Hon Cheung, J.A. (giving the judgment of the Court):
高等法院上訴法庭法官張澤祐宣讀上訴庭判案書:

The Appeal
上訴

1.The three defendants have earlier been granted leave to appeal against sentence. They now formally lodge their appeal against sentence. The three defendants were charged with the offence of attempting to obtain property by deception, contrary to section 17(1) of the Theft Ordinance (Cap 210) and section 159G of the Crimes Ordinance (Cap 200). They denied the charge, but were convicted after trial and sentenced to 3 years’ imprisonment.
1.三名被告人早前已經獲得針對刑期提出上訴的許可，他們現對刑期正式提出上訴。三名被告人被控企圖以欺騙手段取得財物，違反香港法例第210章《盜竊罪條例》第17(1)條及第200章《刑事罪行條例》第159G條。三名被告人否認控罪，但經審訊後被定罪，被判3‍年監禁。

The Facts
案情

2.The facts showed that when the witness was on her way home, the 1st defendant approached and asked her the way. Meanwhile the 2nd defendant appeared and said that the pill held in the 1st defendant’s hand was a very valuable medicine that could cure cancer etc.  Whilst the 2nd defendant was using $500 in cash to buy the pill from the 1st defendant, the 3rd defendant appeared.  He claimed that he was a doctor from Singapore and would offer to buy those pills at a high price of $1,000 each.  The 2nd defendant then tried to persuade the witness to pool money with her to buy those pills in bulk and resell them to the 3rd defendant for profit.  After the 2nd and 1st defendants had had a discussion, the 2nd defendant indicated that the 1st defendant had 1,000 pills available and she also asked the witness to raise $250,000 for the purchase.  The witness at that time realized that the people she had just met were fraudsters of the so-called “Tonic Medicine Gang”, so she pretended that she agreed to it and suggested that the three of them should follow her home to get the money.  In the meantime the witness used her mobile phone to ask her family to report the matter to the police for her.  Later, the police arrested the three defendants.
2.案情顯示証人在回家途中，第一被告人向她問路，其間第二被告人出現並指出第一被告人手上拿的藥丸十分名貴，可醫癌症等等。當時第二被告人以現金500元向第一被告人購買該藥丸，此時，第三被告人出現，表示他是來自星加坡的醫生，願意以高價1,000元一粒購買該等藥丸。第二被告人就向証人游說建議和她合資，大批購買該等藥丸，以轉售予第三被告人圖利。第二被告人及第一被告人商議後，表示後者有1,000粒藥丸，並叫証人集資25萬元。証人當時知道自己已經遇上了所謂俗稱“補藥黨”的騙徒，所以假意應承，並建議他們三人跟隨她回到她的家取錢，其間証人用自己的流動電話通知家人代為報警，其後警察拘捕三名被告人。

Reasons for Sentence
判刑理由

3.Deputy District Judge E. Lin in his Reasons for Sentence pointed out that the facts and the method of deception in this case followed a certain mode.  Usually such deception involved two or more fraudsters.  The first fraudster would approach and deliberately show certain articles to the victim.  The articles could be herbal medicine, prepared medicine, food, valuable metal or electronic components etc.  The second fraudster would then appear and tell the victim that the first fraudster’s articles were magical stuff of value, rarity or efficacy which could be resold at once for a profit.  In case the face value of these articles, such as herbal medicine, prepared medicine or electronic components etc, was not apparent, then there would be a third fraudster who would appear and offer to buy these articles at a high price.  Then the second fraudster would suggest to the victim to pool their money together to buy the articles and resell them to the third fraudster to gain great profit.  If the victim agreed to it then the victim would hand the money in cash to the second fraudster in exchange for something which was almost valueless.  The fraudsters would then all disappear.  This mode of deception as designed by the fraudsters is mainly aimed at exploiting the chance-taking attitude of the victim who hopes to reap a great profit with a little sum.  The result, however, sees the victim suffering great loss which far outweighs the gain.  The deception is a pre-planned action and the victim is usually an unsuspecting elderly woman of low education level.  The trial judge was of the view that deterrence should be the basis of sentence for this kind of cases.  Under the law, the maximum penalty is imprisonment for 10 years.  The judge took the view that a 2 years imprisonment would be an appropriate sentence; however, he granted the prosecution’s application for enhancement of sentence and changed the sentence to one of 3 years’ imprisonment.
3.練錦鴻暫委法官在判刑理由書內指出，本案的案情及行騙手法其實有一定的模式，通常此等行騙是由兩名以上的騙徒合謀，先是第一名騙徒向受害人搭訕，並故意展示一些物件，此等物件可以是草藥、成藥、食物、貴重金屬或電子零件等，接着第二名騙徒就出現，向受害人表示第一名騙徒所有的是名貴、罕有或有效用的神奇東西，可以立時轉賣圖利。要是此等物件的表面價值並不明顯，例如是藥材、成藥或電子零件等，則會有第三名騙徒出現，表示願意以高價購買此等物件，於是第二名騙徒就向受害人建議合資購買該等物件，以便轉賣給第三騙徒，以謀取暴利，受害人如果同意的話，就會將現金交給第二名騙徒，換得一些差不多是毫無價值的東西，此後所有騙徒就會逃之夭夭。此等行騙方法，最主要的是騙徒設計引發受害人僥倖之心，以為可以以小本錢來謀得暴利，結果得不償失，此等行騙方法是事先有計劃的行動，受害人通常是一些警覺性不高，教育程度低及高齡的婦女。原審法官認為此類案件的量刑原則，應該由阻嚇方面着眼，根據法例最高刑罰為10‍年監禁，法官認為適當之刑期為2年監禁，但他接受控方提出加刑的申請將刑期改為3年。

Organized and Serious Crimes Ordinance
有組織及嚴重罪行條例

4(a).In this case, the court’s jurisdiction of enhancing the sentence comes from the Organized and Serious Crimes Ordinance (Cap 455) (“the Ordinance”).
4(a).在本案法庭加重刑罰的權力是來自香港法例第455章《有組織及嚴重罪行條例》(《條例》)。

4(b).Section 27(1) of the Ordinance provides that the section applies where in proceedings in the District Court, a person has been convicted of a specified offence.  Specified offences are any of the offences specified in Schedule 1 and their corresponding attempting offences.  The offences listed in Schedule 1 include the offence of obtaining property by deception, contrary to section 17 of the Theft Ordinance (Cap 210).  The defendants were convicted of this offence.
4(b).該條例第27(1)條指凡在區域法院的法律程序中，有人就指明的罪行被定罪，該條例即予適用。指明的罪行是附表1所指明的任何罪行及企圖犯任何該等罪行。附表1列出的罪行包括《盜竊罪條例》(第210章)第17條以欺騙手段取得財產，即各被告人在本案被定罪的罪行。

4(c).Section 27(11)(b) states that subject to subsections (12) and (13), where a court is satisfied beyond reasonable doubt as to any information furnished under subsection (2) or (8), the court shall have regard to such matter when it passes a sentence on the person for the relevant specified offence and may, if it thinks fit, pass a sentence on the person for that offence that is more severe than the sentence it would, in the absence of such matter, have passed.
4(c).第27(11)(b)條說除第(12)及(13)款另有規定外，凡法庭在無合理疑點的情況下信納根據第(2)或(8)款提供的資料，則法庭就有關的指明的罪行對該人宣判刑罰時，須顧及該等事項，並可在其認為適合的情況下，就該罪行對該人宣判較會在沒有該事項時所宣判的為重的刑罰。

4(d).Subsection (12) is not applicable to this case as it concerns the application for a confiscation order.  Subsection (13) provides that a sentence passed pursuant to subsection (11) shall not exceed the maximum penalty permitted by law for that offence.
4(d).第(12)款是關於沒收令的申請，這款並不適用於本案。第‍(13)‍款指依據第(11)款所判處的刑罰不得超逾法律所容許的對該罪行的最高罰則。

4(e).Subsection (8) is concerned with an organized crime which is connected with the activities of a triad society.  Subsection (8) is applicable where the court, upon the prosecution’s application made pursuant to subsection (4), determines whether the specified offence dealt with by the court is an organized crime or not.
4(e).第(8)款是涉及三合會活動有關連的有組織罪行。第(8)款是適用於法庭應控方根據第(4)款要求裁定法庭處理的指明罪行是否為有組織罪行。

4(f). In considering whether to pass a more severe sentence or not, the court is not restricted to organized crimes.  It may also decide upon the information furnished by the prosecution under subsection (2).  Under subsection (2) the prosecution may furnish information to the court regarding any or all of the following :
4(f).法庭在考慮是否採用更重的刑罰時，並不是局限於有組織罪行，而是可以根據控方就第(2)款所提供的資料作出決定。根據第‍(2)‍款控方可向法庭提供下述全部或任何事項的資料：

the nature and extent of any harm caused, directly or indirectly, to any person by the act in respect of which  the person has been so convicted.
該人被如此定罪所據的作為，直接或間接導致他人受損害的性質及程度。

the nature and extent of any benefit, whether financial or otherwise, that accrued or was intended to accrue, directly or indirectly, to that or any other person from that act.
因該作為而對該人或任何其他人直接或間接帶來的利益，或希望藉此帶來的利益(不論是否財務上的利益)的性質及程度。

the prevalence of that specified offence.
該指明的罪行的普遍程度。

the nature and extent of any harm, whether direct or indirect, caused to the community by recent occurrences of that specified offence.
由最近發生的指明的罪行，而直接或間接導致社區受損害的性質及程度。

the nature and extent of the total benefit, whether financial or otherwise, accruing directly or indirectly to any person from recent occurrences of that specified offence.
因最近發生的該指明的罪行，而對任何人直接或間接帶來的總利益，不論是財務上的利益的性質及程度。

4(g).Apart from invoking subsection (8) referred to section 27(11)(b), the court may also under section 27(11)(a) pass an enhanced sentence on a specified offence which is an organized crime.
4(g).除了第27(11)(b) 條提到的第(8)款外，法庭亦可以根據第‍27 ‍(11)(a)條對屬於有組織罪行的指明罪行，加重刑罰。

4(h).The defendants stated in their perfected grounds of appeal that this case does not involve organized crimes, and thus the court could not pass an enhanced sentence.  Based on the above reasons, this ground of appeal cannot stand.  Ms Chan, counsel for the defendants, also indicated today that she would not rely on this ground of appeal.
4(h).基於上述原因，被告人提出的完備上訴理由，即本案不是有組織罪行，所以不可以加重刑罰是不可以成立的。代表被告人的陳‍大律師今天亦指出她是不會依賴這項上訴理由。

The Prosecution’s Evidence
控方的証供

5(a).The prosecution called three witnesses who were the officers-in-charge of the Regional Intelligence Units of the New Territories North Region, New Territories South Region and Kowloon West Region respectively.
5(a).控方傳召了三名証人，分別為新界北區、南區及西九龍情報組的負責人。

5(b).According to the material provided by the prosecution witnesses, in the New Territories North Region (including Yuen Long, Tai Po, Tuen Mun and Border Police Divisions), there were a total of 20 street deception cases for the year of 1999, involving property of $900,000.  Between January and July 2000, there were 24 cases of tonic medicine deception involving property of $2.4 million.  In 1999, there were 78 cases of electronic component deception in which the same method was employed, involving property of $3.1 million.  There were 69 such cases between January and July 2000, involving property of $2.8 million.
5(b).根據警方証人提供的資料，在1999年新界北(即包括元朗、大埔、屯門及邊境警區)，全年共有20宗街頭行騙案，涉及的財物為90萬元，在2000年1月至7月所涉及的有關補藥藥品的騙案為24宗，涉及的財物為240萬元，至於用同樣手法涉及電子零件的騙案在1999年則有78宗，涉及的財物為310萬元。2000年1‍月至7月則有69宗，涉及的財物為280萬元。

5(c).In the New Territories South Region (including Tsuen Wan, Kwai Chung, Sha Tin and Lantau Police Divisions), in 1999, there were a total of 99 complaints of street deception, involving property totalling $5 million.  31 of these cases concerned tonic medicine involving property of $1.23 million.  There were 88 street deception cases for the period between January and September 2000 involving property of $5.63 million.  11 of these cases concerned tonic medicine involving property totalling $720,000.
5(c).至於新界南區(即包括荃灣、葵涌、沙田和大嶼山等警區)，於1999年共有99宗街頭行騙之投訴，其涉及之總財物為500萬元，其中有31宗是與補藥有關，涉及之財物為123萬元，至於2000‍年1‍月至9月之數據，則為88宗街頭行騙案，涉及563萬元，其中11‍宗是關乎補藥的，總數是72萬元。

5(d).In the Kowloon West Region (including Yau Ma Tei, Tsim Sha Tsui, Mong Kok, Cheung Sha Wan, Sham Shui Po, Shek Kip Mei, Kowloon City and Hung Hom Police Divisions), the number of cases for 1998 is 88, involving property totalling $4.1 million, only 16 cases of which were solved.  The figure for 1999 is 92 cases, 17 of which were solved involving property of $6.6 million.  There were 144 complaints of street deceptions between January and September 2000, 20 of which concerned tonic medicine, and only 14 cases were solved; the total property involved was $6.2 million.
5(d).至於西九龍區(包括油麻地、尖沙咀、旺角、長沙灣、深水埗、石硤尾、九龍城及紅磡警區)，1998年的數目是88宗，總涉及的財物為410萬元，其中只有16宗被偵破。1999年之數據為92宗，其中有17宗被偵破，涉及的財物為660萬元。2000年1月至9月有144宗街頭行騙之投訴，其中20宗是有關補藥的，只有14宗被偵破，總涉及的財物為620萬元。

Reasons for Enhancement of Sentence
加刑的理由

The trial judge took the view that the evidence furnished by the
原審法官認為警方所提供之証供符合條例第27 (3) 條所列出的限制，即是這些証供是在刑事法律程序接納為証供的資料，法官認為3名警方証人提出的數據都是在他們工作期間查閱警方根據已確定的制度下匯集的數據，此等資料是3名証人的個人知識範圍之內，不存在傳聞証供的問題，警方提供的証供並非証實他所提供的數據之中，每一宗都是正確的，而是只需要提出從這個數據之中，可以歸納到一定的模式，這個模式就是此等案件極之普遍，及涉及的財物的大約數目。

police was in line with the requirement set out in section 27(3), namely, this evidence was material that was admissible in evidence in criminal proceedings.  The judge considered that the data furnished by the three police witnesses were data obtained by them in their perusal of data obtained by the police under an established system; such material was within the personal knowledge of the three witnesses, and there was no question of the material being in the nature of hearsay evidence.  The evidence furnished by the police was not to prove that each and every item in the data furnished by them was correct, it only served the purpose of establishing that a definite pattern could be deduced from the data furnished, and that the pattern showed that such cases were very prevalent.  Moreover, it showed the approximate amount of the property involved. The trial judge took the view that those crimes called for enhancement of sentence in order to deter such criminal tendency.  He enhanced the starting point by 50% and imposed a sentence of 3 years’ imprisonment.  All three defendants came from the mainland as visitors to Hong Kong, the judge considered that if they served their imprisonment terms in Hong Kong, they would find it much harder to adapt than the local people.  However, the judge also considered that all three of them came to Hong Kong of their own accord.  Their alleged personal family background such as their family members suffering from illness, children needing support and so on, were not mitigating factors at all.  If they were indeed truly concerned about their family members, they would not have left their native places and spent money coming to Hong Kong in the first place.  The defendants all claimed that they were burdened with financial hardship, but the judge doubted their words in view of the fact that they could still come to Hong Kong as a tourist despite their claim of financial hardship.  Taking the above points into consideration, the judge was of the view that there were no grounds for reduction from the sentence of the 3 years’ imprisonment.
原審法官認為此等罪行應該加刑，以遏止此等歪風，將量刑起點加刑百分之五十，判刑3年監禁。三名被告人都是來自內地的，他們以訪客身份到港，法官考慮到如果他們在香港接受監禁，他們可能比本地人更難適應，但他亦考慮到被告三人都是自願來港，他們所提到的個人家庭背景，例如家人有病、有子女要供養等問題，皆非求情理由，要是他們真正關心家人的話，就不會離鄉別井斥資來港。被告人都稱有經濟上之困難，但法官懷疑他們這番說話，雖然他們稱經濟上有困難，但依然可以來港旅遊，在考慮上述各點之後，法官認為無理由可從3年刑期中作出扣減。

The Evidence of Sentencing
量刑的証據

This Court takes the view that the evidence furnished by the prosecution was evidence that might be admitted by the sentencing court.  Section 27(3) of the Ordinance provides that criminal proceedings include proceedings in respect of sentencing.  In Patrick Smith (1988) 87 Cr. App. R393, the English Court of Appeal decided that the material that might be received by the sentencing court was not confined to the evidence admissible by rules of evidence in the trial of the issue of guilt or innocence of the defendant.  In Regina v. Gardiner (1982) 68 CCC(2d)477 the Supreme Court of Canada decided that the sentencing court might admit credible hearsay evidence.  This Court agrees to the view taken in these two cases, because what is most important is that the material that the Court receives is reliable and credible, enabling it to impose an appropriate sentence.
本庭認為控方提供的証據是法庭在量刑時可以接納的証據，條例第27(3)條指刑事法律程序包括就判刑而進行的法律程序。在Patrick Smith (1988) 87 Cr. App. R393一案，英國上訴法庭指出法庭在量刑時可以接納的資料並不是限於那些根據証據法律在審訊被告是否有罪時，可以接納為証據的資料。加拿大的最高法院在Regina v. Gardiner (1982) 68 CCC(2d)477亦指出在處理量刑時，法庭是可以接受可信的傳聞的証供。本庭同意這兩件案的論點，因為最重要是法庭獲得的是一些可靠及可信的資料，令法庭作出適當的量刑。

Appropriate Sentence
適當的刑期

The evidence shows there is obviously an upward trend for this kind of deception.  The court should impose a deterrent sentence to stop the growth of such cases.  In HKSAR v. Lee Sai Wing [1998] 4 HKC 281, HKSAR v. Tam Wai Pio [1994] 4 HKC 291 and HKSAR v. Cheung Wai Man & Ors [1998] 4 HKC 284, the Court of Appeal took the view that it would be appropriate to enhance the sentence of specified offences that involved triad background or organized crimes by 50%.  In Cheung Wai Man it was further decided that for organized crimes involving vehicle smuggling, trafficking in women for the purpose of prostitution in Hong Kong, and the use of force to recover money lent at usurious rate to gamblers, it would even be appropriate to impose an enhanced sentence of more than 50%.  However, in Lee Sai Wing the Court of Appeal also pointed out that for crimes that were becoming prevalent, if the sentence was enhanced by 50% without prior warning, it might lead to a sense of unfairness.  In respect of crimes that were becoming prevalent the extent of enhancement would be decided by their gravity, prevalence and effect upon the community.  The charges in that case were procuring entries in bank records by deception, the Court of Appeal took the view that it would be appropriate to enhance the starting point by 25% to 30%.
這些証供顯示這一類的行騙案件明顯地有上升的趨勢，法庭是應該採取阻嚇的刑期來抑壓這類案件增長。在香港特別行政區訴李世榮[1998] 4 HKC 281、香港特別行政區訴譚偉標(譯音)[1994] 4 HKC 291及香港特別行政區訴張偉文及其他人[1998] 4 HKC 284，上訴法庭認為將涉及黑社會背景或有組織罪行的指明罪行加重50％的刑期是適當的。張偉文一案更指出就有組織罪行涉及偷運車輛，非法運婦女來港賣淫，及强行收回借給賭徒的高利貸的行為，加重刑罰甚至高於50%亦都是適當的。但在李‍世‍榮一案，上訴法庭同時指出，對一些逐漸普遍的罪行，未經事先警告而將刑罰加重到50%，可能會引起不公平的感覺。對於逐漸普遍的罪行應將刑罰加重多少，要看該種罪行的嚴重性、普遍性及對社會的影響而定。該案的控罪是以欺騙的手段，在銀行記錄內促致記項罪，上訴法庭在該案認為將刑期的起點調高25%至30%是適當的。

10.According to this Court’s understanding, the judge’s reason for imposing an enhanced sentence in this case is because of the prevalence and gravity of similar cases, rather than because this is an organized crime case.  Because of the rising trend of similar cases, this Court takes the view that it would be appropriate to enhance the sentence by 50% in order to deter the commission of such crimes.  Nevertheless, prior to this case there was no precedent to indicate that the court would enhance the sentence by 50% for similar cases, (even though prior to the commencement of the trial, the prosecution had already served written notices upon the defendants to the effect that in case they were convicted, the prosecution would furnish to the court the above material under section 27(2)).  In such circumstances, if the sentence were to be suddenly enhanced by 50%, the defendants would feel a sense of unfairness.  As far as this case is concerned, this Court is of the view that the sentence of 2 years’ imprisonment should be enhanced by 25%, making the sentence one of 2 years and 6 months.
10．根據本庭的了解，原審法官在本案加重刑罰的理由是因為類似案件的普遍及嚴重程度而不是這件案件是屬於有組織罪行的案件。因為同類案件是有上升的趨勢，本庭認為阻嚇這類案件，加重刑罰50%是適當的，但在本案之前，並沒有任何先例指法庭會就同類案件加重刑期50% (雖然控方在本案開審之前已經用書面形式通知各被告人如果他們被判罪，控方是會根據第27(2)條向法庭提供以上的資料)，在這情形之下，將刑期驟增50%對被告人來說會有一種不公平的感覺。本庭認為就本案之言，應該將2‍年的刑期加25%，即刑期為2年6個月。

Conclusion
總結

11.We would allow the appeal, set aside the original sentence and substitute it with an imprisonment term of 2 years and 6 months.  At the same time, this Court would point out that in future, it would not interfere with decisions to enhance the original sentence by 50% in similar cases.
11.我們接納上訴，將原本的刑期擱置，代之為2年6個月的刑期。本庭同時要指出，以後涉及同類型的案件時，本庭是不會干預將原本刑期上調50%的決定的。

Mr Y. M. Liu, Senior Government Counsel of Department of Justice, for HKSAR
控方：由律政司廖遠明高級政府律師代表香港特別行政區政府

Ms Terry S. C. Chan (assigned by Bar Free Legal Service Scheme), for the defendants
辯方：由香港大律師公會法律義助服務計劃委派陳淑芝大律師代表