HKSAR v. He Jianfu and Another

DCCC 612/2015

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 612 OF 2015

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Reasons for Sentence

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1.The 1st defendant has pleaded guilty to five counts of dealing with property known or believed to represent the proceeds of an indictable offence as well as one count of conspiracy to deal with the very same.

2.The 2nd defendant has pleaded guilty to three counts of dealing with the very same, jointly charged with the 1st defendant in Charges 2, 3 and 5, as well as one count of conspiracy to deal with the very same, jointly charged with the 1st defendant (Count 6).

3.This case involves five telephone deception scams and five victims where the 1st defendant is concerned, and three victims involved with three telephone deception scams as far as the 2nd defendant is concerned.  All the victims were elderly and subject to the prevalent scam of receiving telephone calls from distressed people they believed were their children and complying with a demand to pay a ransom for their release.

4.In Charge 1, the victim was a 68-year-old lady who received a phone call from a man she believed to be one of her sons who told her he was being beaten because he owed a debt.  Another male came on the phone and threatened to kill her son.  A ransom was demanded, and ultimately she agreed to pay $50,000 for his release.  This victim, PW1, told the extortionist that she needed to borrow that money before she could hand it over.

5.Whilst he stayed on the phone, she called her sister and asked to borrow this money.  Her sister transferred the money from her bank to the victim’s bank account.  Her sister did ask her if she was being threatened, and all she could say was yes but could give no further details because the extortionist was listening.

6.She then went to the bank, took out the cash of $50,000 and took a taxi as directed to Tuen Mun Park.  There, the 1st defendant approached her and asked her to hand over the money.  She gave him $50,000.  He told her to wait for a phone call.  20 minutes later, she received a phone call from the same extortionist who told her to withdraw more money.  PW1 told the man on the phone she had no more money.  She was told to go home and wait for a phone call from her son.  By the time she got home, the police were waiting for her.  Her sister had ascertained that her son was safe and called the police.

7.In Charge 2, the victim was a 79-year-old man.  He received a phone call from someone claiming to be his son and that he was in trouble because he owed a debt of $200,000.  He believed it.  Another man came on the phone, threatened to harm his son, and a ransom of $50,000 was negotiated.  This victim, PW2, was told where to go with the money.  When he arrived there, both the 1st and the 2nd defendants approached him and asked for the money.  It was a scam.  Obviously, his son was never kidnapped nor owed anyone that amount of money.

8.Charge 3 was an offence that was not reported to the police.  The 1st defendant admitted under caution that on 13 May, he was told to go to Yan Chai Hospital to collect money from an old man.  Both the 1st and 2nd defendants went there and took $7,000 from an old man.  They kept $1,000 and remitted $6,000 to China on the same day. The 1st defendant knew that the $7,000 was from a telephone scam and that the old man thought his relative was in trouble.

9.Similarly, Charge 4 was an offence not reported to the police.  The 1st defendant admitted under caution that on that same day, 13 May, he was told by his boss to go to Kowloon City ferry pier and collect money from an old lady.  She paid $22,000 to the 1st defendant because she thought this would ensure the release of her son who had been kidnapped.  The 1st defendant knew this when he took the money from her.  The 1st defendant kept $3,000 and remitted the rest to China that day.

10.For Charges 5 and 6, the victim, PW3, was a 70-year-old man.  He got a call from a man he thought was his son who said he was in trouble.  He told the victim that he owed a debt of RMB200,000.  Another male, the extortionist, came on the phone and told PW3 that he had to pay RMB230,000 on behalf of his son.  The victim told the man that he only had RMB20,000 at home but he had RMB130,000 in his bank account.  He was told to withdraw all and hand it over.

11.PW3 went to the bank immediately to do this, and he would have withdrawn all that money but for the bank being unable to give him that large amount until after lunch.  The extortionist told him to withdraw as much as possible at that particular time.  PW3, the victim, withdrew RMB30,000.  He then at a meeting point designated handed over RMB50,000 to the 1st and 2nd defendants.  During this time, the extortionist remained on the phone to the victim.  

12.The victim was then told to go back to the bank and withdraw the rest to give the defendants.  On the way back to the bank, the victim’s son called him and he realised that his son was safe and he had been deceived.  The police were informed and met the victim at the bank.  They then set up a sting operation.  The police gave PW3, the victim, a bag containing dummy money and followed the extortionist’s instructions to meet the defendants.

13.Obviously, the police followed PW3 to the meeting place and spotted the 1st and 2nd defendants.  The police saw the 1st defendant approach PW3 whilst the 2nd defendant stood near the stairs.  The police watched the 1st defendant take money from the victim and put it in his bag.  Both men were then intercepted and arrested.

14.Both the 1st and 2nd defendants made full admissions under caution.

15.Before meeting PW3 for the second time, the defendants told the police that they had already remitted RMB43,500 to China. They had kept RMB6,500 to split between them as their reward. 

16.The 1st defendant under caution admitted to the police that he had been doing this for his boss in China since July 2014.  He knew that his boss scammed victims over the telephone, and his job was to collect the ill-gotten gains.  His reward was 13 per cent of any amount collected.  He explained that he was short of money and agreed to commit these crimes.

17.According to the immigration records, the 1st defendant has been in Hong Kong nine times since 2012.  This was the 2nd defendant’s first trip to Hong Kong.  The 2nd defendant told the police that he knew the 1st defendant from school, and it was the 1st defendant who asked him to join him in Hong Kong to collect money deceived from old people.  He agreed to come to Hong Kong and agreed to act with the 1st defendant in particular as a lookout.

18.The prosecution has applied to enhance the sentences of all six charges under section 27 of OSCO, of the Organised and Serious Crimes Ordinance, Cap 450.  I have been supplied with a statement from Detective Chief Inspector Lam Cheuk-ho to support this application.  It is marked as MFI1.  This application to enhance sentence is not challenged by the defence.

19.What is relevant in sentencing is firstly the defendants’ pleas.  Their pleas of guilty are their best mitigation.  Both have clear records in Hong Kong.  However, that carries little weight when they are not Hong Kong residents.  The crimes are cruel.  These offences are cruel because they target old people who are vulnerable.  These telephone calls scare them witless, and they often are so frightened that they pay over as much money as they have.  Such crimes will attract deterrent sentences.

20.What is an aggravating factor is the defendants have come from China to Hong Kong for the sole purpose of committing these offences.  They both knew the predicate offence.  They knew that old people were tricked into handing over money.  I will also take into account the amount of loss suffered by the victims.  PW3, the victim of Charges 5 and 6, could have suffered a significantly higher loss if the bank had been able to give him all his money when he first arrived there.  As it is, the loss of RMB50,000 is significant but at least he did not withdraw the additional RMB100,000 to hand over.

21.I have heard full mitigation on behalf of both defendants.  The 1st defendant is 21 years old and single.  I have had letters of mitigation from a teacher and his parents.  All ask for leniency on his behalf.

22.I adjourned sentence to today because the 1st defendant offered information to the police.  Nothing has come of that exercise.  An offer does not attract a reduction in sentence in itself. 

23.I have heard mitigation on behalf of the 2nd defendant today.  He is also 21 years old and single, lives with his father.  He is a chef in China, earning $2,500.  He was asked by his friend, the 1st defendant, to come to Hong Kong to commit these crimes.  He was well aware of what they were and accepted the offer.  The first time he came to Hong Kong to commit these offences, he was caught red-handed.  The 2nd defendant is 21 years old, old enough to decide for himself whether or not he took the risk.

24.I consider the roles played by the defendants and in between them, I do not distinguish their roles.  They are equally culpable. 

25.There are many authorities to assist me with sentencing for offences of this nature.  HKSAR v Wu Jianbing CACC 32 of 2011 is most often submitted.  In that authority, a 3‑year starting point adopted for the facts of that telephone scam was found to be appropriate. 

26.On the previous occasion, prosecution supplied a more recent authority, HKSAR v Chen Jianchao CACC 184 of 2014.  In that case, an 80-year-old was scammed into handing over $230,000 to have her son released.  When she went to the bank to withdraw the money, the bank teller became suspicious and ascertained for her on the quiet that her son was in fact safe.  The police were called and a sting operation arranged.  That defendant was arrested when he tried to collect money from this victim, and his reward for coming from China to pick up this money was 8 per cent of any proceeds plus his travelling expenses.  He admitted to the police that he had been the legman in a similar scam only the day before when he collected money from another elderly victim.  He faced two charges.

27.In that case, for both charges, a 4-year starting point had been adopted by the sentencing judge.  In that authority, the Court of Appeal analysed many similar recent sentences and concluded for Charge 1, which involved $230,000, a 4‑year starting point was indeed appropriate in the circumstances of that offence.  However, the Court of Appeal held that 3 years, not 4 years, was an appropriate starting point for the second offence where significantly less money was involved.  I have taken into account this authority.

28.Defendants, please stand up.  I also take into account, in coming to an appropriate starting point, your pleas, mitigation put forward, the amount of money involved in each charge, the fact that both defendants knew what the predicate offences were, and I accept that they were not the masterminds but legmen sent to collect ill-gotten gains. 

29.The 1st defendant clearly was happy to do it time and time again.  At the time of the offences, he felt no remorse.  He does now since he was arrested.  

30.I also take into account the authorities submitted.  As I said earlier, I do not distinguish between the defendants’ roles.  I find them equally culpable.

31.Accordingly, for every charge here, I will take a starting point of 3 years’ imprisonment.  If the amount of money actually lost had been any higher, I would have taken a higher starting point.  As both defendants have pleaded guilty, they are entitled to a discount of one-third from the 3-year starting point.  Therefore, I impose a sentence of 2 years for each charge.

32.However, pursuant to the prosecution’s application to enhance the sentence I impose, I will add a further 8 months to that 2 years.  I have read the statement of DCI Lam and accept his opinion that these offences are prevalent crimes in Hong Kong.  Obviously, they concern the society of Hong Kong in terms of the harm caused to the community and their repeated occurrence.  

33.Therefore, defendants, for Charge 1, 1st defendant sentenced to 2 years and 8 months; Charge 2, both defendants sentenced to 2 years and 8 months; Charge 3, both defendants are sentenced to 2 years and 8 months; Charge 4, the 1st defendant sentenced to 2 years and 8 months; Charge 5, both defendants are sentenced to 2 years and 8 months; Charge 6, both defendants are sentenced to 2 years and 8 months.

34.I will take into account the totality principle.  I also take into account that Charges 5 and 6 occurred on the same day, involving the same victim.  Therefore, I order where the 1st defendant is concerned, 3 months of the sentence imposed in Charges 2, 3, 4 and 5 to be served consecutively to Charge 1, the balance concurrent. Charge 6 will be served concurrently to Charge 1.  Therefore, the 1st defendant’s total sentence is 3 years and 8 months. 

35.2nd defendant: I order 3 months of the sentences of Charges 3 and 5 to be served consecutively to Charge 2 and the balance concurrently to Charge 2.  Charge 6 will be served concurrently to Charge 2.  Therefore, the 2nd defendant’s total sentence is 3 years and 2 months.