HKSAR v. Chen Jianchao

CACC 184/2014

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 184 OF 2014

(ON APPEAL FROM DCCC NO. 288 OF 2014)

____________

BETWEEN

____________

____________

J U D G M E N T

____________

Hon Lunn VP (giving the Judgment of the Court) :

1.The applicant seeks leave to appeal against the total sentence of 52 months’ imprisonment imposed on him on 23 May 2014 by District Court Judge Browne, after his pleas of guilty on 15 May 2014 to two charges of conspiracy, on specified dates in the first week of February 2014, to deal with property known or believed to represent proceeds of an indictable offence, contrary to section 25(1) and (3) of the Organized and Serious Crimes Ordinance, Cap. 455 and sections 159A and 159C of the Crimes Ordinance, Cap. 200. At the conclusion of the hearing we reserved our judgment, which we hand down now.

The Facts

2.At around 1:15 pm on 6 February 2014, Madam Wong Ng King, an octogenarian received a telephone call from an unidentified male who claimed that her 45-year-old son had been detained due to an outstanding debt.  He asked Madam Wong to pay him a ransom of HK$230,000 for his release.  In fear, Madam Wong agreed to do so and was instructed to wait outside the bank from which she said that she would withdraw that money.

3.Madam Wong’s nervous condition, as she requested to withdraw the monies in cash from the branch of the Bank of East Asia at No. 345 Chai Wan Road, Chai Wan alerted the teller, to whom she then imparted her dilemma.  As a result, after determining that Madam Wong’s son was safe and well after all, the matter was reported to the police, who mounted an undercover operation which resulted in the arrest of the applicant.  Having been provided with a bag which appeared to contain banknotes, Madam Wong waited outside the bank, where she was approached by the applicant.  Having secured answers in the affirmative to his questions as to whether she was Madam Wong and that she had the $230,000, the applicant passed a mobile telephone to Madam Wong.  She recognised the male voice on the telephone as the man to whom she had spoken earlier, after which she handed over the bag of what purported to be money to the applicant.  As he was about to leave, the applicant was intercepted and arrested by police officers.

4.Under caution, the applicant admitted he was given $2,000 by his friend in the Mainland to go to Hong Kong to collect the money.  Also, he said that he was to be given a small part of the money collected as a reward.  In a subsequent interview under caution, the applicant identified the person who recruited him to carry out the collection of the money as Chan King Fung, a friend on the Mainland.  On the afternoon of 2 February 2014 Chan King Fung had given him instructions about his role in collecting money in Hong Kong and then remitting it to the Mainland.  In addition to the $2,000 he was to be given as travelling expenses he was told that he would receive 8% of the proceeds as his reward.  Later that day he travelled to Hong Kong.  On the day of his arrest, 6 February 2014, he had been contacted by telephone by an unknown man who had given him instructions to go to the bank to meet the old lady who turned out to be Madam Wong.  Having arrived at the bank and having identified the person whom he was to meet he had been told on the telephone by the same unknown man to approach to collect money.  He did so and passed the mobile phone to Madam Wong or her to speak to the unknown man.  She passed a bag to him and as he was about to leave he had been arrested by the police.

5.In another interview under caution the applicant denied involvement in four other similar cases, but admitted having been involved in a case of which the police were unaware.  He said that in the afternoon of 5 February 2014 whilst he was in Hong Kong on the instructions by telephone of the same unknown man he met an old lady at Exit B of Shatin MTR Station and on his instructions took her to a nearby park, where she gave him a yellow plastic bag containing cash.  Then, he left and, on further instructions, went to a RMB Money Exchange Shop in Mong Kok, where at around 4 p.m. he remitted a total of HK$17,700 to a stipulated account.

6.The applicant admitted that he knew that the monies that he had collected were paid as the result of deceptions practiced by telephone.

7.Immigration records evidence the fact that the applicant entered Hong Kong at around 10:21 pm on 2 February via Lo Wu on the strength of his ‘two-way’ permit and that he had permission to stay in Hong Kong for 7 days. 

8.In his Reasons for Sentence the judge noted that the applicant, a man of 22 years of age, had been educated in the Mainland and was of “clear record”.  Further, that the applicant had cooperated with the police and voluntarily admitted his participation in the offence the subject of Charge 2.

9.In respect of the prosecution’s application for an enhancement of sentence, pursuant to section 27 of the Organized and Serious Crimes Ordinance, Cap. 405, the judge observed that the statement advanced in support of the application “makes it clear that this kind of offence is still a prevalent offence”.  Further, he noted that from the statistics provided to the Court it was clear that in the preceding two-year period the courts had “almost invariably agreed to applications for enhancement of sentence”. [1]

10.Having noted that he had been referred to the judgment of this Court in HKSAR v Wu Jianbing [2] and the District Court Judge’s Reasons for Sentence in HKSAR v Tsang Jiakpeng [3], in which offences were committed against the same provision of the Ordinance, the judge said that the circumstances of the present case were different from those two cases, in that : [4]

“ the applicant knew what the predicate offence was; and he knew the predicate offence involved elderly victims, elderly ladies, and he also knew the amount of money involved. In relation to the 1st charge, the amount involved was substantial.”

11.Of the circumstances of the commission of the offences, the judge said [5]:

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

12.The judge went on to say : [6]

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

Starting point

13.The judge stipulated a starting point of 4 years for each offence.

Discount

14.The judge afforded the applicant a discount of one-third from the stipulated starting point for sentence.

Enhancement of sentence

15.Stating that he was satisfied that all the criteria for an enhancement pursuant to section 25 (sic) of the Organized and Serious Crimes Ordinance, Cap. 455 were present, the judge enhanced each of the sentences by 10 months’ imprisonment.

Sentence

16.In the result, the judge sentenced the applicant to 42 months’ imprisonment on each charge.

Totality

17.Finally, stating that he had regard to the totality principle, the judge ordered that 10 months of the sentence of imprisonment imposed in respect of Charge 2 be served consecutively to the sentence of imprisonment and those in respect of Charge 1. Accordingly, the total sentence imposed on the applicant was 52 months’ imprisonment.

Grounds of appeal against sentence

18.On behalf of the applicant, Mr John McNamara submitted that in stipulating the starting points to be taken for sentence the judge did not “take any or any proper notice of the factors which should be taken into account when determining sentence as set out in HKSAR v Hsu Yu Yi ” [7]. First, although the amount of money involved in the two charges were quite different, namely $230,000 and $17,700 the judge stipulated the same starting point for the sentence.  Secondly, the judge gave improper weight to the immorality of the offences [8]. Thirdly, the judge failed to consider the length of time over which each offence was committed.

19.Then, it was submitted that if the judge had paid proper regard to those and the other factors discussed in HKSAR v Hsu Yu Yi, he would have stipulated a starting point significantly lower than four years for each of the offences.  Mr McNamara suggested that the judge ought not to have distinguished the instant case from the circumstances obtaining in Wu Jianbing, where this Court said that the appropriate starting point for sentence in that case for offences contrary to section 25(1), where the defendant’s role was to collect monies in a telephone deception case, was 3 years’ imprisonment, rather than the 4 years’ imprisonment taken by the judge as the starting point.  No issue was taken with the subsequent discount of those sentences by one-third to reflect the pleas of guilty or the enhancement of sentence by one-third, pursuant to section 27 of the Ordinance.  Further, it was contended that if the judge had stipulated different starting points for sentence for each of the offences, as he should have done, the starting point taken for Charge 2 would have been significantly lower than the starting point for Charge 1.  In those circumstances, the order that part of the sentence of imprisonment imposed in respect of Charge 2 be served consecutively the sentence imposed in respect of Charge 1 would have been less.

The respondent’s submissions

20.Miss Mickey Fung, for the respondent, invited the Court to have regard to the factors identified in the judgment of this Court in HKSAR v Boma [9] as relevant to the determination of the appropriate sentence to be imposed on the applicant.  She reminded the Court that in Boma, judgment was handed down on 1 February 2012, some 20 months after the judgment in HKSAR v Hsu Yu Yi.  She suggested that the judgments of this Court in HKSAR v Cen Huakuo [10] and HKSAR v Lin Zong Yue [11] supported his submission that, whilst the overall sentence might be on the high it was not manifestly excessive.

A consideration of the submissions

21.Not surprisingly, given the applicant’s acceptance of the ‘Summary of Facts’ [12] as the factual basis on which the applicant pleaded guilty to the two charges, no issue was taken with the judge’s findings that the applicant knew the predicate offence in the two charges, in particular that they were deceptions practised on elderly ladies.  Beyond, that the judge found only that the applicant knew the amount of monies involved, namely $230,000 and $17,700.  He knew of the former because he accepted in the Summary of Facts that he had asked the victim if she had that money available to give him.  He knew of the latter because he remitted the monies to a stipulated account.  The judge did not make any finding that the applicant was aware of the details of the deception practice in respect of Charge 1.

22.In the judgment of this Court in HKSAR v Hsu Yu Yi, [13] in addressing an application for leave to appeal against sentence imposed in respect of an offence of dealing with property known or believed to represent the presence of an indictable offence, namely $2.5 million, Cheung JA said : [14]

“ There are no sentencing guidelines for the offence of dealing with the proceeds from an indictable offence because the facts vary from case to case. However the following factors are to be taken into account when determining sentence:

(1) It is the amount of money involved that is a major consideration and not the amount of benefit received by a defendant in the transaction.

(2) The culpability of the offence lies in the assistance, support and encouragement offered to the commission of an indictable offence. So a defendant’s level of participation and the number of occasions on which he is involved in the ‘money laundering’ activities are relevant factors to be considered.

(3) The offence of dealing with the proceeds from an indictable offence does not necessarily have any direct correlation with the indictable offence in question. However if the relevant indictable offence can be identified, the court may take into account the sentence imposed on the indictable offence per se when determining the sentence of the dealing offence.

(4) If the case has an international element involving activities carried out across different regions, the court may impose a more severe sentence. This is to protect Hong Kong’s reputation as an international finance and banking hub from being tarnished.

(5) The length of time the offence lasted.”

23.In addition, Cheung JA set out in tabular form information discerned from a dozen cases dealt with by this Court in respect of such offences committed in the previous half-dozen or so years specifying : [15]

(i) the amount of money with which the applicant dealt;

(ii) whether or not the conviction was on a plea of guilty or after trial; and

(iii) the sentence of imprisonment imposed on the applicant.

24.In his judgment in Boma, Stock VP identified a range of factors relevant in sentencing for offences of this nature : [16]

“ The first factor to which any sentencing court should in this context have regard is the maximum penalty available. ….

The second matter to which the sentencing court must have regard is the fact that in this category of offence, deterrence is paramount…….

Then there is the question of the amount of money laundered. This is not the be-all and end-all of a case but is a significant feature.

We were at one stage of our deliberations minded to provide a suggested starting point for a specified relatively low sum involved in an offence, leaving courts to use that as a base for other sentences but we at once could conjure a myriad of factual variations which might render even that single starting point unwise with the further risk that it might encourage a rigid mathematical approach and progression without proper regard to other individual relevant factors.”  [Italics added.]

Less helpful though this may be than we had hoped, the best we can therefore do is to identify some of the significant features for which the court should look and take into account, though it is not possible to produce an exhaustive list: we can do no better than echo obvious factors that have been referred to by the cases:

(1)  The nature of the predicate offence, if known, and the penalty available for the predicate offence: see R v Karen Monfries [2004] 2 Cr App R (S) 9.  So, for example, where the predicate offence is trafficking in dangerous drugs, the offender should expect a sentence significantly greater than where the predicate offence is gambling.  It has in this regard been said that: “Those who launder large sums which are the proceeds of drug trafficking play an essential role in enabling the drugs conspiracy to succeed and as such can expect severe sentences comparable to others playing a significant role in the supply of drugs although it has to be borne in mind that Parliament has provided different upper limits to a judge’s sentencing process for dealing in Class A drugs (life imprisonment ) and money-laundering (14 years)”: R v El-Debi [2003] EWCA Crim 1767 at [90], (in reference to statutory provisions in England); although it is suggested that there must be a difference between the offender who knows what the predicate offence is and the offender who does not : R v Gonzalez [2003] 2 Cr App R (S) 35 at [13].

(2)  This brings us to the question of the state of knowledge of the offender.  This divides itself in two – knowledge of the nature of the predicate offence, where the predicate offence is known to the court; and knowledge of the fact that the funds are the proceeds of an indictable offence:

(a)  Where the predicate offence is known to the court, the question of knowledge of the offender as to the nature of the predicate offence is relevant in that the person who knows the nature of the predicate offence is more culpable than the person who does not : see Gonzales above at [13] and Monfries above at [11]. But this is a question to be approached with considerable caution, since many offenders will assert ignorance of the origin of the proceeds in question, particularly where the offender has deliberately turned a blind eye thereby choosing not to know.  In such a case it must be recognised that he is nonetheless “assisting in the original crime, whether with knowledge or blind eye knowledge of it”: R v Basra above at [472].  The scheme and purpose of the legislation is to ensure care and honesty in the handling of other people’s money and those who are prepared to handle money on other people’s behalf and turn a blind eye to the source of that money do so at their own risk: see Attorney General’s Reference No. 48 of 2006 [2007] 1 Cr App R (S) 558 at [24].  So the person who is aware of the fact that he is dealing with proceeds of an indictable offence but deliberately chooses not to ask questions is barely less culpable than the person who asks or who is told.

(b)  As to the second question, there seems to me to be unassailable logic in the scheme of the Australian legislation which draws a distinction in culpability between the person who intentionally deals with the proceeds of crime, meaning the person who knows or believes that the funds in question are the proceeds of crime; the person who is reckless as to that question; and the person who is negligent about it.  The legislation makes it a criminal offence to deal with proceeds of an indictable offence where there are grounds to believe that that is the origin of the funds and the offender knows of the grounds, even where the offender does not positively know that the funds originate from the commission of such an offence, so care must be taken in the last category not thereby to dilute sentencing so as to defeat the object of the legislation; but the person who is reckless is more culpable and the person who knows or believes is more culpable still.

(3)  An international dimension will always be a significant aggravating feature; and by international dimension we include money laundered from, or for those operating in, the Mainland.

(4)  The sophistication of the offence is always relevant.  This will include the degree of planning and whether deceit is practised to achieve the objective.

(5)  Where the offence is committed by or on behalf of an organized criminal syndicate, that is an aggravating fact.

(6)  It is relevant to take into account whether there is one transaction or many and the length of time over which the offence was committed.

(7)  As in the case of Herzberg, it will be an aggravating feature where the offender continues to launder funds after he has discovered as a fact that the funds are the proceeds of an offence or after he has discovered the nature of an offence which is serious.

(8)  The sentencing court should have regard to the role of the offender and the acts performed by him.  In this regard, the director of a laundering operation or scheme should attract a greater sentence than a person engaged by him although sentences should be sufficient to deter those who might be prevailed upon by directing minds.  In the case of a person down the chain, the court will wish to have regard to whether a benefit has been received and if so the nature and size of the benefit.  But within the category of persons down the chain there will gradations of culpability.  So for example the drug addict or petty crook who is paid a small sum to open an account and hand over its operation to another with no more participation and no more knowledge than that it is going to be used for some sort of crime is much less culpable than an offender of a different sort not “used” in that way.”

25.As it is readily apparent from the lengthy list of factors to which reference was made by Stock VP the “myriad of factual variations” that obtain in the commission the offence militates against a mathematical approach to sentence based on the sum of money involved. Whilst the amount of money involved is a “significant feature”, it is not the “be all and end all of a case”.

26.The fact that the applicant knew that the elderly female victims were the victims of a telephone deception, albeit that there was no evidence that he knew the details of that deception, was clearly relevant to the culpability of the applicant.

27.In Wu Jianbing the appellant pleaded guilty to two charges of ‘money laundering’ and two charges of conspiracy to ‘launder’ money.  The offences occurred on 8 to 11 June 2010.  The four victims were informed by an unknown caller by telephone that their respective relatives were being detained having acted as guarantors for the debts of others and monies were demanded for their release.  There were no guarantees or debts and none of them were in fact detained.  As required the victims delivered the money demanded of them to stipulated locations.  The applicant’s role was to collect the money from those locations.  In all, he collected money on four separate occasions, namely $200,000, 30,000, $20,000 and $60,000.  He remitted the last two amounts of money to the Mainland, so that they were lost to the victims.  However, the other two amounts of money were recovered.  The applicant said that he had been recruited in Shenzhen to come to Hong Kong to commit the offences and had been given $1,000 as expenses and promised 15% of the money he collected.  However, having been arrested on the fourth money collection expedition he had not been paid any of the promised reward.

28.In the judgment of the Court, Chu JA said : [17]

“ …..the total amount involved were $310,000 on four charges took place within a very short period of time. There was no evidence to show that the applicant participated directly in the offences in connection with the ‘black money’ nor was there evidence to prove the benefits he obtained.

…the appropriate starting point for each charge should be 3 years’ imprisonment.  The applicant could be given one-third discount for his plea of guilty, the sentence was thus reduced to 24 months’ imprisonment.  However, the sentence on each charge should be enhanced by one-third, i.e. 8 months, pursuant to the Organized and Serious Crimes Ordinance.  Consequently, the sentence on each charge was 32 months’ imprisonment.  Given the four charges involved four different kinds of crimes, part of the sentences should be served consecutively.  Having considered the totality principle, the Court ordered that 6 months of the sentence imposed on the fourth charge to be served consecutively with that on the third charge.  The total sentence imposed on the applicant is 38 months’ imprisonment.”

29.In HKSAR v Hung Yung Chun [18], the two applicants pleaded guilty to 2 and 3 charges respectively of conspiracy to defraud, in circumstances in which middle-aged and older persons, aged between 53 and 70 years of age, were deceived into paying over money to the applicants as a pre-arranged place having been fooled in telephone calls from an unknown man into believing that their relatives were being detained by others in respect of debts owed by them.  The applicants were middle-aged Chinese residing on the Mainland who had come to Hong Kong to commit the offences.  Between them they obtained payments of $70,000, $300,000 and $200,000.  The former two sums of money were lost to the victims, whereas the final payment of $200,000 was recovered on the arrest of the applicants shortly after the handover of the money.  The Court rejected, as being contrary to their pleas of guilty, the contentions of the applicants that they knew nothing about the deception practised on the victims in the telephone conversations.  In the judgment of this Court Tang VP said : [19]

“ We are of the view that this type of phone deception case is more serious than a common street deception case and the court should adopt a higher starting point in sentencing for deterrence.

Therefore, we are of the view that the appropriate starting point for this case should be 4 years’ imprisonment. On enhancement, we consider that an enhancement of 1/3 will do for now.  However, should this type of cases become even more prevalent, the court may increase the rate of enhancement.”

30.In HKSAR v Cen Hukado [20] this Court quashed a sentence of 6 years’ imprisonment imposed after trial on an applicant in respect of a single charge of dealing with property known or believed to represent the proceeds of an indictable offence in which the applicant was arrested in the act of trying to leave having collected $50,000, bargained down from a claim for $250,000, from a 78-year-old lady who had been informed by telephone that her son had committed a sexual offence and that $250,000 was required to secure his safety.  This Court determined that the judge had erred in sentencing the applicant on the basis that he had participated in the fraud.  Rather, it determined that, “The applicant did not take part in the underlying deception offence and it is most likely that he was instructed to collect money from Madam Chan”.  Of the evidence that at the time he met Madam Chan and asked her if she had the money, the applicant had “told her about the detention of her son” this Court determined that, whilst that demonstrated his knowledge of the predicate offence, it was insufficient evidence of his participation in the underlying offence.  In those circumstances, it was held that the judge erred in having regard to the starting point for sentence of 4 years’ imprisonment adopted in Hung Yung Chun, which he enhanced by 50%.  This Court said that the appropriate starting point for sentence was 3 years’ imprisonment, with a one-third enhancement pursuant to the Organized Serious Crimes Ordinance.  Accordingly, the Court quashed the sentence of 6 years’ imprisonment and imposed a sentence of 4 years’ imprisonment.

31.In HKSAR v Lin Zhongyue [21] this Court quashed a total sentence of 52 months’ imprisonment imposed on the applicant following his conviction on his pleas of guilty to three charges of dealing with property known or believed to represent the proceeds of an indictable offence.  The offences were committed in a period of about two months by the applicant, a 21-year-old resident of the Mainland with no previous criminal convictions in Hong Kong.

32.The three victims were elderly persons, 76, 80 and 81 years of age, to whom false representations were made by telephone respectively as to debts owed by their respective sons (Charges 1 and 2) and of an unintended pregnancy (Charge 3) as a result of which harm was threatened to the sons in two cases and monies demanded in all the cases.  Payments were made of $39,500, $30,000, and $75,000 to the applicant who acted as the collector of those monies.  This Court determined that the judge erred in finding that the applicant was a party to the joint venture to swindle the victims, rather than merely being aware of the predicate offence.  In the result, this Court determined that the judge was in error in taking a starting point of 4 years’ imprisonment for each of the charges.  Rather, he should have taken a starting point in 3 years’ imprisonment for the first two charges and 3 years and 3  months’ imprisonment for the third charge.  Those sentences were to be enhanced by this Court by one-third, the same proportion as enhanced by the judge, pursuant to the Organized and Serious Crimes Ordinance and a discount of one-third afforded the applicant in respect of the resulting sentences of imprisonment for his pleas of guilty.  Finally, the Court ordered that 12 months of the sentences of imprisonment imposed in respect of Charges 1 and 2 was to be served consecutively to the sentence of 34 months’ imprisonment imposed in respect of Charge 3.

33.There is no merit in the suggestion that the judge failed to consider the period of time over which the offences were committed.  He adverted to the dates of the commission of the offences in his Reasons for Verdict.  Both offences were committed in the period of a few days in the first week of February 2014.  He noted that the immigration records showed that the applicant had come to Hong Kong on the evening of 2 February 2014.  There was no dispute that he was arrested on the afternoon of 6 February 2014.

34.As noted earlier, the judge’s observations as to the applicant’s knowledge of the predicate offence resonated with the factual basis on which the applicant had pleaded guilty.  The judge’s statement that the applicant “knew what the predicate offence was” was clearly a reference to the fact that the applicant knew that the money he was to collect came from “from telephone deception”.  Further, the judge was correct to take into account the fact that the applicant knew the amount of money involved; in Charge 1 he asked Madam Wong if she had with her $230,000; in charge to the applicant remitted $17,700 in RMB.  The judge did not suggest that the applicant knew any more than that as to the predicate offence.  On the other hand, the judge was entitled to find that in collecting money from old ladies, in the circumstances known to the applicant, that the offences were “callous and hard-hearted” and that he was taking “advantage of vulnerable members of society.”

35.The judge was entitled to take into account, as he did, that the applicant was recruited to come to Hong Kong from the Mainland to commit the offences.[22] That was a factor in aggravation in the commission of the offence.  Similarly, he was entitled to find that the offences were “pre-planned”.  Clearly, there was a degree of organization in the operation, in which the applicant’s role was to collect the money whilst others played other parts: Chan King Fung recruited the applicant and gave him general instructions; the unknown man gave him detailed instructions by telephone about the collection of the monies on both occasions and in respect of the remittance of the monies the subject of Charge 2.  No doubt, as was evidenced graphically by the anxiety displayed by the victim of Charge 1, such that it drew the attention of the teller to her dilemma, the circumstances of the commission of the offences subjected the victims to “grave anxiety”, as the judge determined.  Furthermore, the judge was entitled to have regard to the aggravating feature of the fact that the applicant dealt with the elderly ladies personally in obtaining the money, knowing of the deception involved in the predicate offence.  Finally, on the applicant’s account he stood to benefit from a substantial reward for his participation in the offences.

36.The sum of $230,000, which the applicant obviously thought that he had been given by the victim of Charge 1, is a significant sum of money.  It represented more than four times the amount of money handed over to the applicant in HKSAR v Cen Huakuo.  Fortunately for justice in that case, and the offence the subject of Charge 1, the police intervened and nothing was lost.  Indeed, $230,000 was very substantially more money than the aggregate amount of money obtained in the three charges in HKSAR v Lin Zhongyue.

37.By contrast, the sum of $17,700, the amount of money obtained by the applicant and lost by the victim in Charge 2 was a very significantly lesser amount of money than that demanded in Charge 1.  On the other hand, that money was lost to the victim to the benefit of the fraudsters.

38.Having regard to all the circumstances of the commission of the offence, we are satisfied that, although the sentence was at the top end of the appropriate range of sentence, having regard to the particular circumstances of the instant case the judge was entitled to take a starting point for sentence for Charge 1 of 4 years’ imprisonment.  There is force in Mr McNamara’s submission that the applicant’s culpability arising simply from the lower amount of money involved in Charge 2 ought to have been reflected by the judge taking a lower starting point for sentence in respect of that charge.  Whilst the monetary amount is not the “be all and end all” of the matter and regard is to be had to the multiplicity of other relevant factors, including the fact that the money was lost to the victim, nevertheless it is a “significant feature” [23]. In our judgment the starting point of 4 years’ imprisonment taken in respect of Charge 2 was too high.  Of course, it is important that the appropriate sentences be imposed in respect of each charge.  We are satisfied that a starting point for sentence of 3 years’ imprisonment for Charge 2 is appropriate.  Affording the applicant a one-third discount for his pleas of guilty, the sentence before enhancement for that charge is 2 years’ imprisonment.

39.The enhancement of sentence by the judge of 10 months’ imprisonment from a sentence after discount for the pleas of guilty, representing an enhancement of about one-third, was appropriate for Charge 1.  Enhancing the sentence imposed in respect of Charge 2 by one-third, results in a sentence of 32 months’ imprisonment.

Totality

40.No issue was taken with the order that part of the sentence of imprisonment imposed in respect of Charge 2 be served consecutively to the sentence of imprisonment imposed in respect of Charge 1.  Given that the two offences were entirely distinct in time, place and victims we are satisfied that it is appropriate that part of the sentence be made consecutive to the other sentence.  However, having regard to the fact that we have reduced the sentence of imprisonment imposed in respect of Charge 2 from 42 months to 32 months we are satisfied that the judge’s order that 10 months’ imprisonment of the sentence imposed in respect of Charge 2 was to be served consecutively to the sentence of imprisonment imposed in respect of Charge 1 is excessive.  In our judgment, the appropriate order is that 6 months of the sentence of imprisonment imposed in respect of Charge 2 be ordered to be served consecutively to the sentence of imprisonment imposed in respect of Charge 1.

Conclusion

41.In the result, we grant the application for leave to appeal against sentence and, treating the hearing of the application as the hearing of the appeal, we allow the appeal and quash the sentence of 42 months’ imprisonment imposed in respect of Charge 2.  In its place, we impose a sentence of 32 months’ imprisonment.  We order that 6 months of the sentence of imprisonment imposed in respect of Charge 2 be served consecutively to the sentence of imprisonment imposed in respect of Charge 1.  Accordingly, the total sentence imposed on the applicant is 48 months’ imprisonment.

Miss Mickey Fung, SPP of the Department of Justice, for the respondent

Mr John McNamara, instructed by Alvin Cheng & Rosaline Choy assigned by Director of Legal Aid, for the applicant

[1] Appeal Bundle; page 13 L-O, paragraph 17.

[2] HKSAR v Wu Jianbing (CACC 32/2011).  But, also reported at [2012] 1 HKLRD 71.

[3] HKSAR v Tsang Jiakpeng[Chen Xiaokang] (DCCC 716/2013).

[4] Appeal Bundle; page 14 E-F, paragraph 19.

[5] Appeal Bundle; page 14 G-I, paragraph 20.

[6] Appeal Bundle; page 14 N-P, paragraph 22.

[7] HKSAR v Hsu Yu Yi (CACC 159/2009; unreported, 18 June 2010).

[8] Appeal Bundle; page 14 C-O, paragraphs 19-22.

[9] HKSAR v Boma [2012] 2 HKLRD 33.

[10] HKSAR v Cen Huakuo (CACC 21/2014; unreported, 4 July 2014 - English translation).

[11] HKSAR v Lin Zong Yue (CACC 141/2014; unreported, 11 November 2014 - English translation).

[12] Appeal Bundle; Charge 1 page 5, paragraph 6(ii) “Chan told him that his friend on the Mainland would make phone calls to Hong Kong for deceiving money and his role was to collect money in Hong Kong.”

Charge 2, paragraph 7(vi) “Chan taught him how to collect money from telephone deception in Hong Kong and then remit the money to the Mainland.  He was fully aware that the money he had collected was proceeds from telephone deception.”

[13] HKSAR v Hsu Yu Yi [2010] 5 HKLRD 545.

[14] HKSAR v Hsu Yu Yi; pages 550-1, paragraph 9.

[15] HKSAR v Hsu Yu Yi; pages 555-6, paragraph 14.

[16] Boma; pages 42-4, paragraphs 35- 40.

[17] Wu Jianbing; page 785, paragraphs 13 and 14.

[18] HKSAR v Hung Yung Chun [2011] 2 HKLRD 174.

[19] HKSAR v Hung Yung Chun, page 182, paragraphs 23-4.

[20] HKSAR v Cen Hukado (CACC 21/2014; unreported, 4 July 2014).

[21] HKSAR v Lin Zhongyue (CACC 141/2014; unreported, 11 November 2014). 

[22] Appeal Bundle; page 13 A-C, paragraph 15.

[23] HKSAR v Boma; page 42, paragraph 38.