adopt a starting point of 3 Q
years 6 months’ imprisonment. His guilty plea would reduce this to 2 years
R R
4 months.
S S
T T
U U
V V
- 21 -
A A
B B
64. As for the prosecution’s application for sentence
C enhancement under paragraphs (c) and (d) of section 27(2) of the C
Organized and Serious Crimes Ordinance (OSCO), Mr Pannu objected to
D D
the application on the ground that “prevalence” was not proved. He argued
E that the information and data set out in the statement relied on by the E
prosecution in proof of their application (the statement) 6 were based on
F F
generic figures and not specific ones.
G G
65. In support of his arguments, Mr Pannu cited HKSAR v Chan
H H
Ka Kin & Anor CACC 474/2004 where the Court of Appeal said,
I I
“Whilst the prosecution need not prove prevalence in terms of
J the numbers of the offences contrary to a particular statutory J
provision, which is a specified offence, the prosecution must
prove beyond reasonable doubt the prevalence of the conduct
K constituting the specified offence before s 27 of OSCO is K
triggered.” 7
L L
66. In HKSAR v Li Kin Keung [2012] 4 HKC 303, McWalters J
M M
(as he then was), giving the judgment of the Court of Appeal, said,
N N
“In dealing with the s 27(2) limb of prevalence it is first
O necessary to identify what it is that is said to be prevalent. As a O
matter of statutory construction, ‘prevalence’ must refer not to
an offence in its generic form such as ‘theft’ but to the specific
P P
form of theft, which is said to be prevalent.” 8
Q Q
R R
S S
6
A statement dated 17 March 2025 by Woman Detective Senior Inspector Chan Ching Mei of the
T T
Cyber Intelligence Division, Cyber Security and Technology Crime Bureau.
7
[100].
8
[30].
U U
V V
- 22 -
A A
B B
67. In our case, “Phishing Scam” is defined in the statement as
C cases involving the sending of unsolicited messages that mimic a trusted C
third party/organization. The aim is either: (a) to trick victims into clicking
D D
on a malicious website which allows the culprit to lure the victims into
E providing sensitive data such as personally identifiable information, E
banking and credit card details, login credentials and so on; or (b) to trick
F F
victims into providing personal information by responding to the messages.
G G
68. “Credit Card Misuse” is defined in the statement as any
H H
fraudulent online purchases made using the victim’s credit card
I information. I
J J
69. As for the MO of this case, the statement says it falls under
K the category of “Phishing Scam” with an element of “Credit Card Misuse” K
as the victims’ credit cards were misused in making fraudulent transactions.
L L
M 70. In my view, the figures and statistics provided in the statement M
of cases falling under the phishing scam and credit card misuse categories
N N
are relevant to the s 27 OSCO application. They relate to the prevalence
O of the acts carried out pursuant to the conspiracy we are concerned with, O
and they are about this specific kind of conspiracy to defraud, namely
P P
conspiring to steal credit card credentials by phishing and using the stolen
Q credentials for unauthorized purchases. Q
R R
71. As for the observation that the numbers of phishing scam
S cases and credit card misuse cases have both dropped in 2024, one should S
bear in mind what the Court of Appeal in paragraphs 15 and 16 of its
T T
judgment in HKSAR v Xu Mai Qing CACC 464/2005 said,
U U
V V
- 23 -
A A
B B
“Whilst the number of street deception cases might have
C C
decreased since its peak in 2002, it was still widespread and was
commonly being practiced in 2005. Under section 27(11) of
D OSCO, what the prosecution has to prove is the prevalence of D
the offence, not the increase in the number of such offences.”
E E
72. The number of cases and the amount of loss for both phishing
F F
scams and credit card misuse have indeed declined in 2024. However,
G
looking at the overall figures, the number of credit card misuse cases and G
the cumulative loss had both steadily been increasing since 2019, reaching
H H
the peak in 2023, and then declined in 2024. Moreover, the numbers for
I the year 2024 (656 cases and HK$10.3 million loss) are still higher than I
those for the year 2022 (544 cases and HK$8.7 million loss).
J J
K 73. It is true that the statement sets out only 2 years’ data and K
figures in respect of phishing scams, and these data show that for the year
L L
2023, there were 4,322 reported cases involving a total loss of HK$102.4
M million, whereas for 2024, there were 2,731 reported cases involving a total M
loss of HK$53.5 million. As for credit card misuse cases, data and figures
N N
are available from 2019 to 2024. Looking just at the figures for 2023 and
O 2024, there were 933 reported cases with a total loss of HK$11.4 million O
for 2023, and these figures declined to 656 reported cases and a total loss
P P
of HK$10.3 million for 2024.
Q Q
74. It is worth-noting that the number of phishing cases and the
R R
total loss resulting therefrom for 2024 (2,731 cases, total loss of HK$53.5
S million) are both higher than their corresponding figures for credit card S
misuse for its peak year of 2023 (933 cases and HK$11.4 million).
T T
U U
V V
- 24 -
A A
B B
75. Moreover, in 2024, there were 2,731 reports of phishing
C scams involving a total loss of HK$53.5 million and 656 reports of credit C
card misuse involving a total loss of HK$10.3 million. There were still a
D D
lot of such cases in 2024, resulting in significant losses.
E E
76. I find it proved beyond reasonable doubt that these means of
F F
committing crimes are still prevalent, causing significant harm to the
G community and raising obvious concerns. The bases for enhancement of G
sentence have been established.
H H
I 77. I am in agreement with parties’ view that a Detention Centre I
Order cannot be enhanced. There will therefore be no enhancement for
J J
D1’s and D2’s sentences.
K K
78. Although D3’s sentence of imprisonment can be enhanced,
L L
given that both D1 and D2 will not have their sentences enhanced, as a
M matter of fairness to D3 and to obviate an understandable sense of M
grievance that he might otherwise have if he was the only defendant in a
N N
joint charge to receive an enhanced sentence, I will not enhance his
O sentence, even though I am satisfied as to the prevalence of this mode of O
committing the present offence, which is a specified offence, and would
P P
otherwise consider an enhancement of one-third to be appropriate. D3’s
Q final sentence is 2 years 4 months’ imprisonment. Q
R R
S S
( Terence Wai )
T T
Deputy District Judge
U U
V V