HKSAR v. Chen Chaoqi

DCCC 901/2014

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 901 OF 2014

____________

________________________

REASONS FOR SENTENCE

________________________

1.Chen Chaoqi you have pleaded guilty to one charge of dealing with property knowing or believing the property represented the proceeds of an indictable offence and one charge of conspiracy to deal with property knowing or believing the property represented the proceeds of an indictable offence, contrary to section 25(1) and (3) of the Organized and Serious Crimes Ordinance, Chapter 455 and sections 159A and 159C of the Crimes Ordinance, Chapter 200.

2.Full particulars of the offences are set out in the facts admitted by you.  The two charges relate to deception of two elderly ladies who were telephoned and told to pay money for the release of their sons.  Although you knew that money was to be collected from elderly ladies it is not alleged you were a party to the deceptions or knew of the details of the deceptions your role being limited to collecting the money which you would then remit to the Mainland.

3.Both offences occurred on the 26 August last year the day after you arrived in Hong Kong.  In summary Madam Ng Kwai Ying, a 67 year old lady, was telephoned at home by someone impersonating her son pretending he had been captured and beaten up.  A second male demanded Madam Ng to pay $300,000, which sum was reduced to $60,000. 

4.Madam Ng was told to go to Fanling MTR station and await instructions on where to place the money.  On arrival at the station Madam Ng was directed to place the money in a flower bed next to the car park at the Fanling Town Centre Shopping Arcade. 

5.After Madam Ng placed the money in the flower bed she was told that her son would be released within the hour.  On returning home after waiting an hour Madam Ng discovered that her son had never been captured by anyone.   A report was then made to the police.

6.Similarly Madam Shum Kwai Ho, a 63 year old lady, was telephoned at home by someone claiming that her son owed $200,000 and that if she refused to pay her son would get hurt.  Madam Shum only had $30,000 which she was told to pay first. 

7.Arrangements were then made for Madam Shum to hand over the money at the Cheung Sha Wan MTR station but no one came to collect the money.  On her way home Madam Shum called her son who said he was at work and was safe.  Madam Shum therefore reported the matter to the police who arranged for a dummy money bag to be given to her in the event she was again asked to pay the money.

8.In the evening Madam Shum received another call when she was instructed to go again to the Cheung Sha Wan MTR station.  On arrival Madam Shum was told to put the money in a rubbish bin in the park outside the MTR station.   After Madam Shum placed the money in the rubbish bin you were seen talking on a mobile phone and walking over to the rubbish bin.  You took out the dummy money bag which you tucked inside your trousers.   

9.The police approached and arrested you.  Under caution and in a subsequent video interview you admitted that about a week before you came to Hong Kong you met a clansman for the first time who asked you to leave him your phone number so that he could call you if he had something for you to do in Hong Kong.  After arriving in Hong Kong the clansman rang you and asked you to collect some money for him saying you would receive 5% of the money as a reward. 

10.An unknown male then rang you asking you to go to Fanling train station to collect the money from an old lady.  After collecting the money left in the flower bed by Madam Ng you remitted the money to a bank in China.  The same unknown male called you again and asked you to go to an MTR station to collect money from an old woman. You were arrested collecting the money left in the rubbish bin by Madam Shum. 

11.In passing sentence I take into account everything said on your behalf by Mr McNamaraincluding that you have a clear record.  This however carries little weight where the offender is a visitor to Hong Kong.  Further the courts have said that the commission of crime by visitors is an aggravating feature of sentence (see for example HKSAR v Aguilar Garcia Milner Javier CACC 485/2012).  

12.Money laundering is a serious offence for which deterrent sentences are required.  A number of significant factors have been identified as relevant in determining the culpability of a defendant, including the nature of the predicate offence that generated the laundered money and the extent to which the offence assisted the crime or hindered its detection; whether the defendant had knowledge of that underlying offence or has turned a blind eye to the source of the money; the amount of money involved; whether there was an international element to the commission of the offence; the degree of sophistication of the offence and the level of the defendant's participation, including the length of time the offence lasted and the benefit he derived from the offence (see for example Secretary for Justice v Jerome Yuval Arnold Herzberg [2010] 1 HKLRD 502; HKSAR v Hsu Yu Yi [2010] 5 HKLRD 545; and HKSAR v A male known as Boma Amaso [2012] 2 HKLRD 33).

13.In HKSAR v Chen Jianchao CACC 184/2014, a case cited by Mr McNamara, the Court of Appeal reviewed a number of money laundering cases where the predicate offence was telephone deception, including HKSAR v Wu Jianbing [2012] 1 HKLRD 781.

14.In HKSAR v Wu Jianbing the appellant, who travelled from the Mainland, collected money on four occasions, over 4 days, resulting in four charges of money laundering.  The sums to be collected ranged from $20,000 – $200,000 and totalled altogether $310,000.  The Court of Appeal, taking into account there was no evidence to show that the appellant participated directly in the telephone deceptions, held that the proper starting point after trial was 3 years imprisonment on each charge.

15.InHKSAR v Chen Jianchao the appellant, who also travelled from the Mainland, collected money on two consecutive days, resulting in two charges of money laundering.  The sums to be collected were $230,000 and $17,700.  The Court of Appeal, taking into account that the appellant knew the money was from telephone deception; was recruited to come to Hong Kong; personally dealt with the elderly ladies; was to receive a substantial reward and that there was a degree of planning in the operation, held that a 4 year starting point was appropriate for collecting $230,000.  In respect of the sum of $17,700 the money having been lost by the victim the Court held that a 3 year starting point was appropriate. 

16.Taking into account that the amount collected in charge 1 was HK$60,000 which sum was lost by Madam Ng; the amount to be collected in charge 2 was $30,000; you committed the offences the day after arriving in Hong Kong; your role was limited to collecting and remitting the money; you knew the money was to be collected from elderly ladies but were not party to the deceptions or knew the monies were obtained by telephone deception; and there was a degree of planning in the operation, I am satisfied the proper starting point after trial is one of 3 years imprisonment on each charge.  

17.Giving you full credit for your pleas of guilty reduces the sentence on each charge to 2 years imprisonment.

Enhancement of sentence

18.The prosecution apply for enhancement of sentence pursuant to section 27(2) of the Organized and Serious Crimes Ordinance on the grounds of the prevalence of the offence and the nature and extent of any harm, whether direct or indirect, caused to the community by recent occurrences of the offence.

19.In support of the application the prosecution submit a statement of Detective Chief Inspector Lam Cheuk Ho, dated the 3 March 2015 together with update statistics as of 1 March 2015.  There has been no objection to the admission in evidence of DCIP Lam’s statement which has been read pursuant to section 65B of the Criminal Procedure Ordinance, Chapter 221. 

20.The statement of DCIP Lam clearly shows a significant increase in what he has termed “Drop-off” cases and the consequential loss in such cases.  DCIP Lam concludes that the modus operandi of “Drop-off” in telephone deception cases and the associated money laundering activity by culprits tasked to retrieve the money, is a prevalent crime in Hong Kong with obvious concern to the community.   On this evidence, which I accept, I am satisfied beyond reasonable doubt both grounds for enhancement are made out.

21.I am satisfied the sentence on each charge is to be enhanced by one third, namely 8 months to 2 years and 8 months imprisonment, which is the same enhancement as approved by the Court of Appeal in both Wu Jianbingand Chen Jianchao. 

Totality

22.Taking into account the two offences are separate offences of money laundering relating to two different victims I am satisfied part of the sentence on charge 2 should be served consecutively.  In Chen Jianchao the Court of Appeal held that 6 months should be served consecutively where the two offences were committed on successive days.  Both offences having been committed on the same day I am satisfied that 6 monthsof the sentence imposed on charge 2 should also be served consecutively.

23.You are convicted and sentenced as follows;

Charge 1 – 2 years and 8 months imprisonment; and

Charge 2 – 2 years and 8 months imprisonment;

6 months consecutive and 26 months concurrent to charge 1.

24.Total sentence to be served by you is 3 years and 2 months imprisonment which I am satisfied properly reflects your criminality on the two charges.