HKSAR v. Deng Yongqiang

DCCC 1134/2010

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 1134 OF 2010

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REASONS FOR SENTENCE

1.The Defendant has pleaded guilty to 4 offences. These are paired offences of conspiracy to defraud, contrary to common law and punishable under Section 159C(6) of the Crimes Ordinance, Cap. 200 (Charges 1 and 3 on the indictment), and conspiracy to deal with property known or reasonably believed to represent proceeds of an indictable offence, contrary to Sections 25(1) and (3) of the Organized and Serious Crimes Ordinance, Cap. 455 and Sections 159A and 159C of the Crimes Ordinance, Cap. 200 (Charges 2 and 4 on the indictment).

2.PW1, Mr. Yee, is a retiree aged 71 years and living alone at a flat in Tai Koo Shing, in Quarry Bay, He has attained primary education. At about 10.40 a.m. on 12^th August, 2010, when he was at home, he received on his land line telephone a phone call from an unknown male that his i.e. PW1's son was detained because of a debt and a ransom of HK$250,000 was demanded for the release of his son. PW1 could hear in the background a voice sounding like that of his son crying for help and urging PW1 to ransom him.  PW1 believed that his son was being detained for ransom for a debt. PW1 was told to maintain contact by mobile phone and PW1 gave the male his mobile telephone number and the male rang off.  Subsequently, the male rang PW1's mobile phone and instructed him to withdraw HK$250,000 from the bank, and not to hang up the phone or his son would be beaten up. PW1 went to the bank and withdrew HK$250,000 from his bank account.  The male instructed PW1 to hand over the money at the King George V Memorial Park in Jordan.  PW1 took a taxi to the park and was directed to go to the entrance at Canton Road. When he reached there, he was asked to take a taxi to Kowloon Park. As he was approaching Kowloon Park,  he was asked to go back to the King George V Memorial Park, where the Defendant turned up and collected the money from PW1. The male was still on the phone with PW1 and after handing the money to the Defendant, PW1 asked the male where his son was and was told to take a taxi to Homantin.  PW1 called his son and asked him if he had been released and learned that his son had been working in his office all along and he, PW1, had been cheated (Charge 1). PW1 subsequently identified the Defendant in an identification parade to be the man who collected the money from him.

3.On the same day, shortly after receiving the money from PW1, the Defendant went to the Guoxing Renminbi Exchange Co. in Shanghai Street and remitted the money to two bank accounts in Mainland China (Charge 2).

4.PW2 was a 67 year old retired cleaning worker with 5 children, 2 sons and 3 daughters. Her sons lived apart from her. At 3p.m. on 13^th August, 2010,when she was alone at the home in Shaukeiwan, she received a phone call on her land line  from an unknown male who told her that her son had been detained by him and demanded she repay a debt of HK$200,000 for her son. A voice in the background pretending to be her son told her he had been captured by others and urged her to  bring money quickly to save him. PW2 believed that her younger son had been captured and was frightened. PW2 was instructed to withdraw money from her bank account immediately and the male said that he would call her mobile phone to keep in contact with her. She gave the male her mobile phone number. PW2 left her building  and as she was leaving,  she left a note with the caretaker of her building to call the police for her.  She then went to the bank, and at the bank, she gave a note to the bank staff to call the police for her. Soon, a woman police officer came to PW2 and gave her an envelope containing blank pay-in slips. PW2 put this into a red plastic bag and left the bank together with the police officer. Another police officer joined PW2 and they went together to the Queen Elizabeth Stadium in Wanchai as instructed to hand over the money. The police officer pretended to be PW2 and she was directed to go to the entrance  of a secondary school.  There, the Defendant turned up and approached the police officer pretending to be PW2 and asked the police officer to put the cash into his  shoulder bag.  His instructions were followed. The Defendant was immediately arrested and cautioned,  and the envelope with the blank pay-in slips recovered from the Defendant's bag. The Defendant's mobile phone was also seized. This is Charge 3. The Defendant was arrested and cautioned and under caution, he said he had only come to collect the money for someone and got very little from it.  When interviewed under caution,  the Defendant said he had come to Hong Kong on 9^th August, 2010 for the purpose of collecting money as instructed by a male named Ng. He had been instructed by Ng to go to the Queen Elizabeth Stadium to collect money, and after waiting for 3 hours, Ng told him to look for a female in a blue dress and collect money from her. He also admitted that he had collected HK$250,000  from an old man i.e. PW1, the day before  at the King George V Memorial Park in Jordan and had remitted all the money to 2 Mainland bank accounts. Ng had promised him a reward after collecting the money.  He did feel suspicious about the arrangements but agreed to do so because he needed the money. The Defendant led the police to Guoxing where the two remittance receipts were seized.

5.The Defendant now admits Charge 4, conspiracy to deal with property known or reasonably believed to represent proceeds of an indictable offence, namely the sum of HK$200,000, which was the sum he would have collected from PW2 as ransom for her son but for being intercepted by the police.

6.The Defendant is aged 24 years with a clear record. He is a Mainland resident and came to Hong Kong legally on 9^th August, 2010 on the strength of a PRC two way permit and was allowed to remain in Hong Kong for 7 days.  He has acquired education up to Middle 3 on the Mainland. He used to be a factory worker, but since 2008, he worked as an online games salesperson earning about 1,700 RmB each month inclusive of commission.   He had been recruited by Ng, a co-worker at the factory where the Defendant had worked, to come to Hong Kong to work for him for 1 week, to do whatever Ng instructed him to do and he would be paid 2,000 RmB.  Out of stupidity and greed, the Defendant agreed.

7.The Prosecution has applied for enhanced sentence under Section 27(2)(a) and (c) of the Organized & Serious Crimes Ordinance, Cap. 455 in respect of Charges 1 and 3.  Notice of their intention to do so was served on 28^th October, 2010.

8.The Prosecution has also served notice on the Defendant on 28^th October, 2010 pursuant to Section 27(5) of the Organized & Serious Crimes Ordinance, Cap. 455 of their intention to ask for a determination that the two offences, charges 2 and 4, were organized crime in that they related to the activities of two or more persons associated together solely or partly for the purpose of committing 2 or more acts, namely conspiracy to deal with property known or reasonably believed to represent proceeds of an indictable offence, a Schedule 1 offence, and involves substantial planning and organization.

9.In support of their application for an enhanced sentence,  I have before me the statement of CIP Chan Che-man. Defence Counsel did not seek to oppose the Prosecution application for an enhanced sentence in respect of Charges 1 and 3. Defence Counsel drew my attention to the recent decision of the Court of Appeal in  HKSAR v. Hung Yung Chun & Anor, CACC 453/2009, delivered on 10^th September, 2010. The Court of Appeal held that for offences of conspiracy to defraud involving telephone deception, on facts very similar to those before me, the appropriate sentence should be 4 years' imprisonment and the degree of enhancement one-third.  As revealed in the statement of CIP Chan,  the number of phone deception cases may appear to have been decreasing since its peak in 2006. However, the numbers remained at the 1,400 level in 2008 and 2009.  Adopting a straight-line projection, the final number for 2010 could still be about 1,400 cases.  I note that there is a steady increase in the value of stolen funds from 2007 to 2009.  In my view, there is clear and cogent evidence before me that phone deception is still widespread and is still commonly being practiced today.  It is a prevalent crime in Hong Kong.

10.The Prosecution also sought enhancement of sentence for Charges 1 and 3  pursuant to Section 27(2)(a) of the Organized & Serious Crimes Ordinance, Cap. 455,  seeking to furnish information of the nature and extent of any harm caused, directly or indirectly, to any person by the act in respect of which the Defendant has been convicted.  This aspect has not been dealt with by CIP Chan in his statement.  What he does furnish is information in respect of Section 27(2)(d)  and (e), which are not grounds put forward in the notice by the Prosecution. In my view, it is of no consequence. I  am satisfied beyond all reasonable doubt that Charges 1 and 3 are specified offences and they are prevalent offences . Given the role played by the Defendant, the amount involved and the overall circumstances, I grant the Prosecution’s application for enhancement of sentence in respect of Charges 1 and 3.

11.In respect of the Prosecution     application for a determination  pursuant to Section 27(4) of the Organized & Serious Crimes Ordinance, Cap. 455,  that Charges 2 and 4, being specified offences, was organized crime in that they related to the activities of 2 or more persons associated together solely or partly for the purpose of committing 2 or more acts, namely conspiracy to deal with property known or reasonably believed to represent proceeds of an indictable offence, a Schedule 1 offence, and involves substantial planning and organization.  I find I am unable to make such a determination on the evidence before me – there is little evidence of the ‘substantial planning’ or ‘organization’ involved.

12.Charges 1 and 3 are obviously serious offences involving the duping of elderly persons. They were all targeted by telephone calls to their homes. Large sums of money were demanded from them. I have no reason to believe that these would not have been substantial sums of money and would have caused financial hardship to the victims.  They also involve allegations or claims that their children had been detained. This would cause considerable distress and fear and upset to the victims.

13.I bear in mind the Defendant’s role – he was there to collect the money and remit the money so he was an important member of the conspiracy and without him, it could not have been brought to completion. The only mitigation of weight before me really are his pleas of guilty.

14.In respect of Charges 1 and  3, on each charge, 1 take as a starting point 4 years’ imprisonment, discount this by one-third to reflect his pleas, which would make it 32 months, and then enhance the sentence by one-third  which would be 10.66 months, which I will round off to 10 months. So on Charges 1 and 3, on each charge he is sentenced to 42 months’ imprisonment.

15.In respect of Charges 2 and 4, on each charge,  I take as a starting 3 years’ imprisonment, discount it by one-third to reflect the pleas of guilty and sentence the Defendant to 2 years’ imprisonment on each of charges 2 and 4.

16.In the present case, the criminal conduct in Charges 2 and 4 are factually part and parcel of Charges 1 and 3 respectively. As I have said, these are paired offences,  Charges 1 and 2 being one pair, and Charges 3 and 4 being a second pair.  I shall order that the sentences for Charges 1 and 2 be concurrent, and that for Charges 3 and 4 be concurrent.  But they are separate and distinct pairs of offences and warrant consecutive sentences.   However, I do bear in mind the totality principle of sentence.  I shall order that  12 months of the sentence for charges 3 and 4 be served consecutively to that of charges 1 and 2, and the rest be concurrent – that is a total of 54 months or 4 ½ years’ imprisonment.