A A
B DCCC 707/2015 B
C C
IN THE DISTRICT COURT OF THE
D HONG KONG SPECIAL ADMINISTRATIVE REGION D
CRIMINAL CASE NO 707 OF 2015
E E
-----------------
F HKSAR F
v
G G
HO Wai-tim
H ----------------- H
I I
Before: Deputy District Judge Joseph To in Court
J Date: 28 January 2016 at 9:38 am J
Present: Mr Steve CHUI, Counsel on Fiat, for HKSAR/Director of
K K
Public Prosecutions
L Mr HUI Wai-chun Sammy, instructed by Messrs. Au-Yeung, L
Chan & Ho, assigned by the Director of Legal Aid, for the
M M
defendant
N Offences: [1] Conspiracy to deal with property known or believed to N
represent proceeds of an indictable offence （串謀處理已知
O O
道或相信為代表從可公訴罪行的得益的財產）
P P
Q -------------------------------------- Q
REASONS FOR SENTENCE
R R
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S S
T T
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INTRODUCTION
C C
1. Upon arraignment at the commencement of his trial on 26
D D
January 2016, the defendant pleaded guilty to the sole charge preferred
E against him, namely, conspiracy to deal with property known or believed E
to represent proceeds of an indictable offence, contrary to section 25(1)
F F
and (3) of the Organized and Serious Crimes Ordinance, Cap 455 (“the
G Ordinance”) and sections 159A and 159C of the Crimes Ordinance, G
Cap 200.
H H
I FACTS I
J J
2. On the morning of 16 December 2013, a 73-year old lady
K Madam Yeung received at her residence a phone call from a male person K
pretending to be her son, asking whether she had any money at home;
L L
Madam Yeung revealed she had $10,000 with her. The man asked to be
M given the money and obtained the mobile phone number of Madam M
Yeung’s maid. Madam Yeung and her maid went to the ground floor to
N N
wait for him. A little later, the maid received a call from the man telling
O her to have the money deposited into an account at Bank of China (Hong O
Kong) Limited, which turned out to be the defendant’s. Shortly afterwards,
P P
the defendant was captured by a CCTV when he withdrew at an ATM
Q machine the $10,000 from his account. Q
R R
3. On 23 April 2015, the defendant was arrested. Under caution,
S he admitted having allowed his friend Ah Keung to use his bank account S
and that he knew it was wrong to do so. In a subsequent cautioned
T T
interview, he said he had chanced upon Ah Keung on the street, Ah Keung
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asked for the use of his account for the purpose of receiving $10,000 and
C offered to give him $2,000 as a reward. C
D D
MITIGATION
E E
4. The defendant was born in October 1961 and is now 55 years
F F
of age. He has received education to primary level, and he works as a
G decoration and factory worker. He has a total of 34 conviction records, G
involving 46 charges, none of which are similar to the present offence.
H H
I 5. In his plea in mitigation, Mr Sammy Hui appearing for the I
defendant submits that the defendant is a drug addict and has committed
J J
the subject offence due to his desperate financial situation at the time, he
K was not the mastermind in the crime, there is no evidence showing that he K
has taken part in the telephone deception, and since April 2014, he has
L L
been gainfully employed as a cleaner making some $3,000 a month, and
M his employer is satisfied with the defendant’s work performance. M
N N
6. Mr Hui accepts, fairly, that the sentencing tariff for telephone
O deception cases is four years’ imprisonment (see HKSAR v Hung Yung O
P
Chun1) but submits that the defendant should not be sentenced as if he had P
committed the telephone deception on Madam Yeung. In this regard, Mr
Q Q
Hui refers to the case of HKSAR v Xu Xia Li and anor 2 (which was
R
followed on this point by HKSAR v Chen Szu Ming3), in which the Court of R
Appeal said:
S S
T 1
HKSAR v Hung Yung Chun [2011] 2 HKLRD 174 T
2
HKSAR v Xu Xia Li and anor [2004] 4 HKC 16
3
U HKSAR v Chen Szu Ming CACC270/2005 U
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A A
B “… By the nature of the offence itself, in our judgment, the nature of the B
indictable offence from which the money was derived should be of no particular
C significance in sentencing, save that if the defendant knew that the money was C
derived from very serious crimes, it would be an aggravating feature to be taken
into account in sentencing.”
D D
7. In addition, Mr Hui relies on the case of HKSAR v Yam Kong
E E
4 5
Lai . In that case, having cited the case of HKSAR v Xu Xia Li and anor ,
F F
the Court of Appeal said:
G G
“24. It would be quite wrong as a general principle to sentence a defendant on
H
the basis of an offence with which he or she was not charged, though as was H
pointed out in HKSAR v Xu Xia Li & Anor where the underlying offence is of a
particularly serious nature, a defendant’s dealing with the profits of such an
I offence may well be an aggravating factor. In those circumstances, an enhanced I
sentence may be required as a matter of policy and general deterrence.
J J
25. The present case, though not in that category, was somewhat unusual in
that the applicant was found to have known that the funds she received
K represented the proceeds of an indictable offence for the purposes of K
section 25(1), for the simple reason that she had stolen them. Was the judge
entitled then to take into account her involvement in that theft as a sentencing
L factor? L
M 26. We do not think so. The applicant was charged with a section 25(1) M
offence, and should have been sentenced solely on the basis of her role in
dealing with the proceeds of the theft, rather than for her role in the theft itself.
N A number of the factors the judge properly took into account were directly N
relevant to the nature of the applicant’s dealings with the funds. Her use of
forged documentation, her knowledge of the sophistication of the methods used
O O
to disguise the origin of the funds before their transfer to her personal account
and her subsequent use of the funds for her own benefit and that of her family
P were matters the judge was entitled to regard as relevant to sentence.” P
Q In particular, Mr Hui relies on the rulings of the Court of Appeal in Q
paragraph 26 of that judgment.
R R
S S
T T
4
HKSAR v Yam Kong Lai [2008] 5 HKLRD 384
5
U HKSAR v Xu Xia Li and anor [2004] 4 HKC 16 U
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B B
8. That said, Mr Hui brings the court’s attention to the case of
C HKSAR v Leung Wai Wah6, in which the Court of Appeal held: C
D D
“24. From various cases cited to this court [HKSAR v Hsu Yu Yi [2010] 5
HKLRD 545, Secretary for Justice v Herzberg [2010] 1 HKLRD 502, HKSAR v
E Javid Kamran (supra)], it appears that the following factors are relevant to E
sentence in “money laundering” cases:
F F
1. The amount of money laundered, which was described as
the major consideration.
G G
2. The nature of the offence that generated the “laundered
money”.
H H
3. The extent to which the offence assisted the underlying
crime or hindered its detection.
I 4. The degree of sophistication of the offence. I
5. The defendant’s participation, both in the underlying
J offence and in the “money laundering” activities. J
6. The length of time that the offence lasted.
K K
7. The benefit that the defendant had derived from the
offence.
L 8. Whether there was an international element in the L
commission of the offence.”
M M
INFORMATION FURNISHED PURSUANT TO SECTION 27(2) OF THE
N N
ORDINANCE
O O
9. Pursuant to a Notice of Intention to Furnish Information
P P
Pursuant to Section 27(2) of the Organized and Serious Crimes Ordinance,
Q Cap 455, served upon the defendant on 14 September 2015, the Q
prosecution place before the court the witness statement of DCIP Lam
R R
Cheuk-ho dated 11 January 2016 in support of their application for
S enhancement of sentence on grounds of prevalence of the specified offence S
under section 27(2)(c) and of the harm caused to the community by recent
T T
6
U HKSAR v Leung Wai Wah CACC201/2011 U
CRT20/28.1.2016/ 5 DCCC 707/2015/Sentence
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occurrences of the specified offence under section 27(2)(d). Mr Hui
C indicates to the court that while DCIP Lam’s evidence is unchallenged, the C
defence position is that the evidence is not such as would allow the court to
D D
find the two grounds established beyond all reasonable doubt.
E E
10. In essence, DCIP Lam’s evidence shows the following:-
F F
(i) The usual modus operandi by which telephone
G deception is committed involves a culprit (a) making a G
phone call to a victim, (b) pretending to be the victim’s
H friend or family member, and (c) asking for money to H
deal with an emergency or threatening the victim that
I
the life or well-being of the friend or family member is I
in danger for which payment of a ransom is required.
The culprit would guide the victim to deposit the
J J
money into a bank account, and the money would be
withdrawn at an ATM machine.
K K
(ii) The police have taken strong enforcement action to
L curb the use of local bank accounts by the culprits to L
launder the funds obtained from victims of telephone
deception.
M M
(iii) Between 2008 and 2014, the number of reported cases
N of telephone deception varied between about 1,430 and N
2,300 a year, but the figure in 2015 has risen to 2,880.
O O
(iv) Between 2008 and 2014, in cases where the culprits
succeeded in their criminal designs, victims of
P P
telephone deception have, in aggregate, suffered a
yearly loss ranging between $23m and $45.7m; but in
Q 2015, the yearly loss has reached $318m. Q
R (v) Between 2008 and 2014, the yearly loss suffered by R
victims in telephone deception cases involving the use
of a bank account ranged between $12m to $32.9m; but
S S
in 2015 alone, that figure has risen to $306m.
T (vi) Between 2008 and 2015, the proportion of cases in T
which the culprits in telephone deception have
U successfully cheated their victims of their money U
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B B
ranged between 28.3% and 35.6%, but of all those
successful cases, between 72.5% and 84% involved the
C use of a bank account. C
D (vii) In the fourth quarter of 2015 alone, there have been a D
total of 261 victims of telephone deception cases,
almost all of whom were Hong Kong residents, most of
E E
them students, housewives, or retirees.
F F
CONSIDERATION OF ENHANCEMENT OF SENTENCE
G G
11. The offence of “dealing with property known or believed to
H H
represent proceeds of an indictment offence” is included in Schedule 1 to
I the Ordinance7; and a specified offence includes a conspiracy to commit a I
Schedule 1 offence 8 . The conspiracy offence of which the defendant
J J
stands convicted is therefore a specified offence.
K K
12. Section 27(2) of the Ordinance provides:-
L L
M “(2) The prosecution may furnish information to the court regarding M
any or all of the following–
N N
(a) the nature and extent of any harm caused,
directly or indirectly, to any person by the act in
O respect of which the person has been so O
convicted;
…
P P
(c) the prevalence of that specified offence;
(d) the nature and extent of any harm, whether direct
Q or indirect, caused to the community by recent Q
occurrences of that specified offence; …”
R R
13. Section 27(11) provides:-
S S
T T
7
Item no.16 in Schedule 1 to the Ordinance
8
Subparagraph (b) of the definition of “Specified offence” in section 2 of the Ordinance
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A A
B “(11) Subject to subsections (12) and (13), where a court is satisfied B
beyond reasonable doubt–
C … C
(b) as to any information furnished under subsection
(2) … ,
D D
or where any such matter is agreed by the person
E
convicted, the court shall have regard to such matter E
when it passes a sentence on the person for the relevant
specified offence and may, if it thinks fit, pass a sentence
F on the person for that offence that is more severe than the F
sentence it would, in the absence of such matter, have
passed.”
G G
H 14. The prosecution rely on DCIP Lam’s evidence for the purpose H
of establishing the matters referred to in section 27(2)(c) and (d), namely,
I I
prevalence of the specified offence and the harm occasioned to the
J community by the recent occurrences of the specified offence. J
K K
(1) Relevance of telephone deception under section 27(2)(c) and (d)
L (1)(A) Section 27(2)(d) L
(i) Section 27(2)(d) and the harm referred to in section 27(2)(a)
M M
N 15. When assessing the nature and extent of the harm to the N
community under section 27(2)(d), it goes without saying that the court
O O
must take into account the harm to the individual referred to in section
P 27(2)(a): the individual is a member of the community. Any contrary P
interpretation can be dismissed immediately as being so plainly absurd that
Q Q
the legislature could never have intended it.
R R
16. It is essential, therefore, in the examination of section
S S
27(2)(d), to ascertain the scope of section 27(2)(a) in the first place.
T T
(ii) The expression “act in respect of which” in section 27(2)(a)
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C 17. When considering the harm to the individual under section C
27(2)(a), the court is to have regard to “the act in respect of which the
D D
person has been so convicted.” The focus is, it seems clear, on the relevant
E act or conduct, rather than the offender’s guilty mind, or the lack of it, for E
that matter.
F F
G 18. The expression “the act in respect of which the person has G
been so convicted” imports a wider consideration than “the act of which
H H
the person has been so convicted,” or “the act constituting the specified
I offence of which the person has been so convicted.” It is the view of this I
court that the harm occasioned to an individual, directly or indirectly, by an
J J
accepted aggravating feature inherent in the specified offence must be
K taken into consideration. K
L L
19. In the case of a conspiracy to commit money laundering, the
M nature and seriousness of the predicate offence, if and when known, are M
important considerations in sentencing 9 and can amount to significant
N N
aggravation. In HKSAR v Yam Kong Lai 10, the Court of Appeal said:
O O
“24. … where the underlying offence is of a particularly serious nature, a
P defendant’s dealing with the profits of such an offence may well be an P
aggravating factor. In those circumstances, an enhanced sentence may be
required as a matter of policy and general deterrence.” (emphasis supplied)
Q Q
R 20. There are no plausible reasons, therefore, why the predicate R
offence (ie., telephone deception involving the use of a bank account) must
S S
T 9
HKSAR v Hsu Yu Yi [2010] 5 HKLRD 545 at p.551 and HKSAR v Boma [2012] 2 HKLRD 33 at T
pp.42-44
10
U HKSAR v Yam Kong Lai [2008] 5 HKLRD 384 U
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be ignored when the court considers “the act in respect of which the person
C has been so convicted” under section 27(2)(a). That subsection requires C
the court to have regard to harm caused directly or indirectly by the
D D
criminal act of the money launderer. If the underlying criminal conduct is
E to be so ignored, the legislative intent in providing for enhancement of E
sentence in money laundering cases by reason of the harm to “any person”
F F
would be substantially frustrated. In this regard, it should be noted that a
G money launderer may or may not have dealt with the crime proceeds G
first-hand. It is the court’s view that the harm suffered by the primary
H H
victims in telephone deception cases must be included in the court’s
I assessment under section 27(2)(a). I
J J
(iii) The “harm” referred to in section 27(2)(d)
K K
21. In view of the above discussion, when ascertaining the harm
L L
caused to the community – which necessarily includes the harm
M occasioned to the individual concerned under section 27(2)(a) – by M
reference to the recent occurrences of an offence of money laundering
N N
under section 27(2)(d), the underlying or predicate criminal act must be
O taken into account. O
P P
22. The wording of section 27(2)(d) itself points strongly in
Q favour of including the predicate offence in the court’s consideration of the Q
direct and indirect harm caused to the community. Rather than simply “the
R R
harm caused to the community by the specified offence”, section 27(2)(d)
S requires an examination and assessment of the harm caused by “the recent S
occurrences” of the specified offence. In cases of telephone deception
T T
involving the use of a bank account, the act of depositing the victim’s
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money into the designated account is but an integral and essential part of
C the criminal enterprise. Money laundering committed in this modus C
operandi must necessarily involve an antecedent telephone deception
D D
having been practised on the victim. The phrase “the recent occurrences of
E the specified offence” as it appears in section 27(2)(d) is apt to include the E
underlying telephone deception with the use of a bank account to which the
F F
money laundering relates.
G G
23. Finally, a money launderer’s interests are better served if in
H H
its assessment of the harm caused to the community, the court is restricted
I specifically to the type of underlying conduct (telephone deception using a I
bank account) from which the crime proceeds originate rather than to the
J J
harm occasioned by all money laundering offences, regardless of the
K various types of predicate offences to which a given money laundering K
charge may relate.
L L
M (iv) Information on telephone deception with the use of a bank account M
N N
24. In light of the foregoing discussion, the court can and should
O take into account information supplied by the prosecution concerning O
P
money laundering cases arising from telephone deception with the use of a P
bank account, when assessing the nature and extent of the harm, direct and
Q Q
indirect, “caused to the community by recent occurrences of that specified
R
offence” under section 27(2)(d). R
S S
25. In view of DCIP Lam’s evidence, which is uncontested,
T telephone deception committed with the use of a bank account must T
necessarily involve an act of money laundering. The money which the
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culprit withdraws from the ATM machine belongs not to the victim but the
C bank; it represents the proceeds of the telephone deception practised on the C
victim. So long as the prosecution have chosen a specified offence with
D D
which to prosecute the offender, that the cases can be prosecuted as money
E laundering, conspiracy to commit money laundering, fraud, conspiracy to E
defraud, obtaining property by deception, or any other offending is neither
F F
here nor there. These available offences are brought together under the
G same umbrella by reason of the modus operandi in which the criminal act is G
committed; and evidence in the nature of DCIP Lam’s is equally relevant
H H
and applicable to all of them. The most important consideration is –
I emphasizes the court, at the risk of repetition – the modus operandi of the I
criminal act in respect of which the defendant is convicted, as that phrase is
J J
interpreted above.
K K
26. Mr Hui is entirely correct in saying that DCIP Lam has not, in
L L
his witness statement, provided the court with any information on the
M number or proportion of telephone deception committed with the use of a M
bank account – in particular, a borrowed account – having been prosecuted
N N
with the offence of money laundering or of conspiracy to commit money
O laundering. In consequence, there is little or insufficient information O
before the court, says Mr Hui, concerning the matters referred to in section
P P
27(2)(d).
Q Q
R
27. In the court’s view, a plain reading of section 27(2) in its R
entirety does not admit of such a hair-splitting distinction. According to
S S
the court’s analysis above, in assessing the harm to the individual
T concerned and to the community at large under both subsections 27(2)(a) T
and (d), the court must take into account information on the occurrences of
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the underlying, predicate criminal conduct but must, in the present case,
C restrict itself to cases of telephone deception involving the use of a bank C
account. Mr Hui’s submission in this regard is dismissed.
D D
E 28. Mr Hui argues further that DCIP Lam has supplied the court E
with no information on cases in which the money launderer has had no
F F
knowledge of the nature and seriousness of the predicate offence. As
G discussed above, section 27(2)(a) focusses on the act in respect of which G
the offender is convicted of the specified offence; it is not confined to cases
H H
where the offender has had full knowledge of the underlying criminal
I conduct. It would be absurd, in the court’s view, to restrict the operation of I
section 27(2)(d) to cases where the offender has had such knowledge. Mr
J J
Hui’s argument must be rejected.
K K
(1)(B) Section 27(2)(c)
L L
Prevalence of the specified offence
M M
29. Mr Hui repeats his submissions on the lack of particularity in
N N
DCIP Lam’s evidence and argues that there is little or insufficient evidence
O to establish to the criminal standard of proof prevalence of money O
laundering offences committed with a borrowed bank account and in
P P
situation where the launderer has had no knowledge of the predicate
Q offence. Q
R R
30. As discussed above, depriving the victim of his money with
S S
the use of a bank account is an integral part of the criminal design in
T
telephone deception cases committed in this mode. The criminal plot T
would be incomplete or rendered futile if the culprit fails to collect the
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money from the bank. It is the court’s view that in this circumstance, there
C can be no objection for the court to take into account information in respect C
of the underlying telephone deception when considering the issue of
D D
prevalence of money laundering offences or conspiracies to launder
E proceeds of crime committed in this manner. E
F F
31. In summary, it is the court’s view that, first, the focus of the
G examination on the harm to the individual and to the community is on the G
modus operandi of the commission of the criminal act, not on the identity
H H
of the person to whom the bank account happens to belong. Secondly,
I knowledge of the underlying or predicate conduct is irrelevant to the I
court’s consideration under section 27(2)(a) and (d), so there is no reason
J J
whatsoever why that knowledge must be required in the court’s
K determination of the issue of prevalence under section 27(2)(c). Mr Hui’s K
argument must be rejected.
L L
M 32. Mr Hui submits that in considering the defendant’s case, the M
court should limit itself to the statistics prior to or around the date of the
N N
commission of the offence by the defendant, namely, December 2013.
O There is no substance in this argument. In HKSAR v Chung Chi King11, the O
Court of Appeal said:
P P
Q 24. Furthermore, as a matter of statutory construction, the prevalence of the Q
offence must be considered at the time of the sentence since the purpose of an
R enhanced sentence is to impose a deterrence on potential wrong doers. Hence R
the time of the commission of the crime is irrelevant. Again what this Court had
said in Wong Fung Ming was merely to give effect to this construction.
S S
(2) Ruling on the application for enhancement of sentence
T T
11
U HKSAR v Chung Chi King CACC504/2001 U
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C 33. The court attaches full weight to the undisputed evidence of C
DCIP Lam. In view of the above discussion, the court finds established
D D
beyond all reasonable doubt, first, the specified offence in the charge is
E prevalent within the meaning of section 27(2)(c) and secondly, the nature E
and extent of the harm caused to the community under section 27(2)(d) are
F F
such that an enhancement of sentence pursuant to section 27(11) is called
G for. The prosecution’s application for enhancement of sentence is allowed G
on both grounds.
H H
I REASONS FOR SENTENCE I
J J
34. Deterrence is the paramount sentencing consideration in
K money laundering cases.12 Other sentencing considerations that should be K
taken into account include the maximum penalty; the amount involved; the
L L
nature and extent of the defendant’s participation; the nature and
M seriousness of the predicate offence (if known); the defendant’s state of M
knowledge of the predicate offence; the degree of sophistication of the
N N
offence; international element, if any; and the duration of the offence.13
O O
35. The maximum sentence for the offence of money laundering
P P
is one of 14 years’ imprisonment ; a conspiracy to commit money
14
Q laundering carries the same statutory maximum15. Q
R R
12
S HKSAR v Boma [2012] 2 HKLRD 33, p.42 S
13
HKSAR v Hsu Yu Yi [2010] 5 HKLRD 545 at p.551 and HKSAR v Boma [2012] 2 HKLRD 33 at
pp.41-44
T T
14
see section 25(3)(a) of the Ordinance
15
see section 159C(1)(a) and (4) of the Crimes Ordinance, Cap.200
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36. In HKSAR v Cen Huakuo16, an old lady received a telephone
C call saying that her son was in custody for offences of indecency. To C
secure her son’s release, she had to hand over $50,000 at a certain park.
D D
She discovered, however, that her son had never been held captive; a report
E was then made to the police. She co-operated with the police in their E
investigation and went to the park. The defendant approached her and
F F
confirmed – falsely, of course – that her son had been detained. He gave
G her a mobile phone, and a male caller kept asking her on the phone why she G
had not had the money with her. The police took action and arrested the
H H
defendant. In allowing the appeal against sentence, the Court of Appeal
I said:- I
“18. The applicant did not take part in the deception, he told Madam Chan
J that her son was being detained, but that only shows his sketchy understanding J
about the relevant indictable offence and does not mean that he knew the
details. When considering the applicant’s knowledge about the relevant
K indictable offence, the trial judge should not have interpreted the facts in the K
most unfavorable way against the applicant. …
L … L
25. Taking into account all the circumstances of the case and the
M requirement that a sentence should have deterrent effect in order to prevent M
mainlanders from taking part in such an abhorrent and despicable offence like
N
“phone deception” in whatever manner, we are of the view that the appropriate N
starting point is 3 years’ imprisonment, and the sentence should be enhanced
by one-third pursuant to the Organized and Serious Crimes Ordinance.”17
O O
37. In HKSAR v Chen Jianchao18, the Court of Appeal said:
P P
Q “21. Not surprisingly, given the applicant’s acceptance of the ‘Summary of Q
Facts’ as the factual basis on which the applicant pleaded guilty to the two
charges, no issue was taken with the judge’s findings that the applicant knew the
R R
predicate offence in the two charges, in particular that they were deceptions
practised on elderly ladies. Beyond, that the judge found only that the applicant
S knew the amount of monies involved, namely $230,000 and $17,700. He knew S
16
T HKSAR v Cen Huakuo [2015] 2 HKLRD 951 T
17
HKSAR v Cen Huakuo [2015] 2 HKLRD 951 at pp.957-8
18
U HKSAR v Chen Jianchao CACC184/2014 U
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A A
B of the former because he accepted in the Summary of Facts that he had asked the B
victim if she had that money available to give him. He knew of the latter
C because he remitted the monies to a stipulated account. The judge did not make C
any finding that the applicant was aware of the details of the deception practice
in respect of Charge 1.
D … D
E 35. … The judge was entitled to take into account, as he did, that the applicant E
was recruited to come to Hong Kong from the Mainland to commit the offences.
That was a factor in aggravation in the commission of the offence. Similarly, he
F was entitled to find that the offences were “pre-planned”. Clearly, there was a F
degree of organization in the operation, in which the applicant’s role was to
G collect the money whilst others played other parts: Chan King Fung recruited G
the applicant and gave him general instructions; the unknown man gave him
detailed instructions by telephone about the collection of the monies on both
H occasions and in respect of the remittance of the monies the subject of H
Charge 2. …
I … I
36. Having regard to all the circumstances of the commission of the offence,
J we are satisfied that, although the sentence was at the top end of the appropriate J
range of sentence, having regard to the particular circumstances of the instant
K case the judge was entitled to take a starting point for sentence for Charge 1 of 4 K
years’ imprisonment. … ”
L L
38. In the instant case, the offence was committed locally without
M any international element in it. The defendant has taken no part in the M
deception practised on Madam Yeung. There was no evidence showing
N N
that he was aware of the details of the deceit. Madam Yeung did not
O appear to have suffered a significant degree of fear or distress. The amount O
involved was $10,000. The offence did not appear to have involved a
P P
marked degree of planning or organization, nor has there been a great deal
Q Q
of sophistication inherent in its commission.
R R
39. The defendant has had a number of previous criminal records
S S
before his present conviction, but none of them are similar to the offence in
T this case. The court cannot sentence him for his past offending; however, T
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A A
B B
the defendant cannot be treated as if he were a person of previous good
C character. C
D D
40. The Court of Appeal in the case of HKSAR v Boma19 said:-
E E
“39. We were at one stage of our deliberations minded to provide a suggested
F starting point for a specified relatively low sum involved in an offence, leaving F
the courts to use that as a base for other sentences but we at once could conjure
a myriad of factual variations which might render even that single starting point
G unwise with the further risk that it might encourage a rigid mathematical G
approach and progression without proper regard to other individual relevant
H factors.” H
I 41. In view of the above considerations, the proper starting point I
in respect of the present offence is one of 30 months’ imprisonment. Little
J J
in the defendant’s background amounts to valid or strong mitigation. He is
K nevertheless entitled to the usual one-third discount for his guilty plea; the K
sentence is reduced to 20 months’ imprisonment.
L L
M 42. In relation to the extent of enhancement of sentence under M
section 27(11) of the Ordinance, Mr Hui argues that since a more stringent
N N
sentencing regime has been adopted for this type of offences on account of
O their prevalence, enhancement based upon prevalence of offences would O
amount to double-counting.
P P
Q 43. That argument is untenable, in the court’s view. None of the Q
authorities cited to the court appear to have included prevalence as a reason
R R
for adopting a severe starting point for this kind of offences; the
S preponderance of the authorities suggests that the starting point has been S
adopted, primarily, on account of the severity of the offence. In any event,
T T
19
HKSAR v Boma [2012] 2 HKLRD 33
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B B
the legislative scheme of enhancement of sentence under section 27(2)
C allows extraneous matters, even, to be taken into account, eg., the nature C
and extent of harm caused not only by the offence in question, but also by
D D
the recent occurrences of the specified offence. Mr Hui’s submission on
E this point is dismissed. E
F F
44. There is no justification not to impose a one-third
G enhancement of the defendant’s sentence pursuant to section 27(11) of the G
Ordinance (see HKSAR v Wu Jianbing20 and HKSAR v Cen Huakuo21); the
H H
sentence is, accordingly, enhanced by six months.
I I
CONCLUSION
J J
K 45. For the offence of which he stands convicted, the defendant is K
sentenced to a term of imprisonment of two years and two months.
L L
M M
N N
O O
( Joseph To )
P P
Deputy District Judge
Q Q
R R
S S
T T
20
HKSAR v Wu Jianbing [2012] 1 HKLRD 781
21
HKSAR v Cen Huakuo [2015] 2 HKLRD 951
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A A
B DCCC 707/2015 B
C C
IN THE DISTRICT COURT OF THE
D HONG KONG SPECIAL ADMINISTRATIVE REGION D
CRIMINAL CASE NO 707 OF 2015
E E
-----------------
F HKSAR F
v
G G
HO Wai-tim
H ----------------- H
I I
Before: Deputy District Judge Joseph To in Court
J Date: 28 January 2016 at 9:38 am J
Present: Mr Steve CHUI, Counsel on Fiat, for HKSAR/Director of
K K
Public Prosecutions
L Mr HUI Wai-chun Sammy, instructed by Messrs. Au-Yeung, L
Chan & Ho, assigned by the Director of Legal Aid, for the
M M
defendant
N Offences: [1] Conspiracy to deal with property known or believed to N
represent proceeds of an indictable offence （串謀處理已知
O O
道或相信為代表從可公訴罪行的得益的財產）
P P
Q -------------------------------------- Q
REASONS FOR SENTENCE
R R
--------------------------------------
S S
T T
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B B
INTRODUCTION
C C
1. Upon arraignment at the commencement of his trial on 26
D D
January 2016, the defendant pleaded guilty to the sole charge preferred
E against him, namely, conspiracy to deal with property known or believed E
to represent proceeds of an indictable offence, contrary to section 25(1)
F F
and (3) of the Organized and Serious Crimes Ordinance, Cap 455 (“the
G Ordinance”) and sections 159A and 159C of the Crimes Ordinance, G
Cap 200.
H H
I FACTS I
J J
2. On the morning of 16 December 2013, a 73-year old lady
K Madam Yeung received at her residence a phone call from a male person K
pretending to be her son, asking whether she had any money at home;
L L
Madam Yeung revealed she had $10,000 with her. The man asked to be
M given the money and obtained the mobile phone number of Madam M
Yeung’s maid. Madam Yeung and her maid went to the ground floor to
N N
wait for him. A little later, the maid received a call from the man telling
O her to have the money deposited into an account at Bank of China (Hong O
Kong) Limited, which turned out to be the defendant’s. Shortly afterwards,
P P
the defendant was captured by a CCTV when he withdrew at an ATM
Q machine the $10,000 from his account. Q
R R
3. On 23 April 2015, the defendant was arrested. Under caution,
S he admitted having allowed his friend Ah Keung to use his bank account S
and that he knew it was wrong to do so. In a subsequent cautioned
T T
interview, he said he had chanced upon Ah Keung on the street, Ah Keung
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A A
B B
asked for the use of his account for the purpose of receiving $10,000 and
C offered to give him $2,000 as a reward. C
D D
MITIGATION
E E
4. The defendant was born in October 1961 and is now 55 years
F F
of age. He has received education to primary level, and he works as a
G decoration and factory worker. He has a total of 34 conviction records, G
involving 46 charges, none of which are similar to the present offence.
H H
I 5. In his plea in mitigation, Mr Sammy Hui appearing for the I
defendant submits that the defendant is a drug addict and has committed
J J
the subject offence due to his desperate financial situation at the time, he
K was not the mastermind in the crime, there is no evidence showing that he K
has taken part in the telephone deception, and since April 2014, he has
L L
been gainfully employed as a cleaner making some $3,000 a month, and
M his employer is satisfied with the defendant’s work performance. M
N N
6. Mr Hui accepts, fairly, that the sentencing tariff for telephone
O deception cases is four years’ imprisonment (see HKSAR v Hung Yung O
P
Chun1) but submits that the defendant should not be sentenced as if he had P
committed the telephone deception on Madam Yeung. In this regard, Mr
Q Q
Hui refers to the case of HKSAR v Xu Xia Li and anor 2 (which was
R
followed on this point by HKSAR v Chen Szu Ming3), in which the Court of R
Appeal said:
S S
T 1
HKSAR v Hung Yung Chun [2011] 2 HKLRD 174 T
2
HKSAR v Xu Xia Li and anor [2004] 4 HKC 16
3
U HKSAR v Chen Szu Ming CACC270/2005 U
CRT20/28.1.2016/ 3 DCCC 707/2015/Sentence
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A A
B “… By the nature of the offence itself, in our judgment, the nature of the B
indictable offence from which the money was derived should be of no particular
C significance in sentencing, save that if the defendant knew that the money was C
derived from very serious crimes, it would be an aggravating feature to be taken
into account in sentencing.”
D D
7. In addition, Mr Hui relies on the case of HKSAR v Yam Kong
E E
4 5
Lai . In that case, having cited the case of HKSAR v Xu Xia Li and anor ,
F F
the Court of Appeal said:
G G
“24. It would be quite wrong as a general principle to sentence a defendant on
H
the basis of an offence with which he or she was not charged, though as was H
pointed out in HKSAR v Xu Xia Li & Anor where the underlying offence is of a
particularly serious nature, a defendant’s dealing with the profits of such an
I offence may well be an aggravating factor. In those circumstances, an enhanced I
sentence may be required as a matter of policy and general deterrence.
J J
25. The present case, though not in that category, was somewhat unusual in
that the applicant was found to have known that the funds she received
K represented the proceeds of an indictable offence for the purposes of K
section 25(1), for the simple reason that she had stolen them. Was the judge
entitled then to take into account her involvement in that theft as a sentencing
L factor? L
M 26. We do not think so. The applicant was charged with a section 25(1) M
offence, and should have been sentenced solely on the basis of her role in
dealing with the proceeds of the theft, rather than for her role in the theft itself.
N A number of the factors the judge properly took into account were directly N
relevant to the nature of the applicant’s dealings with the funds. Her use of
forged documentation, her knowledge of the sophistication of the methods used
O O
to disguise the origin of the funds before their transfer to her personal account
and her subsequent use of the funds for her own benefit and that of her family
P were matters the judge was entitled to regard as relevant to sentence.” P
Q In particular, Mr Hui relies on the rulings of the Court of Appeal in Q
paragraph 26 of that judgment.
R R
S S
T T
4
HKSAR v Yam Kong Lai [2008] 5 HKLRD 384
5
U HKSAR v Xu Xia Li and anor [2004] 4 HKC 16 U
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A A
B B
8. That said, Mr Hui brings the court’s attention to the case of
C HKSAR v Leung Wai Wah6, in which the Court of Appeal held: C
D D
“24. From various cases cited to this court [HKSAR v Hsu Yu Yi [2010] 5
HKLRD 545, Secretary for Justice v Herzberg [2010] 1 HKLRD 502, HKSAR v
E Javid Kamran (supra)], it appears that the following factors are relevant to E
sentence in “money laundering” cases:
F F
1. The amount of money laundered, which was described as
the major consideration.
G G
2. The nature of the offence that generated the “laundered
money”.
H H
3. The extent to which the offence assisted the underlying
crime or hindered its detection.
I 4. The degree of sophistication of the offence. I
5. The defendant’s participation, both in the underlying
J offence and in the “money laundering” activities. J
6. The length of time that the offence lasted.
K K
7. The benefit that the defendant had derived from the
offence.
L 8. Whether there was an international element in the L
commission of the offence.”
M M
INFORMATION FURNISHED PURSUANT TO SECTION 27(2) OF THE
N N
ORDINANCE
O O
9. Pursuant to a Notice of Intention to Furnish Information
P P
Pursuant to Section 27(2) of the Organized and Serious Crimes Ordinance,
Q Cap 455, served upon the defendant on 14 September 2015, the Q
prosecution place before the court the witness statement of DCIP Lam
R R
Cheuk-ho dated 11 January 2016 in support of their application for
S enhancement of sentence on grounds of prevalence of the specified offence S
under section 27(2)(c) and of the harm caused to the community by recent
T T
6
U HKSAR v Leung Wai Wah CACC201/2011 U
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A A
B B
occurrences of the specified offence under section 27(2)(d). Mr Hui
C indicates to the court that while DCIP Lam’s evidence is unchallenged, the C
defence position is that the evidence is not such as would allow the court to
D D
find the two grounds established beyond all reasonable doubt.
E E
10. In essence, DCIP Lam’s evidence shows the following:-
F F
(i) The usual modus operandi by which telephone
G deception is committed involves a culprit (a) making a G
phone call to a victim, (b) pretending to be the victim’s
H friend or family member, and (c) asking for money to H
deal with an emergency or threatening the victim that
I
the life or well-being of the friend or family member is I
in danger for which payment of a ransom is required.
The culprit would guide the victim to deposit the
J J
money into a bank account, and the money would be
withdrawn at an ATM machine.
K K
(ii) The police have taken strong enforcement action to
L curb the use of local bank accounts by the culprits to L
launder the funds obtained from victims of telephone
deception.
M M
(iii) Between 2008 and 2014, the number of reported cases
N of telephone deception varied between about 1,430 and N
2,300 a year, but the figure in 2015 has risen to 2,880.
O O
(iv) Between 2008 and 2014, in cases where the culprits
succeeded in their criminal designs, victims of
P P
telephone deception have, in aggregate, suffered a
yearly loss ranging between $23m and $45.7m; but in
Q 2015, the yearly loss has reached $318m. Q
R (v) Between 2008 and 2014, the yearly loss suffered by R
victims in telephone deception cases involving the use
of a bank account ranged between $12m to $32.9m; but
S S
in 2015 alone, that figure has risen to $306m.
T (vi) Between 2008 and 2015, the proportion of cases in T
which the culprits in telephone deception have
U successfully cheated their victims of their money U
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V V
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A A
B B
ranged between 28.3% and 35.6%, but of all those
successful cases, between 72.5% and 84% involved the
C use of a bank account. C
D (vii) In the fourth quarter of 2015 alone, there have been a D
total of 261 victims of telephone deception cases,
almost all of whom were Hong Kong residents, most of
E E
them students, housewives, or retirees.
F F
CONSIDERATION OF ENHANCEMENT OF SENTENCE
G G
11. The offence of “dealing with property known or believed to
H H
represent proceeds of an indictment offence” is included in Schedule 1 to
I the Ordinance7; and a specified offence includes a conspiracy to commit a I
Schedule 1 offence 8 . The conspiracy offence of which the defendant
J J
stands convicted is therefore a specified offence.
K K
12. Section 27(2) of the Ordinance provides:-
L L
M “(2) The prosecution may furnish information to the court regarding M
any or all of the following–
N N
(a) the nature and extent of any harm caused,
directly or indirectly, to any person by the act in
O respect of which the person has been so O
convicted;
…
P P
(c) the prevalence of that specified offence;
(d) the nature and extent of any harm, whether direct
Q or indirect, caused to the community by recent Q
occurrences of that specified offence; …”
R R
13. Section 27(11) provides:-
S S
T T
7
Item no.16 in Schedule 1 to the Ordinance
8
Subparagraph (b) of the definition of “Specified offence” in section 2 of the Ordinance
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-8-
A A
B “(11) Subject to subsections (12) and (13), where a court is satisfied B
beyond reasonable doubt–
C … C
(b) as to any information furnished under subsection
(2) … ,
D D
or where any such matter is agreed by the person
E
convicted, the court shall have regard to such matter E
when it passes a sentence on the person for the relevant
specified offence and may, if it thinks fit, pass a sentence
F on the person for that offence that is more severe than the F
sentence it would, in the absence of such matter, have
passed.”
G G
H 14. The prosecution rely on DCIP Lam’s evidence for the purpose H
of establishing the matters referred to in section 27(2)(c) and (d), namely,
I I
prevalence of the specified offence and the harm occasioned to the
J community by the recent occurrences of the specified offence. J
K K
(1) Relevance of telephone deception under section 27(2)(c) and (d)
L (1)(A) Section 27(2)(d) L
(i) Section 27(2)(d) and the harm referred to in section 27(2)(a)
M M
N 15. When assessing the nature and extent of the harm to the N
community under section 27(2)(d), it goes without saying that the court
O O
must take into account the harm to the individual referred to in section
P 27(2)(a): the individual is a member of the community. Any contrary P
interpretation can be dismissed immediately as being so plainly absurd that
Q Q
the legislature could never have intended it.
R R
16. It is essential, therefore, in the examination of section
S S
27(2)(d), to ascertain the scope of section 27(2)(a) in the first place.
T T
(ii) The expression “act in respect of which” in section 27(2)(a)
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A A
B B
C 17. When considering the harm to the individual under section C
27(2)(a), the court is to have regard to “the act in respect of which the
D D
person has been so convicted.” The focus is, it seems clear, on the relevant
E act or conduct, rather than the offender’s guilty mind, or the lack of it, for E
that matter.
F F
G 18. The expression “the act in respect of which the person has G
been so convicted” imports a wider consideration than “the act of which
H H
the person has been so convicted,” or “the act constituting the specified
I offence of which the person has been so convicted.” It is the view of this I
court that the harm occasioned to an individual, directly or indirectly, by an
J J
accepted aggravating feature inherent in the specified offence must be
K taken into consideration. K
L L
19. In the case of a conspiracy to commit money laundering, the
M nature and seriousness of the predicate offence, if and when known, are M
important considerations in sentencing 9 and can amount to significant
N N
aggravation. In HKSAR v Yam Kong Lai 10, the Court of Appeal said:
O O
“24. … where the underlying offence is of a particularly serious nature, a
P defendant’s dealing with the profits of such an offence may well be an P
aggravating factor. In those circumstances, an enhanced sentence may be
required as a matter of policy and general deterrence.” (emphasis supplied)
Q Q
R 20. There are no plausible reasons, therefore, why the predicate R
offence (ie., telephone deception involving the use of a bank account) must
S S
T 9
HKSAR v Hsu Yu Yi [2010] 5 HKLRD 545 at p.551 and HKSAR v Boma [2012] 2 HKLRD 33 at T
pp.42-44
10
U HKSAR v Yam Kong Lai [2008] 5 HKLRD 384 U
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A A
B B
be ignored when the court considers “the act in respect of which the person
C has been so convicted” under section 27(2)(a). That subsection requires C
the court to have regard to harm caused directly or indirectly by the
D D
criminal act of the money launderer. If the underlying criminal conduct is
E to be so ignored, the legislative intent in providing for enhancement of E
sentence in money laundering cases by reason of the harm to “any person”
F F
would be substantially frustrated. In this regard, it should be noted that a
G money launderer may or may not have dealt with the crime proceeds G
first-hand. It is the court’s view that the harm suffered by the primary
H H
victims in telephone deception cases must be included in the court’s
I assessment under section 27(2)(a). I
J J
(iii) The “harm” referred to in section 27(2)(d)
K K
21. In view of the above discussion, when ascertaining the harm
L L
caused to the community – which necessarily includes the harm
M occasioned to the individual concerned under section 27(2)(a) – by M
reference to the recent occurrences of an offence of money laundering
N N
under section 27(2)(d), the underlying or predicate criminal act must be
O taken into account. O
P P
22. The wording of section 27(2)(d) itself points strongly in
Q favour of including the predicate offence in the court’s consideration of the Q
direct and indirect harm caused to the community. Rather than simply “the
R R
harm caused to the community by the specified offence”, section 27(2)(d)
S requires an examination and assessment of the harm caused by “the recent S
occurrences” of the specified offence. In cases of telephone deception
T T
involving the use of a bank account, the act of depositing the victim’s
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A A
B B
money into the designated account is but an integral and essential part of
C the criminal enterprise. Money laundering committed in this modus C
operandi must necessarily involve an antecedent telephone deception
D D
having been practised on the victim. The phrase “the recent occurrences of
E the specified offence” as it appears in section 27(2)(d) is apt to include the E
underlying telephone deception with the use of a bank account to which the
F F
money laundering relates.
G G
23. Finally, a money launderer’s interests are better served if in
H H
its assessment of the harm caused to the community, the court is restricted
I specifically to the type of underlying conduct (telephone deception using a I
bank account) from which the crime proceeds originate rather than to the
J J
harm occasioned by all money laundering offences, regardless of the
K various types of predicate offences to which a given money laundering K
charge may relate.
L L
M (iv) Information on telephone deception with the use of a bank account M
N N
24. In light of the foregoing discussion, the court can and should
O take into account information supplied by the prosecution concerning O
P
money laundering cases arising from telephone deception with the use of a P
bank account, when assessing the nature and extent of the harm, direct and
Q Q
indirect, “caused to the community by recent occurrences of that specified
R
offence” under section 27(2)(d). R
S S
25. In view of DCIP Lam’s evidence, which is uncontested,
T telephone deception committed with the use of a bank account must T
necessarily involve an act of money laundering. The money which the
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A A
B B
culprit withdraws from the ATM machine belongs not to the victim but the
C bank; it represents the proceeds of the telephone deception practised on the C
victim. So long as the prosecution have chosen a specified offence with
D D
which to prosecute the offender, that the cases can be prosecuted as money
E laundering, conspiracy to commit money laundering, fraud, conspiracy to E
defraud, obtaining property by deception, or any other offending is neither
F F
here nor there. These available offences are brought together under the
G same umbrella by reason of the modus operandi in which the criminal act is G
committed; and evidence in the nature of DCIP Lam’s is equally relevant
H H
and applicable to all of them. The most important consideration is –
I emphasizes the court, at the risk of repetition – the modus operandi of the I
criminal act in respect of which the defendant is convicted, as that phrase is
J J
interpreted above.
K K
26. Mr Hui is entirely correct in saying that DCIP Lam has not, in
L L
his witness statement, provided the court with any information on the
M number or proportion of telephone deception committed with the use of a M
bank account – in particular, a borrowed account – having been prosecuted
N N
with the offence of money laundering or of conspiracy to commit money
O laundering. In consequence, there is little or insufficient information O
before the court, says Mr Hui, concerning the matters referred to in section
P P
27(2)(d).
Q Q
R
27. In the court’s view, a plain reading of section 27(2) in its R
entirety does not admit of such a hair-splitting distinction. According to
S S
the court’s analysis above, in assessing the harm to the individual
T concerned and to the community at large under both subsections 27(2)(a) T
and (d), the court must take into account information on the occurrences of
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A A
B B
the underlying, predicate criminal conduct but must, in the present case,
C restrict itself to cases of telephone deception involving the use of a bank C
account. Mr Hui’s submission in this regard is dismissed.
D D
E 28. Mr Hui argues further that DCIP Lam has supplied the court E
with no information on cases in which the money launderer has had no
F F
knowledge of the nature and seriousness of the predicate offence. As
G discussed above, section 27(2)(a) focusses on the act in respect of which G
the offender is convicted of the specified offence; it is not confined to cases
H H
where the offender has had full knowledge of the underlying criminal
I conduct. It would be absurd, in the court’s view, to restrict the operation of I
section 27(2)(d) to cases where the offender has had such knowledge. Mr
J J
Hui’s argument must be rejected.
K K
(1)(B) Section 27(2)(c)
L L
Prevalence of the specified offence
M M
29. Mr Hui repeats his submissions on the lack of particularity in
N N
DCIP Lam’s evidence and argues that there is little or insufficient evidence
O to establish to the criminal standard of proof prevalence of money O
laundering offences committed with a borrowed bank account and in
P P
situation where the launderer has had no knowledge of the predicate
Q offence. Q
R R
30. As discussed above, depriving the victim of his money with
S S
the use of a bank account is an integral part of the criminal design in
T
telephone deception cases committed in this mode. The criminal plot T
would be incomplete or rendered futile if the culprit fails to collect the
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A A
B B
money from the bank. It is the court’s view that in this circumstance, there
C can be no objection for the court to take into account information in respect C
of the underlying telephone deception when considering the issue of
D D
prevalence of money laundering offences or conspiracies to launder
E proceeds of crime committed in this manner. E
F F
31. In summary, it is the court’s view that, first, the focus of the
G examination on the harm to the individual and to the community is on the G
modus operandi of the commission of the criminal act, not on the identity
H H
of the person to whom the bank account happens to belong. Secondly,
I knowledge of the underlying or predicate conduct is irrelevant to the I
court’s consideration under section 27(2)(a) and (d), so there is no reason
J J
whatsoever why that knowledge must be required in the court’s
K determination of the issue of prevalence under section 27(2)(c). Mr Hui’s K
argument must be rejected.
L L
M 32. Mr Hui submits that in considering the defendant’s case, the M
court should limit itself to the statistics prior to or around the date of the
N N
commission of the offence by the defendant, namely, December 2013.
O There is no substance in this argument. In HKSAR v Chung Chi King11, the O
Court of Appeal said:
P P
Q 24. Furthermore, as a matter of statutory construction, the prevalence of the Q
offence must be considered at the time of the sentence since the purpose of an
R enhanced sentence is to impose a deterrence on potential wrong doers. Hence R
the time of the commission of the crime is irrelevant. Again what this Court had
said in Wong Fung Ming was merely to give effect to this construction.
S S
(2) Ruling on the application for enhancement of sentence
T T
11
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A A
B B
C 33. The court attaches full weight to the undisputed evidence of C
DCIP Lam. In view of the above discussion, the court finds established
D D
beyond all reasonable doubt, first, the specified offence in the charge is
E prevalent within the meaning of section 27(2)(c) and secondly, the nature E
and extent of the harm caused to the community under section 27(2)(d) are
F F
such that an enhancement of sentence pursuant to section 27(11) is called
G for. The prosecution’s application for enhancement of sentence is allowed G
on both grounds.
H H
I REASONS FOR SENTENCE I
J J
34. Deterrence is the paramount sentencing consideration in
K money laundering cases.12 Other sentencing considerations that should be K
taken into account include the maximum penalty; the amount involved; the
L L
nature and extent of the defendant’s participation; the nature and
M seriousness of the predicate offence (if known); the defendant’s state of M
knowledge of the predicate offence; the degree of sophistication of the
N N
offence; international element, if any; and the duration of the offence.13
O O
35. The maximum sentence for the offence of money laundering
P P
is one of 14 years’ imprisonment ; a conspiracy to commit money
14
Q laundering carries the same statutory maximum15. Q
R R
12
S HKSAR v Boma [2012] 2 HKLRD 33, p.42 S
13
HKSAR v Hsu Yu Yi [2010] 5 HKLRD 545 at p.551 and HKSAR v Boma [2012] 2 HKLRD 33 at
pp.41-44
T T
14
see section 25(3)(a) of the Ordinance
15
see section 159C(1)(a) and (4) of the Crimes Ordinance, Cap.200
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A A
B B
36. In HKSAR v Cen Huakuo16, an old lady received a telephone
C call saying that her son was in custody for offences of indecency. To C
secure her son’s release, she had to hand over $50,000 at a certain park.
D D
She discovered, however, that her son had never been held captive; a report
E was then made to the police. She co-operated with the police in their E
investigation and went to the park. The defendant approached her and
F F
confirmed – falsely, of course – that her son had been detained. He gave
G her a mobile phone, and a male caller kept asking her on the phone why she G
had not had the money with her. The police took action and arrested the
H H
defendant. In allowing the appeal against sentence, the Court of Appeal
I said:- I
“18. The applicant did not take part in the deception, he told Madam Chan
J that her son was being detained, but that only shows his sketchy understanding J
about the relevant indictable offence and does not mean that he knew the
details. When considering the applicant’s knowledge about the relevant
K indictable offence, the trial judge should not have interpreted the facts in the K
most unfavorable way against the applicant. …
L … L
25. Taking into account all the circumstances of the case and the
M requirement that a sentence should have deterrent effect in order to prevent M
mainlanders from taking part in such an abhorrent and despicable offence like
N
“phone deception” in whatever manner, we are of the view that the appropriate N
starting point is 3 years’ imprisonment, and the sentence should be enhanced
by one-third pursuant to the Organized and Serious Crimes Ordinance.”17
O O
37. In HKSAR v Chen Jianchao18, the Court of Appeal said:
P P
Q “21. Not surprisingly, given the applicant’s acceptance of the ‘Summary of Q
Facts’ as the factual basis on which the applicant pleaded guilty to the two
charges, no issue was taken with the judge’s findings that the applicant knew the
R R
predicate offence in the two charges, in particular that they were deceptions
practised on elderly ladies. Beyond, that the judge found only that the applicant
S knew the amount of monies involved, namely $230,000 and $17,700. He knew S
16
T HKSAR v Cen Huakuo [2015] 2 HKLRD 951 T
17
HKSAR v Cen Huakuo [2015] 2 HKLRD 951 at pp.957-8
18
U HKSAR v Chen Jianchao CACC184/2014 U
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A A
B of the former because he accepted in the Summary of Facts that he had asked the B
victim if she had that money available to give him. He knew of the latter
C because he remitted the monies to a stipulated account. The judge did not make C
any finding that the applicant was aware of the details of the deception practice
in respect of Charge 1.
D … D
E 35. … The judge was entitled to take into account, as he did, that the applicant E
was recruited to come to Hong Kong from the Mainland to commit the offences.
That was a factor in aggravation in the commission of the offence. Similarly, he
F was entitled to find that the offences were “pre-planned”. Clearly, there was a F
degree of organization in the operation, in which the applicant’s role was to
G collect the money whilst others played other parts: Chan King Fung recruited G
the applicant and gave him general instructions; the unknown man gave him
detailed instructions by telephone about the collection of the monies on both
H occasions and in respect of the remittance of the monies the subject of H
Charge 2. …
I … I
36. Having regard to all the circumstances of the commission of the offence,
J we are satisfied that, although the sentence was at the top end of the appropriate J
range of sentence, having regard to the particular circumstances of the instant
K case the judge was entitled to take a starting point for sentence for Charge 1 of 4 K
years’ imprisonment. … ”
L L
38. In the instant case, the offence was committed locally without
M any international element in it. The defendant has taken no part in the M
deception practised on Madam Yeung. There was no evidence showing
N N
that he was aware of the details of the deceit. Madam Yeung did not
O appear to have suffered a significant degree of fear or distress. The amount O
involved was $10,000. The offence did not appear to have involved a
P P
marked degree of planning or organization, nor has there been a great deal
Q Q
of sophistication inherent in its commission.
R R
39. The defendant has had a number of previous criminal records
S S
before his present conviction, but none of them are similar to the offence in
T this case. The court cannot sentence him for his past offending; however, T
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A A
B B
the defendant cannot be treated as if he were a person of previous good
C character. C
D D
40. The Court of Appeal in the case of HKSAR v Boma19 said:-
E E
“39. We were at one stage of our deliberations minded to provide a suggested
F starting point for a specified relatively low sum involved in an offence, leaving F
the courts to use that as a base for other sentences but we at once could conjure
a myriad of factual variations which might render even that single starting point
G unwise with the further risk that it might encourage a rigid mathematical G
approach and progression without proper regard to other individual relevant
H factors.” H
I 41. In view of the above considerations, the proper starting point I
in respect of the present offence is one of 30 months’ imprisonment. Little
J J
in the defendant’s background amounts to valid or strong mitigation. He is
K nevertheless entitled to the usual one-third discount for his guilty plea; the K
sentence is reduced to 20 months’ imprisonment.
L L
M 42. In relation to the extent of enhancement of sentence under M
section 27(11) of the Ordinance, Mr Hui argues that since a more stringent
N N
sentencing regime has been adopted for this type of offences on account of
O their prevalence, enhancement based upon prevalence of offences would O
amount to double-counting.
P P
Q 43. That argument is untenable, in the court’s view. None of the Q
authorities cited to the court appear to have included prevalence as a reason
R R
for adopting a severe starting point for this kind of offences; the
S preponderance of the authorities suggests that the starting point has been S
adopted, primarily, on account of the severity of the offence. In any event,
T T
19
HKSAR v Boma [2012] 2 HKLRD 33
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A A
B B
the legislative scheme of enhancement of sentence under section 27(2)
C allows extraneous matters, even, to be taken into account, eg., the nature C
and extent of harm caused not only by the offence in question, but also by
D D
the recent occurrences of the specified offence. Mr Hui’s submission on
E this point is dismissed. E
F F
44. There is no justification not to impose a one-third
G enhancement of the defendant’s sentence pursuant to section 27(11) of the G
Ordinance (see HKSAR v Wu Jianbing20 and HKSAR v Cen Huakuo21); the
H H
sentence is, accordingly, enhanced by six months.
I I
CONCLUSION
J J
K 45. For the offence of which he stands convicted, the defendant is K
sentenced to a term of imprisonment of two years and two months.
L L
M M
N N
O O
( Joseph To )
P P
Deputy District Judge
Q Q
R R
S S
T T
20
HKSAR v Wu Jianbing [2012] 1 HKLRD 781
21
HKSAR v Cen Huakuo [2015] 2 HKLRD 951
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