HKSAR v. Su Zebiao
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DCCC 732/2014 IN THE DISTRICT COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION CRIMINAL CASE NO 732 OF 2014 ----------------------
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--------------------- Reasons for Sentence --------------------- 1.The defendant has pleaded guilty to four charges of dealing with property known or 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. 2.This is what is described as a telephone deception case. The offences occurred on 7 May, 14 May and 11 June. In each case, the modus operandi was similar. The telephone calls were made to an elderly family member who was told that their son owes or has guaranteed a sum of money and that the money requires repaying. In some cases they are told the son is detained. The victim is required to take money in cash to a designated location where it is then collected. In this case the defendant is the person making the collection of the money, save in the 2nd charge where it appears he only collected 20,000 of the money. 3.In the 1st charge, the person who receives the calls, PW1, is aged 77. She was told that $200,000 was owed by her son and her son was being held hostage. Eventually $230,000 was agreed to be paid and that was delivered eventually to the defendant. In the 2nd charge, the victim was 70 years of age, told his son owed some $250,000. A sum of 70,000 was negotiated to be paid. At some point, 70,000 was left in a rubbish bin, a further 20,000 was deposited in another rubbish bin and later 10,000 was deposited to a bank account. The defendant in fact admitted to collecting $20,000 from one of the rubbish bins and that is the sum referred to in the 2nd charge. 4.As far as the 3rd charge is concerned, that occurred on 14 May, the person receiving the call being a 73 year old lady. She was told her son had guaranteed a loan and had to repay $200,000. A sum of 50,000 cash was agreed to be paid and the defendant collected that money himself. 5.In the 4th charge, the person receiving the call is aged 67 and in that case the voice of the person was purported to be his son and said that he owed $200,000 and that money was to be obtained. Fortunately the victim realised it was not her son and informed the Police so a dummy delivery was arranged. The witness went to make the delivery where he was met by the defendant and eventually the bag purporting to be the money was passed to the defendant and he was arrested. 6.So the total amount recorded in the charges is around $500,000. 7.The defendant made records of interview and he admitted his involvement in all offences. He was following the instructions of a man he knew to be called “Sam Gor” and he admitted collecting the money and remitting the money to Sam Gor. 8.The defendant is of course a native of Mainland China and had entered Hong Kong to collect the money and then appears to have remitted it back to China. He received some reward for this. There was payment of expenses and he received rewards of between RMB1,000 and RMB1,800 for each transaction. The defendant is a person of clear record and is hitherto a resident of Mainland China. He does have some family resident in Hong Kong. He is a young man, he is only 20 years old and no doubt somewhat immature and foolish to involve himself in this kind of deception. I did obtain a report on him because he is still very young. The report is quite favourable in its impression of the defendant. He is described as a single young man from China, lived a family life in Taishan, educated only up to Form 1 level, has worked mostly as a casual kitchen worker. He had lived a normal life and not engaged in any vice or unlawful activities. He has admitted he is greedy to earn quick money and to spend it. He has expressed remorse. The defendant is no doubt remorseful at this stage. 9.The other factor in respect of sentencing is the prosecution seeks to enhance the sentence under the Organised and Serious Crime Ordinance due to the prevalence of these offences. I have been referred to two cases in respect of the correct approach to sentencing. The first one was the case of HKSAR v Hung Yung Chun which is 2011 2 HKLRD 174, a case where on inspection one sees that the defendants themselves were charged and pleaded guilty to a conspiracy to defraud involving phone deception cases. In this case, of course, the defendant is charged with dealing with the property. Nevertheless, the case is relevant and in that case the Court of Appeal has said that telephone deception cases were more serious than street deception cases and a higher starting point should be adopted for the purpose of deterrence and also that travelling to Hong Kong for the sole purpose of committing crime was an aggravating factor. So in that case it said the general starting point for these type of cases should be 4 years’ imprisonment together with a one-third enhancement and an increase of that enhancement should be considered if the cases became more prevalent. 10.Now, I have also been very helpfully referred to the case of Wu Jianbing which perhaps is more apposite to the sentencing of this defendant. In that case the defendant was again a resident of Mainland China and had pleaded guilty to two charges of money laundering and two charges of conspiracy to launder money. The offences are over a four day period and follow the same modus as these cases where telephone calls from an unknown person falsely representing a family member was assaulted or detained as they owed money as guarantors and debts had to be repaid. The amounts involved were 200,000, 30,000, 20,000 and 60,000. 11.The defendant, described as being a legman, came to Hong Kong to collect the money so the case involves very clear similarities to the offences committed by this defendant although the charges in this case relate to a period of about a month rather than a few days and involve large amounts of money. In that case the defendant was an older man, he was 25 years old. The court held in respect of this particular way of committing the offence, namely being a legman, that money laundering is a serious offence. Generally a sentence should reflect the amount of black money laundered and not the benefit obtained by the defendant or others. 12.Other factors relevant to sentencing include 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 organised and sophisticated crime. The court saw that in that case it involved $310,000 over a very short period of time. The defendant did not participate directly in the offences in connection with the black money, nor was there evidence to prove the benefit he obtained and it said in such circumstances a 3 year starting point should be adopted instead of the starting point which was adopted in that case. There would be a one-third deduction for sentence from that and in that case the sentence was enhanced by one-third, ie. 8 months, pursuant to the Organised and Serious Crimes Ordinance. That left a sentence of 32 months’ imprisonment on each charge and due to the multiplicity of offences, 6 months of one of the sentences was ordered to be served consecutively, in that case giving an overall total of 38 months’ imprisonment. So there are clear similarities between the defendant’s case and this. 13.In this case, the total amount is $500,000. The four charges take place over a period of a month and the defendant on the facts agreed by him is clearly a legman who was instructed to come to Hong Kong to collect the black money from the victims. He remitted the money. There is no real evidence of a more direct participation in these telephone scams. 14.The defendant is only 20, he has a clear record, coming from those small villages in the Mainland over the border. He was clearly used and manipulated by a person such as Sam Gor who got him to do these offences and young and quite immature when he committed the offences. He received some expenses for coming to Hong Kong and otherwise a low level of reward. 15.Of course there is a multiplicity of offences here. I consider that in approaching the starting point for sentence that the authority of Wu Jianbing is the most appropriate one to consider and I consider that the appropriate starting point on each charge would be that adopted in Wu Jianbing which was one of 3 years’ imprisonment. After deduction for the defendant’s plea of guilty that would lead to sentence of 2 years’ imprisonment on each charge. 16.That of course is not the end of the matters I have to consider. There is an application for enhancement of the sentence. The prosecution has notified the defendant they intended to furnish information to court pursuant to section 27 of the Organised and Serious Crimes Ordinance for the purpose of the application to enhance the sentence following a conviction. In support, they rely on the evidence of Inspector Lam Chuk‑ho and his evidence has been adduced to the court. There is no objection to the statistical information provided by the Detective Chief Inspector although the defence does point out that there is no comparison in the statistics with the wider number of deception cases if you confine yourself simply to the telephone deception-type case. Nevertheless, the statement by Chief Inspector Lam provides statistical data and analysis of the crime trend of telephone deception cases in the Territory adopting the modus operandi of drop-off, ie. hand over the cash in person. 17.Based on the information provided in the statement, the specific modus operandi of drop-off was not common until the year 2008 but has increased since that time. The amounts obtained from victims is significant and has an obvious tendency to increase. I do not think it is necessary to go into the full details of the statement, they can be seen from the statement and according to the summary contained in there, I am satisfied beyond reasonable doubt that the specified offence, namely money laundering, in the named drop-off cases is prevalent and is still increasing and the monetary loss to victims, particularly elderly citizens, is large and is still increasing and the uncontested facts in the statement provide me with evidence by which I can be sure beyond reasonable doubt that I should enhance the sentence on each of these charges. 18.I have already said that in respect of each charge the starting point for sentence is one of 3 years’ imprisonment reduced to 2 years because of the defendant’s plea of guilty, that is a total of 24 months on each charge. The information in the statement of Inspector Lam also convinces me that the appropriate enhancement is still that of one-third which is a total of 8 months’ imprisonment. 19.So that means that on each of the four charges that the defendant has pleaded guilty to, there is a sentence of 32 months’ imprisonment and the defendant has pleaded guilty to a case in which there is a multiplicity of offences committed over a period of time and I must consider how those four charges should be served having regard to the fact they are separate crimes and in the light of the totality principle and in the light of the defendant’s remorse and young age. 20.What I shall do is as follows:- I shall order that the first three charges to be served concurrently and as to the 4th charge, 4 months of that sentence to be served consecutively to 1 to 3 and the balance concurrently which will give an overall and total sentence of 36 months’ imprisonment, that is 3 years’ imprisonment for these offences.
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