HKSAR v. Yu Shurong and Another
Read the full judgment text of DCCC 762/2015 on BabelCite. This District Court judgment was delivered on 27 October 2015.
1. In these proceedings, the defendants, Yu Shurong (D1) and Tan Cheng (D2), are jointly charged with five counts of “Dealing with Property known or believed to represent Proceeds of an Indictable Offence”, contrary to Section 25(1) and (3) of the Organized and Serious Crimes Ordinance, Cap 455.
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DCCC 762/2015 IN THE DISTRICT COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION CRIMINAL CASE NO 762 OF 2015 ----------------------
--------------------- Reasons for Sentence --------------------- 1.In these proceedings, the defendants, Yu Shurong (D1) and Tan Cheng (D2), are jointly charged with five counts of “Dealing with Property known or believed to represent Proceeds of an Indictable Offence”, contrary to Section 25(1) and (3) of the Organized and Serious Crimes Ordinance, Cap 455. 2.They are convicted of the charges upon their own pleas and admission of facts. Facts 3.Except for Charge 4 which was based on the confessions made by the defendants with scratchy details, in all other cases the identities of the victims and the amounts of money lost had been ascertained. 4.The majority of the offences are derived from four instances of telephone deception which took place during the period between 29 June and 2 July 2015. 5.All the victims were quite mature citizens who had been told falsely over the telephone that their loved ones had been held in ransom and would come to further harm if they did not pay up. 6.The defendants then appeared to take the money from them. In all, they made off with at least HK$387,000 and RMB10,000. None of these monies have been recovered. 7.Both defendants are Chinese residents. D1 had been asked by a friend from China to come to Hong Kong to collect money. In return, he would have 0.6 per cent of the monies received. D1 then invited his neighbour, D2, to work together. They would share the money made. 8.They came to Hong Kong on 29 June 2015 and rented a room in a hostel in Bute Street. There they awaited instructions to go to various places in Hong Kong to collect the ransom. D1’s part was to collect the money and D2’s was to remit it. 9.Both defendants admitted that in each of the five occasions D1 assumed the role of contacting the victim to collect money, which was then passed on to D2 for remission to China. Charge 1 10.On 29 June 2015, an elderly couple received a phone call from someone who claimed to be their son and that he was being held captive and beaten. Then another male took over and demanded them to repay their son’s debt in the sum of $1 million. At the male’s direction, the victims pawned their valuables and with the HK$27,000 they managed to scrap up, they met up with the defendants at a specified MTR station and handed the money to them. 11.It was only afterwards that they realised it was a scam and reported the matter to the police. Charge 2 12.On 30 June 2015, an elderly lady of 70 years old received a call from an unknown male who claimed that her son had been kidnapped and demanded a ransom of $200,000 or he would be harmed. She also heard someone in the background who sounded like her son crying for help. After haggling, the unknown male agreed to accept $20,000 and instructed her to take the ransom money to a flyover. Two males appeared and the victim handed over to them HK$10,000 and RMB10,000. 13.One of them even called her afterwards, warning her that she should not relate the matter to her family members. 14.The victim reported to police only after confirming that her son was safe. Charge 3 15.On 2 July 2015, a woman aged 57 received a call from an unknown person shortly before noon. She also heard what she understood to be her son’s cry for help. Another male’s voice then told her that her son owed them $230,000 and demanded her to repay on his behalf. After haggling, the male agreed to accept $100,000 and threatened that her son would be killed if she reported to the police. 16.Some time after midday, the victim brought the money to Yau Tong Centre as directed. The defendants approached her and collected the money. 17.After the victim had confirmed that her son was safe, she reported the matter to the police. Charge 4 18.At the time soon after the defendant had collected the money in Yau Tong Centre, D1 received instructions to go to Tsuen Wan Plaza to collect money from an elderly man. He then passed the money to D2 and instructed the latter, to remit the money in Tsuen Wan MTR station. D2 admitted to have received the HK$10,000 from D1 and then remitted the same as instructed. Charge 5 19.On 2 July 2015, an elderly woman aged 80 received a call at 3.30 pm from a male who pretended to be her son asking for help. Another male took over and demanded $200,000. 20.She then withdrew the money from her account and, as instructed, went to wait at a temple in Hung Hom where she was approached by a male at about 6.30 pm. There was another male standing nearby. After she had handed the money over, the two men left on a taxi. 21.At about 8 pm of the same day, someone called the victim again, demanded another $200,000. By then the police had been alerted. After haggling, the male agreed to accept $50,000 instead. 22.As instructed, she waited outside the Waterloo Road branch of the Bank of China at 10.25 pm. There she waited until 11.10 pm, but nobody turned up. The Arrest 23.On 2 July 2015, police officers on patrol duty noticed D1 near the Waterloo Road branch of the Bank of China observing an old lady and making phone calls at the same time. They kept him under observation and followed him, but he left the scene at 10.37 pm to go to a hostel in Bute Street. They eventually arrested him there. 24.D2 was subsequently arrested by the police officers in the same room. Discussions 25.The offence carries a maximum sentence of 14 years. There is no doubt that this is a serious offence and the sentencing principle to be adopted is one of deterrence, since it would be an effective measure against crime generally[1]. 26.Invariably, the sentence would be a term of imprisonment. However, owing to the multitude of circumstances in which the offence can be committed and the different degrees of culpability to be assigned to different players, the Court of Appeal has repeatedly pointed out that the offence of money laundering does not lend itself to tariff or guideline sentencing[2]. 27.In the case of HKSAR v Leung Wai Wah & Anor[3], the following factors have been considered to be relevant considerations in sentencing:
28.The present proceedings involve five instances of what is commonly known as “telephone deception”. The plots are crude and are, except for minor variations, almost identical: the victims received calls allegedly on behalf of or from their loved ones in dire situations. They were then told to pay out a sum of money in order to save them. The crimes would be completed within a very short period of time, since the longer it took the more likely that the victim would become suspicious and report to the authorities. 29.In all of the five instances, there is no evidence that the defendants were involved in the initial telephone calls. According to their admissions, they were instructed by the mastermind to collect money and remit the same to an account in China. They had come to Hong Kong specifically for this purpose. They would receive only a small portion of the ill-gotten money as their reward. 30.It is true that the crimes are not particularly sophisticated, yet I cannot overlook the fact that they are targeted primarily at elderly people who, in their relatively cloistered environment, are particularly vulnerable to such deceptions, especially when the alleged harm is to happen to their loved ones. The stress the victims suffered from such unpleasant experience must be substantial. What the defendants did was not only illegal, it was morally reprehensible. 31.Compared to other money laundering cases, the amounts involved in each charge before me is relatively small, ranging from HK$20,000 in Charge 2 to HK$200,000 in Charge 5, yet the amount probably represented a very substantial part of the victims’ savings. In one of the cases (Charge 1), the victims, a couple in their 60s, were even asked to sell their valuables in order to come up with the ransom. 32.The defendants contended, in effect, that they were foot-soldiers. There is no evidence to suggest otherwise. Yet, from the facts available, I have no doubt that they were aware of the full extent of the deception and were willing participants to the same. D1 even recruited D2 in China as an assistant in these criminal activities. 33.In respect of the facts pertaining to Charges 2 and 3, the defendants were obviously aware why the victims would part with the money. 34.They came to Hong Kong for the purpose of committing the crimes in question. After they arrived, they rented a room in a hostel as a base. They were allowed to stay for seven days, but within the span of the first four days they had committed the five counts and made off with HK$387,000 and RMB10,000. 35.The operations were executed with almost military efficiency. It was a result of vigilant police work and sheer luck that the defendants were apprehended and therefore stopped in time. All of the monies had been remitted to China and are now unrecoverable. 36.While I am willing to accept that they were not the ringleaders, their roles had been vital in this operation. 37.According to D1, he would be rewarded 0.6 per cent of the take and he would be sharing it equally with D2. Admittedly, the reward is measly. However, it would be hardly any consolation for the victims who had lost a substantial part, if not all, of their savings. This fact could not possibly extenuate from the severity of their guilt. 38.The benefit obtained by the defendants, as at once pointed out by the Court of Appeal, is not relevant consideration[4]. Authorities 39.Although it has been repeatedly pointed out by the Court of Appeal that, as circumstances vary from case to case, comparing the cases at hand to previous decisions could hardly be fruitful, nonetheless, the exercise, in my view, is not completely futile, as it would reveal a sentencing range which the defendants and their legal representatives could expect. It would be also useful for me to arrive at a sentence order that is consistent with the tenor of the judicial opinions. Hung Yung Chun[5] 40.The defendant was convicted of one count of conspiracy to fraud on his plea. 41.The Court of Appeal found the defendant knew the details of the telephone deception case. Since telephone deceptions often subject the victims to greater stress than those in the street deception cases, the Court of Appeal considered the appropriate starting point should be 4 years. Wu Jianbing[6] 42.The defendant, a Chinese resident, came to Hong Kong specifically to collect ransom money obtained by telephone deception. He pleaded guilty to two counts of money laundering and two counts of conspiracy to launder money, which took place within a span of four days, involving a total of HK$310,000. 43.The Court of Appeal found the defendant did not participate directly in the offences in connection with the “black money” and, there being no evidence to prove the benefit he obtained, the starting point for each count should be 3 years. 44.After the discount to reflect the guilty plea and enhancement by one-third, the sentence should be 24 months’ imprisonment. In light of the Totality Principle, 6 months of the sentence in respect of Charge 4 was ordered to run consecutively to other charges, making the total sentence 38 months’ imprisonment. Cen Huakuo[7] 45.In this case, the defendant was convicted of the charge of “conspiracy to deal with property known or believed to represent proceeds of an indictable offence” after trial. An old lady received a phone call and was told to pay ransom in exchange for the safety of her son. The final sum agreed was $50,000 and the defendant showed up at the arranged location to receive the money. 46.The trial judge adopted 4 years as a starting point. The Court of Appeal took the view that the evidence only showed the defendant’s understanding of the relevant indictable offence was sketchy and did not show that he knew the details, and considered a starting point of 3 years more appropriate. Lin Zong Yue[8] 47.The defendant pleaded guilty to three counts of dealing with property known or believed to represent proceeds of an indictable offence, together with another person. The facts are almost identical with the present one: after bogus phone calls were made to three elderly victims, falsely representing their sons had been held captive and demanding ransom, the defendant was then instructed to collect the money. 48.On the basis the defendant was part of the gang and had full knowledge, the judge adopted 4 years as a starting point. 49.The Court of Appeal held that the defendant had no more than a sketchy idea about the predicate offence and held that the proper starting point for the first two charges should be 3 years. The third charge, which took place 53 days later, warranted a starting point of 3 years and 3 months. 50.The sentences were reduced to reflect the guilty pleas by 30 per cent, but enhanced upwards by one-third pursuant to the Organized and Serious Crimes Ordinance. 51.Taking the view that the total sentence should be 46 months to reflect the overall severity of the case, the Court of Appeal ordered Charges 1 and 2 to run concurrent, of which 12 months were to be consecutive to the sentence for Charge 3. Sentence 52.Having considered the facts as a whole, I find the defendants’ roles, though not exactly identical, are so similar that their culpabilities were identical in gravity. 53.Having viewed the above authorities, I consider 3 years an appropriate starting point for each of the counts. Mitigation 54.Both defendants were residents of the Mainland. They had no previous convictions in Hong Kong. They came here specifically to commit the offences. 55.D1 is aged 25. He is single and lives in Kaiping, Guangdong province, with his parents and younger brother. He was a cook before a car accident, making him physically unfit for the job. 56.D2 is aged 39, a Szechuan resident before moving to Kaiping, where he was D1’s neighbour. He is married with wife and children. His stomach problem also rendered him unfit for the job he was doing. 57.Both had families who wrote to plead for leniency. 58.The above, in my view, are not mitigating factors. However, both had pleaded guilty to the charges. They are entitled to the customary one-third discount. 59.I also note that none of the victims had been able to identify the defendants. Therefore, without the defendants’ co-operation in making full admission to the police, the latter probably would not be able to solve the cases. This is a special mitigating factor, for which an additional 2 months would be deducted from the charges. 60.Therefore, for each of the counts, the defendant is sentenced to 22 months’ imprisonment. Enhancement of Sentences 61.By a “Notice of Intent to Furnish Information”, the Prosecution applies for enhancement of sentence pursuant to Section 27(2) of the Organized and Serious Crimes Ordinance, Cap 455, on the grounds of prevalence and harm done to the society. In support, an affirmation by DCIP Lam Cheuk-ho dated 5 October 2015 is furnished and read out in court. 62.In the affirmation, the Inspector described the modus operandi of what the police classify as “telephone deception” cases and then provided statistics collected by the police force. 63.Having read the affirmation, I am satisfied that the total number of telephone deception cases has been on the rise during the first three-quarters of 2015 and monetary loss has also been increased to a record high of HK$287.6 million. 64.The defence conceded on the application and suggested the enhancement should be 30 per cent. I note that the Court of Appeal in the cases referred to above also approved of this rate of increase. I therefore order the sentence for each count be increased by 30 per cent, making the sentence for each count to be 29 months. Totality Principle 65.There are five counts for the present case. Although they took place within a very short span of time and three of the charges took plan within the same day. Technically, they were separate offences and should have been ordered to run consecutively. 66.Having considered the facts as a whole and having considered the abovementioned case of Lin Zong Yue, I conclude that the overall culpability for each defendant should be 45 months’ imprisonment. 67.For this reason, I order that the sentences for Charges 1 and 2 to run concurrently; Charges 3 to 5 to run concurrently with each other, but 16 months of the same should run consecutively to the sentence order for Charges 1 and 2, making a total sentence for each defendant 45 months’ imprisonment.
[1] See the judgment of Yeung JA (as he then was) in HKSAR v Javid Kamran, CACC 400/2004, unreported, 12 April 2015. [2] For example, the judgment of Stock VP in HKSAR v Boma [2012] 2 HKLRD 33, as quoted by Hon McWalters J at paragraph 21 of the judgment in HKSAR v Ng Man Yee, CACC 278/2013. [3] CACC 201/2011, unreported, 9 November 2011, paragraph 24 of the judgment by Yeung VP), [4] HKSAR v Wu Jianbing, CACC 32/2011, [2012] 1 HKLRD 781. [5] HKSAR v Hung Yung Chun, CACC 453/2009 [6] HKSAR v Wu Jianbing, CACC 32/2011, [2012] 1 HKLRD 781 [7] HKSAR v Cen Huakuo, CACC 21/2014, 4 July 2014 [8] HKSAR v Lin Zong Yue, CACC 141/2014, [2015] 3 HKLRD 196 | |||||||||||||||||||||||||||||||
Cases cited in this judgment