HKSAR v. Xu Fuzhao

DCCC921/2011

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 921 OF 2011

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Reasons for Sentence

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1.The defendant in this case has pleaded guilty to an offence of conspiracy between 25 June of this year and 28 June with a person known as Ah Chan to deal with property known or reasonably believed to represent the proceeds of an indictable offence, contrary to section 25(1) and (3) of the Organised and Serious Crimes Ordinance, Chapter 455 and sections 159A and 159C of the Crimes Ordinance, Chapter 200, Laws of Hong Kong.

2.The plea of guilty, however, was entered at a late stage of the proceedings, only after this court ruled admissible a post-recording of a verbal admission that the defendant made at the time of his arrest together with a record of interview containing admissions pursuant to voir dire proceedings.  I do not propose therefore to afford the defendant the benefit of the full one-third discount in sentence, but his plea will attract some discount.

3.The facts which the defendant now accepts pursuant to his plea are consistent with what has colloquially been termed a telephone scam.  The victim in this case, who was not called to testify due to comprehensive admitted facts being produced, received a telephone call at her home with a male voice shouting, “Mother, someone has captured me.  Someone is hitting me now.  You have to save me.”

4.The victim was clearly concerned as to her son’s safety and subsequently talked to another male on the line with a mainland accent.  He asked for her mobile phone number which she supplied.  He then telephoned her back, telling that he wanted money and her son would be released for HK$230,000.  The victim informed the man that she did not have such a sum, and eventually it was agreed that she would go to the bank and withdraw between thirty and forty thousand dollars.

5.The victim went to the bank but managed to alert the bank staff to the unwarranted demand, who called the police.  The police arrived shortly and mounted a sting operation whereby one officer posed as a taxi driver who was directed by the caller to a drop-off area at the Water Supplies Department in Argyle Street whilst a WPC travelling in the same car posed as the victim.

6.When the vehicle arrived at the drop-off area, the WPC took an envelope stuffed with leaflets and placed this as directed by the caller.  Almost as soon as the envelope had been placed as directed, the defendant appeared, took the envelope but was immediately apprehended.  He was arrested and cautioned and under caution said, “Ah Chan was the one who deceived the woman.  I only picked up the money.”

7.In the subsequent record of interview, the defendant said that he knew that Ah Chan would deceive a woman in such a way and demand a ransom, and that he agreed with Ah Chan that he would come to Hong Kong to pick up the ransom.  He received $1,000 on the night of the agreement and was promised a further $4,000 when he delivered the money to Ah Chan.

8.The defendant is 25 years of age and is a native of the mainland.  I am told that he is an advertising sales representative and has no previous criminal conviction. 

9.By way of mitigation, I am urged to take account of the fact that the defendant’s role was limited to simply picking up the money and that he played no part in the deception. 

10.Whilst the defendant has been convicted of conspiracy to money‑launder, the facts are consistent with a classic telephone scam.  In HKSAR v Hung Yung Chun CACC No. 453 of 2009, the Court of Appeal indicated that telephone scams are more serious than common street deceptions, and a higher starting point of 4 years’ imprisonment should be adopted. 

11.I do accept that the defendant’s role was limited to that of merely picking up what he believed to be the ransom moneys and that he took no part in the actual deception of the victim.  However, it is quite clear that the defendant was very well aware of the details of this scam and was perfectly prepared to go along with it.  This of course is an aggravating feature.

12.In addition to this, I find the circumstances of this case to be extremely serious.  There is an element of sophistication to this scam in which detailed planning was involved.  There is clearly also an international dimension to this.  Both of these matters I find to be additional aggravating features.

13.The prosecution have applied for an enhancement of sentence and to that end have submitted a notice under section 27(2) of the Organised and Serious Crimes Ordinance.  A statement has been furnished as to the prevalence of this type of offence, and from the information contained therein, I am satisfied to the required standard that such offences are indeed prevalent and note an increasing trend in their commission.

14.In the case of Hung Yung Chun that I have referred to earlier, the Court of Appeal approved a one-third enhancement of sentence but indicated that in the event of such telephone deception cases becoming even more prevalent, the court should increase the rate of enhancement.  Indeed, in a subsequent appeal, Yang Chia Cheng CACC No. 367 of 2009, the Court of Appeal took the view that a 50 per cent enhancement in cases of telephone deception cases was justified.

15.Taking everything into account, I adopt a starting point of 4 years’ imprisonment.  I will discount that sentence by 10 months’ imprisonment to take account of the defendant’s late plea of guilty, coming to 38 months’ imprisonment.  Due to the question of prevalence, I will enhance that sentence by 15 months which is slightly less than 40 per cent, coming to a total sentence of 53 months’ imprisonment in all.

16.As a final footnote, I would like to commend the police for the highly professional way in which they mounted this sting opinion which led to the successful arrest of this defendant.