HKSAR v. Zhen Jingfeng

DCCC 848/2014

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 848 OF 2014

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Reasons for Sentence

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1.Yes, Defendant, you have pleaded guilty today to one charge of conspiracy to deal with property known or believed to represent proceeds of an indictable offence. The amount concerned is HK$38,000.

2.The facts of this case show a telephone deception scam.  On 1 August this year, at about lunchtime, PW1, a 64‑year-old man, received a phone call at home.  A male told him his son owed a debt and had been held hostage.  PW1 was to pay HK$160,000 to free him.  Another person on the telephone pretending to be PW1’s son told PW1 that he had been beaten, held hostage and owed money.  The phone was then hung up.

3.PW1 and his wife ascertained that in fact their son was safe and called the police.  Obviously, the police set up a sting operation, and there were more phone calls.  Ultimately, after a negotiation, the male on the phone agreed to accept $38,000 from PW1 as a ransom fee.  PW1 was told to go to somewhere in Tuen Mun near the Tuen Mun Hospital. 

4.When he arrived there, PW1 was approached by the defendant.  PW1 was told that the defendant would be collecting money from him.  PW1 asked the defendant if his son was safe and sound.  The defendant told PW1 that his son would be safe and released once money had been received. Clearly, the defendant knew the details of the telephone scam.  PW1 handed a bag containing fake money to the defendant, and the defendant was arrested by police officers who were nearby.

5.Under caution, the defendant, you remained silent.  

6.I have been told that you are 40 years old and a mainland resident.  You have a clear record in Hong Kong.  As far as your family situation is concerned, you are divorced and are financially responsible for the family that lives with you, which includes your mother and your 3-year-old son.  

7.I have had an explanation that you got into financial difficulty and committed this offence to make some money.  You were offered this job, so to speak, to collect money from PW1.  I have had a letter submitted, a letter of mitigation submitted on your behalf.  In this letter, you offer your explanation and ask for leniency.  You accept responsibility for your actions but lament that your actions mean the people who will suffer most are in fact your mother and your son.

8.Defence counsel has said all he can on your behalf.  Your plea of guilty is in fact your best mitigation.

9.I have been provided with authorities from both prosecution and defence to consider and assist me in sentencing.  Prosecution rely on an authority, HKSAR v Hung Yung Chun CACC 453 of 2009.  The facts of that authority are very similar in that it is a telephone depiction scam threatening harm to victim’s family members if money is not paid.  Court of Appeal in that authority is of the view that a 4-year starting point is appropriate for this type of phone deception case.

10.Defence rely on an authority, HKSAR v Wu Jianbing CACC 32 of 2011 heard after the previous authority I just referred to.  This authority again has a similar modus operandi where a telephone deception scam is committed involving threats to family members.  In that authority, there were four victims, and the total amount of money demanded was $310,000.  Court of Appeal in that authority took a starting point of 3 years’ imprisonment.

11.Both authorities were under the Organised and Serious Crimes Ordinance, enhanced by a section 27 application.  I do not intend to go into detail of either authority, but I have determined what is relevant in this case to assist me in sentencing. 

12.In this case, I am satisfied that there is one charge only, one victim.  The amount demanded, $160,000, is not excessive and it was ultimately reduced to $38,000.  More importantly, no money was ever paid to the defendant and the victim did not suffer any loss.  It is, in my view, an aggravating factor the defendant came from China to commit this offence in Hong Kong, but I will take into account that there is no evidence to suggest the defendant is anything but a legman, a pick-up man.  The other relevant factors are obviously the defendant’s clear record in Hong Kong and the plea today.

13.The defence do not challenge the enhancement application, and that conduct with a plea today demonstrates remorse.  I have had sight of a statement from Detective Chief Inspector Lam Cheuk-ho dated 28 October 2014 supplied in accordance with section 27 and the prosecution’s application.  Prosecution’s application is based on the offence being prevalent, and the statement from the detective chief inspector supports that opinion, and I accept that opinion.  Ultimately, I will enhance the sentence by 25 per cent.

14.Defendant, please stand up.  Having considered all the relevant factors I have referred to, I will take a starting point of 3 years’ imprisonment.  You have pleaded guilty.  You are entitled to a discount of one-third.  That would reduce the sentence to 2 years’ imprisonment. However, I will enhance that sentence according to the prosecution’s application by 25 per cent which is 6 months.  Therefore, for this offence, you are sentenced to 2 years and 6 months’ imprisonment.  You understand that sentence?

DEFENDANT: 2 years and 6 months.

15.2 years and 6 months.