HKSAR v. Chen Jianchao

DCCC 288/2014

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 288 OF 2014

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Reasons for Sentence

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1.The defendant has been charged with two offences of conspiring to launder money. The first offence on the charge sheet was committed on 2 February 2014, and this involved a conspiracy to launder the proceeds of a deception case where an elderly lady, a lady in her 80s, was persuaded to hand over $230,000 to the defendant, and the second offence was committed between 2 and 5 February, involving the amount of $17,700.

2.The facts admitted by the defendant are that the victim in the first charge is a Miss Wong, PW1, she is aged 81 and lives alone in Chai Wan in Hong Kong.  She has a son who is aged 45, PW2.

3.At around 1.15 on the afternoon of 6 February this year, PW1 was at home alone when she received a telephone call on her landline from an unknown person.  I will refer to him as WP.  WP claimed that the victim’s son had been detained due to an outstanding debt and asked her to pay a ransom of $230,000 to secure his release.  As was entirely to be expected, PW1 was extremely scared about this situation and therefore, in that state, she agreed to proceed immediately to a nearby bank and withdraw cash.

4.PW1 was instructed that once having withdrawn the cash, she should wait outside the bank for someone to come along to collect it.  30 minutes later, PW1 proceeded to the Bank of East Asia in Chai Wan Road.  When she was dealing with the bank teller, Madam Wong Sau-lam - I will refer to her as PW3 - PW3 noticed that PW1 was behaving nervously, and she made inquiries of the victim, who disclosed what had happened and why she was there, and Madam Wong, the bank teller, assisted the victim to contact her son; and having confirmed the safety of her son, it was decided that they would make a report to the police, and soon afterwards, the police arrived at the bank, and they decided to mount an operation with the victim, and provided her with an envelope containing a bundle of papers as a dummy money bag.

5.PW1 took the dummy money bag and waited outside the bank.  At about 3 o’clock the defendant appeared and approached her.  He asked if she was Miss Wong, and she replied that she was.  He asked her if she had the money ready, the $230,000, and she replied yes, that she had.

6.The defendant was also in possession of a mobile phone which he passed to the victim, who recognised the caller over the phone as the wanted person.  The victim handed the dummy money bag over to the defendant, and without checking its contents, he put the money bag into his rucksack and made to leave.

7.It was at this juncture the police operation turned overt and the defendant was arrested.  The dummy money bag was recovered from the defendant’s rucksack, and also the mobile phone.

8.The defendant immediately admitted that he had been given $2,000 by a friend on the mainland for going to Hong Kong to collect money, and he would also be given a small part of the money he collected as reward.

9.In a subsequent record of interview he confirmed that he was recruited on the mainland to come to Hong Kong as a money collector, and the person who had introduced him to this scam was Chan King-fung.  Chan told him that his friends on the mainland would make a phone call to Hong Kong for deceiving money and his role was to collect the money in Hong Kong.  He said he was given 2,000 Renminbi for going to Hong Kong, and he went to Hong Kong alone on 2 February.

10.He said that shortly before he was arrested he received a call from an unknown male, who instructed him to go to the bank.  He admitted that he saw PW1 and approached her to collect the money.  He said he committed the offence because he owed other debts in a total of 100,000 Renminbi.

11.The defendant was further cautioned and interviewed in respect of a number of other cases.  He denied involvement in those cases, but did admit that he had been involved in a similar case which was unknown to the police.  He said on the day before the offence in Charge 1 was committed on 5 February he received a phone call from the same unknown man when he was at an internet café in Sham Shui Po.  He was instructed to go to an exit of the Sha Tin MTR Station and see if there was an old lady waiting in the vicinity.  He proceeded to go there and saw an old lady who fitted the description he was given.  He was instructed to take the old lady to a nearby park, and the old lady there gave him a yellow plastic bag containing cash.  He put the bag in his rucksack and he was then instructed to take a taxi to Mong Kok to find an RMB money exchange shop there.  He said the amount he remitted was HK$17,700, but he forgot the account number of the account, and he was instructed to dispose of the receipt immediately after the transaction.

12.He said that on 2 February Chan had taught him how to collect money from telephone deception in Hong Kong and how to then remit it to the mainland.  He was aware the money collected was the proceeds of telephone deception.  He would receive $2,000 for travelling expenses and 8 per cent of the proceeds.  He said the man who gave him the collection instructions on 5 and 6 February was the same person, and again he admitted that he committed the offence because he owed debts.

13.The Immigration Department movement records show that the defendant entered Hong Kong at around 10.21 pm on 2 February 2014 via Lo Wu on the strength of a two-way permit, and he was allowed to stay for seven days.

14.I am told that the defendant has a clear record in Hong Kong.  In mitigation I was told that the defendant was born in Tuishan, PRC, on 12 August 1991 and is now aged 22.  He completed secretary education in the PRC.  He lived with his parents, who are aged 51 and 47, and an elder sister, aged 23; and the defendant is single.

15.On the mainland the defendant worked as a casual construction worker earning 3,000 Renminbi per month.  He has been unemployed since October 2013.  I am told that the reason for the commission of the offence was that in 2008 his mother had a heart operation and needed money to pay for that operation and subsequent follow-up treatment.  The defendant had incurred debts of around 100,000 Renminbi.  He was being chased by his creditors and he felt that he had no other alternative but to agree to help his friend, Chan King-fung, who recruited him to come to Hong Kong to collect the money.  A document relating to his mother’s ailment has been provided to the court.

16.The main mitigation in this case is the fact that the defendant has pleaded guilty.  It was urged upon the court that he was not directly involved in the telephone deception and was only responsible for collecting the money.  He was co‑operative with the police, and voluntarily admitted his guilt in relation to Charge 2.  He is remorseful, and asks for leniency.

17.In respect of this case there is an application by the prosecution for an enhancement of sentence under section 25 of the Organised and Serious Crimes Ordinance.  In support of that application a statement has been supplied to the court provided by Detective Chief Inspector Lam Chuk-ho of the Hong Kong Police Force.  That statement makes it clear that this kind of offence is still a prevalent offence, and I am satisfied that all the other criteria mentioned in section 25 applies in this case.  I have been provided with statistics which demonstrate quite clearly that in the last two years, the courts have almost invariably agreed to applications for enhancement of sentence.

18.In considering the appropriate starting point in this case, I have been referred to two cases involving offences of money laundering, namely HKSAR v Wu Jianping CACC 32/2011 and HKSAR v Tsang Jiakpeng DCCC 716/2013.  These cases involve similar offences.  The police refer to these cases as telephone deception cases whereby people are deceived into believing a close relative has been detained and they are required to drop off sums of money for collection.  I note that in the two cases cited, the defendants were the persons collecting the money from designated collection points rather than from the victims personally.  It was urged in both those cases that neither defendant realised the nature of the predicate offence, nor did they participate in that offence.

19.However, the situation here is very different. The defendant knew what the predicate offence was, and he knew the predicate offence involved elderly victims, elderly ladies, and he knew the amounts of money involved.  In relation to the 1st charge, the amount was substantial.

20.In my view, these offences are despicable.  They seek in a callous and hard-hearted manner to take advantage of vulnerable members of society.  They are cold-blooded and pre‑planned.  They inevitably subject the victims to great anxiety.

21.In relation to the 1st charge, the anxiety of PW1 was such that whilst in the Bank of East Asia her nervous demeanour attracted the attention of the bank teller, Miss Wong Sau‑lam, and it was Miss Wong’s inquiries of PW1 which led to this matter being disclosed to the police and the defendant arrested.  Miss Wong is to be highly commended for her diligent and prompt action.

22.Subjecting elderly persons to this kind of stressful situation can have very serious consequences, and such offences must attract meaningful deterrent sentences.

23.I am told that this offence was brought about because the defendant owed money because of his mother’s ill health, yet this defendant seems to have little regard for the well‑being of the victims in this case.

24.In my view, the appropriate starting point for each of the offences is 4 years’ imprisonment.  The defendant is entitled to a discount for his guilty plea, and those sentences will be reduced to 32 months’ imprisonment.

25.I am satisfied that all the criteria for an enhancement of sentence are present in this case.  I propose to increase the sentences by 10 months; that is 42 months in respect of each offence.

26.I now have to consider the question of totality.  I accept that the second offence only came about because of the defendant’s frank disclosure to the police, and for that reason, I have decided that the appropriate period that they should run consecutively is one of 10 months.

27.So the overall sentence will be 52 months.  Just for the record, that is 42 months on each offence, and 10 months on Charge 2 is to run consecutive to the 42 months on Charge 1.

Please refer to CACC184/2014 for the relevant appeal(s) to the Court of Appeal.