Read the full judgment text of CAAR 1/2024 on BabelCite. This Court of Appeal judgment was delivered on 12 April 2024 before Poon CJHC, Pang JA and M Poon JA.
Criminal law – sentencing – review of sentence – telephone deception – conspiracy to defraud – money laundering – sentencing guidelines – starting point – enhancement of sentence – totality principle. The respondent pleaded guilty to one count of conspiracy to defraud and one count of money laundering, both arising from telephone deceptions on 9 November 2022. Two elderly female victims each received telephone calls from a swindler impersonating their sons, falsely claiming that the sons were arrested and needed money. The respondent collected HK$30,500 from Madam Lam and HK$65,600 from Madam Wong (where he was arrested), playing a 'legman' role. The sentencing judge adopted starting points of 24 months and 12 months respectively, applied a one-third discount for guilty plea and a one-third enhancement under section 27(2) of the Organized and Serious Crimes Ordinance (Cap. 455), resulting in a total of 26 months' imprisonment. On review, the Court of Appeal allowed the application and increased the sentences. The Court held that the 4-year starting point for telephone deception cases established in Hung Yung Chun and endorsed in Yang Chia Cheng and Leung Yiu Fai applies, and that the sentencing judge's adoption of 24 months was wrong in principle and manifestly inadequate. The guidelines in Ng Kwok Wing and Lam Wing On (theft/breach of trust) are not applicable to telephone deception cases. The sum involved is not the most important consideration; the offence is targeted at the public and warrants heavy sentences for deterrence. The lack of threats of beating or detention does not mitigate the seriousness of the fraud, which is tantamount to emotional blackmail exploiting the victims' concern for their children's safety. The respondent was not merely a 'legman' but held a pivotal role in the fraud scheme. For the money laundering charge, the Court held that the appropriate starting point is 3 years' imprisonment per Lin Zong Yue and Cen Huakuo, and the respondent's knowledge of the predicate offence, demonstrated by his claim to be 'Mr Lee' and mention of going to the police station, constitutes an aggravating factor. The final sentences are 40 months for Charge 2 and 30 months for Charge 3, with 8 months consecutive, totaling 48 months' imprisonment, after applying the one-third guilty plea discount, one-third enhancement, and a further 2-month reduction on each charge to reflect that the respondent was about to be released after serving the original sentence.
Legal issues: Appropriate starting point for conspiracy to defraud by telephone deception (Charge 2) · Appropriate starting point for money laundering (Charge 3) · Respondent's knowledge of predicate offence as aggravating factor
Outcome: Application for review allowed. Sentences imposed by the sentencing judge for Charges 2 and 3 set aside and substituted with 40 months' and 30 months' imprisonment respectively, with 8 months of Charge 3 to run consecutively, totaling 48 months' imprisonment.
Cited by 52 cases · Cites 4 cases