HKSAR v. Li Yonghong

DCCC 420/2015

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 420 OF 2015

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REASONS FOR SENTENCE

1.Li Yonghong you have pleaded guilty to one charge of conspiracy to deal with property knowing or having reasonable grounds to believe 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.In summary on the 14 April this year Mr Yim, aged 63, was at home with his wife when someone telephoned impersonating his son saying he had acted as a guarantor for someone who had fled; that he was being beaten and needed to pay AUD$300,000 ransom for his release.  A second male then negotiated with Mr Yim and agreement was reached that HK$120,000 be paid first and the balance later.  Mr Yim told the second male that he had to withdraw the money from the bank.

3.Meanwhile Mr Yim’s wife contacted her sister-in-law who made a report to the police.  The son was also contacted and confirmed that he was safe in Australia and never in debt. 

4.After Mr Yim told the second male that he had withdrawn the money he was told by the second male to go to the Kowloon Hospital.  The police gave Mr Yim a brown envelope to take with him containing dummy money.  On arrival at the hospital Mr Yim was told by the second male to go to the Sunward Commercial Building.  As directed by the second male Mr Yim placed the brown envelope containing the dummy money at the ground floor staircase. 

5.After you picked up the brown envelope you were intercepted and arrested by the police.  Under caution and in a subsequent video interview you admitted that on the 11 April you agreed to go to Hong Kong to work for which you would be paid $6,000.  The day after arriving in Hong Kong you were asked to go to the Bank of China near the Prince Edward MTR station where you were told to follow an old man to a building and pick up a brown envelope the old man put down.  You told the police that you knew what you were doing was illegal and knew that you were going to pick up some money which you believed had been obtained from a scam.

Mitigation

6.In passing sentence I take into account everything said on your behalf by Ms Kwok including that you committed the offence out of greed because of financial difficulties arising from being made unemployed at the beginning of the year and having gambling debts. 

7.I take into account your young age and that you have a clear record in Hong Kong.  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).  

8.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).

9.In HKSAR v Wu Jianbing [2012] 1 HKLRD 781 the applicant, who travelled from the Mainland, on four occasions over four days collected money which had been obtained from telephone deceptions.  The sums to be collected totalling $310,000 ranged from $20,000 – $200,000.  The Court of Appeal, taking into account there was no evidence to show that the appellant participated directly in the telephone deceptions (or was aware of the source of the money collected), held that the proper starting point after trial was 3 years imprisonment on each charge.

10.In HKSAR v Cen Huakuo [2015] 2 HKLRD 951 and HKSAR v Lin Zong Yue CACC 141/2014 where sums of $50,000 and $30,000 - $75,000 were to be collected the applicants were aware of the predicate offence but not the details.  In both cases the Court of Appeal described this as no more than some sketchy idea about the predicate offence. Again a 3 year starting point was also held to be appropriate.

11.In HKSAR v Chen Jianchao CACC 184/2014, another telephone deception case, the Court of Appeal reviewed a number of money laundering cases including Wu Jianbing; Cen Huakuo and Lin Zong Yue.  The applicant, who also travelled from the Mainland, collected money on two consecutive days.  The sums to be collected were $230,000 and $17,700.  The applicant admitted that he knew the monies that he had collected were paid as a result of deceptions practiced by telephone. 

12.The Court of Appeal, taking into account that the applicant knew the money was from telephone deception; that he was recruited to come to Hong Kong to commit the offences; the offences were “pre-planned” in that there was a degree of organization in the operation; that he personally dealt with the elderly ladies; and was to receive a substantial reward, held that a 4 year starting point was appropriate for collecting $230,000 and 3 years for collecting $17,700, which had been lost by the victim. 

13.As noted earlier you told the police that you knew that you were going to pick up some money which you believed had been obtained from a scam.  Mr Shiu very properly confirms that is all you told the police and that there is therefore no evidence you knew the details of the scam.  After careful consideration I find this shows no more than some sketchy idea about the predicate offence.

14.Taking into account that the amount of money to be collected was HK$120,000; you committed the offence the day after arriving in Hong Kong having been recruited to come to Hong Kong; you believed the money was obtained from a scam but were not party to that scam; and there was a degree of planning in the operation in which your role was limited to collecting the money; I am satisfied the proper starting point after trial is one of 3 yearsimprisonment.  

15.Giving you full credit for your plea of guilty reduces the sentence to 2 years imprisonment.

Enhancement of sentence

16.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.

17.In support of the application the prosecution submit a statement of Detective Chief Inspector Lam Cheuk Ho dated the 2 July 2015.  There has been no objection to the admission in evidence of the statement which has been read pursuant to section 65B of the Criminal Procedure Ordinance, Chapter 221. 

18.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 activities are prevalent crimes 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.

19.I am satisfied the sentence 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. 

20.You are convicted and sentenced to 2 years and 8 months imprisonment.