HKSAR v. Hu Hongda

CACC 387/2015

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 387 OF 2015

(ON APPEAL FROM DCCC NO. 732 OF 2015)

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BETWEEN

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J U D G M E N T

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1.Following his plea of guilty before HH Judge Johnny Chan (“the judge”) in the District Court on 13 October 2015, the applicant was convicted of two charges of conspiracy to deal with property known or believed to represent the proceeds of an indictable offence, contrary to section 25(1) and (3) of the Organized and Serious Crimes Ordinance, Cap 455, and sections 159A and 159C of the Crimes Ordinance, Cap 200. He was sentenced to an overall term of 45 months’ (or 3 years and 9 months’) imprisonment. The applicant now seeks leave to appeal against his sentence.

Facts

2.The two victims involved in the two unconnected charges were elderly ladies, aged 65 and 85 respectively.  They had each on a different occasion received a telephone call from someone claiming to be their son, with a ransom being demanded for his release.

3.The facts giving rise to the first charge were that at about 1:30 pm on 20 May 2015, a Madam Wong (PW1) received a telephone call from an unknown male on the landline at her home.  This unknown male claimed that PW1’s son had been detained because he had wronged someone.  PW1 could hear in the background a voice which seemed to be that of her son crying for help.  After negotiating with the unknown male over the telephone, PW1 agreed to pay a ransom of HK$80,000 for her son’s release and said that she would withdraw money from the Bank of China (BOC) in Metroplaza, Kwai Chung, Kowloon.

4.Later the same day, shortly after PW1 had withdrawn HK$50,000 from BOC, she was approached by the applicant outside the bank.  PW1 was then handed a mobile telephone by the applicant, and an unknown male on the line instructed PW1 to withdraw the remaining HK$30,000.  PW1 then went to HSBC in Metroplaza and withdrew a further HK$30,000, which she again handed to the applicant outside the bank.  The applicant then left the scene.

5.The scam was discovered when PW1 contacted her son and found him to be safe. A police report was made.  A CCTV recording outside BOC captured part of the incident.  PW1 positively identified the applicant in a subsequent identification parade [Charge 1].

6.At about noon on 8 June 2015, a Madam Choi (PW3) also received a telephone call from an unknown male, again on the landline at her home.  The male claimed that her son had been detained in the Mainland and that a ransom of HK$30,000 was needed for his release.  Not realising that the claim was false, PW3 revealed her mobile telephone number to the male and said that she would withdraw the money from a branch of BOC in Kau Yuk Road, Yuen Long, New Territories; whereupon she was instructed that someone would collect the money from her outside BOC.

7.However, PW3 told a member of BOC staff about the purpose of the withdrawal.  Both of her sons were quickly confirmed to be safe and the police were alerted.  PW3 was accordingly given an envelope containing some dummy money.  She then waited outside the bank.

8.The applicant approached PW3 outside the bank three times and, on the third occasion, he asked PW3 if she was named “Choi”.  PW3 thus asked the applicant whether he had detained her son and the applicant replied that he had.  When the applicant asked PW3 to follow him to somewhere with less people to hand over the money, the applicant was intercepted and arrested by police officers, who were lying in ambush nearby [Charge 2].

9.At the time of his arrest and under caution, the applicant admitted that someone in the Mainland had invited him to earn some quick money in Hong Kong by helping to collect money for them; he would be given 5% of the money collected as a reward.  He also admitted that his instruction was to collect money from an old lady outside BOC in Yuen Long.

10.In a subsequent video-recorded interview, the applicant admitted, inter alia, that he was a factory worker who had recently become unemployed.  He had met a man called Ah Shing on the Mainland in May, and Ah Shing had given him RMB$1,500.  Accordingly, in respect of the offence in Charge 1, he came to Hong Kong and went to Metroplaza where he collected HK$80,000, as instructed via a telephone call.  He further admitted that he had overheard PW1 asking to have her son back over the telephone, and therefore realised that the incident involved kidnapping, but he nevertheless took the money from PW1 because he was in need of money.  He kept HK$4,000 and remitted the remainder to the Mainland.

11.Regarding Charge 2, the applicant admitted that he was approached on 4 or 5 June by Ah Shing.  On the promise of receiving 5% of the amount he collected as a reward, he then came to Hong Kong again on 7 June.  On 8 June 2015, he went as instructed to Yuen Long, in order to collect money from PW3.  The applicant claimed that he felt a little scared, since he felt he was cheating someone of their money; however, he agreed to do the collection because he was in need of money to pay for his father’s medication.

Mitigation

12.The applicant was 26 years old at the time of his sentence.  He was single and had received education up to secondary school in the Mainland.  He was the only son at home and the sole breadwinner of the family because of his father’s illness.

13.It was submitted that the applicant was remorseful, had cooperated with the police and made a confession at the first available opportunity; he had also pleaded guilty to the charges and saved the victims from coming to testify at court.  In view of the applicant’s previous clear record and that the money involved was not substantial, the court was urged to adopt a more lenient view and to bear in mind the principle of totality when sentencing the applicant.

Reasons for sentence

14.The judge remarked that money laundering was a serious criminal offence for which deterrent sentences were required; in determining the culpability of a defendant, the court had to look to the nature of the predicate offence; the defendant’s knowledge of that underlying offence; the amount of money involved; whether there was an international element; the degree of sophistication; the level of the defendant’s participation including its duration; and any benefit derived from the offence.

15.The judge considered that the predicate offences behind both charges were telephone deceptions practised on elderly citizens, who were willing to part with their savings out of maternal love for their children.  Both victims had been put in considerable fear once they were told of the detention of their sons.  Even though the applicant was obviously not the mastermind of the money laundering operation, and even if there was no evidence to show that the applicant was actually aware of the nature of the predicate offences, he knew, at least in respect of Charge 2, that the money he was to collect from PW3 related to the detention of her son.  He had turned a blind eye to the crimes involved when he agreed to collect money from the victims but had nevertheless played a pivotal role in each operation by collecting the money from the victims in order to remit it to the Mainland.  As the Court had said in HKSAR v Boma [2012] 2 HKLRD 33, those who might be prevailed upon by the directing minds of such scams should be sufficiently deterred from getting involved.

16.The judge noted that the applicant had taken part in two separate conspiracies on two different occasions in May and June 2015; the commission of the offences involved a cross-border element; and the applicant committed the offences for monetary gain.  Accordingly, the judge adopted a starting point of 42 months’ imprisonment in respect of Charge 1, and 36 months’ imprisonment in respect of Charge 2.

17.Giving the applicant a one-third reduction for his pleas of guilty and clear record, and a further month in respect of Charge 2 for sparing PW3, who was 85 years old, from having to give evidence, the sentences were discounted to 28 months’ imprisonment on Charge 1 and 23 months’ imprisonment on Charge 2.

18.However, the prosecution had applied for an enhancement of sentence, pursuant to section 27(2) of the Organized and Serious Crimes Ordinance, on the grounds of the prevalence of the offence and the nature and extent of the harm, whether direct or indirect, caused to the community by recent occurrences of such offences.  The judge was satisfied that both grounds for enhancement were made out and thus enhanced the sentences by one-third, namely 9 months and 10 days in respect of Charge 1, resulting in a sentence of 37 months and 10 days’ imprisonment; and 7 months and 20 days in respect of Charge 2, resulting in a sentence of 30 months and 20 days’ imprisonment.  The judge considered the totality of the overall sentence for both charges and held that an overall term of 45 months’ imprisonment should adequately reflect the applicant’s criminality.  In order to achieve that result, the judge ordered that 7 months and 20 days of the sentence on Charge 2 should run consecutively to the sentence on Charge 1.

Grounds of appeal

19.In his perfected grounds of appeal against sentence, Mr James Tze, counsel for the applicant, has raised two principal grounds of appeal, namely:

(a)   The starting point of 42 months’ imprisonment in respect of Charge 1 was manifestly excessive in all the circumstances of the case, in particular when there was no evidence to show that the applicant was aware of the nature and/or the details of the predicate offence; and

(b)   Under the totality principle, the overall starting point of 67½ months’ imprisonment and the final sentence of 45 months’ imprisonment for both charges were manifestly excessive for a person of hitherto good character, who had been tricked to come to Hong Kong to do what he had done; and/or the judge had failed sufficiently to consider that there was no actual loss in respect of Charge 2, and that the total loss in the case was only HK$80,000.

20.In his written and oral submissions, Mr Tze relied on the case of HKSAR v Lin Zong Yue [2015] 3 HKLRD 196 and submitted that when a defendant had no knowledge, or only had an incomplete or sketchy understanding, about the predicate offence in connection with the money laundering, the appropriate starting point should be 3 years’ imprisonment.  Mr Tze further compared the sentence of Lin Zong Yue with the present case and submitted that, in Lin Zong Yue, the overall amount involved was HK$144,500, for which the Court substituted a sentence of 46 months’ imprisonment in respect of 3 separate offences; whereas, in the present case, the total amount involved was only HK$80,000 yet the applicant was sentenced to an overall sentence of 45 months’ imprisonment for 2 separate offences; hence, the sentence in the present case was manifestly excessive.

The respondent’s reply

21.Ms Katherine Ko, on behalf of the respondent, submits, in respect of Ground 1, that the starting point of 3 years’ imprisonment adopted in HKSAR v Cen Huakuo [2015] 2 HKLRD 951, and for two of the charges in Lin Zong Yue, should not be rigidly adopted in cases of “telephone deception” when the facts indicated that the offender did not participate in the deception but only showed a sketchy understanding of the relevant indictable offence and not necessarily knowledge of its details.  Placing such emphasis on a defendant’s knowledge and understanding of the relevant indictable offence would not only be against sentencing principle but fail to acknowledge the other guiding principles expounded in Boma.

22.Regarding Ground 2, Ms Ko submits that the judge had already taken into consideration that there was no actual loss in respect of Charge 2, hence his adoption of a lower starting point than for Charge 1.  She argues that the sentences imposed in Lin Zong Yue cannot be compared directly with the ones imposed in the present case purely on the similarity of the amount of money involved.  The starting point adopted in each charge in the respective cases recognised a different presentation of relevant factors.  She submits that a rigid, mathematical approach in sentencing was inappropriate.  As Stock VP said in Boma, at paragraph 39:

“We were at one stage of our deliberations minded to provide a suggested starting point for a specified relatively low sum involved in an offence, leaving 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 unwise with the further risk that it might encourage a rigid mathematical approach and progression without proper regard to other individual relevant factors.”

23.The respondent submits that the overall sentence in the present case was imposed after meticulous consideration of the relevant guiding principles.  The starting point, the discount given and the enhancement of sentence were appropriate and proper.  Accordingly, there are no reasonably arguable grounds of appeal against sentence and the application for leave to appeal should be dismissed.

Consideration

24.These offences have been described by the Court in Cen Huakuo as “abhorrent and despicable”.[1] In this particular case, two elderly women were separately tricked and no doubt terrified into believing that their sons had been kidnapped, a belief which the applicant would have done nothing to discourage in respect of Charge 2 when he confirmed in answer to PW3’s direct question that he was detaining her son.  It is further clear from what he later told the police that he also realised that PW1, the victim in Charge 1, was being told by the unknown male on the telephone that her son had likewise been kidnapped.  If the applicant’s knowledge of the predicate offence might euphemistically be described as “sketchy” in respect of the first offence, his answer to PW3 suggests that by the time of the second offence he must have realised he was collecting money from a kidnapping scam.

25.As for Mr Tze’s submission that HK$80,000 was not a great sum, it may well be less than the amount involved in Lin Zong Yue but it can hardly be described as insignificant, and I doubt it was insubstantial for the victim concerned.  And as Ms Ko has pointed out, the judge must have borne in mind that no money was actually obtained in respect of Charge 2, by virtue of the lower starting point adopted for that offence.

26.However, there is an obvious aggravating feature to this case, which is unhappily a common feature in a number of these cases. The applicant was recruited from the Mainland to come to Hong Kong for the specific purposes of committing a very serious criminal offence under our law: indeed, he was recruited to commit two separate and serious criminal offences. As the Court in Cen Huakuo said, at para 24:

“ ‘Money laundering’ is a serious offence, and worse still, the applicant came from the Mainland to commit crime here.” (Emphasis supplied)

27.I will repeat what I have said in another recent application for leave to appeal against sentence, namely HKSAR v Li Yonghong (unrep., CACC 254/2015, 23 December 2015), at para’s 21 to 23:

“21. In this case, a young man was recruited to cross the border in order to collect what he must have appreciated, in view of the elaborate preparations and arrangements which had been made, was going to be a significant sum of money derived from a telephone scam. Indeed, he accepted in interview that he knew his act was illegal and that it involved picking up money from the victim of such a scam. To put it bluntly, the applicant knowingly came to Hong Kong in order to commit a serious crime in this territory. He may not have known all the details of the scam, and he may not have been involved in that side of the offence, but without his ready participation for reward, the crime could not have been achieved.

22. The recruitment of people from outside the jurisdiction to collect the proceeds of a scam with which they have no apparent connection, and then to be spirited back across the border when they have done what they are required to do, will no doubt make these particular crimes difficult to detect. Deterrence must be a significant component in sentencing for these unpleasant offences, which, as the judge noted, are becoming increasingly prevalent.

23.  As the courts have said before, there is a significant difference between someone visiting Hong Kong, who happens to commit a criminal offence while he is here, and someone who comes here for the specific purpose of committing a serious criminal offence: see HKSAR v Aguilar Garcia Milner Javier (unrep., CACC 485/2012) at para 19; and also Cen Huakuo, at para’s 24-25.”

28.Ultimately, Mr Tze’s argument came down to two points: first, the starting point in respect of Charge 1, namely 42 months’ imprisonment, was manifestly excessive and should have been, consistent with Lin Zong Yue and Cen Huakuo, 36 months’ imprisonment; secondly, the consecutive element of 7 months and 20 days’ imprisonment was too great, leading to a manifestly excessive overall sentence of 45 months’ imprisonment. He realistically does not quarrel with either the discounts for plea or the enhancement for prevalence made under the Organized and Serious Crimes Ordinance.

29.However, in my judgment, there must always be a significant measure of discretion left to judges, particularly in cases where there are no tariff guidelines, and where every set of facts and circumstances will be different.  I am not prepared to say that the judge’s adoption of 42 months’ imprisonment rather than 36 months on Charge 1 was outside the proper boundaries of his discretion, or that he was wrong to adopt the consecutive element he did for what are clearly two separate and distinct offences.  Arguably, some judges might have adopted a slightly lower starting point in respect of Charge 1 but a rather higher consecutive element in respect of Charge 2: the ultimate result would have been the same.

30.Given, in particular, (i) the importance of deterring what are evidently prevalent offences of organized and serious crimes in Hong Kong; (ii) that the judge was dealing with not one but two distinct offences, for which a significant consecutive element in sentencing was appropriate; (iii) that the applicant knew that the victims believed, having in one case specifically encouraged her to believe, that their sons had been kidnapped for a ransom; (iv) the loss to PW1 of HK$80,000 in Charge 1; and (v) that there was an obvious international or cross-border dimension to the offences, I do not see any reasonable argument that either of the individual sentences or the overall sentence of 45 months’ imprisonment on pleas of guilty were manifestly excessive.  The sentence may be severe, but it was properly within the judge’s discretion for the reasons he gave.

31.Accordingly, the application is refused.  The applicant is duly advised of his right to renew his application for leave to appeal against sentence to the Court of Appeal, but is also warned of the consequences of so doing, which may include a direction for any loss of time spent in custody pending his appeal, if the Court of Appeal were to come to the view that there was no justification for the renewal of the application.

Ms Catherine Ko SADPP (Ag), of the Department of Justice, for the Respondent

Mr James Tze, instructed by Foo & Li, assigned by Director of Legal Aid, for the Applicant

[1] HKSAR v Cen HuaKuo [2015] 2 HKLRD 951, at para 25.