HKSAR v. Xu Guohui and Another

DCCC 28/2013

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 28 OF 2013

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Reasons for Sentence

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1.Defendants, you have both pleaded guilty to a single offence of conspiracy 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, Cap. 455, and sections 159A and C of the Crimes Ordinance, Cap. 200.

2.You each admitted the brief facts and I convicted you.  Briefly what occurred is this.  At around 11 am on 20 November of last year, PW1, aged 63, received a phone call from an unknown male who was known as WP1 who claimed her son acted as guarantor and owed them $200,000. Wanted Person 1 demanded a ransom of $200,000 or they would kill him.  Over the phone another male was heard to shout for help from PW1.  PW1 gave Wanted Person 1 her mobile telephone number.  She then called her daughter, PW2, and confirmed that her brothers were safe and directed PW1’s mobile phone calls to her own phone. 

3.A while later she received a call from WP1 who demanded $200,000.  She pretended that she would withdraw it from the bank but instead reported the matter to the police.  Wanted Person 1 instructed PW2 to go to Olympic City II with the ransom.  This she did but she was accompanied by the police.  Upon arrival a WDPC, who was PW3, took over PW2’s role to deliver the money.  As per the instructions of Wanted Person 1, PW3 placed the brown envelope on the edge of a palm tree and walked away.  About 15 seconds letter, a DPC who was PW4 saw you both walk towards the palm.  Before reaching there you stopped and spoke together but he could not hear what was said.  You, D2, remained about 20 metres from the palm which was in your full view while you, D1, walked to the tree.  D2, you looked around in a nervous manner.  You, D1, picked up the envelope and concealed it under your armpit beneath your coat. You then rejoined D2 and together you walked to a nearby taxi rank.  You, D2, kept looking backwards.  You, D2, boarded first followed by you, D1.  Police then intervened and revealed their police identities.  Both of you tried to flee but were subdued.  D1, you threw the envelope to the ground.

4.Upon being arrested and cautioned you, D1, admitted that Ah Wai asked you to collect the cash and that you would receive 10 per cent.  You, D2, remained silent.

5.In a subsequent video-recorded interview under caution, D1, you said the following:-

You met Ah Wai in Toishan about two months ago. He invited you to collect money in Hong Kong and promised you 10 per cent. Ah Wai gave you HK$3,000 for travelling to Hong Kong. You came here with your cousin, D2, on 19 November of last year. On 20 November, Ah Wai called you and told you that a female would put an envelope at the palm tree area in Olympic City Phase II, it would contain $30,000 and you were to remit the money.

6.D2, in your video-recorded interview under caution, you basically denied knowledge of the offence but admitted being present. 

7.Both of you are of hitherto clear record in Hong Kong.  Mr Tracy made an application of enhancement of sentence in accordance with section 27(2) of the Organised and Serious Crimes Ordinance, Cap. 455.  The basis of that related to the prevalence of this type of offence and the harm it caused. With the agreement of both defendants’ lawyers, he read into evidence under the provisions of section 65B of the Criminal Procedure Ordinance Cap. 221 the edited statement of Woman Detective Senior Inspector Luk Pui-wan.  She gave evidence and provided evidence of the prevalence of telephone deception cases with special reference to drop-off cases.  

8.Both Mr Chan and Mr Tam for each of you respectively indicated they accepted this evidence and wished to say nothing. They further indicated that they did not oppose the application for enhancement.  In view of what was said, I ruled there were grounds for enhancement and that I would enhance the sentence accordingly.

9.D1, on your behalf Mr Chan entered mitigation. He told me that you are 21 years of age, single, educated to Form 2 and residing in a rural village in Guangdong with your parents.  Because of your low level of education, you had only managed to obtain manual jobs and prior to arrest had worked in Shenzhen earning some RMB2,000 per month.  However, since June of last year you had been laid-off.  Your parents are farmers and you had a brother and sister.  He described you as being of humble background.  He said that you were truly remorseful.  He has submitted that your part in the telephone deception was minor and that you had been fully cooperative after arrest.  Realistically he accepted that the offence was serious.  He produced a letter from you in which you expressed your remorse for what you had done and your gratitude to the police for teaching you such a good lesson. 

10.Mr Chan produced four sentencing authorities but referred to only one in any great detail.  That case was HKSAR v Mo Liuchun DCCC770/2011 in which my colleague, Her Honour Judge Anthea Pang, took a starting point of 2 years’ imprisonment in very similar circumstances. However, in that case she found no grounds for enhancement for reasons that she gave. 

11.Mr Tam then mitigated on behalf of you, D2.  He told me that you are 24 years of age, single and you were born in the mainland.  Since 2007 you had had various jobs, the last being as a kitchen worker.  Mr Tam confirmed that you, D1, are in fact the cousin of D2.  Also, D2, this is your first visit to Hong Kong.  He submitted that you were remorseful for the offence, that your role was minor, only as a legman and not a soldier.  He asked me to give you full credit for your plea of guilty and your clear record.

12.He referred me to the case of HKSAR v Wu Jianbing, CACC32/2011.  However, it seems to me that is a somewhat more serious case involving four charges and some $310,000.  In that case the Court of Appeal adopted a starting point of 3 years.  Mr Tam completed his mitigation by asking for leniency on your behalf.

13.I turn now to the sentence.  I note that you are both young men of hitherto clear records in Hong Kong.  Both of you have demonstrated your remorse by pleading guilty and accepting enhancement of sentence.  I also fully accept that on the evidence before the court you only played a minor role in the scheme, in fact no money was ever obtained from the victim.  A figure of $30,000 seems to be a figure which you expected to pick up for others.  You were but minor participants in the scheme, simply the men to pick up the money and ultimately the only ones to be caught and punished.  I note also that this is a conspiracy to deal with $30,000 and not the complete offence. I resolve that each of you should be dealt with in exactly the same way as you acted together, even allowing for the fact that it was physically you, D1, who picked up the money.

14.I take as a starting point in each case 21 months’ imprisonment.  Your pleas of guilty entitle you to one-third discount. You shall have that one-third, therefore the figure is 14 months’ imprisonment. 

15.I deem that the proper enhancement in this case should be 25 per cent, therefore the enhancement under section 27(2) of OSCO, as I have found the grounds to be fulfilled, makes a sentence of 17 months and 2 weeks.

16.I would like to thank counsel for their assistance in this case.