HKSAR v. LI JIANLIANG

DCCC 1090/2011

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO.1090 OF 2011

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Reasons for Sentence

1.  The defendant pleaded guilty to one charge of conspiracy to deal with property known or reasonably believed to represent proceeds of an indictable offence, contrary to s.25(1) and (3) of the Organized and Serious Crimes Ordinance (“OSCO”), Cap.455 and ss.159A and 159C of the Crimes Ordinance, Cap.200.

Facts

2.  The defendant is a mainlander and a two-way permit holder. On the day of the offence, the defendant was seen by ambushing Police officers inserting his hand into a blue recycle bin searching for something. Just moments earlier, PW1 had pretended to drop a bag of money into the recycle bin. PW1 did so under the instructions of an unknown person who claimed to have detained PW1’s son and that in order to have him released PW1 had to settle a debt of $150,000.

3.  PW1 is a retired gentlemen aged 67. He was alone when he received the anonymous phone call on his fixed land line telephone at 2:40pm on 16^th August 2011. Over the phone, PW1 heard someone purporting to be his son crying for help in the background. PW1 was scared and believed the scam. He was however able to negotiate with the culprits and promised to pay them $10,000.

4.  The culprit kept PW1 on his mobile phone. At the bank, while PW1 was withdrawing the money, the manager of the bank noticed that something was wrong and made enquiries with PW1 without alerting the culprits. The manager helped PW1 to call his son and found out that he was not in any trouble. She then reported the matter to the Police.

5.  With the backup of the Police, PW1 arrived at Fung Tak Park in Wong Tai Sin at around 4:20pm. Plainclothes Police officers were in secret surveillance in the park. Over the phone, the culprit instructed PW1 to drop the money into a recycling bin in the park. PW1 placed his hand into the blue recycle bin and purported to have dropped the money inside. The culprit however told PW1 that he had someone watching over PW1 and so he knew that PW1 had not dropped the money. PW1 then repeated the action and the culprit then told him to leave.

6.  About 30 seconds later, the defendant walked to the bin and looked around briefly. The defendant inserted his hand into the bin and began searching. The plainclothes officers in ambush rushed out to arrest the defendant.

7.  The defendant was in fact already targeted by the Police officers in surveillance even before he appeared next to the bin. The defendant was seen looking at PW1 from a distance since PW1 entered the park. The defendant was also seen to be talking on his mobile phone all the time and including the moment when PW1 inserted his hand into the recycle bin as if to make the drop.

8.  The defendant remained silent under caution at scene.

9.  In 2 subsequent video recorded interviews, the defendant admitted that on 15^th August, 2011, while he was in mainland China, an acquaintance known as Nam Gor instructed the defendant to go to Hong Kong the following day. The defendant arrived in Hong Kong the next day and bought a SIM card for his mobile phone to communicate with Nam Gor.

10.  Nam Gor instructed the defendant to go to the park. Upon arrival, Nam Gor described how an old man will be putting some money into a bin and that the defendant should go and pick up the money.

11.  The defendant followed the instructions and just when he was looking for the money in the bin, he was arrested. Had the defendant succeeded, he would have remitted the money to Nam Gor and in return the defendant would receive a 15% commission ($1,500) as reward.

Previous conviction

12.  The defendant has a clear record in Hong Kong.

Mitigation

13.  The defendant is 22 years old. He was living with he parents in Jiangmen, Guangdong Province prior to his arrest. His parents came to Hong Kong to show their support. The defendant has a very close relationship with his parents and younger brother. The defendant is a good son and cares about his family member. Counsel Mr. Yuen explained that the reason the defendant committed the crime was because his father was injured earlier and could no longer work as a construction worker. The family was in some financial difficulty. Furthermore, the defendant’s 17 year old younger brother had to pay his school fees. Yet, since the defendant is not highly educated he was not able to get a decent job. Out of desperation, and being young and ignorant, the defendant was further led astray by bad company and committed the present offence.

Enhancement of sentence

14.  The prosecution applied for an enhancement of sentence pursuant to s.27(2) of the OSCO, on the ground of the prevalence of telephone deception cases resulting of this kind of money laundering.

15.  The witness statement of Chief Inspector Chan Che Man was admitted into evidence by consent under s.65B of the Criminal Procedure Ordinance, Cap.221. He testified as to the prevalence of use of the ‘drop-off’ method in telephone deception cases and that this crime is of obvious concern to the society of Hong Kong.

16.  The defendant, through Mr. Yuen, indicated that he had no objection to the application and that he would consider an enhancement by 1/3 an appropriate figure.

Sentencing cases

17.  Mr. Sujanani for the prosecution referred to 2 reported cases of the Court of Appeal.

18.  In HKSAR v Hung Yung Chun and another, CACC 453/2009, the Court of Appeal stated that for phone deception cases, the appropriate starting point is that of 4 years’ imprisonment.

19.  The phone deception in Hung Yung Chun was similar to our present case. Elderly victims received phone calls from unknown people saying that their sons were being detained for outstanding debts. The victims were then asked to withdraw money from the bank and to hand over the money at a certain place. The applicants would show up to make the collection and then leave Hong Kong after obtaining the money.

20.  Both the applicants were of previously clear record and both of them were Taiwanese residing on the mainland.

Some salient points

21.  It would appear from the judgment that the applicants were charged with conspiracy to defraud and the facts they had admitted indicated their active participation in the scheme. The Court of Appeal considered their acts ‘more serious than the ones in a general “money laundering” case’.

22.  Although the applicants claimed that they knew nothing about the phone deception cases, this claim was rejected by the court. It was also found that both of them had come to Hong Kong on many occasions to take part in those acts of deception before.

23.  Just as in our present case, the 2^nd applicant alleged that she had provided assistance to the Police. Information was given by the 2^nd applicant of the names and addresses of 2 mainlanders supposed to be the masterminds of the case. Nothing useful came out of the information and the Court found that the 2^nd applicant failed to prove that the information was of actual help to the law enforcement agencies in Hong Kong or on the mainland. The defendant in our present case is therefore in the same position. I have not heard anything about how the defendant had provided information which was of actual help to any law enforcement agencies.

HKSAR v Wu JianBing, CACC 32/2011

24.  This is the other case referred to by Mr. Sujanani. In Wu, the applicant pleaded guilty to 2 charges of conspiracy to deal with property known or believed to represent proceeds of an indictable offence and 2 charges of actually dealing with the proceeds.

25.  Similar to our present case, the 4 victims in the 4 charges received phone calls from unknown callers falsely representing to them that their family members were assaulted and detained as they owed money acting as guarantors for others. The callers demanded money and instructed the victims to deliver the money to designated locations for collection. The amounts in respect of the 4 charges were $200,000, $30,000, $20,000 and $60,000 respectively.

26.  When the victim of charge 4 dropped off the $60,000, the applicant went to pick it up and was later arrested. Also similar to our present case, the applicant admitted that someone asked him to come to work in Hong Kong and promised him 15% of the profit as reward. The applicant came to Hong Kong from Shenzhen on 7^th June 2010 and then on the same day and the following 3 days collected money at different locations acting on the phone instructions given by an unknown person. He remitted the money to an account in the mainland.

27.  The Court of Appeal referred first to the case of Secretary for Justice v Wan Kwok Keung, CAAR 13/2010, stating that generally speaking, the sentence in a money laundering case should mainly reflect the amount of money being laundered and not the benefit obtained by the defendant or others. Other relevant factors when sentencing include the number of offences, the duration, the degree to which the defendant participated in the offence involving the laundering and whether or not it was an organized and sophisticated crime.

28.  The Court of Appeal then pointed out that the total amount involved was $310,000 and the 4 charges took place within a very short period of time. There was no evidence to show that the applicant participated directly in the offence in connection with the money laundered, nor was there evidence to prove the benefit he obtained.

29.  The Court took the view that judging from the amount of money laundered and the other circumstances in that case, the appropriate starting point for each charge should be 3 years’ imprisonment.

Sentence

30.  I find that the prosecution had proved that telephone deception with drop off method of collecting money is a prevalent crime. I find that this prevalence warrant an enhancement of sentence.

31.  I find that the facts in our present case is not as serious as the facts in HKSAR v Hung Yung Chun. There is no evidence to prove that the defendant knew about the phone deception. The defendant however did come to Hong Kong for the sole purpose of picking up the money, which is an aggravating factor.

32.  I find that the case of Wu JianBing is applicable to our present case. The money being laundered in our present case is $10,000. This is a smaller amount compared to the $310,000 in Wu JianBing. Given that the Court had stated that the main consideration when sentencing a money laundering case is the amount of money laundered, the starting point in our present case must be lower than that of Wu JianBing.

33.  Therefore, based on the amount of money laundered, the fact that the defendant came to Hong Kong with the sole purpose to commit the crime as well as all the circumstances of the case, I find that an appropriate starting point is that of 2 years’ imprisonment.

34.  I will grant the full one third discount in recognition of his guilty plea and reduce this sentence to 16 months’ imprisonment.

35.  I will however enhance this sentence based on the evidence of Chief Inspector Chan and the finding that telephone deception is a prevalent crime. I find that the proper enhancement is by approximately one third, being 5 months.

36.  The defendant is therefore sentenced to 21 months’ imprisonment.