區域法院（刑事）Deputy District Judge K Lo19/12/2023[2023] HKDC 1831
DCCC943/2022
A A
B B
DCCC 943/2022
C [2023] HKDC 1831 C
D IN THE DISTRICT COURT OF THE D
HONG KONG SPECIAL ADMINISTRATIVE REGION
E E
CRIMINAL CASE NO 943 OF 2022
F F
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G G
HKSAR
H v H
Peng Xinyuan
I I
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J J
Before: Deputy District Judge K Lo
K K
Date: 20 December 2023
L Present: Miss Choi Chung Jing Juno, Public Prosecutor, for HKSAR L
Mr Ho Wai Kin Victor, instructed by Solomon C Chong &
M M
Co, assigned by the Director of Legal Aid, for the defendant
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Offence: [1] Fraud (欺詐罪)
O [3] Falsely pretending to be a public officer (假冒公職人員) O
[4] Dealing with property known or believed to represent
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proceeds of an indictable offence (處理已知道或相信為代
Q Q
表從可公訴罪行的得益的財產)
R [5] Possessing false instruments (管有虛假文書) R
S S
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T REASONS FOR SENTENCE T
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C 1. The defendant was convicted on his own plea and agreement C
to Amended Summary of Facts of:
D D
E (i) a charge of fraud, contrary to section 16A of the Theft E
Ordinance, Cap 210 (1st charge);
F F
G (ii) a charge of falsely pretending to be a public officer, G
contrary to section 22(1) of the Summary Offences
H H
Ordinance, Cap 228 (3rd charge);
I I
(iii) a charge of dealing with property known or believed to
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represent proceeds of an indictable offence, contrary to
K section 25(1) and (3) of the Organized and Serious K
Crimes Ordinance, Cap 455 (4th charge); and
L L
M (iv) a charge of possessing false instruments, contrary to M
section 75(1) of the Crimes Ordinance, Cap 200 (5th
N N
charge).
O O
2. As for the 2nd charge, the same is left on the court file and not
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to be proceeded with without leave of the court.
Q Q
Facts
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1st and 4th Charge
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3. On 2 April 2022, PW1 received a phone call from a
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Putonghua-speaking male (in voice recording), claiming to be a customer
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service officer of the China Mobile, informing PW1 that another unknown
C phone number was registered under his name and the said number was C
involved in a case investigated by the Lo Wu branch of the Public Security
D D
Bureau (“PSB”) in Mainland China. The phone call was then redirected to
E a “孙才” of Lo Wu branch of PSB (“SUN”). PW1 checked online and E
confirmed that the phone number belonged to Lo Wu branch of PSB. PW1
F F
therefore believed that SUN was a genuine PSB officer.
G G
4. In the telephone conversation, upon SUN’s request, PW1
H H
disclosed to SUN that he had 4 bank accounts, owned a property in
I Hong Kong and his residential address. SUN then sent by WhatsApp his I
PSB warrant card, a Notice of Assistance in Investigation, Letter of
J J
Mandatory Freezing of Assets and Letter of Criminal Arrest bearing PW1’s
K name. Believing what SUN said was true, PW1 felt scared. He was told K
to co-operate without telling the others and to turn his phone camera for
L L
video call as and when directed.
M M
N
5. At 7 pm on 2 April 2022, PW1 was instructed by SUN to book N
a hotel room at “STAY MK”. At 9:12 pm on the same day, SUN called
O O
PW1 and said his supervisor named “王靜” (“WANG”) would contact
P him. WANG told PW1 that a PSB officer would come and investigate if P
PW1 had committed money laundering.
Q Q
R 6. At around 9:30 pm on 2 April 2022, the defendant came to R
PW1’s room in STAY MK, claiming that he was instructed by PSB to
S S
investigate if PW1 had committed money laundering. The defendant
T requested PW1 to provide his bank account with online banking function T
for the defendant to investigate. PW1 then logged into his Hongkong and
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Shanghai Bank Corporation (“HSBC”) online banking account and passed
C his phone to the defendant. PW1 later checked that his balance remained C
unchanged.
D D
E 7. At around 11 pm on the same day, the defendant brought PW1 E
to an ATM machine of HSBC inside Olympic MTR station and asked PW1
F F
to insert his ATM card to the machine. The defendant then took a picture
G of the security code shown on the screen but did not withdraw any money. G
The defendant left while PW1 was instructed to stay in the STAY MK with
H H
his phone camera turned on during video call with WANG. On 3 April
I 2022, PW1 checked out from STAY MK and returned to his residence. I
J J
8. In the afternoon of 7 April 2022, WANG told PW1 that the
K defendant would investigate at PW1’s residence. Afterwards, the K
defendant attended PW1’s residence and brought PW1 to STAY MK.
L L
After a purported call, the defendant brought PW1 to Mongkok branch of
M HSBC and asked PW1 to transfer HK$637,000 to the defendant’s bank M
account held at Hang Seng Bank Limited (“HSB”) as per the defendant’s
N N
supervisor’s instructions. PW1 initially refused. The defendant made a
O purported phone call with his supervisor, and after the call, the defendant O
told PW1 that if PW1 refused to transfer the money, his assets would be
P P
frozen, and that the money would be returned to PW1 4 hours after the
Q transfer. Fearing his assets would be frozen, PW1 transferred the Q
HK$637,000 to the defendant’s HSB account.
R R
S 9. Afterwards, the defendant brought PW1 to another branch of S
HSB in which the defendant withdrew cash of HK$230,000 from his own
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account. The defendant, together with PW1, went to various branches of
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Bank of China (“BOC”) to deposit the money. The defendant and PW1
C then returned and stayed at STAY MK together. During the stay, PW1 was C
originally asked to sell his shares in CITIC but PW1 was unable to sell the
D D
shares since the CITIC bank froze his account due to inactivity. Further,
E PW1 also enquired about the return of the money, namely HK$637,000, E
transferred. The defendant made a purported phone call and explained to
F F
PW1 that his supervisor was still investigating PW1’s case and the money
G would be returned to PW1 upon conclusion of his case. G
H H
10. During 8 and 11 April 2022, PW1 and the defendant stayed in
I Room 1803 of Metro Winner Hotel (“Room 1803”) together. At around I
7:40 pm on 11 April 2022, police raided the Room 1803 where PW1 and
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the defendant were located.
K K
11. As a result, PW1 suffered loss of HK$637,000.
L L
M 3rd Charge M
N N
12. On 5 April 2022, PW2 received a voice recording from phone,
O informing PW2 that her phone number would be deactivated. She was then O
redirected to a PSB officer named “李正东” (“LI”). LI requested for
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PW2’s identity proof and later informed PW2 that she had been involved
Q Q
in a financial fraud case in Mainland China. Believing what LI said was
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true, PW2 felt scared and was told to co-operate without calling the others. R
The alleged PSB officer asked PW2 to find a quiet hotel room. PW2
S S
followed suit. During her stay in the different hotels, she transferred
T money to various bank accounts as instructed by alleged PSB officers. T
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PW2 also provided her banking credentials and online banking password
C to the alleged PSB officers. C
D D
13. At around 8:12 pm on 6 April 2022, the alleged PSB officers
E asked PW2 if she saw the defendant, whom the alleged PSB officers E
represented as a Hong Kong police officer, at Hotel COZI Wetland. The
F F
defendant at this juncture emerged and showed a purported Hong Kong
G police warrant card to PW2, and asked PW2 to return to Harbour Plaza G
Resort City in Tin Shui Wai together. They subsequently went to the
H H
defendant’s residence in Luen Wo Hui, Fanling. The defendant left,
I leaving PW2 alone in the defendant’s residence. Since then, PW2 had I
never met the defendant. PW2 then complied with the requests of the
J J
alleged PSB officers at the defendant’s residence, including taking video
K clips pretending to be kidnapped. K
L L
14. Subsequently, PW2 made a report to police and informed
M them of the address of the defendant’s residence. The identity of the M
defendant was then revealed.
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O 15. PW2 lost around HK$2,289,990 as a result. O
P P
5th Charge and Arrest of the defendant
Q Q
16. At 7:44 pm on 11 April 2022, the defendant was arrested in
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Room 1803. Under caution, he stated that he received a call from
S PSB officer and prosecutor from Mainland, claiming that he was involved S
in a money laundering case, they asked the defendant to make amends by
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working for them and dealing with the suspects in Hong Kong. The police
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identity proof was provided by them, and they gave HK$7,000 to the
C defendant for expenses and as remuneration. C
D D
17. In the Room 1803, a forged warrant card of Hong Kong Police
E bearing the name and photo of the defendant, 3 deposit slips from BOC E
showing a total sum of HK$230,000 was deposited to a BOC account held
F F
in the name of TSOI Ho-lung, and 2 keys to defendant’s residence were
G found. G
H H
18. House search was conducted on defendant’s residence in
I which 4 forged warrant cards of Hong Kong Police bearing the name and I
photo of the defendant were found.
J J
K Criminal Record K
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19. The defendant has a clear record.
M M
Mitigation
N N
O 20. The defendant came to Hong Kong from Mainland in 2019 O
and has settled in Hong Kong since then. He is now 24 years old and has
P P
finished secondary vocational school education in mainland. At the time
Q of arrest, he worked as a chef at a Japanese restaurant and his monthly Q
salary was approximately HK$16,000.
R R
S 21. Defence counsel submitted that the most valid mitigating S
factor is the fact that the defendant pleaded guilty to the charges in
T T
question, he is therefore entitled to full one-third sentencing discount.
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C 22. Defence counsel submitted that in the case of HKSAR v C
Yu Jing, DCCC 692/2019, the modus operandi used by the defendant was
D D
similar to the present case. The court in that case took 4 years’
E imprisonment as a starting point for the conspiracy to defraud charges and E
3 years’ imprisonment for the money laundering charges. The court
F F
ordered that the sentence of the 3 counts of conspiracy to defraud and 5
G counts of money laundering to run concurrently. The defendant in that case G
was eventually sentenced to 32 months’ imprisonment. Prosecution did
H H
not apply for enhancement of sentence in that case.
I I
23. In the present case, defence counsel urged the court to
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consider totality principle and to impose a concurrent sentence for the 1st
K and 4th charge because they were in fact part and parcel of the same set of K
incident and in view of the proximity of the two charges. In relation to the
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3rd and 5th charge, defence counsel submitted that there is no sentencing
M guideline. Regarding the 5th charge, he submitted that there is no evidence M
to suggest the defendant possessed the 4 purported police warrant cards for
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unlawful or illegal purposes.
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24. He also cited the case of HKSAR v Hung Yung Chun &
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Another [2011] 2 HKLRD 174 where the appellate court has made
Q thorough analysis in a case of typical telephone scam, including the Q
discussion of enhancement of sentence. The appellate court in that case
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was of the view that the sentencing starting point in a typical telephone
S scam case be 4 years’ imprisonment. In that case, the appellate court S
enhanced the sentence by one-third according to the Organized and Serious
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Crimes Ordinance, Cap 455.
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C 25. Defence counsel urged this court to consider the defendant’s C
young age, clear record, guilty plea and the fact that he is not the
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mastermind in the scam, and to impose a lenient sentence.
E E
26. Defence counsel also submitted that duress is a valid
F F
mitigating factor in this case as the WhatsApp messages in the defendant’s
G phone showed that there were conversations between the defendant and G
other mainlanders, LI, WANG and ZHANG, where the defendant was
H H
instructed to follow their instructions subsequent to their allegations
I against the defendant that he was involved in a money laundering case in I
the Mainland.
J J
K 27. Mitigation letters from the defendant’s mother and colleague K
from the sushi shop where the defendant used to work were also submitted
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for the court’s consideration. These letters asked the court for leniency so
M the defendant could return to society and rehabilitate himself. The mother M
said that the defendant lost his job because the sushi shop where he worked
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closed during COVID in December 2021. She said that the defendant used
O to be a man of good character, hardworking and cares for his family. O
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Discussion
Q Q
28. Before sentencing, this court has carefully considered all that
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was said on behalf of the defendant, including but not limited to the
S authorities cited and the mitigation letters lodged. S
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1st Charge
C C
29. On conviction upon indictment of this charge, a person is
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liable to imprisonment for 14 years.
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30. The Court of Appeal did not lay down sentencing guideline
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for this offence for the reason that the modus operandi, sophistication of
G the scheme, number of persons involved, number of victims affected, G
amount of money involved, duration during which the offence was
H H
committed and the effect of the offence on the victims, varies immensely.
I I
31. The fraud practised on the victim in this case is highly
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sophisticated, well premeditated and well executed. It involves a number
K of persons. They first put the victim in fear by saying that he was involved K
in a criminal case in the mainland, and these allegations were made by
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people from Public Security Bureau in the Mainland. They also said that
M therefore they needed to investigate the victim, and this gave them the M
excuse of asking the victim to disclose the password and all other details
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about his personal banking account.
O O
32. No doubt, the defendant is the frontline person responsible for
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contacting and closely monitoring the conduct of the victim over a period
Q of 10 days. The defendant received orders from the others. During this Q
time, the victim was kept under close supervision by the defendant and his
R R
accomplices. The victim was directed to stay at different hotels with the
S defendant and was asked not to disclose the incident to any other persons. S
He was also asked to disclose the security code for his banking account and
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was directed to go to bank personally to transfer money from his account
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in total sum of HK$637,000. At one time, the victim was even asked to
C sell his shares which he did not manage to do as his account was frozen C
due to inactivity.
D D
E 33. During these 10 days, the victim was controlled by the E
defendant and the syndicate. One could imagine the fear instilled in this
F F
victim during these 10 days.
G G
34. In the case of Hung Yung Chun, Tang VP said that the
H H
telephone deception cases were more serious than street deception cases,
I and a higher starting point should be adopted for deterrence. It was said I
that the general sentencing starting point for that type of phone deception
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case should be 4 years’ imprisonment. The modus operandi of the scam in
K that case is different from ours. In that case, the elderly victims received K
phone calls purportedly from their children claiming to be detained for
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acting as guarantors owing money, and the elderly victims were demanded
M money to secure the release of their children. M
N N
35. Considering the circumstances of the present offence, the
O court finds the only sentencing option viable is one of immediate O
imprisonment and the appropriate sentencing starting point is 4 years’
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imprisonment.
Q Q
36. The defendant has pleaded guilty and is therefore entitled to
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full one-third sentencing discount. The defendant used to have a clear
S record but it is well established that the same has already been subsumed S
in the one-third sentencing discount.
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37. Defence counsel submitted that when committing the offence,
C the defendant acted under duress from those people who pretended to be C
PSB officers from the Mainland who contacted the defendant since 27
D D
February 2022. Defence counsel said the defendant was suspected of
E money laundering by these people and he was asked to co-operate by them. E
F F
38. Defence counsel produced WhatsApp messages between the
G defendant and LI, and between the defendant and WANG. This court notes G
that in late February to early March, the defendant at one time did ask LI
H H
about the case alleged against him, and LI said that they needed further
I investigation against the defendant. This exchange apparently arose from I
allegations against the defendant, suspecting him of a criminal offence by
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these people.
K K
39. Apart from this entry, there appears to be no other entry which
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suggests threat or inducement or coercion in the messages directed against
M the defendant. Defence counsel agreed to the observation by the court. M
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40. This court finds that at the time of the offence, whatever
O influence that these people had on the defendant as on 27 February 2022 O
had become less significant, although this court notes that the defendant
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appeared to continue to heed or take instructions from them. This court
Q also notes that these people had allowed the defendant’s own residence Q
address to be exposed to the victims.
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S 41. This court finds the mind of the defendant to a certain extent S
affected by the threat of these people as a result of this so-called ongoing
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investigation, which would amount to duress to a certain extent. This court
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also notes that in this case, the defendant was given HK$7,000 out of the
C money cheated from the victim. This court would discount the sentence of C
this charge by 3.5 months.
D D
E Enhancement of sentence E
F F
42. Prosecution applied for enhancement of sentence for the 1st
G and 4th charge, both being specific offences within the meaning of the G
Organized and Serious Crimes Ordinance, Cap 455, and has furnished
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information to this court pursuant to section 27(2) of the ordinance.
I I
43. According to the statement from Detective Chief Inspector
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Tang Kai-ming, in the first half of 2023, there were 353 “pretend officials”
K telephone deception cases, as in the present case, representing a decrease K
of 29.4% when compared to 500 “pretend officials” telephone deception
L L
cases reported in the same period in 2022.
M M
44. Nevertheless, from the statement of Mr Tang, one can see the
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number of telephone deception cases in 2021, 2022 and the first half of
O 2023 are 68, 795 and 765. The rise of the telephone deception cases in O
2023 as compared to 2022 is alarming, and the associated money
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laundering activities are said to be prevalent in Hong Kong.
Q Q
45. This court agrees with the observation of Mr Tang that these
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crimes are of obvious concern to the society of Hong Kong in terms of the
S harm caused to the community and the repeated occurrences. S
T T
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46. Defence have no objection to the enhancement of sentence but
C he urged this court to enhance the sentence slightly. C
D D
47. Considering the alarming rise of the telephone deception
E cases, this court would enhance the sentence by 33%. E
F F
48. Accordingly, the defendant is sentenced to 38 months’
G imprisonment for the 1st charge. G
H H
3rd Charge
I I
49. A person guilty of this offence shall be liable to a fine of 2,000
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and to imprisonment for 6 months.
K K
50. The defendant produced his fake Hong Kong Police warrant
L L
card to the victim of the telephone deception, and he asked the victim to
M return to Harbour Plaza in Tin Shui Wai together. Obviously, the victim M
acceded to his request because she believed that he was a police officer.
N N
This victim was later requested by the defendant to go to the defendant’s
O residence where, at the request of the alleged PSB officer, video clips O
pretending her to be kidnapped were taken.
P P
Q 51. This is a serious case and the defendant had meant to deceive Q
the victim that he was in fact a genuine police officer. However, this court
R R
is tied with the ceiling for sentence of this offence. Appropriate sentencing
S starting point is therefore 5 months’ imprisonment. The same is discounted S
to 3 months and 10 days’ imprisonment by reason of his guilty plea and
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discounted further by 10 days by reason he was acting under the influence
C of duress at the time. C
D D
52. The defendant is sentenced to 3 months’ imprisonment for this
E charge. E
F F
4th Charge
G G
53. On conviction upon indictment of this offence, a person is
H H
liable to a fine of HK$5 million and to imprisonment for 14 years.
I I
54. In HKSAR v Boma [2012] 2 HKLRD 33, Stock JA (as he then
J J
was) explained that it was not realistically possible or desirable to lay down
K guidelines in relation to the offence of money laundering because of the K
highly variable circumstances in which such offences are committed and
L L
the widely different roles played by those convicted of these offences. He
M said that deterrence was paramount in the sentencing exercise as the M
criminality in laundering arose from the encouragement and nourishment
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it gave to crime in general.
O O
55. He said that the amount of money laundered is a significant
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factor, and the court should take into account of factors such as :
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(a) nature of the predicate offence;
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S (b) the state of the offender’s knowledge; S
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(c) where the operation involved an international
C dimension, this would be a significant aggravating C
feature;
D D
E (d) the sophistication of the offence, including the degree E
of planning;
F F
G (e) where the offence was committed by or on behalf of an G
organised criminal syndicate, this would be an
H H
aggravating feature;
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(f) whether there was one transaction only or many and the
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length of time over which the offence was committed;
K K
(g) whether the offender continued to launder funds after
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he had discovered the nature of the funds were proceeds
M of an offence or a serious offence was involved; M
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(h) the role of the offender and the acts performed by him.
O O
56. In this case, the amount of money laundered is HK$637,000.
P P
Q 57. The predicate offence is fraud which attracts a maximum Q
sentence of 14 years’ imprisonment. The bank account of the defendant
R R
was used to receive the money cheated out of the victim in this telephone
S deception case. The fraud in question concerned a number of persons, S
including the defendant. 2 bank accounts were involved. One is that of
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A A
B B
the defendant himself and another bank account held in the name of
C TSOI Ho-lung. C
D D
58. The scheme involved is highly sophisticated, premeditated
E and well executed. It clearly involved a criminal syndicate. The role of E
the defendant was significant as he was the one who confronted the victim
F F
and monitored him transferring money from his account to the defendant’s
G bank account. The defendant well knew that the lending of his bank G
account was for money laundering purpose, and the offence was committed
H H
for an organised criminal syndicate. The defendant had actual knowledge
I of the predicate offence but clearly, he just heeded to the instructions given I
by those alleged PSB officers.
J J
K 59. There was only 1 deposit into the defendant’s bank account K
and 3 withdrawals made subsequently shortly afterwards. The benefit or
L L
gain to the defendant for commission of this offence is HK$7,000.
M M
60. In the case of Secretary for Justice v Wan Kwok Keung [2012]
N N
1 HKLRD 201, Cheung JA (as he then was) said that money laundering is
O a serious offence and must be deterred. The sentence should reflect the O
amount of “black money” laundered and not the benefit obtained by the
P P
defendant or others. However, it is said that if the “black money’
Q originated from various and organised indictable offence or the defendant’s Q
benefit was huge, then the sentence should be adjusted upwards.
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S 61. Considering the above, the court finds that the appropriate S
sentencing starting point in this case is 3 years’ imprisonment.
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B B
62. Money laundering is a very serious offence and the personal
C background of the defendant is seldom a valid mitigating factor. He has C
pleaded guilty and is therefore entitled to full one-third sentencing
D D
discount. The court allows the sentence deduction of 3 months by reason
E of the duress as aforesaid. Again, the same is enhanced pursuant to E
application by prosecution by 33%, bringing the sentence for this charge
F F
to 27 months and 27 days’ imprisonment.
G G
5th Charge
H H
I 63. On conviction upon indictment of this charge, a person is I
liable to 14 years’ imprisonment.
J J
K 64. The only possible reason that the defendant had these 5 forged K
police warrant cards with him was for the purpose of showing it to
L L
someone, inducing the others to treat him as if he was a genuine police
M officer. M
N N
65. In my view, criminality of possessing these false instruments
O is analogous to the falsely pretending to be a public officer as in the 3rd O
charge. Sentencing starting point therefore is 5 months’ imprisonment.
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The same is discounted by one-third by reason of his guilty plea and is
Q further discounted by 10 days by reason that he was acting under duress at Q
the time.
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S 66. The defendant is therefore sentenced to 3 months’ S
imprisonment for this charge.
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Totality Principle
C C
67. Coming to consider the totality principle and considering the
D D
overall criminality of the defendant in this case, the court finds just and
E proportionate sentence on the defendant is 41 months’ imprisonment. E
F F
68. As the 1st and the 4th charge offence are part and parcel of the
G same set of events, this court orders that sentence for the 1st charge and the G
4th charge are to run totally concurrent with each other. 2 months of the
H H
sentence for the 3rd charge and 1 month of the sentence for the 5th charge
I are to run consecutive to the sentence of the 1st charge, the rest to run I
concurrently, bringing the total sentence to 41 months’ imprisonment.
J J
K K
L L
M ( K Lo ) M
Deputy District Judge
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O O
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Q Q
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S S
T T
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A A
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DCCC 943/2022
C [2023] HKDC 1831 C
D IN THE DISTRICT COURT OF THE D
HONG KONG SPECIAL ADMINISTRATIVE REGION
E E
CRIMINAL CASE NO 943 OF 2022
F F
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G G
HKSAR
H v H
Peng Xinyuan
I I
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J J
Before: Deputy District Judge K Lo
K K
Date: 20 December 2023
L Present: Miss Choi Chung Jing Juno, Public Prosecutor, for HKSAR L
Mr Ho Wai Kin Victor, instructed by Solomon C Chong &
M M
Co, assigned by the Director of Legal Aid, for the defendant
N N
Offence: [1] Fraud (欺詐罪)
O [3] Falsely pretending to be a public officer (假冒公職人員) O
[4] Dealing with property known or believed to represent
P P
proceeds of an indictable offence (處理已知道或相信為代
Q Q
表從可公訴罪行的得益的財產)
R [5] Possessing false instruments (管有虛假文書) R
S S
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T REASONS FOR SENTENCE T
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U U
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A A
B B
C 1. The defendant was convicted on his own plea and agreement C
to Amended Summary of Facts of:
D D
E (i) a charge of fraud, contrary to section 16A of the Theft E
Ordinance, Cap 210 (1st charge);
F F
G (ii) a charge of falsely pretending to be a public officer, G
contrary to section 22(1) of the Summary Offences
H H
Ordinance, Cap 228 (3rd charge);
I I
(iii) a charge of dealing with property known or believed to
J J
represent proceeds of an indictable offence, contrary to
K section 25(1) and (3) of the Organized and Serious K
Crimes Ordinance, Cap 455 (4th charge); and
L L
M (iv) a charge of possessing false instruments, contrary to M
section 75(1) of the Crimes Ordinance, Cap 200 (5th
N N
charge).
O O
2. As for the 2nd charge, the same is left on the court file and not
P P
to be proceeded with without leave of the court.
Q Q
Facts
R R
1st and 4th Charge
S S
3. On 2 April 2022, PW1 received a phone call from a
T T
Putonghua-speaking male (in voice recording), claiming to be a customer
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B B
service officer of the China Mobile, informing PW1 that another unknown
C phone number was registered under his name and the said number was C
involved in a case investigated by the Lo Wu branch of the Public Security
D D
Bureau (“PSB”) in Mainland China. The phone call was then redirected to
E a “孙才” of Lo Wu branch of PSB (“SUN”). PW1 checked online and E
confirmed that the phone number belonged to Lo Wu branch of PSB. PW1
F F
therefore believed that SUN was a genuine PSB officer.
G G
4. In the telephone conversation, upon SUN’s request, PW1
H H
disclosed to SUN that he had 4 bank accounts, owned a property in
I Hong Kong and his residential address. SUN then sent by WhatsApp his I
PSB warrant card, a Notice of Assistance in Investigation, Letter of
J J
Mandatory Freezing of Assets and Letter of Criminal Arrest bearing PW1’s
K name. Believing what SUN said was true, PW1 felt scared. He was told K
to co-operate without telling the others and to turn his phone camera for
L L
video call as and when directed.
M M
N
5. At 7 pm on 2 April 2022, PW1 was instructed by SUN to book N
a hotel room at “STAY MK”. At 9:12 pm on the same day, SUN called
O O
PW1 and said his supervisor named “王靜” (“WANG”) would contact
P him. WANG told PW1 that a PSB officer would come and investigate if P
PW1 had committed money laundering.
Q Q
R 6. At around 9:30 pm on 2 April 2022, the defendant came to R
PW1’s room in STAY MK, claiming that he was instructed by PSB to
S S
investigate if PW1 had committed money laundering. The defendant
T requested PW1 to provide his bank account with online banking function T
for the defendant to investigate. PW1 then logged into his Hongkong and
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Shanghai Bank Corporation (“HSBC”) online banking account and passed
C his phone to the defendant. PW1 later checked that his balance remained C
unchanged.
D D
E 7. At around 11 pm on the same day, the defendant brought PW1 E
to an ATM machine of HSBC inside Olympic MTR station and asked PW1
F F
to insert his ATM card to the machine. The defendant then took a picture
G of the security code shown on the screen but did not withdraw any money. G
The defendant left while PW1 was instructed to stay in the STAY MK with
H H
his phone camera turned on during video call with WANG. On 3 April
I 2022, PW1 checked out from STAY MK and returned to his residence. I
J J
8. In the afternoon of 7 April 2022, WANG told PW1 that the
K defendant would investigate at PW1’s residence. Afterwards, the K
defendant attended PW1’s residence and brought PW1 to STAY MK.
L L
After a purported call, the defendant brought PW1 to Mongkok branch of
M HSBC and asked PW1 to transfer HK$637,000 to the defendant’s bank M
account held at Hang Seng Bank Limited (“HSB”) as per the defendant’s
N N
supervisor’s instructions. PW1 initially refused. The defendant made a
O purported phone call with his supervisor, and after the call, the defendant O
told PW1 that if PW1 refused to transfer the money, his assets would be
P P
frozen, and that the money would be returned to PW1 4 hours after the
Q transfer. Fearing his assets would be frozen, PW1 transferred the Q
HK$637,000 to the defendant’s HSB account.
R R
S 9. Afterwards, the defendant brought PW1 to another branch of S
HSB in which the defendant withdrew cash of HK$230,000 from his own
T T
account. The defendant, together with PW1, went to various branches of
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Bank of China (“BOC”) to deposit the money. The defendant and PW1
C then returned and stayed at STAY MK together. During the stay, PW1 was C
originally asked to sell his shares in CITIC but PW1 was unable to sell the
D D
shares since the CITIC bank froze his account due to inactivity. Further,
E PW1 also enquired about the return of the money, namely HK$637,000, E
transferred. The defendant made a purported phone call and explained to
F F
PW1 that his supervisor was still investigating PW1’s case and the money
G would be returned to PW1 upon conclusion of his case. G
H H
10. During 8 and 11 April 2022, PW1 and the defendant stayed in
I Room 1803 of Metro Winner Hotel (“Room 1803”) together. At around I
7:40 pm on 11 April 2022, police raided the Room 1803 where PW1 and
J J
the defendant were located.
K K
11. As a result, PW1 suffered loss of HK$637,000.
L L
M 3rd Charge M
N N
12. On 5 April 2022, PW2 received a voice recording from phone,
O informing PW2 that her phone number would be deactivated. She was then O
redirected to a PSB officer named “李正东” (“LI”). LI requested for
P P
PW2’s identity proof and later informed PW2 that she had been involved
Q Q
in a financial fraud case in Mainland China. Believing what LI said was
R
true, PW2 felt scared and was told to co-operate without calling the others. R
The alleged PSB officer asked PW2 to find a quiet hotel room. PW2
S S
followed suit. During her stay in the different hotels, she transferred
T money to various bank accounts as instructed by alleged PSB officers. T
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PW2 also provided her banking credentials and online banking password
C to the alleged PSB officers. C
D D
13. At around 8:12 pm on 6 April 2022, the alleged PSB officers
E asked PW2 if she saw the defendant, whom the alleged PSB officers E
represented as a Hong Kong police officer, at Hotel COZI Wetland. The
F F
defendant at this juncture emerged and showed a purported Hong Kong
G police warrant card to PW2, and asked PW2 to return to Harbour Plaza G
Resort City in Tin Shui Wai together. They subsequently went to the
H H
defendant’s residence in Luen Wo Hui, Fanling. The defendant left,
I leaving PW2 alone in the defendant’s residence. Since then, PW2 had I
never met the defendant. PW2 then complied with the requests of the
J J
alleged PSB officers at the defendant’s residence, including taking video
K clips pretending to be kidnapped. K
L L
14. Subsequently, PW2 made a report to police and informed
M them of the address of the defendant’s residence. The identity of the M
defendant was then revealed.
N N
O 15. PW2 lost around HK$2,289,990 as a result. O
P P
5th Charge and Arrest of the defendant
Q Q
16. At 7:44 pm on 11 April 2022, the defendant was arrested in
R R
Room 1803. Under caution, he stated that he received a call from
S PSB officer and prosecutor from Mainland, claiming that he was involved S
in a money laundering case, they asked the defendant to make amends by
T T
working for them and dealing with the suspects in Hong Kong. The police
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identity proof was provided by them, and they gave HK$7,000 to the
C defendant for expenses and as remuneration. C
D D
17. In the Room 1803, a forged warrant card of Hong Kong Police
E bearing the name and photo of the defendant, 3 deposit slips from BOC E
showing a total sum of HK$230,000 was deposited to a BOC account held
F F
in the name of TSOI Ho-lung, and 2 keys to defendant’s residence were
G found. G
H H
18. House search was conducted on defendant’s residence in
I which 4 forged warrant cards of Hong Kong Police bearing the name and I
photo of the defendant were found.
J J
K Criminal Record K
L L
19. The defendant has a clear record.
M M
Mitigation
N N
O 20. The defendant came to Hong Kong from Mainland in 2019 O
and has settled in Hong Kong since then. He is now 24 years old and has
P P
finished secondary vocational school education in mainland. At the time
Q of arrest, he worked as a chef at a Japanese restaurant and his monthly Q
salary was approximately HK$16,000.
R R
S 21. Defence counsel submitted that the most valid mitigating S
factor is the fact that the defendant pleaded guilty to the charges in
T T
question, he is therefore entitled to full one-third sentencing discount.
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C 22. Defence counsel submitted that in the case of HKSAR v C
Yu Jing, DCCC 692/2019, the modus operandi used by the defendant was
D D
similar to the present case. The court in that case took 4 years’
E imprisonment as a starting point for the conspiracy to defraud charges and E
3 years’ imprisonment for the money laundering charges. The court
F F
ordered that the sentence of the 3 counts of conspiracy to defraud and 5
G counts of money laundering to run concurrently. The defendant in that case G
was eventually sentenced to 32 months’ imprisonment. Prosecution did
H H
not apply for enhancement of sentence in that case.
I I
23. In the present case, defence counsel urged the court to
J J
consider totality principle and to impose a concurrent sentence for the 1st
K and 4th charge because they were in fact part and parcel of the same set of K
incident and in view of the proximity of the two charges. In relation to the
L L
3rd and 5th charge, defence counsel submitted that there is no sentencing
M guideline. Regarding the 5th charge, he submitted that there is no evidence M
to suggest the defendant possessed the 4 purported police warrant cards for
N N
unlawful or illegal purposes.
O O
24. He also cited the case of HKSAR v Hung Yung Chun &
P P
Another [2011] 2 HKLRD 174 where the appellate court has made
Q thorough analysis in a case of typical telephone scam, including the Q
discussion of enhancement of sentence. The appellate court in that case
R R
was of the view that the sentencing starting point in a typical telephone
S scam case be 4 years’ imprisonment. In that case, the appellate court S
enhanced the sentence by one-third according to the Organized and Serious
T T
Crimes Ordinance, Cap 455.
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C 25. Defence counsel urged this court to consider the defendant’s C
young age, clear record, guilty plea and the fact that he is not the
D D
mastermind in the scam, and to impose a lenient sentence.
E E
26. Defence counsel also submitted that duress is a valid
F F
mitigating factor in this case as the WhatsApp messages in the defendant’s
G phone showed that there were conversations between the defendant and G
other mainlanders, LI, WANG and ZHANG, where the defendant was
H H
instructed to follow their instructions subsequent to their allegations
I against the defendant that he was involved in a money laundering case in I
the Mainland.
J J
K 27. Mitigation letters from the defendant’s mother and colleague K
from the sushi shop where the defendant used to work were also submitted
L L
for the court’s consideration. These letters asked the court for leniency so
M the defendant could return to society and rehabilitate himself. The mother M
said that the defendant lost his job because the sushi shop where he worked
N N
closed during COVID in December 2021. She said that the defendant used
O to be a man of good character, hardworking and cares for his family. O
P P
Discussion
Q Q
28. Before sentencing, this court has carefully considered all that
R R
was said on behalf of the defendant, including but not limited to the
S authorities cited and the mitigation letters lodged. S
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1st Charge
C C
29. On conviction upon indictment of this charge, a person is
D D
liable to imprisonment for 14 years.
E E
30. The Court of Appeal did not lay down sentencing guideline
F F
for this offence for the reason that the modus operandi, sophistication of
G the scheme, number of persons involved, number of victims affected, G
amount of money involved, duration during which the offence was
H H
committed and the effect of the offence on the victims, varies immensely.
I I
31. The fraud practised on the victim in this case is highly
J J
sophisticated, well premeditated and well executed. It involves a number
K of persons. They first put the victim in fear by saying that he was involved K
in a criminal case in the mainland, and these allegations were made by
L L
people from Public Security Bureau in the Mainland. They also said that
M therefore they needed to investigate the victim, and this gave them the M
excuse of asking the victim to disclose the password and all other details
N N
about his personal banking account.
O O
32. No doubt, the defendant is the frontline person responsible for
P P
contacting and closely monitoring the conduct of the victim over a period
Q of 10 days. The defendant received orders from the others. During this Q
time, the victim was kept under close supervision by the defendant and his
R R
accomplices. The victim was directed to stay at different hotels with the
S defendant and was asked not to disclose the incident to any other persons. S
He was also asked to disclose the security code for his banking account and
T T
was directed to go to bank personally to transfer money from his account
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in total sum of HK$637,000. At one time, the victim was even asked to
C sell his shares which he did not manage to do as his account was frozen C
due to inactivity.
D D
E 33. During these 10 days, the victim was controlled by the E
defendant and the syndicate. One could imagine the fear instilled in this
F F
victim during these 10 days.
G G
34. In the case of Hung Yung Chun, Tang VP said that the
H H
telephone deception cases were more serious than street deception cases,
I and a higher starting point should be adopted for deterrence. It was said I
that the general sentencing starting point for that type of phone deception
J J
case should be 4 years’ imprisonment. The modus operandi of the scam in
K that case is different from ours. In that case, the elderly victims received K
phone calls purportedly from their children claiming to be detained for
L L
acting as guarantors owing money, and the elderly victims were demanded
M money to secure the release of their children. M
N N
35. Considering the circumstances of the present offence, the
O court finds the only sentencing option viable is one of immediate O
imprisonment and the appropriate sentencing starting point is 4 years’
P P
imprisonment.
Q Q
36. The defendant has pleaded guilty and is therefore entitled to
R R
full one-third sentencing discount. The defendant used to have a clear
S record but it is well established that the same has already been subsumed S
in the one-third sentencing discount.
T T
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37. Defence counsel submitted that when committing the offence,
C the defendant acted under duress from those people who pretended to be C
PSB officers from the Mainland who contacted the defendant since 27
D D
February 2022. Defence counsel said the defendant was suspected of
E money laundering by these people and he was asked to co-operate by them. E
F F
38. Defence counsel produced WhatsApp messages between the
G defendant and LI, and between the defendant and WANG. This court notes G
that in late February to early March, the defendant at one time did ask LI
H H
about the case alleged against him, and LI said that they needed further
I investigation against the defendant. This exchange apparently arose from I
allegations against the defendant, suspecting him of a criminal offence by
J J
these people.
K K
39. Apart from this entry, there appears to be no other entry which
L L
suggests threat or inducement or coercion in the messages directed against
M the defendant. Defence counsel agreed to the observation by the court. M
N N
40. This court finds that at the time of the offence, whatever
O influence that these people had on the defendant as on 27 February 2022 O
had become less significant, although this court notes that the defendant
P P
appeared to continue to heed or take instructions from them. This court
Q also notes that these people had allowed the defendant’s own residence Q
address to be exposed to the victims.
R R
S 41. This court finds the mind of the defendant to a certain extent S
affected by the threat of these people as a result of this so-called ongoing
T T
investigation, which would amount to duress to a certain extent. This court
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also notes that in this case, the defendant was given HK$7,000 out of the
C money cheated from the victim. This court would discount the sentence of C
this charge by 3.5 months.
D D
E Enhancement of sentence E
F F
42. Prosecution applied for enhancement of sentence for the 1st
G and 4th charge, both being specific offences within the meaning of the G
Organized and Serious Crimes Ordinance, Cap 455, and has furnished
H H
information to this court pursuant to section 27(2) of the ordinance.
I I
43. According to the statement from Detective Chief Inspector
J J
Tang Kai-ming, in the first half of 2023, there were 353 “pretend officials”
K telephone deception cases, as in the present case, representing a decrease K
of 29.4% when compared to 500 “pretend officials” telephone deception
L L
cases reported in the same period in 2022.
M M
44. Nevertheless, from the statement of Mr Tang, one can see the
N N
number of telephone deception cases in 2021, 2022 and the first half of
O 2023 are 68, 795 and 765. The rise of the telephone deception cases in O
2023 as compared to 2022 is alarming, and the associated money
P P
laundering activities are said to be prevalent in Hong Kong.
Q Q
45. This court agrees with the observation of Mr Tang that these
R R
crimes are of obvious concern to the society of Hong Kong in terms of the
S harm caused to the community and the repeated occurrences. S
T T
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46. Defence have no objection to the enhancement of sentence but
C he urged this court to enhance the sentence slightly. C
D D
47. Considering the alarming rise of the telephone deception
E cases, this court would enhance the sentence by 33%. E
F F
48. Accordingly, the defendant is sentenced to 38 months’
G imprisonment for the 1st charge. G
H H
3rd Charge
I I
49. A person guilty of this offence shall be liable to a fine of 2,000
J J
and to imprisonment for 6 months.
K K
50. The defendant produced his fake Hong Kong Police warrant
L L
card to the victim of the telephone deception, and he asked the victim to
M return to Harbour Plaza in Tin Shui Wai together. Obviously, the victim M
acceded to his request because she believed that he was a police officer.
N N
This victim was later requested by the defendant to go to the defendant’s
O residence where, at the request of the alleged PSB officer, video clips O
pretending her to be kidnapped were taken.
P P
Q 51. This is a serious case and the defendant had meant to deceive Q
the victim that he was in fact a genuine police officer. However, this court
R R
is tied with the ceiling for sentence of this offence. Appropriate sentencing
S starting point is therefore 5 months’ imprisonment. The same is discounted S
to 3 months and 10 days’ imprisonment by reason of his guilty plea and
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discounted further by 10 days by reason he was acting under the influence
C of duress at the time. C
D D
52. The defendant is sentenced to 3 months’ imprisonment for this
E charge. E
F F
4th Charge
G G
53. On conviction upon indictment of this offence, a person is
H H
liable to a fine of HK$5 million and to imprisonment for 14 years.
I I
54. In HKSAR v Boma [2012] 2 HKLRD 33, Stock JA (as he then
J J
was) explained that it was not realistically possible or desirable to lay down
K guidelines in relation to the offence of money laundering because of the K
highly variable circumstances in which such offences are committed and
L L
the widely different roles played by those convicted of these offences. He
M said that deterrence was paramount in the sentencing exercise as the M
criminality in laundering arose from the encouragement and nourishment
N N
it gave to crime in general.
O O
55. He said that the amount of money laundered is a significant
P P
factor, and the court should take into account of factors such as :
Q Q
(a) nature of the predicate offence;
R R
S (b) the state of the offender’s knowledge; S
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B B
(c) where the operation involved an international
C dimension, this would be a significant aggravating C
feature;
D D
E (d) the sophistication of the offence, including the degree E
of planning;
F F
G (e) where the offence was committed by or on behalf of an G
organised criminal syndicate, this would be an
H H
aggravating feature;
I I
(f) whether there was one transaction only or many and the
J J
length of time over which the offence was committed;
K K
(g) whether the offender continued to launder funds after
L L
he had discovered the nature of the funds were proceeds
M of an offence or a serious offence was involved; M
N N
(h) the role of the offender and the acts performed by him.
O O
56. In this case, the amount of money laundered is HK$637,000.
P P
Q 57. The predicate offence is fraud which attracts a maximum Q
sentence of 14 years’ imprisonment. The bank account of the defendant
R R
was used to receive the money cheated out of the victim in this telephone
S deception case. The fraud in question concerned a number of persons, S
including the defendant. 2 bank accounts were involved. One is that of
T T
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the defendant himself and another bank account held in the name of
C TSOI Ho-lung. C
D D
58. The scheme involved is highly sophisticated, premeditated
E and well executed. It clearly involved a criminal syndicate. The role of E
the defendant was significant as he was the one who confronted the victim
F F
and monitored him transferring money from his account to the defendant’s
G bank account. The defendant well knew that the lending of his bank G
account was for money laundering purpose, and the offence was committed
H H
for an organised criminal syndicate. The defendant had actual knowledge
I of the predicate offence but clearly, he just heeded to the instructions given I
by those alleged PSB officers.
J J
K 59. There was only 1 deposit into the defendant’s bank account K
and 3 withdrawals made subsequently shortly afterwards. The benefit or
L L
gain to the defendant for commission of this offence is HK$7,000.
M M
60. In the case of Secretary for Justice v Wan Kwok Keung [2012]
N N
1 HKLRD 201, Cheung JA (as he then was) said that money laundering is
O a serious offence and must be deterred. The sentence should reflect the O
amount of “black money” laundered and not the benefit obtained by the
P P
defendant or others. However, it is said that if the “black money’
Q originated from various and organised indictable offence or the defendant’s Q
benefit was huge, then the sentence should be adjusted upwards.
R R
S 61. Considering the above, the court finds that the appropriate S
sentencing starting point in this case is 3 years’ imprisonment.
T T
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B B
62. Money laundering is a very serious offence and the personal
C background of the defendant is seldom a valid mitigating factor. He has C
pleaded guilty and is therefore entitled to full one-third sentencing
D D
discount. The court allows the sentence deduction of 3 months by reason
E of the duress as aforesaid. Again, the same is enhanced pursuant to E
application by prosecution by 33%, bringing the sentence for this charge
F F
to 27 months and 27 days’ imprisonment.
G G
5th Charge
H H
I 63. On conviction upon indictment of this charge, a person is I
liable to 14 years’ imprisonment.
J J
K 64. The only possible reason that the defendant had these 5 forged K
police warrant cards with him was for the purpose of showing it to
L L
someone, inducing the others to treat him as if he was a genuine police
M officer. M
N N
65. In my view, criminality of possessing these false instruments
O is analogous to the falsely pretending to be a public officer as in the 3rd O
charge. Sentencing starting point therefore is 5 months’ imprisonment.
P P
The same is discounted by one-third by reason of his guilty plea and is
Q further discounted by 10 days by reason that he was acting under duress at Q
the time.
R R
S 66. The defendant is therefore sentenced to 3 months’ S
imprisonment for this charge.
T T
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B B
Totality Principle
C C
67. Coming to consider the totality principle and considering the
D D
overall criminality of the defendant in this case, the court finds just and
E proportionate sentence on the defendant is 41 months’ imprisonment. E
F F
68. As the 1st and the 4th charge offence are part and parcel of the
G same set of events, this court orders that sentence for the 1st charge and the G
4th charge are to run totally concurrent with each other. 2 months of the
H H
sentence for the 3rd charge and 1 month of the sentence for the 5th charge
I are to run consecutive to the sentence of the 1st charge, the rest to run I
concurrently, bringing the total sentence to 41 months’ imprisonment.
J J
K K
L L
M ( K Lo ) M
Deputy District Judge
N N
O O
P P
Q Q
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S S
T T
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