HKSAR v. Chen Jui Ying
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DCCC1002/2009 IN THE DISTRICT COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION CRIMINAL CASE NO. 1002 OF 2009 ----------------------
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---------------------------- Reasons for Sentence ---------------------------- 1.The defendant has pleaded guilty to one charge of conspiracy to deal with property known or believed to represent proceeds of an indictable offence. 2.The Particulars of the Offence are that the defendant on 12 August this year conspired with Chen Chu-nan and another person unknown to deal with property, namely $77,000, knowing or having reasonable grounds to believe that this property in whole or in part directly or indirectly represented any person’s proceeds of an indictable offence. 3.The prosecution’s case is that on 12 August, in the morning, plainclothes officers saw the defendant and another male leave the China-Hong Kong Ferry Terminal in Tsim Sha Tsui, looking suspicious and acting suspicious. 4.These police officers’ instincts were obviously very sharp. They must have kept them under observation for many hours. 5.At about 3 o’clock that afternoon the other male received a phone call and left the defendant waiting in Kowloon Park. 6.This other male arrived at the junction of Humphreys Avenue and Nathan Road. He left a plastic bag at the corner of the junction. Minutes later, a woman, PW1, put an envelope inside the plastic bag and walked away. Almost immediately this male picked up the plastic bag and was then intercepted by the police. 7.PW1 was also located. She told the police that she had received a call that morning from an unknown Chinese male and was told her son was detained because he was a guarantor of a debt in the amount of HK$200,000. Because the debtor had failed to pay, the son was being held in order to obtain this amount of money. The caller demanded $200,000 from PW1 in order for the safe release of her son. She could not raise this amount of money and begged the caller to reduce the sum, and it was eventually negotiated she could pay $77,000. The caller gave instructions to PW1 to put the money in an envelope in the bag left at this junction in Tsim Sha Tsui. 8.In fact, her son had not been detained by anybody. 9.The sum of money was recovered from the plastic bag. 10.The defendant, who was in Kowloon Park, was also arrested by police officers, and under caution told the police that his boss had told him to come to Hong Kong to collect money, he knew nothing. 11.The defendant gave a fuller explanation and admission under caution in a record of interview. He admitted he was hired by a male from Zhuhai to come to Hong Kong to collect some money. He was to be rewarded $100 for every $10,000 he collected. He claims he would not have collected the money if he knew that the money was obtained by deception. He suspected the money was a repayment of debt. 12.The other male who was arrested died in custody before this case came to court. 13.The defendant’s best mitigation is his plea of guilty today. 14.I have been informed the defendant has a clear record in Hong Kong. However, he is not a Hong Kong resident so it is not surprising he has a clear record in Hong Kong. 15.The defendant is a Taiwanese national and I have been given his family background. 16.In my view, this is, in essence, a phone deception case. The prosecution has informed the court that this is one of the first of this nature to be brought to the District Court. I assume this is due to the prevalence of this type of deception and the amount of money involved. 17.I have heard mitigation put forward by defence counsel and a reference to several authorities mainly dealing with money laundering facts. 18.This charge is normally associated with money laundering scenarios, but money laundering, in short, is an attempt to legitimise proceeds from criminal activities. With respect, that is not the situation here. The defendant was instructed to collect money with a partner. 19.The victim is 59 years old and living with her retired husband. She received a random phone call which led to her being deceived. 20.These perpetrators often prey on women who are immediately put in fear of their child’s or relative’s safety. They are ordered to deposit money in accounts, or in this case, money at a drop-off point. These victims are often kept talking on their telephone all the way to the bank. This prevents them from calling the relative or child involved, plus keeps them scared. 21.It is a scam that is commonly seen in the Magistrates’ Court and, obviously, by the police. It is, in my view, akin to street deception scams. The victims are similarly duped and deceived. The difference is obvious. One scam is over the telephone whilst the other is face to face. 22.Street deception cases often attract a starting point of 3 years’ imprisonment. There are many authorities to support this as an appropriate starting point. For example, see the authority of HKSAR v Xu Mai Qing, CACC464/2005. 23.The offence of street deception has been observed by the court in HKSAR v Huang Yu Huan [2002] 2 HKC 682 at page 686, and I quote,
24.These observations could equally apply to deceptions carried out over the telephone. The consequence to this victim is equally serious. One obvious difference, however, is that where street deceptions are well-planned and staged, these phone deceptions are likely to be random cold calling. 25.Defence counsel has asked the court to take into account the amount involved, which I will. HK$77,000 is not an insignificant sum of money. 26.The defendant’s role is also a factor I will consider. There is no evidence he was the mastermind. His role may have only been to come into Hong Kong and await instructions to collect money. He may only be a cog in this scheme, but often devious schemes do not succeed without the cog’s co-operation and acting according to instructions. 27.I am satisfied here that a custodial sentence is very appropriate. Defence counsel suggests an 18 month to 2 year starting point. With respect, that is not a starting point that fully reflects the gravity of the facts of this case. 28.However, after considering the mitigation put forward, the facts of the case, the role of the defendant, and the amount involved, I find a starting point of 2 years and 6 months is appropriate. The defendant is entitled to a discount of one-third for his plea. 29.Accordingly, you are sentenced for this charge to 1 year and 8 months’ imprisonment.
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