HKSAR v YANG WENCONG

DCCC 1117/2011

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 1117 OF 2011

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REASONS FOR SENTENCE

The defendant pleaded guilty to 3 charges of "Conspiracy to deal with property known or reasonably believed to represent proceeds of an indictable offence".

Summary of Facts

Charge 3

2.  About 10:15 am on 15 August 2011, a telephone deception took place.  Madam WONG Pok-hang (PW3) received a landline phone call at home.  One male voice pretending to be her son claimed that he was in trouble and shouted for help.  Another male voice told PW3 that her son owed him $80,000 and demanded PW3 to pay.  After negotiation, the 2^nd male voice agreed to accept $40,000.  Meanwhile, PW3 confirmed with her 2 sons that they were safe.  The Police was notified.

3.  About 12:30 pm on the same day, pretending to be PW3, WDSSgt LEE Yee-hung (PW7) arrived at Kowloon Hospital.  About      1:00 pm, the 2^nd male voice told PW7 to go to Mandarin Court, Argyle Street and drop the money into a rubbish bin nearby.  PW7 dropped a plastic bag which contained a pack of white paper (collectively "E1") into the rubbish bin.  She was then told to walk towards Waterloo Road.

4.  DPC 33893 (PW8) was laying ambush in the vicinity.  He saw a male (later found to be the defendant) standing near the rubbish bin looking around.  The defendant then picked up E1 from the rubbish bin and walked away.  PW8 immediately arrested him.

5.  Under caution, the defendant claimed that he was asked by a friend to collect the money.

Charge 1

6.  About 10:00 am on 21 June 2011, a similar telephone deception took place.  Madam WONG Lee-kuen (PW1) received a landline phone call at home.  A male voice told her that her son was being detained due to defaulted credit card payment in the sum of $100,000.  Another male voice pretending to be PW1's son asked her to save him as he was being assaulted.  As a result, PW1 went to a park opposite to Kowloon Hospital and dropped $22,000 cash into a rubbish bin.  PW1 contacted her son later and discovered that it was a scam.  The Police was notified.

Charge 2

7.  About 3:00 pm on 23 June 2011, another similar telephone deception took place.  Madam LIO Lin-sio (PW2) received a landline phone call at home.  A male voice pretending to be PW2's son told her that he was

being assaulted. Another male voice told her that her son owed him $40,000. As a result, PW2 went to Fung Tak Park, Wong Tai Sin and dropped $8,000 cash into a stone rubbish bin located inside a pavillion. PW2 later discovered that her son was safe. She returned to the scene and the money was gone. She reported the matter to the Police.

Video Recorded Interviews

8.  In his 1^st interview, the defendant admitted under caution that he resided at Zhuhai and worked as a hair stylist.  He said one of his customers named "Bun Chai" asked him if he wanted to make some money by going to Hong Kong.  Bun Chai then introduced him to "Ming Chai".  The defendant communicated with Ming Chai by phone.  Bun Chai told the defendant that the accommodation and travelling expenses plus 10% of the money collected would be paid to him.  On 14 August 2011, the defendant received a call from Ming Chai asking him to go to Hong Kong the following day at 10 am and to wait for his call.  The defendant arrived at Hong Kong on 15 August 2011.  About noon, Ming Chai asked him to go to Kowloon Hospital.  Ming Chai told him that a woman wearing a red-white stripe top would drop something into a rubbish bin and he should pick it up from the rubbish bin.  Later on, the defendant saw a woman wearing a red-white stripe top.  She dropped a green bag into a rubbish bin outside Kowloon Hospital.  He picked up that green bag from the rubbish bin but did not know what was inside.  He was arrested after picking up the green bag.  The defendant admitted that he was told to open the bag after collecting it; if it is money inside, he should remit the money to a bank account in the mainland.  The defendant claimed that he did not know the source of the money; he was told that it was possible to earn $30,000 a week.

9.  In his 2^nd interview, the defendant admitted that he had picked up money on 2 other occasions respectively at Kowloon Hospital on 21 June 2011 and at Fung Tak Park on 23 June 2011.  It was Ming Chai who told him to pick up money from the rubbish bins.  The defendant said Bun Chai gave him $1,500 to buy ferry tickets to Hong Kong.  For Charge 1, he remembers picking up $21,000 to $22,000 and received $2,000 as his reward. For Charge 2, he picked up $8,000 and received $800 as his reward.  He remitted all the money he picked up to a bank account in the mainland.  He did all these things in order to help his family.

10.  In his 3^rd interview, the defendant identified himself from a still photo which was captured from the CCTV system of Fung Tak Park.  He also admitted picking up $8,000 from a rubbish bin at the park.  The defendant subsequently led the Police to Kowloon Hospital and Fung Tak Park and identified the rubbish bins from which he picked up the money.

11.  The Travel Index Record shows that the defendant was in Hong Kong at the time when Charges 1 and 2 took place.

Mitigation & Sentence

12.  The defendant is now 25 and has a clear record.  He resides with his mother (aged 65), who has lung problems and needs regular medical treatment, and a sister, who has no work.  The defendant is the sole bread winner for his family.  He works as a hair stylist in Zhuhai earning RMB3,000 per month.

13.  Defence counsel Mr. TAM submitted that the defendant has made full and frank admissions to the Police.  The defendant was not the mastermind but only a foot soldier.  The defendant has given the phone number of Bun Chai to the Police and is willing to assist further if required in the future (including giving evidence against other culprits).  Mr. WONG for the Prosecution, however, confirmed that the defendant's further assistance is not required in this case.

14.  Before mitigation, the Prosecution applied for enhanced sentence in respect of all 3 charges on the basis of prevalence (see written Notice dated 4 November 2011). Mr. TAM did not object.

15.  In HKSAR v XU Mai Qing CACC 464/2005, Yeung JA (as he then was) held "Under section 27(11) of OSCO, what the prosecution has to prove is the prevalence of the offence, not the increase in the number of such offences."[1]  As revealed in the statement of DCIP CHAN Che-man dated 6 February 2012, there is clear and cogent evidence before me that phone deception (especially the "Drop-off" mode) is widespread and is commonly being practised today.  Given the role played by the defendant, the amount involved and the overall circumstances, I grant the Prosecution's application and will enhance the sentence for each charge by one-third.[2]

16.  The Court of Appeal in HKSAR v FAN Shek Hung CACC 393/2006 (English Translation) held "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."[3]

17.  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."[4]

18.  The circumstances under which the defendant picked up cash from a rubbish bin placed on the street or in a park would most certainly trigger his suspicion about the legitimacy of such money.  However, it does not mean he had knowledge about the source of the cash he picked up, namely proceeds of phone deception.

19.  All 3 charges were committed by the defendant within a short period of time (between late June and mid-August 2011); the defendant travelled to Hong Kong twice to commit the offences[5]; the total amount of money deceived is $70,000[6] ($30,000 of which were not recovered); and the defendant's total remuneration was $6,800 (but received $2,800 only).

20.  On this basis, I set the starting point for each charge at 2.5 years' imprisonment. One-third discount is given for the guilty plea, reducing the sentence to 20 months.  Apart from this, I see no other mitigating factors which warrant any further reduction.  With the one-third enhancement, the sentence for each charge is therefore 26 months.

21.  All 3 charges are separate and distinct.  In theory, the sentences should run consecutively.  Bearing in mind the totality principle, I consider an overall prison term of 32 months to be appropriate.  Hence, I order the sentences of Charges 1 to 3 to run in the following manners :-

(i) Charges 1 and 2 concurrently; and

(ii) 6 months in Charge 3 consecutive to Charges 1 and 2.

Thus, arriving at a total prison term of 32 months for all 3 charges.