HKSAR v. Huang Qimin

DCCC 348/2015

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 348 OF 2015

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Reasons for Sentence
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1.In these proceedings, the defendant, Huang Qimin, pleaded guilty to one count of "Conspiracy to deal with Property known or believed to represent Proceeds of an Indictable Offence", contrary to section 25(1) and (3) of the Organised and Serious Crimes Ordinance, Cap 455, and sections 159A and 159C of the Crimes Ordinance.

2.Upon his plea and admission of the facts, he was convicted as charged.

Facts

3.At 1200 hours on the 18th day of March 2015, the victim was working in China when she received a phone call from someone purporting to be her son in distress.  Another man, the culprit, took over the conversation, demanding a ransom of $300,000.  The victim asked for time to arrange for the money, as she could only do so after she came back to Hong Kong.  As demanded by the culprit, the victim  kept her mobile line connected until she was back to Hong Kong.  Meanwhile, she managed to use another phone to report to police after confirming her son was not in harm’s way.

4.At 2130 hours, as directed, the victim attended a shopping centre in Sheung Shui. She was approached by the defendant, who asked her for the money. Before that, the culprit had identified the defendant as the one to collect the money over the phone.  When the victim asked to see her son, the defendant replied words to the effect that it was up to his boss.

5.Shortly afterwards, the police appeared and apprehended the defendant.  Under caution, the defendant stated that he was instructed by a person called Sam to collect the sum of $100,000 and then to remit it to a bank account in China. In return he would be given a reward of HK$3,000.  Sam was someone he met on the internet a few days before, but never in person.  The defendant also stated he was just relaying what Sam told him on the phone to the victim in the shopping centre.

Background

6.The defendant is a 20-year-old Chinese resident.  He has a clear record in Hong Kong.  He entered Hong Kong at 0844 hours on the 16th day of March 2015 on a two-way permit.  He was allowed to stay until 23 March 2015.

Sentencing Considerations

7.Money laundering is a serious crime: its maximum penalty is a fine of $5,000,000.00 and imprisonment of 14 years.  The authorities are consistent that the paramount principle in sentencing is deterrence for such offences[1], as

‘not only does it encourage criminal activities indirectly, but also attempt to legitimize the proceeds of crime[2].

8.The Court of Appeal in the case of HKSAR v. A Male Known as Boma Amaso[3] has reconfirmed its position that money laundering is within the category of offences that it is “neither realistically possible or desirable to attempt guidelines” but instead identifies a number of relevant features for the purpose of sentencing.  They are conveniently summarized in the head note of the report and I will not repeat them in full.  In relation to the factors identified, the following features in the present case are present in the case before me:-

· The present case is but a sideshow of a telephone deception cases, which, despite the government’s effort to educate the public, many gullible and unsuspecting citizens still fall prey to this ploy.

· The sum demanded of the victim was HK$300,000.00. The defendant believed he was going to collect HK$100,000.00 and was promised a reward of $3,000.

· Although what the defendant said to the victim at the shopping centre might be indicative that he was aware of the deception scheme, he had also explained that he was merely relaying the answers provided by the culprit over the phone. There is no conclusive evidence that the defendant was privy to the ploy designed to deceive the victim into agreeing to give the random money.

· By the same token, there is no conclusive evidence of an international dimension.

· Although the ploy involved at least two persons, this is not a sophisticated crime.

· Despite the incredibility of the defendant’s explanation (i.e. collecting money on the instructions of the “Sam”, someone he met a few days ago in the internet and had no other means of contacting), the defendant’s role was confined to that of a “leg man” in the scheme.

9.I also take into account cases of comparable magnitude which serve as a gauge to assist me in arriving at a proper starting point.  I should also point out that the District Court cases referred to may not be binding on me, but they are of persuasive value:

· HKSAR v Wu Jian Bing[4]

The facts are almost identical. On four occasions, four different victims received telephone calls demanding repayment of bogus debts owed by their relatives. The total amount involved was $310,000. The moneys were to be placed in designated locations and picked up by the defendant. Upon arrest, the defendant admitted that he came to Hong Kong on a two-way permit on the instructions of another person to do the pick-up, and then to transmit the money back to China. In two of the cases, the money could not be recovered. The victims suffered a total loss of $50,000. The learned District Judge adopted a starting point of 4 years’ imprisonment for each count. On appeal, the Court of Appeal substituted it with one of 3 years.

· HKSAR v Xie Ximing[5]

On two different occasions, two elderly victims received bogus telephone claims demanding repayment of debts incurred by their sons. In the first case, the ransom money of $30,000 was picked up by the defendant and was transmitted to a bank account in the mainland. He was convicted of “Dealing with Property known or reasonably believed to represent Proceeds of an Indictable Offence”. In the second case, the victim reported to the police. The defendant was arrested when he came to collect the ransom money (ie $20,000). He was convicted of “Conspiracy to deal with Property known or reasonably believed to represent the Proceeds of an Indictable Offence”. The defendant was aged 19, clear record, and came to Hong Kong to collect the ransom money in return for a HK$2,000 reward. The learned District Judge considered the facts almost identical to that of Wu Jian Bing, but on the particular facts of the case, adopted a lower starting point of 2 years and 3 months.

· HKSAR v Liang Trjia Wai[6]

The victim received a bogus phone call telling her that her son was in distress for a $200,000 debt and demanded repayment. After confirming that it was a hoax, she made a report to the police. The defendant was arrested when he appeared to the designated place to pick up the money. The defendant admitted coming to Hong Kong at the request of a friend to collect money and for a reward of 5 per cent of the sum collected. The starting point adopted was 30 months.

10.The present case is almost identical to Wu Jian Bing, although the very facts of that case involved four charges. Taking into account the circumstances of the case before me, I consider 30 months would be an appropriate starting point.

Mitigation

11.The defendant pleaded guilty to the charge.  I will therefore reduce his sentence to 20 months.

12.In a detailed written submission, Mr Kwok for the defendant stated that the defendant was remorseful, and even furnished a letter in the defendant’s hand to show his remorse.  It also set out in detail about the defendant’s background, and I will not repeat the same here. It also highlighted the fact that the defendant, a young man of 20 years, was manipulated by the character named Sam into coming to Hong Kong to collect the money.  He was not involved in the ransom, nor did he have knowledge of the same.

13.The above matters have already been taken into consideration when I am considering a proper starting point.  I do not see any other matter which warrants additional leniency.

Enhancement of Sentence

14.On the 19th day of May 2015, the prosecution served a Notice of Intention to Furnish Information pursuant to section 27(2) of the Organised and Serious Crimes Ordinance, Cap 455. To support its application for enhancement of sentence on the grounds of prevalence and harm caused to the community, the prosecution served a witness statement by Detective Chief Inspector Lam Cheuk-ho of the Hong Kong Police Force dated 1 June 2015.

15.DCIP Lam explained, with the support of data collected since 2007 and statistics that the number of telephone deception cases (the predicated offence in the money laundering charge), the offence of money laundering has been on the rise since 2007.  In particular, since 2008 there is an obvious tendency of increase for one of its modus operandi classified as “drop-off cases” and the associated money laundering activities.  The amount of loss has been significant.  The harm caused to the society is considerable.

16.The defence did not object to the application for enhancement and did not ask DCIP Lam to be tendered for further questioning.  Instead, it suggested that in the light of the authority of Wu Jian Bing, the increase should be one‑third.

17.Having read the statement of DCIP Lam, I am satisfied that there is clear and cogent evidence that the “drop-off cases” and the associated money laundering activities are not only prevalent, their numbers are on the rise over the years, and the harm caused to the community is considerable.

18.In the Wu Jian Bing case referred to above, the trial judge had enhanced the sentence by 30 per cent.  The Court of Appeal approved and confirmed such an order.  The defence suggested this court should order similar percentage of enhancement.

19.In view of the fact the decision was based on facts almost identical to those before me, I feel compelled to follow suit and order the term of imprisonment be increased to 26 months, which is slightly less than a 30 per cent enhancement.