HKSAR v. Wan Tsz Wo

DCCC 1000/2022

[2023] HKDC 1321

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 1000 OF 2022

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REASONS FOR SENTENCE

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A. Charges

1.The defendant (D)  pleaded guilty to 8 charges of dealing with property known or believed to represent proceeds of an indictable offence, contrary to s 25(1)  and (3)  of the Organized and Serious Crimes Ordinance, Cap 455 (“the Ordinance”).  The particulars are that D on or about the following dates in Hong Kong, knowing or having reasonable grounds to believe that the following property in whole or in part directly or indirectly represented any person’s proceeds of an indictable offence, dealt with the said property:

Charge	Date	Amount (HK$)
1	6 May 2022	100,000
2	12 May 2022	180,000
3	12 May 2022	100,000
4	12 May 2022	60,000
5	13 May 2022	50,000
6	17 May 2022	200,000
7	18 May 2022	120,000
8	19 May 2022	100,000

B. Facts

B.1 Charge 1

2.On 6 May 2022 at 1100, Chan Mei Kuen (PW1), aged 73, received a call from Male 1 who said in punti with mainland accent that he was PW1’s son, Ah Tak, and was arrested by the police for assault.  Male 1 asked PW1 to go to Regal Oriental Hotel to provide bail money of HK$100,000 and to call 95695910 upon arrival.  PW1 arrived at the hotel at 1325 hours and called Male 1 who said that his colleague Lee would collect the money from PW1.  15 minutes later, D told PW1 that he was Ah Tak’s colleague, asked PW1 to give the money to him, and collected HK$100,000 in a transparent resealable plastic bag (Property 1)  from PW1.  Upon calling her daughter-in-law, PW1 realized that she had been deceived and reported the case.

3.CCTV outside the hotel (CCTV 1)  captured the above incident and that D met PW1 outside the hotel for approximately 15 minutes before leaving. Under caution, D identified himself and PW1 from CCTV 1.

B.2 Charge 2

4.On 11 May 2022 at 1944 hours, Chan Chiu Ching (PW2), aged 88, received a call from +852 67286742 in which Male 2 said that he was PW2’s son, Ah Man, and had changed his mobile number to +852  67286742.  Male 2 asked PW2 not to tell anyone about the change of his number.

5.On 12 May 2022 at 1115 hours, PW2 received a call from +852 67286742 again in which Male 2 said he was arrested by the police for fighting and needed bail money of HK$180,000.  PW2 then withdrew HK$80,000 cash from Bank of China (Hong Kong)  and obtained HK$100,000 cash at home, totaling HK$180,000 (Property 2). PW2 called Male 2 at +852 67286742 and told him that the money was ready.  She was asked to go to the junction of Hennessy Road and Canal Road West.  Upon arrival, PW2 notified Male 2 at +852 67286742.  At around 1223 hours, D told PW2 that he was the friend of PW2’s son, then PW2 passed Property 2 to D.  After communicating with her son via WhatsApp, PW2 knew that she had been deceived.  The case was reported.

6.CCTV at 423-425 Hennessy Road (CCTV 2)  captured D and PW2 walked past the area in close proximity.  Under caution, D identified himself from CCTV 2.

B.3 Charge 3

7.On 12 May 2022 at 1035 hours, Yip Kam Wah (PW3), aged 79, received a call from 95647161 in which Male 3 said he was PW3’s son and was arrested for assault.  He asked PW3 to bring bail money of HK$100,000 to Wan Chai.  PW3 then took HK$100,000 cash (Property 3)  to Capital Café at 6 Heard Street.  Male 3 asked PW3 to pass Property 3 to a male in black wearing a crossbody bag.  PW3 complied.  After calling her son, PW3 knew that she had been deceived and the case was reported.

8.CCTV outside 6 Heard Street (CCTV 3)  showed that a male wearing a navy blue tee and a backpack, who resembled the male in the incident of Charge 2, met with PW3. 

B.4 Charge 4

9.On 12 May 2022 at 1220 hours, Tsoi Lai Ho (PW4), aged 69, received a call from 53851458 in which Male 4 said he was PW4’s son and was arrested by the police for assault.  He asked PW4 to bring bail money of HK$60,000 to Causeway Bay.  PW4 then took HK$60,000 (Property 4)  to Causeway Bay where Male 4 told PW4 to pass Property 4 to a male wearing a black top.  At 1515, PW4 did so.  After calling her son, PW4 knew that she had been deceived.  The case was reported.

10.CCTV outside 13 Pennington Street (CCTV 4)  captured PW4 met and left with a person wearing similar clothing as that of the males in the incidents of Charges 2 and 3. 

B.5 Charge 5

11.On 13 May 2022 at 1200 hours, Leung Tsui Ngan (PW5), aged 89, received a call from 68865816 in which Male 5 said that PW5’s son was detained at Tsuen Wan Police Station for fighting and needed HK$50,000 as bail money.  PW5 took HK$50,000 (Property 5)  to D.  Park, Tsuen Wan at 1400 and called Male 5 at 68865816 who said he would come to meet PW5.  Then PW5 passed Property 5 to D.  On 15 May 2022, after calling her son, PW5 knew that she had been deceived.  The case was reported.

12.CCTV outside a drugstore in Tsuen Wan (CCTV 5)  captured D and PW5 walked past in close proximity at around 1402[1]. Under caution, D identified himself from CCTV 5.

B.6 Charge 6

13.On 16 May 2022, Wong Sok Han (PW6), aged 72, received a call from Male 6 who said that he was PW6’s son and was arrested by the police for assault and that he needed bail money of HK$200,000.  He asked PW6 to withdraw the money from bank, tell the staff there that she needed it for renovation, then bring it to Pak Tei Temple in To Kwa Wan on 17 May 2022 to a Mr Lee whose telephone number was 68821130, and not to disclose this matter to anyone. 

14.On 17 May 2022 at 1400 hours, PW6 arrived at Pak Tei Temple with HK$200,000 in a white envelope (Property 6)  and met D who purported to be Mr Lee.  D passed his phone to PW6, and Male 6 in the phone asked PW6 to pass Property 6 to D.  PW6 did so and left.  After telling her family about this matter, PW6 knew that she had been deceived.  The case was reported.

15.CCTV near Gillies Avenue North (CCTV 6)  captured D and PW6 together had walked past the said location before D caught a taxi for PW6 to leave.  Under caution, D identified himself and PW6 from CCTV 6.

B.7 Charge 7

16.On 18 May 2022 at 1000 hours, Lau Mong Yin (PW7), aged 71, received a call from 65268614 in which Male 7 said that he was detained in Tsim Sha Tsui Police Station after being assaulted and he needed HK$120,000 as bail money.  PW7 passed the phone to her husband who spoke to Male 7.  Afterwards, PW7 and her husband withdrew HK$120,000 from HSBC (Property 7)  and went to a restaurant in Prince Edward Road West where Male 7 told PW7 to pass Property 7 in a white and yellow plastic bag to a Mr Chan.  At around 1335 hours, D approached PW7 and purported to be Mr Chan.  PW7 then passed Property 7 to D and left.  After calling her son at around 2231, PW7 knew that she had been deceived.  The case was reported.

17.CCTV at 123 Prince Edward Road West (CCTV 7)  captured PW7 and her husband got off a taxi at 1325 hours and D walked past there at 1336[2]. Under caution, D identified himself from CCTV 7.

B.8 Charge 8

18.On 19 May 2022 at 1230 hours, Yeung Chi Wen (PW8), aged 83, received a call from 95692235 in which Male 8, purporting to be PW8’s son, said that he was detained at Wan Chai Police Station for fighting and asked PW8 to bring HK$100,000 to his friend as bail money.  PW8 then took HK$100,000 inside a red cloth bag (Property 8)  to Lockhart Road. Male 8 asked him to go to King Tao Building and passed Property 8 to a Mr Lui.  At 1403 hours, D, purporting to be Mr Lui, told PW8 that he came to take the bail money for PW8’s son.  PW8 then passed Property 8 to D.  Around 2 minutes later, a plainclothes female police officer told PW8 that he had been deceived.  CCTV at 102-104 Lockhart Road captured this incident.

19.At around 1405 hours, D was arrested at 106-108 Lockhart Road and Property 8 was recovered from D.  Under caution, he said that he collected stuff for someone for HK$200 each time (“我幫人收貨, 二百蚊一次”).

B.9 Cautioned video-recorded interview (VRI)

20.Three VRIs were conducted with D.  In the 1^st one on 19 May 2022 relating to Charge 8, D said the followings under caution:-

(a)  D was approached via WhatsApp by a Mr Lee (WP)  who asked him to collect stuff from a person and pass it to another for HK$200 each time. D did this for WP around 10 times. After D had collected the stuff, WP or someone else would call D and let him know to whom the stuff should be passed.

(b)  D and WP communicated via prepaid SIM cards. WP asked D to delete chat history every time after D had done a job, and to change prepaid SIM cards from time to time even if the value loaded had not been used up. D thought that these were done for privacy reason.

(c)  On 18 May 2022 between 2100 and 2200 hours, WP called and asked D to go to Wan Chai the next day to collect stuff. On 19 May 2022 at 1000 hours, D went to Fleming Road.

(d)  D collected Property 8 from PW8 but did not know what was inside before he was arrested.

21.In the 2^nd VRI taken on 19 and 20 May 2022 relating to Charges 2 to 4, D said the followings under caution:-

(a)  For Charge 2, D identified himself from the screenshots captured from CCTV 2 and said that he walked past the location because he had been instructed by WP to collect stuff from a woman aged 60 to 70 years old and then pass it to WP. D did not know what the stuff was. He received HK$200 as remuneration.

(b)  For Charge 3, on 11 May 2022, WP asked D to collect stuff on Heard Street on 12 May 2022 and then pass it to WP in Causeway Bay for HK$200. CCTV did not capture this incident.

(c)  For Charge 4, on 12 May 2022, D was instructed by WP to collect stuff in Wan Chai and Causeway Bay from a woman aged 60 to 70 years old and then pass it to WP in Causeway Bay for HK$200.

(d)  On 12 May 2022, D collected stuff 3 times for WP and received a total of HK$600 as remuneration.

22.In the 3^rd VRI taken on 20 May 2022 in relation to Charges 1, 5 to 7, D said the followings:-

(a)  For Charge 1:-

(i)  On 5 May 2022 between 2100 and 2200 hours, WP asked D to go to Kowloon City the next day to collect stuff. D arrived at Kowloon City at 1000 hours on 6 May 2022 where an unknown person (WP2)  called and asked him to collect stuff from PW1.

(ii)  D identified himself and PW1 from the screenshots of CCTV 1 footages.

(iii)  As instructed by WP2, D asked PW1 if her son had anything to pass to D. PW1 then passed something to D but D did not know what it was. Afterwards, D passed it to WP for HK$200.

(b)  For Charge 5:-

(i)  On 12 May 2022 between 2100 and 2200 hours, WP called and asked D to go to Tsuen Wan the next day to collect stuff. D arrived at Tsuen Wan at 1000 on 13 May 2022 where an unknown person (WP3)  called and asked him to find PW5 at the Kolour, Tsuen Wan, to collect stuff which D did not know what it was.

(ii)  D identified himself and PW5 from the screenshots of CCTV 5 footages.

(iii)  As instructed by WP3, D asked PW5 to call back her son. He also caught a taxi for the latter who said she did not know how to return home. Afterwards, D passed the stuff to WP for HK$200.

(c)  For Charge 6:-

(i)  On 16 May 2022 between 2100 and 2200 hours, WP called and asked D to go to Kowloon City the next day to collect stuff. D arrived at Kowloon City at 1000 hours on 17 May 2022 where an unknown person (WP4)  called and asked him to go to Pak Tei Temple to collect stuff from PW6. D did so but did not know what the stuff was.

(ii)  D identified himself and PW6 from the screenshots of CCTV 6 footages.

(iii)  As instructed by WP4, D asked PW6 to call her son, caught a taxi for the latter, and passed the stuff to WP for HK$200.

(d)  For Charge 7:-

(i)  On 17 May 2022, WP called and asked D to go to Prince Edward the next day to collect stuff. On 18 May 2022 at around 1100 hours, an unknown person (WP5)  called and asked him to go to a building in Prince Edward to find a male and a female.

(ii)  At noon on 18 May 2022, D found a male and a female and asked them to call their son. Afterwards, D collected stuff from them and passed it to WP for HK$200.

(iii)  D identified himself from the screenshots of CCTV 7 footages.

B.10 Conclusion

23.D, on or about the following dates in Hong Kong, knowing or having reasonable grounds to believe the following property, in whole or in part directly or indirectly represented any person’s proceeds of an indictable offence, dealt with the said property:-

Charge	Date	Amount (HK$)
1	6 May 2022	100,000
2	12 May 2022	180,000
3	12 May 2022	100,000
4	12 May 2022	60,000
5	13 May 2022	50,000
6	17 May 2022	200,000
7	18 May 2022	120,000
8	19 May 2022	100,000

C. Prosecution’s submission

24.The Prosecution, relying on HKSAR v Wu Jianbing [2012] 1 HKLRD 781, submitted that an appropriate starting point for each charge is in the region of 3 years’ imprisonment.

25.They submitted a witness statement of Detective Chief Inspector Lai Mei Yee, Gigi pursuant to s 27(2)  of the Ordinance on the prevalence of the subject offences as specified offences, and the nature and extent of harm caused to the community by the recent occurrences of these offences.

D. Mitigation

26.D is aged 48, educated to Form 3 and of clear record. His mitigating letter was submitted.

27.The Defence submitted the followings:-

(a)  D had no knowledge of the deceptions;

(b)  Wu Jianbing is more serious than the present case because the defendant in that case was a two-way permit holder; instead, HKSAR v Fong Chi Yam CACC 411/2017 is more comparable and a starting point of less than 2.5 years’ imprisonment for each charge is appropriate;

(c)  D’s commission of the 8 charges of the same nature within 2 weeks may be an aggravating factor;

(d)  the sentences for Charges 2 to 5 and the sentences for Charges 6 to 8 should run wholly concurrently; and

(e)  the sentences may be enhanced pursuant to the Ordinance by 1/3 after discount, with which the Prosecution agreed.

E. Sentence

28.In Fong Chi Yam, the defendant was convicted after trial of 2 charges of the same offences as those in the present case.  The amounts involved were HK$409,000 and HK$37,100.  The Court of Appeal adopted starting points of 2.5 years’ and 1-year imprisonment respectively, declined to enhance the sentences pursuant to the Ordinance, and ordered that 6 months of the sentence for Charge 2 to run consecutively with the sentence for Charge 1, resulting in a total sentence of 3 years’ imprisonment.

29.Having considered all the cases cited by the parties and their submissions, I adopt a starting point of 2.5 years’ or 30 months’ imprisonment for each charge.  It is reduced by 1/3 for D’s guilty plea, the only mitigating factor, to 20 months’ imprisonment.  This is enhanced by 1/3 pursuant to the Ordinance to 26 months’ imprisonment.

30.A total amount of HK$910,000 was dealt with by D on 8 occasions in around 2 weeks.  A global sentence of 33 months’ imprisonment after enhancement is appropriate for this case.  Thus, I order that 1 month of the sentences for Charges 2 to 8 are to run consecutively with the sentence for Charge 1, resulting in a total of 33 months’ imprisonment for all charges.