HKSAR v. Lai Jiayi and Another

DCCC 767/2018

[2019] HKDC 617

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 767 OF 2018

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Reasons for Sentence

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1.The defendants have pleaded guilty to a total of three charges, all of them under section 25(1) of Cap 455, charges of conspiracy to deal with proceeds known or believed to represent the proceeds of an indictable offence.

2.All of the charges are what are colloquially known as “phone scam” or “drop off” cases, where usually an elderly person is told that a relative, usually a son, is being held and money is required to obtain their release.  The money is then usually taken in cash to another person, who is the courier effectively, who then either remits the money out of Hong Kong or takes it out physically out of Hong Kong. 

3.In this case, both defendants have acted in separate charges as the remitters of the money.  They are common and serious offences.

4.As far as the indictment is concerned and the summary of facts, the defendants have admitted all the facts. 

5.Both the defendants are China two-way permit holders. 

6.The facts start with the second charge that relates to the 2nd defendant.  The 2nd defendant faces this charge alone.  It relates to a phone call on 23 May 2018, when the victim was phoned and told he needed to pay money to get the release of his son.  The victim got hold of the $230,000 in cash he was asked to provide and gave it to the 2nd defendant, who sent it by way of a money-remitting exchange company to the Mainland.  We know that the defendant came into Hong Kong on 21 May and left on the day he remitted the money (that is, 23 May). 

7.When he was interviewed, the 2nd defendant said he had come to visit in Hong Kong in May but had lost all his money and then was offered this job as a money courier, and he was paid $300 Renminbi as a reward for doing it.

8.The next charge dealt with in the facts is Charge 3, which relates to the 1st defendant.  A similar modus operandi:  on 20 June 2018, the victim was told money was required to free his son.  Initially, $30,000 was obtained and given to the 1st defendant, and later a further $23,000 was obtained and given to the 1st defendant.  The 1st defendant then remitted what appears to be 25,500 to a Mainland bank. 

9.When the defendant was interviewed under caution, he said he did remit the money but 15 per cent of the funds was his reward, and his travel records show that he entered Hong Kong on 20 June and left on 22 June, and he was arrested on his departure.

10.Under caution, the defendant also admitted being involved in another offence, in which he had been asked to do the same job in March 2018 but had refused.  He had introduced a person called “Yang” to do the job and was aware that money had been collected, and received a reward for that of what is described as RMB5,600, and that forms the basis on which the first charge is preferred.

11.As far as the defendants’ personal circumstances are concerned, the 1st defendant is aged 47.  He is a two-way permit holder, as I have said.  The 2nd defendant is aged 37 and also a two-way permit holder.

12.In mitigation, both defendants refer to the fact they have entered pleas at an early stage, they have both a clear record, and they have both made full admissions to these charges.  Both of them have written letters of remorse to the court.  Both of them refer to that they were not part of what we call the threats uttered over the phone.  Their roles have been confined to that of money couriers.

13.The 2nd defendant says in his mitigation that he did not actually come here ostensibly to commit an offence, and only was recruited because he had run out of money. 

14.I find that unlikely.  He came in on the 21st and left on the day that the offence was committed, on the 23rd.  Those dates appear to be more than coincidental.

15.As far as the approach to sentencing is concerned, these clearly are serious offences.  Money laundering is a serious offence.  This is a particularly serious form of that offence; effectively involves intimidating elderly people to get money out of them.  I think you could describe them as “mean crimes”.

16.In any event, the amounts obtained are not large by the standards of these cases, but must be substantial for the elderly people who gave them the money.

17.The 2nd defendant points to the low reward he received for his involvement in the offence.

18.As far as the starting point for sentence is concerned, it has been considered in a number of cases.  I will refer to the case of HKSAR v Cen Huakuo [2015] 2 HKLRD 951, which was a “drop off” case involving a sum of about $50,000 being obtained, where the applicant, or the appellant, did not take part in the deception, and the starting point of 3 years’ imprisonment was adopted by the court.

19.I see no reason to depart from that starting point in respect of these charges generally.  I think the first charge I will consider differently, the 1st defendant’s involvement in that being somewhat more tangential in that he arranged for someone to take part in the offence, and the defendant in fact never came to Hong Kong in respect of that  matter.

20.So my sentences then will, in respect of these three charges will be as follows:

(1) In respect of the first charge against the 1st defendant (this is where the defendant arranged for Mr Yang to commit the offence; the defendant did not come to Hong Kong himself), I will take a starting point for that case of 24 months, reduce that to 16 months’ imprisonment for the defendant’s plea of guilty; and

(2) in respect of the 2nd defendant on the second charge, I take a starting point of 36 months’ imprisonment. I will enhance that sentence by the aggravating factor that the defendant, in my view, clearly came to Hong Kong to commit this crime, so I will enhance the starting point to one of 39 months’ imprisonment. After deduction for plea of guilty, that leads to a sentence of 26 months’ imprisonment for the 2nd defendant on the second charge;

(3) I will adopt the same approach for the 1st defendant on the third charge: a starting point of 36 months’ imprisonment, enhanced by 3 months because of the aggravating factor of the defendant coming to Hong Kong to commit the offence; then the deduction of one-third for his plea of guilty, leading to an end sentence of 26 months’ imprisonment.

21.For the 1st defendant, there are considerations of overall totality because he has pleaded guilty to two offences separate in time. 

22.For the 1st defendant, I will impose an overall sentence of 32 months’ imprisonment.  I shall order that 6 months of the first charge be served consecutively to the third charge, resulting in an overall sentence of 32 months’ imprisonment.