HKSAR v. Liang Jiale

DCCC 716/2015

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 716 OF 2015

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Reasons for Sentence

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Charge and facts

1.The defendant pleads guilty to a charge of conspiracy to deal with property known or believed to represent proceeds of an indictable offence. 

2.At around 1:15 pm on 10 June 2015, Mr. Lau (aged 86) (PW1) received a phone call at home from an unknown male (“Male 1”).  Male 1 claimed that PW1’s son was being beaten up for a debt of $270,000 owed to him.  Male 1 asked PW1 to repay the debt.  Another male (“Male 2”) took over the phone and claimed to be PW1’s son crying in agony.  Male 1 re-took the phone and asked PW1 not to hang up the phone.  As Male 1 could name his son, PW1 immediately contacted his son and managed to confirm his safety over the phone.  PW1 reported the case to the police. 

3.The police arrived at PW1 home.  An operation was mounted.  PW1 continued his phone conversation with Male 1.  Male 1 told PW1 to withdraw money from his account with the Hang Seng Bank at the Chai Wan branch. 

4.At 2:30 pm, the police attended the bank with PW1.  The police had prepared a paper bag containing dummy money for PW1 to give the recipient.  They laid ambush nearby. 

5.At 3:35 pm, the Defendant approached PW1 and walked PW1 towards Kut Shing Street.  The Defendant took out a mobile phone and asked PW1 to talk to a “Mr. Chan” on the other end.  Mr. Chan asked if PW1 had withdrawn money and if so, to pass the money to the “Young Boy”, ie the Defendant.  PW1 insisted on passing the money to Mr. Chan directly.  PW1 parted with the Defendant. 

6.At 4:30 pm, the Defendant approached PW1 again.  He asked PW1 to talk to Mr. Chan on the other end of the phone.  Mr. Chan repeated the demand for PW1 to pass the money to the Defendant.  PW1 insisted on passing the money to Mr. Chan directly. 

7.At 5:25 pm, the Defendant approached PW1 again.  He asked PW1 to talk to Mr. Chan on the other end of the phone.  Mr. Chan repeated the demand for PW1 to pass the money to the Defendant.  PW1 insisted on passing the money to Mr. Chan directly.  When the Defendant was leaving the scene, he spoke to the other end of the phone, “I could not deceive him.  He said he would only pass the sum of $270,000 to you. I am leaving.”

8.When approaching Chai Wan MTR Station, the Defendant was intercepted by the police for inquiry.  He said that he only helped Mr. Chan to collect a sum of $270,000 for a reward of RMB3,000. 

9.At 5:35 pm, the police arrested him for telephone deception.  Under caution, he said that Mr. Chan had asked him to collect $270,000 and he would receive a reward of RMB3,000 afterwards. 

10.In the subsequent cautioned video-recorded interview, he said that he had arrived Hong Kong on 8 June 2015 from Shenzhen and it was his first time to Hong Kong, that he had rented a room in a hostel in Mong Kok at HK$250 for 2 days, and that he had only brought HK$1,500 into Hong Kong. 

11.The telephone record showed that his mobile phone had 2 calls made to a local number and 2 calls received from a Mainland number before he was intercepted by the police on 10 June 2015. 

12.Immigration record showed that he had entered Hong Kong from the Mainland on 8 June 2015 and was permitted to stay as a visitor in Hong Kong until 15 June 2015.   

13.The prosecution applies for enhancement of sentence pursuant to section 27(2)(c) and (d) of the Organized and Serious Crimes Ordinance, Cap. 455, based on namely the prevalence of this specified offence, and the nature and extent of any harm, whether direct or indirect, caused to the community by recent occurrences of this specified offence respectively. 

14.The witness statement of Chief Inspector of Police Lam Cheuk-ho dated 25 September 2015 is provided in support of the application.  The defence does not dispute the application. 

Personal background and mitigation

15.The Defendant is 24 years of age, a Mainland resident.  He last worked as a salesman in an electrical appliance store.  His income was RMB2,000 per month.  He lost at gambling on the internet and accumulated a debt of RMB150,000, which his farmer parents repaid for him. He committed the present offence for the reward of RMB3,000 so that he could repay part of the money to his parents. 

Sentencing considerations

16.The courts recognized the extensive permutations of money laundering cases.  There are no sentencing guidelines. Comparisons between cases are difficult, if at all helpful.  In HKSAR v BOMA [2012] 2 HKLRD 33, 43, the Court of Appeal identified the features relevant in the sentencing of money launderers.  Stock VP regarded, apart from the amount of money laundered, as relevant the following factors:

(1) The nature and penalty of the predicate offence;

(2) The nature of knowledge or belief of the predicate offence on the part of the money launderer;

(3) The international element;

(4) The sophistication of the money laundering offence, including the degree of planning or whether deceit is practiced to achieve the money laundering;

(5) The instance of a criminal syndicate;

(6) The number of transactions and the length of time in the money laundering process;

(7) Subsequent knowledge of the predicate offence evolved from a case of reasonable belief;

(8) The role and acts of the money launderer, including his position and reward.

17.In HKSAR v Chen Jianchao CACC 184/2014, the Court of Appeal recognized the knowledge of the predicate offence as a significant pointer for a higher sentence.  It also approved an enhancement of one-third based on the same grounds as our present case.   

Sentencing this defendant

18.On the one hand, there is no evidence that he knew of the predicate fraud in the case.  It was not a sophisticated scam. There was no sign of a marked criminal syndicate.  The offence took place within a few hours.   

19.On the other hand, there was an international element for him to be recruited for reward to commit the offence in Hong Kong.  Given his lack of local ties, detection and arrest will be virtually impossible unless he is caught in the very act. 

20.As the victim suffers no loss, I take 2 ½ years as the starting point.  I give a one-third discount for the plea of guilty.  There are no other effective mitigating factors.  The sentence is 20 months before enhancement. 

21.Most victims of telephone deception are elderly people at home conned into parting with substantial cash by handing it over to an agent in the public who soon disappeared after the collection of money.  This has become and remained a prevalent mode of the offence.  I am satisfied that the sentence shall be enhanced by one-third or approximately so.  The eventual sentence is 27 months.