HKSAR v. HUANG JUNJIE

DCCC 278/2015

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 278 OF 2015

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Reasons for Sentence

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1.  The defendant Huang Junjie was charged with and 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 Crime Ordinance, Chapter 455 and sections 159A and 159C of the Crimes Ordinance, Cap 200.

2.  He was convicted upon his plea and admission of facts.

Facts

3.  On 13 February 2015, the victim, Madam Tang (aged 62), received a call from a man claiming to be her son.  Another man took over the conversation, demanded repayment of $200,000 debt incurred by her son for acting as a guarantor.  She bargained it down to $20,000 and was instructed to take the money to a designated MTR station.  Meanwhile she made a report to the police.  As arranged, she went to the MTR station and the defendant appeared, identifying himself as the one designated to pick up the money.  He was immediately arrested by the police officers laying ambush in the vicinity.  It was later confirmed that her son was not held for random and the whole thing was a hoax.

4.  Under caution, the defendant pleaded ignorance: that he was instructed by a casual acquaintance (known to him by surname only) to pick up something from an old woman, that he had no means of contacting the man, that he did not know he was to collect ransom money and that there was no mention of reward for him. 

5.  The defendant was a mainland resident.  He contended that his visit to Hong Kong was for buying medicine but had not been able to do so as he could not find the shop he did the purchase on the previous occasion.

Discussions

6.  The present offence arises out of what is generally called “telephone deception”, a crude criminal ploy targeting mainly the vulnerable, gullible and unsuspecting; which usually means the aged and uneducated segment of the society.  Despite the government’s effort to alert the public of these traps, unfortunately, these offences are still rampant.

7.  In considering the proper sentence for such offences, my attention has been drawn to the decision of Chen Jianchao (CACC 184/2015) in which the Court of Appeal considered an appeal against a sentence order made in the District Court.  In his judgment, Hon Lunn VP carried out a review of previous decisions on the subject.  He cited and identified a number of factors relevant for a sentencing judge to decide on a proper starting point (see paragraph 22 to paragraph 25 of his judgment of the court).  The factors relevant to the present case are:

i. The amount involved was a relatively small sum of $20,000,

ii. The crime itself was not sophisticated and completed within a few hours,

iii. There was no evidence to link the defendant to the background offence of telephone deception,

iv. The defendant’s role, according to him (which the undersigned has to accept, albeit not without misgiving), was to be there to take the money. He was not aware of the telephone deception nor did he stand to benefit from the crime,

v. Although the defendant came from China, there was no evidence he came to Hong Kong solely for the purpose of perpetuating the crime,

vi. There was no international dimension to the crime.

Application for Enhancement

8.  On 20 April 2015, the prosecution issued a notice pursuant to section 27(2) of the Organised and Serious Crimes Ordinance, Cap 455 for the application to enhance the sentence on the grounds of prevalence and harm done to the society.  It is supported by an affirmation by Detective Chief Inspector Lam Cheuk-ho.  In his statement marked MFI-1, DCI Lam explained the particular modus operandi of the present offence (which he called “drop-off”), a variation of the telephone-deception offences and the difficulties of detecting and arresting the culprits.  He also furnished data to show that the “drop-off” cases and the associated money-laundering activities are prevalent and are increasing by the year.

9.  The defence did not challenge the information contained in the said statement.  Having read the statement, I am satisfied beyond a reasonable doubt that by reasons of the matters referred to therein, it is appropriate to pass a more severe sentence than I otherwise would have under section 27(11)(b) of the Organised and Serious Crimes Ordinance.  

Authorities on Sentencing

10.  My attention was also drawn to the following decisions of the District Court on facts similar to the present case:

Zhen Huien DCCC 378/2013

A telephone-deception case. The victim was aged 90. She received a call by someone pretending that her grandson was held in ransom and demanded $130,000. She negotiated it down to $50,000. The defendant was arrested by the police at the time the money was supposed to be handed over. No evidence that the defendant was party to the telephone deception. His Honour Judge Browne adopted a starting point of 21 months, reduced by one-third to reflect the guilty plea, enhanced by 25 per cent under the prosecution’s application.

Total term of imprisonment: 17 months and 2 weeks.

Kuang Yaowai DCCC 93/2015

Another telephone deception. The victim, aged 87, received a call from a male claiming to be his son and that he was abducted for a debt of $200,000. He finally agreed to pay $10,000 in return for his son’s release. Case was detected before money changed hand. His Honour Judge Casewell adopted 21 months as a starting point, reduced it by one-third and enhanced it by 25 per cent for prevalence and harm.

Total term of imprisonment: 17 months.

11.  These cases, though strictly not binding, are nonetheless persuasive, as the facts are similar. Furthermore, in my view, a certain degree of consistency in sentencing on courts of the same level is important.  Having compared the facts of the present case and those of the above cases, I will respectfully adopt a similar sentencing approach and use 21 months as starting point.

Mitigating Factors

12.  The defence lawyer pointed out that the victim in the present case was aged 62, and was younger than the victims in the other cases referred to.  I do not consider the difference warrants the adoption of a lower starting point or exceptional leniency.  I dare say the anxiety and anguish suffered by the victims, despite their differences in ages, are similar and equally traumatic when told his or her loved ones are in harm’s way. 

13.  The defendant was a young man of previous good character in Hong Kong.  He lives in the mainland, running a small factory with the assistance of his mother.  He is very remorseful and is anxious to return home to continue his previous role as a provider of the family.  In my view, these are not valid mitigation factors.

14.  For reasons stated above, I will adopt a starting point of 21 months, reduced to 14 months to reflect his guilty plea.  By reasons of the prevalence of the offence and its harm done to the society, I enhance the sentence order by 25 per cent, and after rounding it down to the last full monthly figure, I order the defendant be sentenced to 17 months’ imprisonment.