HKSAR v. Yang Chia Cheng and Another

CACC 367/2009

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 367 OF 2009

(ON APPEAL FROM DCCC NO. 502 OF 2009)

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BETWEEN

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Coram : Hon Tang Ag CJHC, Hon Yeung JA and Hon Yuen JA in Court

Date of Hearing and Judgment on Application for Leave to Appeal against Conviction : 10December 2010

Date of Handing Down Judgment : 11 January 2011

JUDGMENT

Hon Yeung JA (giving the judgment of the Court):

Background

1.This case involved a number of telephone deceptions and there were a total of 4 victims. What happened to the victims in these deceptions was similar.  Each of them received a telephone call and heard a person crying for help on the phone and that person claimed to be his or her son.  Then another person said that the son of that victim owed him a large amount of money and demanded that the victim pay a sum of money (the sum paid by each victim was not the same) to secure the release of his or her son.

2.For these incidents, the two applicants faced a series of charges.  Charges 1, 3, 5 and 7, which were conspiracies to defraud, and charges 2, 4, 6 and 8, which were conspiracies to commit “money-laundering”, were against the 1^st applicant Yang Chia-cheng; while the 2^nd applicant Pan Jung-wen was only charged with charge 7, conspiracy to defraud and charge 8, conspiracy to commit “money-laundering”. The conspiracies to commit “money-laundering” were alternative charges to the conspiracies to defraud.

3.The two applicants pleaded not guilty and were tried before Deputy District Judge Johnny Chan.  On 30 September 2009, the learned judge convicted Yang of the conspiracy to defraud charges 1, 3, 5 and 7; and charge 7, the conspiracy to defraud against Pan was also established.  It was not necessary for the learned judge to give his verdict as to the alternative conspiracy to commit “money-laundering” charges.

4.The two applicants were sentenced to 57 months for each charge, and it was ordered that 8 months from each of charges 3, 5, 7, which were against Yang, were to run consecutively to the 57 months for charge 1.

5.The total term of imprisonment for Yang was 81 months, and that for Pan was 57 months.

6.Yang applied for leave to appeal against both conviction and sentence, while Pan applied for leave to appeal against sentence only.  After hearing, we dismissed Yang’s application concerning his conviction, but reserved our judgment in respect of their applications regarding their sentences.  The reasons for our dismissing Yang’s application concerning his conviction and our judgment about their applications regarding their sentences are set out below.

Prosecution case

7.There was no dispute over the prosecution case; indeed, it was presented to the court by way of admitted facts.

8.The victim of the 1^st charge conspiracy to defraud was Madam Wong, who was 50 years of age.  On 25 March 2009, Madam Wong received a telephone call.  A man, who claimed to be her son, cried for help on the phone.  Immediately after that was the voice of another man, who told her that her son owed them $200,000 and he demanded money from her.  She said she had $40,000 only.  Then the man pressed her to go to the bank at once to withdraw cash.  He also obtained the mobile phone number of Madam Wong.  He telephoned to Madam Wong and told her that she had to maintain telephone communication with him at all times.

9.Madam Wong managed to raise $40,000 and went to the junction of Canton Road and Saigon Street as instructed.  At that time, Yang went up to her and she, acting on instructions coming from the telephone, handed the $40,000 to Yang.  Subsequently, Madam Wong realized that she was deceived.  Her son had never called her for help.

10.The victim of the 3^rd charge conspiracy to defraud was Madam Ko, who was 67 years of age.  On 30 March 2009, Madam Ko received a telephone call.  A man, who claimed to be her son, cried for help. Thereupon, another man took over the phone and told her that her son was detained by him, and he demanded a ransom of $200,000.  Madam Ko said that she had only $20,000.  The man agreed.  He obtained Madam Ko’s telephone number, called her and told her not to ring off. Then Madam Ko went to the Mira Hotel in Tsimshatsui as instructed and handed $20,000 to Yang.  Later, the man who called Madam Ko earlier called again and demanded $50,000 more.  At that time, Madam Ko already knew that his son had never been detained and that she was deceived.

11.The victim of the 5^th charge was Mr. Lau, who was 58 years old.  On 31 March 2009, Mr. Lau received a telephone call.  A man, who claimed to be his son, cried out loudly for help.  Another man then took over the phone.  He said that Mr. Lau’s son was a guarantor of some debts and that he was being detained.  The man told Mr. Lau to pay $80,000, otherwise his son’s hand would be chopped off.  After bargaining, the man agreed to accept $60,000.  He told Mr. Lau to maintain telephone communication with him at all times through the mobile phone.  Mr. Lau went to the fire station in Tsimshatsui as instructed, and handed $60,000 to Yang outside the fire station.  Later, Mr. Lam found out that he was deceived.

12.The victims of the 7^th charge conspiracy to defraud were Mr. Chow and his wife.  At the material time, a friend of theirs Madam Xu came to visit them from the Mainland and stayed at their flat in Mongkok.

13.On 3 April 2009, Madam Xu received a phone call and heard a man cried for help.  She asked him whether he was the younger son “Lo Lo” of Mr. and Mrs. Chow.  The man who cried for help answered in the affirmative.  Immediately after that, another man spoke on the phone and said that “Lo Lo” owed him $200,000 and so was detained by him.  Madam Xu immediately told Mr. Chow about this.  Mr. and Mrs. Chow returned home and talked with the man who demanded payment.  The man demanded that Mr. Chow pay $200,000 to exchange for the release of their son. After bargaining, it was agreed that the ransom would be reduced to $50,000. The man instructed Mr. Chow to withdraw cash from the bank and told him to maintain telephone communication with him.  When all these were going on, Mr. Chow somehow learnt that both of his two sons were safe and sound and then he made a report to the police.

14.Later, Mr. Chow, acting on instructions he received, first went to a certain place on Ferry Street near a signboard with the characters “Lap Sing [transliteration of 立勝] Removal Company”; but he went there in the company of police officers.  After a while, he was further instructed to dump an envelope with banknotes inside into a rubbish bin which was in the vicinity. He did as instructed.  At that moment, Yang was close by.  He picked up the envelope at once, walked away hurriedly and was arrested.  The police officers searched Yang and found on him a telephone, inside which there was an Easy Own（神州行）SIM card, numbered 13672654313.  All the money was recovered.

15.At the same time, the police also arrested Pan and found two mobile phones on his person, with one SIM card in each of them.  One of the cards showed that the number of the last outgoing call made was the number of the phone found on Yang.

16.Yang had been interviewed by police officers on a number of occasions on a voluntary basis.  He admitted that he and Pan came here together to collect money.  He stated that “Ah Hung” [transliteration of 阿鴻] told him to collect gambling money for placing bets on Mark Six and soccer matches.  The clients worried that their gambling activities might be discovered, so they did not pay by bank transfer, but asked them to collect the money at designated places instead.

17.Yang said that he came to know Pan through the introduction made by “Ah Hung” in Zhuhai.  The purpose of their coming to Hong Kong was to collect money and bring it to Zhuhai.  He said Pan telephoned him and told him to go to the rubbish bin to pick up a paper bag, and as a result he was arrested.

18.Yang admitted that before he was arrested he had on 3 occasions, acting on the instructions of “Ah Man” [transliteration of 阿文]， received money from some victims and then handed the money to “Ah Man”.

19.According to Yang, the telephone of the number 13672654313 was provided by “Ah Hung”.  When he and “Ah Man” went to collect money, he would hold this phone in his hand for [using it to] communicate with “Ah Man”.

20.Yang also told the police officers that he felt that the money was not gambling money, because he had come to Hong Kong to collect money for “Ah Hung” twice before and “Ah Hung” had told him that the monies were proceeds from deceptions.  It was not the case that what he needed to do was only to go to designated places in Hong Kong to collect money. 

21.Yang further stated that the accomplices of “Ah Hung” included “Shek Tau” [transliteration of 石頭] and “Ah Lung” [transliteration of 阿龍]。 Both of them were Taiwanese.  Each time, “Ah Hung” directed him and “Ah Man” through a mobile telephone to go by boat to Hong Kong to collect money.  After they collected the money, they returned to Zhuhai and handed it to “Ah Hung”.

22.Yang said that “Ah Hung” would give him reward, but there was no fixed amount.  How much it was was decided by “Ah Hung”.

Grounds of defence

23.Yang admitted that he had on 3 occasions obtained money from the victims, and on the occasion on which he was arrested, he had the intention to do that; but he argued that he did not know that the monies were proceeds from deceptions.

24.The evidence he gave was that he went to Zhuhai to work on the strength of an Entry Permit for Taiwan Residents, and came to know “Ah Hung”.  He said that he trusted “Ah Hung” and had come to Hong Kong 4 times on behalf of him to collect gambling money for placing bets on Mark Six and soccer matches.

25.Yang explained that after he collected money the second time, he felt suspicious because during both these two times the people who handed him the money were elderly ladies.  He asked “Ah Hung” about that and indicated to him that if the monies were proceeds from deceptions, he would not take part any more in the arrangement of coming to Hong Kong to collect money.  “Ah Hung” told him that the monies were not proceeds from deceptions.  Having considered how the monies were collected, he believed that they were not proceeds from deceptions, so he agreed to continue with his cooperation with “Ah Hung”.

26.Yang said that he allowed his intelligence be blinded by his desire to earn money, so he did not examine closely whether the monies were proceeds from deceptions.  He stated that he only 80% believed “Ah Hung”’s words, and that each time after he collected the monies, he would receive 1,000 dollars/yuan to 2,000 dollars/yuan as his reward.

27.Yang stressed that if he had known that the monies were proceeds from deceptions, he would not have agreed to go to collect the monies for such meagre rewards.  He said that the “Ah Man” he mentioned during the interviews with the police officers was not Pan Jung Wen, but was another person.

28.Yang had told the police officers that “Ah Hung” had told him that the monies were proceeds from deceptions.  His explanation of his doing so was that he just wanted to tell the truth to the police.  However, in fact he 80% believed “Ah Hung”’s statement that the monies were not proceeds from deceptions.

29.Yang said that he had asked “Ah Hung” why he did not come to Hong Kong himself to collect the monies, but “Ah Hung” just spoke equivocally and did not answer the question directly.

30.Yang explained that “Ah Hung” had once said that the monies were proceeds from deceptions, but later he withdrew this remark and said that the monies were not proceeds from any deception.  Yang believed what he said because the monies were not collected in any tricky way.  Yang admitted that he let his intelligence be blinded by his desire to earn money and did not examine closely to confirm whether the monies were proceeds from deceptions.  He admitted that when he went to collect money on the fourth occasion, [he] picked up the money from a litter bin.  He thus realized that the money was come by as a result of deception, because to put the money in the litter bin was a kind of trick. However, he denied that during all the 4 times of his coming to Hong Kong to collect money he knew that the monies were proceeds from deceptions.

Findings made by the trial judge

31.The learned judge had considered and analysed what Yang said when he was interviewed by the police officers and what he said in evidence.  The learned judge found that his explanation was unbelievable, unreliable and untrue.

32.The learned judge carefully set out the version of facts given by Yang and explained why his explanation was not convincing.

33.The learned judge pointed out that when Yang was asked about what role he played in these deceptions, he answered that “Ah Hung” was the mastermind in these deceptions and that he and “Ah Man” came to Hong Kong to collect money on his instructions.  The learned judge stressed that in view of Madam Ko’s age, Yang could not possibly believe that the money received from her was gambling money for Mark Six or soccer matches, and that the way in which he collected the money was inconsistent with his story that the money was gambling money.

34.The learned judge found that Yang knew what was really going on behind these money-collecting arrangements and was also aware of how the deceptions operated.  The learned judge found that the applicant was a voluntary participant in the deceptions, not someone who, ignorant of the truth of the matter, was made use of.  He therefore convicted Yang of all the 4 charges of conspiracy to defraud.

Grounds of Appeal

35.Yang complained that the guilty verdicts were not supported by evidence and were the result of pure speculation.  He explained that the statement “[I] knew that the monies were proceeds from deceptions” which he uttered to the police officers was an honest statement, but that when he gave evidence, he had explained in detail how come he would utter this statement and everything that happened in relation to this statement.

36.Yang emphatically asked this question: “Would anyone who broke the law be so stupid as to confess his crime on his own initiative?” He said that if he had really known the truth, he would have pleaded guilty at the outset in order to obtain the one third discount on his sentence.

37.Yang submitted that no victim had ever asked him any question, therefore the argument —— he, being a character on the front line charged with the task of collecting money, necessarily knew what was going on, otherwise if any victim asked him anything about what happened, he would not know how to answer —— was not convincing.

Discussion about conviction

38.The undisputed evidence showed that the deceptions practised on 3 out of the 4 victims were successful.  Judging from the modus operandi, it is certain that some people conspired together to take advantage of the victims’ concern for the safety of their sons to deceive them into giving them as much money as possible.

39.On each occasion, Yang was responsible for collecting money from the victim concerned. The issue is that when he was playing his role as the money collector, did he know that the monies he was to collect were proceeds from the deceptions.  If he knew that the monies he was to collect were proceeds from the deceptions, then he certainly was a participant in the conspiracies.

40.Yang claimed that he was misled into believing that the monies he was to collect were for placing bets on Mark Six and soccer matches.

41.Taking into account the identities of the victims and the way in which they handed over the money, we find that the case advanced by Yang is devoid of any force of persuasion. By such a story, he can only delude himself.  Furthermore, when he was being interviewed, he clearly said he knew that the monies were proceeds from deceptions.

42.Even if Yang did not make this confession, the only reasonable inference that can be drawn from the facts and the undisputed evidence of this case is that he was aware that the monies were proceeds from the deceptions.  This inference is of course strengthened by his confession.

43.We do not see there is anything unsafe in convicting Yang of the conspiracy to defraud charges.  We dismiss his application for leave to appeal against conviction.

Sentencing

44.Both applicants are residents of Taiwan and have no criminal record in Hong Kong. However, both have a history of drug addiction.

45.When sentencing the applicants, the learned judge emphasized that the purpose of the swindlers was to swindle the victims out of their life savings by deceiving them into believing that they had to use their money in exchange for the safety of their sons.  They committed the crimes by playing a mean trick on the victims.  Such conduct was tantamount to blackmail and intense fear was stricken into the hearts of the victims.

46.The learned judge considered that the crimes of the two applicants were more serious than street deceptions because the victims suffered greater agonies in the course of their crimes as a result of the threats they experienced.

47.The learned judge used 40 months as the starting point for each individual charge.  The two applicants accepted the evidence of the victims, so that the victims did not need to go to court to give evidence.  For this, the starting point was reduced to 38 months.

48.The learned judge granted the application made by the prosecution and, by reason of the prevalence of the crimes, enhanced the sentences by 50% pursuant to the Organized and Serious Crimes Ordinance, arriving at the term of 57 months for each charge.

49.As far as Yang is concerned, the learned judge pointed out that different victims were involved in charges 1, 3, 5 and 7 and the crimes occurred on different days. Having considered the totality principle, he ordered that for each of the charges after the first charge, Yang was to be imprisoned for 8 months more.

50.Accordingly, Yang was sentenced to 81 months’ imprisonment in total, and Pan was 57 months.

Grounds of appeal against sentence

51.Yang asserted that he had, on his own initiative, provided information to the police to enable them to arrest other people who perpetrated these crimes.

52.Yang argued that any conspiracy necessarily meant that there was premeditated commission of offences and that in many commercial fraud cases large amounts of money were involved, but these factors did not lead to enhancement of the sentences.  Yang maintained that there was no evidence which showed that he was the person who threatened the victims, so this should not be the reason for giving him a heavy sentence.  Yang further submitted that the Government of Hong Kong should give a great deal of publicity to this kind of deception, so that the prevalence of these crimes could be checked, rather than severely punish people who did not know the truth for the wrongdoing of somebody else.  He also said there were similar cases in which the sentences passed were lighter than those he received.  For these reason, he asked for a chance to have his sentences reduced.

53.As for Pan, he stressed that he just gave help by receiving some phone calls, and that because he wanted to do business, he was made use of.  He submitted that he had a clear record and gained no benefit in these activities, but that his sentence of 57 months was heavier than the sentences passed in similar cases.  Pan also pleaded for reduction of his sentence.

Discussion about sentence

54.We agreed with the views held by the learned judge, i.e. the crimes committed by the two applicants are very serious.  They took advantage of the victims’ love towards their children and threatened them with the likelihood that harm would be done to their children.  The targets of these swindlers were members of the underprivileged class, and their purpose was to squeeze as much money out of them as possible.

55.Even though it can be said that the amount of money which the swindlers ultimately obtained was less than that involved in other commercial fraud cases, the money could be the life savings of the victims built up through years of their hard work.

56.Both applicants were adamant that the roles they played in these crimes were not major ones and that they were made use of by somebody.  In any conspiracy case, the people participate in it have different roles to play.  They are like acting in a play.  Other people will never know what really went on backstage, but everyone of them does participate in the crime and not one of them can be dispensed with.  The fact that the roles played by the applicants were not major ones is not a mitigating factor. 

57.The crimes committed by the two applicants have done great harm to the victims and to the society as a whole.  Heavy sentence must be imposed to deter anyone from committing these crimes.  Yang’s claim that he was a scapegoat being punished for the wrongdoing of somebody else is simply incredible.

58.None of the applicants is a local resident.  Their sole purpose of coming to Hong Kong was to commit the crimes.  If they had been successful, to track them down would have to surmount immense difficulties.  This factor warrants additional punishment for them.

59.Information shows that telephone deceptions are prevalent and the number of these cases is on the increase.  The learned judge is justified and correct in granting the prosecution’s application and enhancing their sentences by 50% pursuant to the Organized and Serious Crimes Ordinance.

60.We endorse the learned judge’s conclusion that the telephone deceptions committed by the two applicants are more serious than the common street deceptions.  Usually the victims in the street deceptions fell prey to the evildoers because of their own greed, superstition or stupidity.  This kind of victims are not too many in number and since street deceptions are committed in public places, there can be eyewitnesses and so there will be more chances to crack these cases.  These two applicants deceived the victims by taking advantage of the victims’ concern for the safety of their sons.  There is an element of blackmail in their conduct. People who are not greedy, superstitious or stupid might also be deceived.  The two applicants committed their crimes in such a way that the victims were overcome by fear, and by making the victims maintain telephone communication with them, they created formidable obstacles to any attempt to find out the truth.

61.In HKSAR v. Hung Yung Chun and another (CACC 453/2009), this court stated that the culpability in telephone deception cases was more serious than that in street deception cases, and that a higher starting point should be adopted.  In fact, it was held in that case that the starting point for telephone deception should be 4 years, which is higher than the 40 months used by the learned judge in this case.

62.The court certainly should also take into account the totality principle.  In Hung Yung Chun, the percentage by which the court enhanced the sentences pursuant to the Organized and Serious Crimes Ordinance was only 30%, while the learned judge enhanced the sentence by 50%.  However, if the starting point is 4 years, then the sentence arrived at after enhancing it by one third is 64 months, which is more than the 60 months arrived at by the learned judge by adopting a 40 months’ starting point and then enhancing it by 50%.

63.The two applicants admitted most of the prosecution case so that the victims did not need to go to court to give evidence and was spared the agony of having to go through and bring up again their unhappy experiences.  The learned judge was correct in deducting 2 months from the starting point.

64.Encouraged by his success in the deceptions, Yang broke the law 4 times within just a short period.  The learned judge was entitled to make him serve 8 more months for each charge other than the first one.

65.We find that the ultimate sentences imposed by the learned judge on the two applicants are appropriate and not manifestly excessive.  Therefore, there is no room for any reduction. We dismiss the applicants’ application for leave to appeal against sentence.

Ms. Lily Wong, Senior Public Prosecutor of the Department of Justice, for the Respondent.

The 1^st Applicant, acting in person, present.

The 2^nd Applicant, acting in person, present.

Translated by the Judgment Translation Unit of the Judiciary and approved by Mr. P. Y. Lo, Barrister-at-law.