HKSAR v. MA CHE HOU

CACC 242/2024 [2025] HKCA 651 On appeal from [2024] HKDC 1847

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL CRIMINAL APPEAL NO 242 OF 2024 (ON APPEAL FROM DCCC NO 688 OF 2023) ___

BETWEEN

HKSAR Respondent and Ma Che Hou (馬智豪) Applicant ___ Before: Hon Zervos JA in Court Date of Hearing: 21 August 2025 Date of Judgment: 21 August 2025 ____

J U D G M E N T ____ On 23 October 2024, the applicant was convicted on his own plea before District Court Judge J Lam (the judge) of a single charge of conspiracy to defraud, contrary to Common Law and punishable under section 159C(6) of the Crimes Ordinance, Cap 200. On 1 November 2024, the applicant was sentenced to 4 years and 8 months’ imprisonment, based on a starting point of 7 years, which was reduced by one third for the applicant’s guilty plea. On 15 November 2024, the applicant filed a notice to apply for leave to appeal against sentence (Form XI). In his Form XI, the applicant complained that his sentence was too severe. In letters dated 3 March and 9 June 2025, he argued that his overall sentence was higher than D2’s, despite their similar roles and involvement. He also contended that he should receive a sentencing discount for assisting the police and due to his health condition, and that a starting point in the range of 4 to 5 years should have been adopted. D2 was sentenced to 3 years’ imprisonment, with a starting point of 4 years and 6 months, which was reduced by one third for his guilty plea. At the leave hearing on 11 July 2025, the applicant appeared in person, having had legal aid refused on 10 January 2025. This application raises the question of whether the charge reflected the criminality outlined in the Summary of Facts or whether the

criminality described in the Summary of Facts went beyond the charge, resulting in a sentence that aligned with the Summary of Facts rather than the particulars of the charge. In other words, was he punished for a crime that was not charged, notwithstanding that it was alleged against him. The particulars of the charge state: “MA Che-hou [D1] and CHEUNG Joshua Manwaai [D2], between a day unknown in 2021 and a day unknown in August, 2022, both dates inclusive, in Hong Kong, conspired together and with other persons unknown to defraud such persons as might be induced to travel abroad, by dishonestly falsely representing to such persons that there were genuine employment, business and/or other opportunities that would generate substantial financial rewards, thereby inducing the said persons to travel abroad to other countries.” The conspiracy to defraud charge was submitted by the prosecution to represent a case of human trafficking. The Summary of Facts stated that the Hong Kong authorities had received multiple complaints about residents being lured to work in various Southeast Asian countries, where they were exploited and forced to make scam calls. The victims were subject to physical abuse, and some of them were only released after a ransom had been paid by their families. The judge described the offence involved as ‘a very nasty case of human trafficking’. He noted that the

two defendants were part of a syndicate engaged in human trafficking and that several victims in Hong Kong were falsely promised rewarding jobs, businesses or opportunities overseas. They were lured to leave Hong Kong for Thailand or Cambodia, finally ending up in confinement camps near or in Myanmar. These camps were known as China City or KK Park. The facts of the case focused on the trafficking and exploitation of five victims, who were confined, threatened, subjected to violence, and required to participate in scam activities or remain until a ransom was paid. These victims experienced significant trauma as a result. The judge described the nature and seriousness of the present offence as follows: “69. This is a very nasty case of human trafficking. Five victims were lured out of HK. When they arrived at Thailand or Cambodia, they were forced to stay in some confinement. They could not leave until they agreed to participate in scam activities or until their family had paid ransoms for their release. In the course of their stay, some victims were subjected to threat and violence. PW3, who was an under-privileged person due to disabilities, was ill-treated most.

70. Fortunately, all five managed to return to Hong Kong after their ordeal. But their trauma probably would remain with them for quite some time, particularly in the case of PW3.

71. The present case may not be the worst of its type; there are certainly cases of more victims and more inhuman treatments. However, the present case is one of the most abhorrent crimes one would come across in the District Court.

72. Such crimes are orchestrated. They need planning and international illicit coordination. According to news reports that all may hear, these cases occur from time to time.

73. The Court must send out a strong and clear message. That is, those involved in such crimes are to meet with severe punishment. The greater their role and involvement, the longer would be the prison term.” The judge considered the applicant’s role to be ‘very significant’ in the human trafficking of all five victims. He adopted 7 years’ imprisonment as the starting point, and granted no further reduction beyond the one-third discount for the applicant’s plea, resulting in a sentence of 4 years and 8 months’ imprisonment. It was presented and accepted by the judge that this was a serious case of human trafficking, in which victims were lured abroad, held in confinement, and exploited to carry out criminal activities on behalf of a criminal syndicate. The question is whether the sentence imposed was correct when the offence is a conspiracy to defraud and to what extent the serious allegation of human trafficking can be taken into account and reflected in the sentence. At the direction of the Court, the applicant received legal aid and is legally represented by Mr Wong Po Wing. The sole ground of appeal against sentence reads: “The starting point sentence of imprisonment for 7 years adopted by the learned sentencing judge was too high in the circumstances of the case. In sentencing the applicant the learned judge based his consideration wholly or substantially on the parts of

the Summary of Facts which refer to human trafficking which was not part of the offence of conspiracy to defraud admitted by the applicant. Such parts of the Summary of Facts mentioned of the maltreatment of the victims after they were lured to leave Hong Kong. These facts goes beyond the facts and circumstances supporting the particulars of the offence pleaded on the charge sheet and should be disregarded or at most be treated as a background in sentence.” The question arises whether prosecuting the applicant for conspiracy to defraud meant that the sentence should be limited to the facts and circumstances supporting the particulars of the offence pleaded on the charge sheet, or whether related facts and circumstances admitted by the applicant in the Summary of Facts could also be considered when sentencing for the conspiracy offence. A corollary question is whether for the crime of human trafficking and the agreed facts of this case, was a charge of conspiracy to defraud appropriate, and whether it properly reflect the criminality involved. In light of the foregoing and the issues raised, leave is granted to the applicant for the case to proceed to the Court of Appeal for consideration. (Kevin Zervos) Justice of Appeal Mr Ira Lui, ADPP and Mr Jason Lau, SPP, of the Department of Justice, for the respondent Mr Wong Po Wing, instructed by Hastings & Co, assigned by the Director of Legal Aid, for the applicant