HKSAR v. Wu Jianbing

[English Translation – 英譯本]
CACC 32/2011

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 32 OF 2011

(ON APPEAL FROM DCCC NO. 889 OF 2010)

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Before: Hon Yeung JA, Kwan JA and Chu JA in Court

Date of Hearing: 17 June 2011

Date of Judgment: 17 June 2011

Date of Reasons for Judgment: 28 June 2011

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REASONS FOR JUDGMENT

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Hon Chu JA giving the judgment of the Court:

1.The applicant pleaded guilty to four charges in the District Court. The first and fourth charges were conspiracy to deal with property known or believed to represent proceeds of an indictable offence (commonly known as “money laundering”), contrary to section 25(1) and (3) of the Organized and Serious Crimes Ordinance, Cap. 455 and sections 159A and 159C of the Crimes Ordinance, Cap. 200, Laws of Hong Kong. The second and third charges were dealing with property known or believed to represent proceeds of an indictable offence, contrary to section 25(1) and (3) of the Organized and Serious Crimes Ordinance, Cap. 455, Laws of Hong Kong.

2.On 28 December 2010, District Judge S.T. Poon, Acting Chief Judge of the District Court, sentenced the applicant to 42 months’ imprisonment on each charge, and ordered that 6 months of the sentence imposed on the fourth charge to be served consecutively with that on the third charge, the remainder to be served concurrently, i.e. making a total of 4 years’ imprisonment.

3.The applicant applied for leave to appeal against sentence. With no objection from the respondent, Yeung JA granted his application for leave to appeal on 15 April 2011.

Facts of the case

4.The four charges of the present case took place on 8, 9, 10 and 11 June 2010 respectively. The four victims concerned respectively received phone calls from unknown caller(s) who falsely represented to them that their family members were assaulted and detained as they owed money acting as guarantors for others. (The caller(s)) demanded money from them to repay the debts as a condition of their family members’ release. They were also instructed to deliver the money to designated locations for collection. The amounts in respect of the four charges are $200,000, $30,000, $20,000, and $60,000 respectively. As a matter of fact, family members of the victims were not indebted to others or detained.

5.When the victim of the fourth charge put an envelope containing $60,000 at the designated location as instructed, the applicant went to pick it up. He was later arrested by the police. In the cautioned interview, the applicant admitted that a man named Wai Gor (transliteration) asked him to come and work in Hong Kong. (He) also gave him $1,000 for his expenses and promised to give him 15% of the profit made as reward. He came to Hong Kong from Shenzhen on 7 June 2010. On the same day, and the following three days, he collected money at different locations acting on the phone instructions given by an unknown man. On 9 and 10 June 2010, he successfully collected $30,000 and $20,000 and remitted the amounts to an account in the Mainland. He had yet to receive his 15% reward when he was arrested.

6.The $200,000 and $60,000 in thefirst and fourth charges were not lost. However, the $30,000 and $20,000 in respect of the second and third charges could not be recovered.

Sentence imposed by the trial judge

7.The applicant was aged 25 years, a Mainland resident, who came to Hong Kong on a two-way permit. He claimed that his father suffered from disability in both legs and lost his ability to work. He committed the offences as he wanted to relieve the family’s burden.

8.The trial judge took the view that though the applicant’s role was limited to that of a “legman”, a deterrent sentence should still be imposed. He adopted a starting point of 4 years’ imprisonment on each charge, reduced it to 32 months’ imprisonment on account of the applicant’s plea of guilty, then enhanced it by one-third, i.e. 10 months, upon the application of the prosecution pursuant to the Organized and Serious Crimes Ordinance, resulting in 42 months’ imprisonment on each charge. Besides, the trial judge ordered that 6 months of the sentence imposed on the fourth charge to be served consecutively with that on the third charge, the remainder to be served concurrently, making a total of 4 years’ imprisonment.

Grounds of appeal

9.The applicant submitted that the sentences imposed were manifestly excessive. His grounds of appeal included: (1) he did not know the source of the money collected nor was there evidence in the case to show that he was aware of it; and (2) it was inappropriate for the trial judge to refer to HKSAR v Hung Yung Chun [2011] 2 HKLRD 167, because the charge therein was conspiracy to defraud, and the judge in that case did not accept the defendant’s claim that he had no knowledge. At the same time, the applicant referred the Court to HKSAR v Lam Chun Chung (transliteration), DCCC 1007/2010, arguing that the two cases were similar and the Court could make reference to the sentence imposed in that case.

Discussion

10.In Secretary for Justice v Wan Kwok Keung, CAAR 13/2010, this Court pointed out that “money laundering” was a serious offence. Generally, the sentence should mainly reflect the amount of “black money” laundered and not the benefit obtained by the defendant or others. Other factors relevant to sentencing included the number of offences, the duration, the degree to which the defendant participated in the offence involving “black money” and whether or not it was an organized and sophisticated crime etc. See paragraphs 12 to 14 of the judgment.

11.In Wan Kwok Keung, the defendant pleaded guilty to one charge of “money laundering” and one charge of bookmaking. The “black money’ involved in the case was from bets placed on illegal soccer gambling. The defendant had participated in “money laundering” for 7 years, and the amount involved was 14 million dollars. At the same time, he also participated in the bookmaking offence. On the other hand, the bookmaking offence was not well-organized, the money the defendant obtained was not huge either. The Court was of the view that the appropriate starting point adopted should not be lower than 4 years’ imprisonment even if the defendant was to be dealt with in a way most favourable to him.

12.Concerning the “money laundering” offence, the defendant was sentenced to 2 years and 6 months’ imprisonment, to be served concurrently with the 2 months’ imprisonment imposed on the other charge of bookmaking.

13.In the present case, the total amount involved was $310,000, and the four charges took place within a very short period of time. There was no evidence to show that the applicant participated directly in the offences in connection with the “black money”, nor was there evidence to prove the benefit he obtained. The respondent agreed that under such circumstances a starting point of 4 years’ imprisonment on each charge adopted by the trial judge was manifestly excessive; and took the view that 3 years’ imprisonment should be adopted as the starting point.

14.The Court took the view that judging from the amount of “black money” and the other circumstances in the present case, the appropriate starting point for each charge should be 3 years’ imprisonment. The applicant could be given one-third discount for his plea of guilty, the sentence was thus reduced to 24 months’ imprisonment. However, the sentence on each charge should be enhanced by one-third, i.e. 8 months, pursuant to the Organized and Serious Crimes Ordinance. Consequently, the sentence on each charge was 32 months’ imprisonment. Given the four charges involved four different kinds of crimes, part of the sentences should be served consecutively. Having considered the totality principle, the Court ordered that 6 months of the sentence imposed on the fourth charge to be served consecutively with that on the third charge. The total sentence imposed on the applicant is 38 months’ imprisonment.

Conclusion

15.The Court allowed the applicant’s appeal against sentence, substituted a term of 32 months’ imprisonment in relation to each charge; and ordered that 6 months of the sentence imposed on the fourth charge to be served consecutively with that on the third charge, and the remainder to be served concurrently, making a total of 38 months’ imprisonment.

The Applicant, in person, present

Mr. Eddie Sean, Senior Assistant Director of Public Prosecution of the Department of Justice, for the Respondent

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