HKSAR v. RONG JINTU

DCCC 94/2014

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 94 OF 2014

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Reasons for Sentence

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1. The defendant has pleaded guilty to one offence 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 I have convicted him of that offence.

2. The defendant has agreed the facts of the case, and this brings this case into the category of what are called telephone deception cases, or “the drop‑off”, and the defendant is what is described as “the leg man” in that operation.

3. The facts the defendant has agreed show the offence took place on 21 October of last year and it involves communication with an elderly couple, aged 71 and 73, who lived in Yuen Long.  They receive a phone call telling them that their son is being held, and a ransom is demanded of $230,000.

4. In this case the victims, who were PW1 and PW2, were able to report the matter to the police immediately and also to confirm that their son was safe, but they were prepared to go along with a drop-off of what would be money in order to see if the culprits could be apprehended.

5. The person on the end of the telephone is kept, as it were, on the call, and arrangements are made for drop-off of the ransom money.  PW1 stays on the phone and talks to the man who is on the other end. Eventually an arrangement is made for the sum of $200,000 to be delivered to Exit A of Long Ping MTR Station, and there is arrangement that someone will be there to collect the money, and the victims are told that their son will be released after the money is collected.

6. The police are informed and are pre-positioned at the drop‑off location, and some papers carried by one of the victims to Long Ping MTR Station are in the guise of the ransom money.

7. On arrival at Long Ping MTR Station, police lay ambush, and that is when the defendant appears.  He approaches the victim, who was PW2, and asks, “Where is the money?”  He gets the reply, “It’s here”, and a mobile phone is passed to the victim, PW2, as well, and PW2 is told to give the money to the defendant and his son will be released.

8. PW2 then gives the envelope with the purported money in it to the defendant, who puts it into his rucksack.  The defendant then said to PW2, “We collected the money, and we release your son.”  The defendant then leaves.  The operation turns overt, and the defendant is arrested.

9. Under caution at the scene, he immediately says “It was ‘Ah Leung’ who asked me to come and collect ‘the thing’.  After collecting ‘the thing’ he would give me $5,000.”  Mobile phones are found in the defendant’s possession on arrest.

10. He made a subsequent video-recorded interview where he expanded upon his admission at the scene.  He said the “Ah Leung” in question was a friend in Jiangmen who had asked him to go to Hong Kong on 21 October to collect “the thing” and he would get the $5,000 reward as remuneration.  He had come to Hong Kong by bus.  He bought a pre-paid mobile phone and SIM card.  He had been told by “Ah Leung” to go to Kwai Fong and await instructions, and then later been told to go to Long Ping MTR Station to collect “the thing”.  He had gone there and been told to look for an elderly man.  He had been given the description of PW2.  He had received the money from PW2 and put it into his rucksack, and been arrested on leaving.

11. There was confirmation that the defendant had entered Hong Kong on 21 October 2013 via Shenzhen Bay Control Point.

12. All these facts were admitted.  The defendant was accordingly convicted on the basis of admission to those facts.

13. I heard about the defendant’s antecedents and criminal record.  The defendant is a person of clear record.  His antecedents statement shows that he is 25 years old; clear record; educated to secondary education level in the mainland.  He had worked as a factory worker, waiter, and technician, with a monthly salary of around 2,800 Renminbi.  He has family in the mainland.  Although he is single, he has a 6-year-old son.  The defendant has written a letter to me showing his remorse for this offence.

14. As far as the legal matters in respect of sentence are concerned, there are two factors.  Firstly, there is the starting point for the offence that I must consider, and secondly, there is an application by the prosecution for enhancement of sentence under section 27(2) of Cap 455 under sections 2C and D based on the prevalence of the specified offence and the harm caused to society.

15. In outlining the facts I have described this offence as falling into the category of telephone deception cases, and telephone deception cases encompass charges under the Theft Ordinance and also this ordinance, Cap 455, a common feature of these offences being that the victims are usually aged victims, they receive phone calls from unknown callers falsely representing to them that a family member is detained and owes money. The callers demand money from the victims to repay a debt or to pay a ransom, and the payment of that will obtain the family member’s release.  They are instructed by telephone to deliver money to designated locations for collection known as a “drop‑off” and the money is collected by a person who has come in usually from the mainland, and the money is dropped off to him, and that person is often described in the cases as being “the leg man”.

16. In this case, the defendant is charged under section 25(1) of the Organised and Serious Crimes Ordinance.  Money laundering is a serious offence.  Sentences should generally reflect the amount of black money agreed to be laundered.  It is also relevant to consider the degree to which the defendant participated in the offence and whether the offence was organised and sophisticated and whether it involved an international element.

17. In this case, the initial ransom amount asked for was 230,000, and the agreed amount to be delivered was $200,000.  The offence itself encompassed a short period of time on 21 October 2013.  The defendant is properly described as a leg man, there to carry the money away. There was no evidence of any benefit received by the defendant.

18. In the case of HKSAR v Wu Jianbing CACC 32/2011, the Court of Appeal indicated that a person committing this offence in those circumstances can expect a starting point of 3 years’ imprisonment even with a clear record.

19. The offence in this case is almost identical with at least one of the charges in the Wu Jianbing case where a 3‑year starting point was said to be appropriate.  I can see no reason to depart from that starting point in this case.

20. The starting point for sentence will be one of 3 years’ imprisonment.  The defendant is entitled at this stage to a one-third deduction from that, giving a sentence at this stage of 2 years’ imprisonment.

21. I have to consider whether it is appropriate for that sentence to be subject to enhancement.  The prosecution have made an application to enhance this sentence under section 27(2) of the Organised and Serious Crimes Ordinance.  They rely on two legs of that ordinance:  the prevalence of the particular form of offending and the nature of the harm caused to Hong Kong society by that particular form of offending.

22. The offence that I am concerned with here is the offence charged under section 25(1) of Cap 455.  I have a statement from Inspector Lam Chuk-ho which gives me statistics in relation to what are classified as telephone deception cases.  The initial classification is whether the offence falls under the definition of section 17 of the Theft Ordinance, Cap 210, but the offence itself clearly can involve commission of offences under section 17 of the Theft Ordinance and also section 25(1) of the Organised and Serious Crimes Ordinance.

23. The charge presented against the defendant will depend on his particular role in telephone deception cases.  It is clear from the statement of Inspector Lam that of the last few years, a particular modus operandi of telephone deception cases has been what is known as “drop-off cases”, where the money has to be dropped off in a specific location.  I am told by the Inspector drop-off cases are not only prevalent, but have been increasing in the last few years.  In 2012 there were 25 detected cases; in 2013, 28 detected cases.  In 2012, the losses on those cases were over 10 million.  In 2013, that had increased to 13 million; and in January to April 2014, already 3.47 million has been lost.

24. The evidence presented by Chief Inspector Lam clearly shows the offence of telephone deception by way of drop‑off is a prevalent offence in Hong Kong and also the offence itself causes harm to the community by its repeated occurrence.  The drop‑off cases involve criminality involving the commission of specified offences under section 25(1) of this ordinance.

25. I consider for these reasons that an enhancement of sentence is an appropriate form of sentencing in respect of this case and this particular charge.  As far as the enhancement is concerned, I will adopt the enhancement set out in the case of Wu Jianbing, which is of one-third.

26. This brings the charge to be enhanced by one‑third; ie by 8 months’ imprisonment, which is a final sentence of 2 years 8 months’ imprisonment, or 32 months’ imprisonment.