HKSAR v. Liao Jinhui
Read the full judgment text of DCCC 419/2017 on BabelCite. This District Court judgment was delivered on 27 October 2017.
1. The Defendant pleaded guilty to 23 charges.
Cited by 2 cases · Cites 9 cases
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DCCC 419/2017 IN THE DISTRICT COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION CRIMINAL CASE NO 419 OF 2017 --------------------------
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-------------------------------------- REASONS FOR SENTENCE -------------------------------------- 1.The Defendant pleaded guilty to 23 charges. 2.The first group is six charges of telephone-deception cases. Charge 1 to 4 and 6 are 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. Charge 5 is conspiracy to deal 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, section 159A and section 159C of Crimes Ordinance, Cap 200. 3.As to the second group of charges, they are credit‑card fraud. Charge 7 to 23, they are obtaining property by deception, contrary to section 17(1) of the Theft Ordinance, Cap 210. Summary of facts 4.The Defendant is a two-way-permit holder from mainland China. Charge 1 and 2: Telephone-deception cases 5.At about 10:55 am on 13 July 2016, Defendant went to Kong Fung Renminbi Exchange Development Limited to remit $13,500 to China. At 10:58 am on 20 July 2016, Defendant went to Kong Fung again to remit $110,000 and $28,000 to two different bank accounts in China. 6.In the subsequent video-recorded interview, he admitted that in July 2016, he met Lee at work in China. Lee recommended him to work in Hong Kong to pick up money. He was responsible to pick up the money dropped by the victim. Defendant kept 5% of the money he picked up and remitted the balance to mainland. Lee kept 3% of the money. 7.On 13 July 2016, he was instructed to pick up the money where the victim dropped it. He remitted $13,500 to China. He did not know how the victims were defrauded. 8.On 20 July 2016, he remitted $110,000 and $28,000 to China. He picked up the money from the victim twice, once on 13 and once on 20 July 2016. Charge 3: Telephone deception 9.On 20 July 2016, PW1, aged 70, received a call. The caller pretended to be her daughter and asked for help. Another unknown male told PW1 that her daughter had been detained for an outstanding debt of $300,000. PW1 said that she only had $30,000. 10.At 3:04 pm on the same day, she was instructed to drop the bag of cash of $30,000 at a flowerbed near Science Museum Road. Later, PW1 contacted her daughter and the case was reported to police. 11.At 4:17 pm, Defendant remitted $29,500 to China. The staff member recorded his personal details. 12.In the subsequent cautioned interview, the Defendant said that on 20 July, he received a phone call to look for a woman. He picked up some money dropped off by that woman and remitted $29,500 to China. Charge 4 13.On 28 December 2016, at about 2:45 pm, PW2, aged 65, received a call from an unknown male who claimed to have detained his son and asked for a ransom of $100,000. PW2’s wife, PW3, withdrew $100,000 and she dropped the cash at a flowerbed as instructed. Subsequently, PW3 contacted her son and realised that she had been cheated. The case was reported to police. 14.The Defendant went to Kong Fung to remit $92,000 to China. The staff provided the telephone numbers and the address of the Defendant to the police. The CCTV also captured the Defendant at the counter at 4:30 pm. The police put the Defendant under observation. 15.In the subsequent cautioned video record of interview, the Defendant said he was asked by Lee to come to Hong Kong to pick up money on 20 Dec 2016. On 28 Dec 2016, the Defendant was instructed to pay attention to a woman. The Defendant picked up the bag of money dropped off by that woman and remitted $92,000 to a bank account in China. He kept $8,000. The cash of $6,988 found on him was part of the proceeds. Charge 5: Telephone deception 16.On 28 December 2016, PW4, aged 81, received a call from an unknown male who claimed to have detained her grandson and asked for $300,000 ransom. PW4 reported to the police. PW4 was asked to call the Defendant’s number 65142034. The police accompanied PW4 to the bank. PW4 received a call saying that they knew she was with the police and asked her to hand over the money at Yan Chai Hospital. PW4 refused. 17.In a subsequent video record of interview, Defendant said that on 28 December 2016, he was instructed to come to Hong Kong to pick up money. He was also instructed not to answer the call from PW4. He knew that the call should be related to picking up money. Charge 6: Telephone deception 18.On 30 December, PW5, aged 66, received a call from an unknown male pretended to be his elder son and asked for help. Another male asked for $300,000 repayment of debt for his son. PW5 said that he only had $100,000 bank saving and another $100,000 at home. He was instructed to withdraw $100,000 from the bank and to drop the cash at Shing Yip Street Garden. When the Defendant picked up the cash, he was arrested. Under caution, Defendant said that he had not deceived anyone. He was responsible to pick up the money only. Obtaining property by deception 19.A forged credit card (card 1) and 17 credit-card purchase receipts were found on the Defendant during the body search. During the house search, following items were found:-
Charge 7 20.The police confirmed the transaction receipt, was the transaction at 12:39 pm on 27 December 2016. The Defendant used a credit card 4071-1000-0247-9170 to purchase an iPhone valued at $6,188. Charge 8 21.At 2:57 pm on 27 December 2016:- the Defendant used a credit card 4071-1010-0009-3122 (card discarded) to purchase an iPhone valued at $6,588. Charge 9 22.Transaction at 3:37 pm on 27 December 2016:- the Defendant used a credit card 4071-1010-0010-6361 (card discarded) to purchase an iPhone valued at $7,388. Charge 10 23.At 1:32 pm on 28 December 2016:- the Defendant used a credit card 4071-1010-0002-4002 (card discarded) to purchase an iPhone valued at $6,588. Charge 11 24.At 1:49 pm on 28 December 2016:- the Defendant used a credit card 4071-1000-3387-1348 (card discarded) to purchase skincare product and perfume valued at $493.2. Charge 12 25.At 2:58 pm on 28 December 2016:- the Defendant used a credit card 4071-1010-0002-4002 to purchase some medicine valued at $4,267. Charge 13 26.At 3:06 pm on 28 December 2016:- the Defendant used “card 1” to purchase some medicine valued at $2,800. Charge 14 27.At 12:24 pm on 29 December 2016:- the Defendant used “card 1” to purchase some goods valued at $2,018. Charge 15 28.At 12:29 pm on 29 December 2016:- the Defendant used card 1 to purchase two pieces of Matsumoto Acne Gel valued at $196. Charge 16 29.At 12:38 pm on 29 December 2016:- the Defendant used “card 2” to purchase an iPhone valued $7,388. Charge 17 30.At 12:42 pm on 29 December 2016:- the Defendant used “card 1” to purchase one screen protector and one phone case valued at $187. Charge 18 31.At 7:42 pm on 29 December 2016:- the Defendant used credit card 4071-1000-1430-8310 (card discarded) to purchase some goods valued of $3101. Charge 19 32.Transaction at 8:05 pm on 29 December 2016:- the Defendant used a credit card 4071-1000-1430-8310 (card discarded) to purchase some items at Adidas valued at $846.1. Charge 20 33.At 9:14 pm on 29 December 2016:- the Defendant used card 1 to purchase one watch valued $850. Charge 21 34.At 9:17 pm on 29 December 2016:- the Defendant used “card 1” to purchase one watch valued $1,900. Charge 22 35.At 10:24 pm on 29 December 2016:- the Defendant used credit card 4071-1000-1430-8310 to purchase one jacket from Bossini valued at $299.5. Last charge 36.At 10:32 pm on 29 December 2016:- Defendant used credit card 4071-1000-1430-8310 (card discarded) to purchase some chocolates and dried mangoes valued at $497.6. 37.The total value of the goods purchased in the above transaction was $51,595.4. 38.In the subsequent video record of interview, the Defendant admitted that “card 1” and other cards were provided by Lee. He signed at the back of those cards, and he used those credit cards to make purchases. He did not know those cards were forged credit cards. He admitted using “card 1” to make purchases. He also said he also paid someone to deliver the iPhones to Lee in China. 39.All the purchased goods were recovered in the Defendant’s guesthouse except four iPhones. Previous conviction 40.The Defendant has a clear record. Mitigation 41.The Defendant is 18 years of age, single. He worked as a waiter in China, earned $2,500 per month. His parents divorced when he was a young child. He lived with his father and stepmother, contributed about $600 to the family. He committed the present offence because he had incurred a debt of $5,000 to $6,000 by betting on Mark Six. He was induced by Lee to come to Hong Kong to earn quick money. He is now remorseful for what he has done. Both Defendant’s parents wrote to this court to ask for leniency. Sentence 42.There is no doubt that the Defendant committed very serious offences. One group of the offences was telephone-deception cases. The other group was using false credit card. I have regard to a number of telephone-deception drop-off cases:-
43.In the present case, the total amount of the first group of the six charges was $381,500. The Defendant was a mainlander. He came to Hong Kong on three separate occasions to commit these offences: two times in July 2016, one time in December 2016. And when he came again in December, he was arrested. 44.There were six victims in the telephone-deception cases. Two victims did not report the case to the police. Five of them were deceived to hand out their money and dropped at a place as instructed. The Defendant went forward to pick up the money and remitted back to China. He took a profit of 5 per cent. 45.All these victims in Charge 3 to 6 were old people who had their own children or grandson. It was human nature that they did what they were told and to do as soon as possible to save / help their own children and the close one. This is in this kind of circumstances that they were easily deceived or cheated. 46.The Defendant under caution said that he was asked by Lee to come to Hong Kong to commit the present offences. He did not know how the money was come about. His role was to collect those money. There was no evidence to suggest that he knew what the predicate offence was. 47.As to the second group of the offence, credit-card fraud, the defence submits the case of HKSAR v Tu I Lang CACC 464/2006 to this court for reference. At paragraph 10 of the judgment, it says that:-
48.I also consider HKSAR v Lam See Chung, Stephen [2013] 5 HKLRD 242 of which the judgment decided that “sentencing principle in considerations are equally applicable to credit-card-fraud offences in which genuine credit cards were used, and we can see no good reason why 3 years’ starting point for simple cases of counterfeit credit-card fraud should not apply to a simple case of credit-card fraud which stolen genuine credit cards are used to commit the offence.” And this case was also applied in HKSAR v Lee Tat Hoi CACC 164/2014. 49.In the present case, there were altogether eight forged credit cards, and the total amount involved was $51,595.4. The Defendant came to Hong Kong to commit the present offence. That carried an international element. They are indeed serious offences. The value of properties was one of the sentencing considerations. 50.In HKSAR v Kwan Po Keung [2012] 2 HKLRD 12, a single unauthorised use of a genuine credit card for a purchase of $56,116 of jewellery. On appeal, it was said that 3 years’ starting point was appropriate. This case was also cited in HKSAR v Tumurbagana Enkhtur CACC 316/2014, Value of the property was $42,480. The Defendant was sentenced to 2 years 6 months. 51.Lastly, I also consider the well-known authority of R v Chan Sui To [1996] 2 HKCLR 128. It said that an operation involving between $50,000 and $150,000 with no elaborate planning and equipment and without an international dimension should receive a sentence of 5 to 6 years after trial. Sentence may adjust upward and downward according to the circumstances. Where the facts of the offence point to a small unsophisticated operation involving only one or a few forged credit cards uncomplicated by other evidence linking the offender to a larger operation, then a starting point of 3 years’ imprisonment or less would be appropriate. 52.With this information in mind, I first dealt with the telephone-deception offences. I am satisfied for those six charges that a sentence of 4 years after trial should be appropriate. That means after one-third discount, it is 32 months. 53.The sentence of each charge is:
As to Charge 2 and 3, they are committed on the same date. I order these two charges to run concurrently. 54.That also applied to Charge 4 and 5. I order concurrent sentence. 55.I first dealt with the totality of sentence in the deception cases first. The 2 years in Charge 2 and Charge 3, I order 5 months to run consecutively to Charge 1. I also order 5 months from Charge 4 and 5 to run consecutively to Charge 1. I order 5 months from Charge 6 to run consecutively to Charge 1, that arrived at a total sentence of 31 months. 56.As to the second group of offences, I come to the conclusion that the overall sentence should be 3 years 6 months after trial. As said before, value of the properties is a sentencing consideration. Apart from the international factor, there are also eight forged credit cards. The total sum was about $51,000. 57.As to Charge 7, 8 and 9, the Defendant used three different forged credit cards to purchase three iPhones, each valued at $6,188, $6,588, $7,388 respectively. I consider that a starting point for these three charges is 18 months and reduced to 12 months because of his guilty plea. 58.I shall also consider the totality of these three charges first. At first, they were all committed on the same day and within a short period of time of three hours. I order these three charges to run concurrently, and that arrives at a total sentence of 12 months. 59.As to Charge 10 to 13:-
60.I also deal with the totality of Charge 10 to 13 first. They all took place on 28 December and within one and a half hours. I therefore order all the sentences to run concurrently. It arrived at a total sentence of 12 months. I order 8 months to run consecutively to Charge 7, 8 and 9. 61.I now come to Charge 14 to 23:- 62.Charge 14 and Charge 15 used “card 1” to purchase some items from the same shop.
63.Charge 16 and Charge 17 are also from the same shop but used two different cards.
64.Charge 18:- there are some goods valued at $3,101. I adopt a starting point of 12 months reduced to 8 months. 65.Charge 19:- involved some items purchased from Adidas, and they are $849.1. I adopt a starting point of 6 months reduced to 4 months. 66.Charge 20:- a watch valued $850. I also adopt a starting point of 6 months reduced to 4 months. 67.Charge 21:- also a watch, $1,900. I adopt a starting point of 12 months reduced to 8 months. 68.Charge 22:- a jacket from Bossini valued at $299.5. I adopt a starting point of 6 months reduced to 4 months. 69.Charge 23:- some chocolates and dried mangoes valued at $497.6. I adopt a starting point of 6 months reduced to 4 months. 70.I also consider Charge 14 to Charge 23 that they are taken place on the same day of 29 December. I order all the sentence to run concurrently, and that is a total of 12 months. I also order 8 months to run consecutively to Charge 7, 8 and 9. The total sentence of the second group of offences is 28 months after plea. 71.Now, for these two groups of charges, the whole case after trial in my judgment should be one of 5 years. However, in view of the Defendant’s young age, he is 18, I reduce 3 months from the starting point, that being 57 months. And after one-third, it should be 38 months. To achieve the totality of all the sentences, for the telephone-deception case, the total sentence is 31 months, and the total sentence of the credit-card-fraud case is 28 months. I order 7 months to run consecutively to Charge 1 to 6, and that arrives at a total sentence of 38 months.
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