HKSAR v. LIN YU HSIEN

 DCCC1063/2009

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 1063 OF 2009

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Reasons for Sentence

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1.  The defendant pleaded guilty to 3 charges of "Dealing with property known or believed to represent proceeds of an indictable offence", contrary to section 25(1) and (3) of the Organized and Serious Crimes Ordinance, Cap.455.

Summary of Facts

2.  In the morning of 25 August 2009, Madam LAM (PW1), Mr. SOON (PW2) and Mr. FONG (PW5) each received a phone call made to their respective landlines at home between 9:40 and 11:30. In each phone call, there was a male voice claiming to be their respective sons asking for help. Then another male voice took over the call explaining to them that their respective sons have guaranteed a debt for a friend who had disappeared. The same voice continued to tell them that their respective sons have been captured and that they each had to repay such debts immediately in order to secure the safety of their sons. Before hanging up, the 2^nd male also asked PW1, PW2 and PW5 each for a mobile phone number for further contact.

3.  Later on in the same morning, the 2^nd male called each of them at their respective mobile numbers. Detailed payment instructions were given over the phone. The voice also demanded PW1, PW2 and PW5 each to stay on line during their delivery of payments.

4.  PW1 was instructed to place $30,000 cash on a flowerbed located at Sung Wong Toi Garden in Kowloon City, which she did at about 12:10 pm. Thereafter, she was told to leave immediately. At about 11:55 am, PW2 was instructed to bring $50,000 cash to McPherson Playground in Mongkok. Upon arrival, PW2 was asked to place the money into a white plastic bag placed on the ground behind a white concrete pillar inside the playground. PW2 did so and went home as told.

5.  Shortly after 1:00 pm, PW1 and PW2 each called their respective sons and discovered that each was safe at his workplace and had never been captured. They then reported the matter to the Police.

6.  PW5 received the 1^st phone call at about 9:40 am. He immediately realized that the 1^st male voice was neither of his 2 sons. He nevertheless continued the conversation with the 2^nd male. He told the 2^nd male he only had $40,000 in his bank account, and the 2^nd male demanded PW5 to withdraw all his money from the bank. After the 1^st phone call, PW5 called the Police. He also called his 2 sons to confirm that they were both safe at their workplaces. Police officers, including PC 6759 (PW6) and PC 34113 (PW7) very soon arrived at PW5's home. The Police provided PW5 with a mobile phone number and a brown envelop containing newspapers. Later on, the 2^nd male called PW5's home to ask for his mobile phone number. PW5 gave that number to him.

7.  The 2^nd male then called the mobile phone number provided by PW5. He instructed PW5 to take the money to McPherson Playground. PW6 and PW7 followed PW5. Upon arrival, PW5 was told to place the money into a white plastic bag and then place it on top of a brown rubbish bin. PW5 put the brown envelop containing newspapers into the white plastic bag and then went home as told.

8.  After PW5 has left the playground, PW6 and PW7 saw the defendant, who was carrying a black bag on his shoulder, approaching the brown rubbish bin. The defendant looked around, picked up the white plastic bag and then walked away (this is Charge 3). PW6 immediately approached the defendant and revealed his police identity. The defendant ran but was intercepted by PW6 after a short pursuit.

9.  After a search, the Police found $30,000 cash in the defendant's right trouser pocket (this is Charge 1) and $50,000 cash in the black bag carried by him (this is Charge 2). The Police also found on the defendant 3 mobile phones, a Hong Kong map and a piece of paper drawn with a sketch showing directions to McPherson Playground.

10.  In his video interview, the defendant admitted, under caution, that he is a Taiwanese businessman. He arrived at Hong Kong at about 9:30 am on 25 August 2009. His friend "Siu Ko" gave him a mobile phone and asked him to come to Hong Kong to collect money for "Siu Ko". At about 11:00 am, "Siu Ko" asked him to go to Sung Wong Toi Garden to collect a bag containing $30,000 cash placed on a garden bench. He did not see who left the money there. He did not know and was not the person who spoke to the owner of the $30,000 cash. The Police later found that sum in his trouser pocket. After collecting the $30,000, "Siu Ko" instructed him to go to McPherson Playground to collect a bag of money from an old lady. When he arrived at the playground, he saw an old lady leaving a bag of money on a table. He took the bag of money after the old lady had left. The Police later found the $50,000 cash in black bag carried by him. "Siu Ko" has also asked him to place a white plastic bag inside McPherson Playground and to wait for a client to put money into it. Later, "Siu Ko" told him that a client has put money into the white plastic bag and asked him to collect it. He picked up the white plastic bag and found a brown envelop inside. At that moment, many people surrounded him.

Mitigation & Sentence

11.  The defendant is now 41 years old and has a clear record. He is a Republic of China passport holder and was a businessman in Taiwan. He recently moved to Zhuhai in the mainland to set up some business with friends. The defendant got married in 2008 and has no children. He is the only child of his parents who still reside in Taiwan.

12.  Defence counsel Ms. MA submitted that it was "Siu Ko" who asked the defendant to come to Hong Kong to collect some money for him. The defendant does not know the background of "Siu Ko", except he is also from Taiwan. To the defendant, "Siu Ko" appears to be an ordinary businessman in Zhuhai. He just came to Hong Kong to help out a friend. The defendant has recently set up some business in Zhuhai, he, therefore, wanted to establish some network of friends to help him. He believed doing "Siu Ko" a favour would foster their relationship and would be useful in the future.

13.  Ms. MA stressed that at the material time, the defendant had no knowledge of the phone deception incidents. He came to Hong Kong only as a collector. Furthermore, the defendant has been very cooperative since he arrest. He made full and frank admissions to the Police. All the cash was retrieved and the victims did not suffer any loss. Some mitigation documents were submitted and their contents are noted.

14.  The Prosecution has applied for enhanced sentences based on section 27(11)(a) of Cap.455, arguing that Charges 1 to 3 are an "organized crime" as defined in Cap.455 in that they are related to activities of 2 or more persons associated together solely or partly for the purpose of committing 2 or more acts, namely "Dealing with property known or believed to represent proceeds of an indictable offence" and "Conspiracy to deal with property known or believed to represent proceeds of an indictable offence", which are Schedule 1 offences and involve substantial planning and organization. Ms. MA objected to this application, arguing that there is no evidence showing the defendant has any knowledge of or has played any part in the phone deception incidents.

15.  I consider that there is insufficient evidence to support the Prosecution's application. First of all, apart from the defendant's admission, there is no evidence showing how many persons were involved in Charges 1 to 3 or the phone deception incidents. "Siu Ko" may well be a fictitious person invented by the defendant to down play his culpability. Even if the defendant's claim was true, I do not see the simple scheme of asking the defendant to collect the cash placed at various locations involves any substantial planning and organization.

16.  I note that the Prosecution did not plead in its written application "Obtaining property by deception" or "Fraud" as the "2 or more acts committed". In my view, either act would involve a larger extent of planning and organization based on the facts revealed. Hence, I cannot take into consideration of the 3 phone deception incidents. And even if the Prosecution did, there remains the hurdle of proving 2 or more persons involved. There is simply no evidence showing who or how many persons were involved in the phone deception incidents. Based on the reasons stated above, I refuse the Prosecution's application for enhanced sentences.

17.  Ms. MA has helpfully drawn my attention to the comments made by the Court of Appeal in HKSAR v FAN Shek Hung CACC 393/2006 (English Translation) "While the sentencing court is entitled to take into account the sentence of the underlying indictable offence, this Court (Stuart-Moore VP and McMahon J) held in HKSAR v CHEN Szu Ming CACC 270/2005 that the court, in considering the sentence of 'dealing with property representing proceeds of an indictable offence', should only do so on the basis of that offence itself rather than the underlying indictable offence. That said, the defendant's knowledge of the underlying indictable offence will of course constitute an aggravating factor." (paragraph 13, p.6)

18.  The Court of Appeal in HKSAR v XU Xia Li & another CACC 395/2003 held "There are no guidelines for offences of this nature [i.e. money laundering]. The reason for this being that the circumstances of each case may vary almost indefinitely." In HKSAR v HUI Kam [2000] 3 HKLRD 211, Deputy High Court Judge Chu (as she then was) held "The offence in question [i.e. money laundering] is one which justifiably calls for a deterrent sentence, both in the sense of deterring the individual offender and of deterring the community as a whole. It is not too difficult to appreciate that the handling and disposal of proceeds of crime is very often an integral and important part of a criminal plan. The incentive to offend will clearly be curtailed if criminals cannot dispose of the fruits of the crime. It is therefore important to impress upon members of the public the serious consequences of dealing in and disposing of proceeds of crime even when one is helping his family member. Where a deterrent sentence is called for, then it is not wrong in principle to impose an immediate custodial sentence on a first offender."

19.  In HKSAR v NG Tsz Ming HCMA 454/2005 (Chinese judgment), the appellant allowed someone, whom he met on ICQ, to use his bank account to accept some funds in return for a commission. As a result, a sum of $49,000, which were proceeds of a theft offence, were transferred into the appellant's account. Deputy High Court Judge To (as he then was) upheld the starting point of 12 months imprisonment adopted by the trial magistrate.

20.  The circumstances under which the defendant picked up the cash in a park or playground would most certainly trigger his suspicion about the legitimacy of such money. However, it does not mean he knew that the cash he picked up are proceeds of deception. In the absence of any evidence showing that the defendant had knowledge of the 3 phone deception incidents, I take the view that his role is similar to those who sell their ATM cards or lend their bank accounts to others for dealing with proceeds of crimes.

21.  All 3 charges constitute a series of criminal acts committed by the defendant at about the same time, and the total amount involved is $120,000. On this basis, I consider the appropriate global starting point to be 2.5 years (30 months) imprisonment. One-third discount is given for his guilty pleas, reducing the sentence to 20 months. Apart from this, I see no other mitigating factors which warrant any further reduction. I therefore sentence the defendant to 20 months imprisonment for each charge. I order the sentences for Charges 1 to 3 to run concurrently.