HKSAR v. CHEN JINGHUI

DCCC 170/2015

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 170 OF 2015

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Reasons for Sentence

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1.  The defendant has pleaded guilty to one charge 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, Cap 200.

2.  The particulars are as follows:  that on or about 29 January 2015 in Hong Kong, the defendant conspired with other persons unknown to deal with property, namely a sum of HK$45,000, knowing or having reasonable grounds to believe that the said property, in whole or in part, directly or indirectly represented the proceeds of an indictable offence.

3.  The facts of this case are as follows.  The victim, a 56‑year-old female, received a phone call on her home landline at about 11.30 in the morning.  The person on the other end of the line was a male and pretended to be her son.  He said he had been kidnapped.  At that time, a second male came on the telephone and told the victim that her son owed him money.  The second male asked the victim to give him a mobile phone number to call.  He then called that mobile phone, which was the victim’s husband’s number.  Over the phone he then demanded a ransom of HK$120,000, but the victim told the male she could only get together $45,000.

4.  At this time, the victim recognised that the first male she had spoken to was clearly not her son, and knew that she was the victim of a scam.  She discreetly called the police, who arrived at her home. Unbeknownst to the second male, she saw through the deception.  The second male urged her to leave home and deliver the money.  She did leave her home, but was already in the company of police officers.

5.  Ultimately, the second male asked her to leave the money in a bag in a park, Tsui Chuk Garden, in Wong Tai Sin.  The police accompanied her to Wong Tai Sin and gave her a bag that had no cash in it, referred to as “a dummy bag”.  As instructed by the male over the telephone, the victim put it under a chair in this garden.  She then left.

6.  The police observed the defendant then walk in, make straight for the bag, pick it up, put it in his jacket, and set out to leave the park.  He was arrested and subdued.

7.  He immediately told the police that he was not the mastermind, and had come to Hong Kong to collect money on behalf of another.  The defendant also had two mobile phones that were found on him seized by the police.  The defendant co‑operated, and in a subsequent video-recorded interview gave full details to the police explaining that a man called Lam Chai, when he knew the defendant was coming to Hong Kong, offered him a job in Hong Kong and said he would be in touch by telephone.  The defendant arrived in Hong Kong on 26 January, and on 29 January a male called the defendant, saying he was a friend of Lam Chai’s and asked him to collect some “dirty money” on his behalf.  He was told that he would be paid HK$1,000 for every $10,000 collected.  The defendant knew he had to collect $45,000, but he told the police he had no idea the source of this money.

8.  The defendant’s best mitigation is his plea of guilty today.  He is 22 years old, single, and is a mainland resident.  At home he cohabits with his girlfriend, a 4-month-old daughter, and his parents.  All rely on the defendant financially.  Prior to his arrest he was a waiter earning $2,400 a month.

9.  I have been told the defendant has a clear record in Hong Kong, but as he is not a Hong Kong resident, it really does not carry great weight and is not surprising.

10.  The prosecution applies to enhance the defendant’s sentence pursuant to section 27(2) of the Organised and Serious Crimes Ordinance, Cap 455.  The prosecution relies on section 27(2)(c), the prevalence of this specified offence, and (d), the nature and extent of any harm, whether direct or indirect, caused to the community by recent occurrences of this specified offence.  The prosecution have submitted a statement by Detective Chief Inspector Lam Chuk-ho which supports the grounds the prosecution relies on.  The defendant does not challenge this application, effectively accepting that there are grounds to enhance the sentence.

11.  Defence counsel has supplied me with two District Court sentences from 2014:  HKSAR v Liang Xinchao and Yan Ruihua (DCCC 590/2014) and a second case, HKSAR v Zhen Jingfeng, DCCC 848/2014.  These are supplied for my reference.  I have also referred myself to the authority of HKSAR v Wu Jianbing, CACC 32/2011.  In that case, the Court of Appeal found a starting point of 3 years appropriate for a telephone deception scam.  I have considered the facts of all those cases referred to.  In fact, all those cases and the authority were also subject to an enhancement application by the prosecution.

12.  In this case, I find the following factors relevant to sentence:  the defendant came to Hong Kong and committed this offence for a financial reward; the defendant knew it was “dirty money”, as he described it, but did not know the source of the money.  There is no evidence he directly participated in the telephone deception; all the evidence points to the defendant being “the leg man”, the one who came to Hong Kong to collect the victim’s cash.

13.  I also take into account this is one single offence, not multiple offences, and although the amount of potential loss was $45,000, ultimately the victim did not suffer any loss.  Lastly, I take into account the defendant’s plea and his family background.

14.  Defendant, please stand up.  Having considered all the appropriate factors I find relevant, I will take a starting point of 2 years and 6 months.  You pleaded guilty.  You are entitled to a discount of one-third for that plea.

15.  After that discount, for this offence you are sentenced to 1 year and 8 months.  However, there is the enhancement application, and the fact you do not challenge it and you have pleaded today demonstrates your remorse.  I am satisfied the application made by the prosecution is a proper one, and I accept the opinions set out in the Detective Chief Inspector’s statement.

16.  I will enhance the sentence by 25 per cent. Therefore, I repeat, after the discount of one-third for the defendant’s plea, the sentence of 1 year and 8 months will be enhanced by 25 per cent, which is 5 months.

17.  Therefore, the defendant is sentenced to 2 years and 1 month’s imprisonment.