HKSAR v. Chen Bingkun

DCCC10/2011

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 10 OF 2011

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Reasons for Sentence

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1.Defendant, you have pleaded guilty to nine offences of theft, each contrary to section 9 of the Theft Ordinance, Cap.210.

2.You admitted the facts and I convicted you.

3.The facts were as follows.

4.You are from the Mainland. You came to Hong Kong and you committed these offences.

Charge 1

5.At about 6.50 pm on 9 April 2010 you went to the Hong Kong Exchange, a money exchange shop in the Cameron Centre, Chatham Road, Tsim Sha Tsui.

6.You requested to change Hong Kong dollars to Renminbi and handed a pile of notes to PW1. PW1 counted the notes and found them to be $49,000. You then said you had changed your mind and PW1 returned the money to you. You then gave it back to PW1 but again requested the return.

7.This was repeated on several occasions. You, without the knowledge of PW1, removed some notes. Eventually, PW1 gave you RMB41,900, believing the pile of notes to be the same as the amount he had counted.

8.Subsequently, this was found only to be $10,000 after you left. The exchange had lost $39,000.

Charge 2

9.On 18 April 2010 at about 12.15 pm you entered China & HK Renminbi Exchange Company at 73 Fau Tsoi Street, Yuen Long.

10.You asked to exchange Hong Kong dollars for US dollars. PW2 counted the money that you passed over to him and it was $55,000. You then used the usual method as in Charge 1 to remove notes. You then said you changed your mind and requested Renminbi. Therefore, PW2 paid you RMB47,877.

11.After you left, it was found there was only $20,000. Thus, there was a loss of $35,000.

Charge 3

12.At about 10.15 am on 24 April 2010 you went to the International Money Exchange at No. 65A, Java Road, North Point.

13.You requested to exchange Hong Kong dollars for Renminbi and handed PW3 some bank notes. PW3 found this to be HK$54,500. You employed the same method to remove notes from the pile. PW2 gave you RMB47,524. You left the premises.

14.Subsequently, he found there to be only HK$25,000. The shop had lost $29,000.

Charge 4

15.At about 7 pm on 1 August 2010, you entered the Hoi Suen Money Exchange at Grandmark, 8A-10 Granville Road, Tsim Sha Tsui.

16.You handed PW4 $54,000. You used the same ruse to remove notes. Eventually PW4 gave you RMB46,764.

17.After you left, it was found there was only $24,000. The victim had lost $30,000.

Charge 5

18.At about 11.30 am on 2 August of last year, you went to the Kong Fung Exchange Company at 29 Kwun Tong Plaza.

19.You requested to exchange HK$50,800 to Renminbi. Using the usual method, you removed notes from the pile. PW5 gave you RMB44,000. You left.

20.It was found that there was only HK$9,800. The shop had lost $41,000.

Charge 6

21.At about 1.50 pm on 25 August last, you went to the Yip Hing RMB Exchange at Lucky Commercial Centre, 103 Des Voeux Road West.

22.You requested to exchange Hong Kong dollars for Renminbi and gave $79,000 to PW7. You complained about the exchange rate and took the money back. Again, you removed some notes. You returned what was left to PW7 to exchange and received RMB68,769, and you then left.

23.It was found there was only HK$19,000. The victim had lost $60,000.

Charge 7

24.At about 4.30 pm on 21 October last, you entered Lucky Renminbi Exchange at Nan Fung Centre, 264-298 Castle Peak Road.

25.You asked to exchange Hong Kong dollars to Renminbi and gave PW8 HK$70,000. PW8 placed the notes on the table and you placed your rucksack next to that. You then removed some of the notes. PW8 gave you RMB59,360.

26.Later, it was found there was only HK$10,000. The company had lost $60,000.

Charge 8

27.At about 3.55 pm on 23 October 2010 you entered the Luen Hing Jewellery Company at I-Feng Mansion, 237A To Kwa Wan Road, Kowloon.

28.You requested to change Hong Kong dollars to Renminbi and handed PW9 HK$72,000. Using your usual method, you extracted some notes. You then received RMB61,056 and left.

29.Later, it was found to be only HK$15,000. The victim had lost $57,000.

Charge 9

30.At about 12.37 pm on 3 November 2010 you went to Safety Foreign Exchange Company at Kung Shing House, No. 60

Wo Yi Hop Road, Kwai Chung.

31.You asked to change Hong Kong dollars for Renminbi and handed PW11 $47,000. You used your usual method to remove some notes. PW11 gave you RMB39,950 and you left.

32.It was found there was only HK$15,000. The shop had lost $32,000.

33.In a video-recorded interview after arrest, you admitted offences 4, 5, 7, 8 and 9. You admitted to two previous convictions, one of which was similar.

34.Mr Siu, on behalf of the prosecution, made an application for enhancement of sentence in accordance with the provisions of section 27(2) of the Organised and Serious Crimes Ordinance, Cap.455.

35.In support of this, he produced two statements from DSIP Kan Cho-siu, Simon, showing the numbers of money-swopping thefts for the years 2007 to 2010 inclusive. The supplemental statement related to 2009 and 2010, and broke down the figures into retail shop and money exchange outlets.

36.The overall figure showed that in 2007, there were

36 cases of this type, then a dramatic increase in 2008 to 91; a further dramatic increase in 2009 to 152; and a slight reduction in 2010 to 114.

37.With respect to Mr Chan who opposed enhancement, it is my finding that it was the offence itself, not the venue, that is in importance here. I can find it of little significance whether the offence occurred in a retail outlet or a money exchange outlet; it is the same offence.

38.I was referred to the case of HKSAR v Xu Mai Qing, CACC464/2005. In that case, the Court of Appeal held that while the number of cases had decreased from its peak, that type of offence was still widespread and commonly being practised, that section 27(2) of OSCO requires the prosecution to prove its prevalence, not simply an increase in numbers.

39.Taking into account the statements that were produced to me, this authority, and the addresses by Mr Siu and Mr Chan, I came to the conclusion that so-called money-swopping cases are prevalent and widespread.

40.The figures produced before me are eloquent to this fact, and I am, therefore, of the opinion that enhancement is entirely justified and the prosecution has discharged its evidential burden. The enhancement will be one of 25 per cent.

41.Mr Chan, on your behalf, entered mitigation.

42.He told me that you are 41 years old, married with four children, their ages ranging from 12 to 18. In the Mainland, you are employed as a casual construction worker and also you raise pigs, making a total income of just over RMB3,000 per month.

43.Mr Chan said you were very remorseful and offered your apologies. You hope to be released as soon as possible.

44.He also told me that you were found in possession of HK$54,000 and RMB39,950, and offered it by way of compensation to the victims. This is a demonstration of your remorse.

45.Despite the amount shown in the charges, the actual loss was HK$390,950. This was agreed by all parties.

The sentence itself

46.These were well-executed and well-planned offences using a modus operandus that was simple yet effective. You had demonstrated greed, persistence and guile in changing your location.

47.Your total ill-gotten gains were substantial, with about one-third having been recovered and offered by way of compensation.

48.I have taken into account fully that offer of compensation in setting the sentence, as indeed I have taken into account the mitigation advanced and the facts of each case.

49.I have also applied the principle of totality to give what I believe to be a proper overall sentence.

50.I take as a starting point in each case 12 months’ imprisonment.

51.That will be reduced to 8 months for your plea of guilty, but in each case that will be enhanced by 25 per cent to 10 months.

52.On Charges 1 to 3, you will go to prison for 10 months on each, consecutive; a total of 30 months.

53.Applying the principle of totality in respect of Charges 4 to 9, you will go to prison for 10 months on each, concurrent with each other and concurrent with the 30 months on Charges 1 to 3.

54.That is a total of 30 months’ imprisonment.