HKSAR v. So Nok Hang

DCCC 1121/2023 & DCCC 1168/2023
(Heard together)

[2024] HKDC 1367

IN DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 1121 OF 2023

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IN DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 1168 OF 2023

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REASONS FOR SENTENCE

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1.The Defendant (“D”)  was arrested in 2 occasions and the 2 cases are now ordered by the Court to be heard together.

2.In DCCC 1121/2023 (D pleaded guilty to Charge 2):

Charge 1 – conspiracy to defraud

Charge 2 – money laundering (alternative to Charge 1)

3.In DCCC 1168/2023

(D pleaded guilty to Charge 2 and 3):

Charge 1 – conspiracy to defraud

Charge 2 – dealing with property known or believed to represent proceeds of an indictable offence (alternative to Charge 1)

Charge 3 – attempting to deal with property known or believed to represent proceeds of an indictable offence

(alternative to Charge 1)

Summary of facts

In DCCC 1121/2023

4.On 12 June 2023, PW1 (aged 87)  received a call from a man who claimed to be his son and he needed $60,000 as bail money.

5.On the same day, the D went to PW1’s flat to collect $60,000 cash.

6.Subsequently, PW1 received another call to ask for $300,000 for medical expenses. PW1 realized she was being cheated.

In DCCC 1168/2023

7.On 13 June 2023, PW1 received a call from a male who claimed to be her son-in-law. He told PW1 that he was arrested by the police and was in need of $200,000 as bail money.

8.On the same day, the D went to meet PW1 and introduced himself as “Kai Jai”. PW1 gave D the $200,000 cash.

9.Shortly afterwards, PW1 received another call from a male to ask for further $100,000 as bail money.

10.PW1 and her son-in-law reported the matter to the police.

11.On the instruction from the police, PW1 negotiated with that male and reduced the amount to $50,000. When the D came to collect the dummy money from PW1, the police arrested him.

12.Under caution, he said that he was paid a daily wage of $1,500 to collect $200,000 and $50,000 from the victims. He found the job from Facebook.

Mitigation / background of the Defendant

13.He is 28 years old with a clear record. He lives with his father. Since the demise of his mother, he has been idling without leading a meaningful life.

14.The defence urged me to give him credit for his hard work that during his period of remand, he has reformed himself by completing two distance-learning courses. He also takes up an English course to improve his English standard.

15.He wishes to find a white-collar job such as warehouse management after his release from prison.

16.In his letter to the Court today, he said that he is now remorseful and he wishes to take part in charity works to help the under privileged family in the future.

17.The defence said that the Defendant was acting an a conduit / foot soldier. There is no evidence to show that he was involved in the actual phone deception.

Sentence

18.For the offences of money laundering, the maximum sentence is one of 14 years.

19.As said in the case of HKSAR v Hung Yung Chun [2011] 2 HKLRD 174 that “telephone deception cases were more serious than street deception in that phone fraudsters often terrified victims by uttering excuses such as family members of the victims being held captive. Therefore, starting point for phone deception case should be 4 years.

20.While in the case of HKSAR v Lin Zong Yue [2015] 3 HKLRD 196, the court observed that the prosecution preferred the charges of money laundering as the prosecution might be unable to prove beyond reasonable doubt that the defendant had direct involvement in a conspiracy to defraud case.

21.In the case of Lin Zong Yue, the defendant pleaded to 3 charges of money laundering. The offences involved a telephone fraud; the defendant collected a total of $144,500 from three victims. On appeal, the defendant received a sentence of a starting point of 3 years for charge 1 and 2 (as they were committed on 2 consecutive days), 3 years 3 months for charge 3 as it was committed some 53 days later. Those sentences were enhanced by 1/3 pursuant to the application under OSCO cap 455. .

22.In the present case, the Defendant collected money from two different victims with a daily wages of $1,500.

DCCC 1121/2023

(a)  On 12 June - $60,000 - one victim

DCCC 1168/2023

(b)  On 13 June - $200,000		Same victim
(c)  On 13 June - $50,000 (dummy money)

23.Taking all the matters into account, I take 3 years as a starting point for all 3 charges, reduce to 2 years after ¹/₃ discount.

24.The defence dose not object to the persecution’s application for enhancement of sentence, I enhance the sentence by ¹/₃, that is 8 months for each charge that arrives at 32 months imprisonment.( 24 + 8 ).

Totality of DCCC 1168/2023

25.Since Charge 2 and 3 took place on the same day, on the same victim with a few hours of difference, I consider a concurrent sentence is appropriate. That means a total sentence of 32 months imprisonment.

Totality of both cases

26.While DCCC 1168/2023 was a different case on a different day on a different victim, I order 8 months from DCCC 1121/2023 to serve consecutively to DCCC 1168/2023.

27.The total sentence for both cases arrives at 40 months imprisonment (32+8).

28.Finally, I reduce one month for the D’s motivation to take positive steps to reform himself by completing two distance-learning courses. The sentence comes down to 39 months imprisonment ( 40 – 1 ).