HKSAR v. LI YONGHONG

CACC 254/2015

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 254 OF 2015

(ON APPEAL FROM DCCC NO. 420 OF 2015)

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J U D G M E N T
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1.  Following his plea of guilty before HH Judge Dufton in the District Court on 13 July 2015, the applicant was convicted of a single charge of conspiracy to deal with property known or believed to represent the proceeds of an indictable offence, contrary to section 25(1) and (3) of the Organized and Serious Crimes Ordinance, Cap 455, and sections 159A and 159C of the Crimes Ordinance, Cap 200. He was sentenced to 2 years and 8 months’ imprisonment. The applicant now seeks leave to appeal against his sentence.

Facts

2.  On 14 April 2015, a Mr Yim (PW1), who was 63 years of age, and his wife received a call on their residential telephone line from an unknown man.  This unknown man pretended to be PW1’s son and told PW1 that he had acted as a guarantor for someone who had run away, and that, as a result, he needed to pay AUD$300,000 ransom for his own release.  A second male then came on the line and told PW1 that his son owed them AUD$350,000 and asked PW1 for his mobile telephone number.  That second male then called PW1’s mobile telephone number and PW1 negotiated a reduced ransom of HK$120,000 to be paid first, with the balance being paid later.  PW1 told the second male that he would have to withdraw the money from the bank.

3.  PW1’s wife meanwhile contacted her sister-in-law, who made a report to the police.  PW1’s son was also contacted and confirmed that he was safe in Australia and not in debt.

4.  After PW1 had subsequently informed the second male that he had obtained the money, he was instructed to go to Kowloon Hospital to deliver the money.  The police, who were by then involved, gave PW1 a brown envelope containing some dummy money.  On arrival at the hospital, PW1 was then instructed by the second male to go to the Sunward Commercial Building nearby.  PW1 followed his instructions and proceeded to the staircase on the 4^th floor of the building concerned, where he placed the dummy money.

5.  After the apparent detour from the hospital, the applicant was observed by police officers to be closely following PW1 on his way to the Sunward Commercial Building.  When police officers arrived at the building concerned, they saw the applicant holding the brown envelope at his right hand and trying to leave the building.

6.  The applicant was intercepted and arrested by the police.  In a subsequent video recorded interview conducted under caution, the applicant admitted that on 11 April 2015, he had agreed to come to Hong Kong from the mainland to do some work, for which he would be paid $6,000.  The applicant arrived in Hong Kong on 13 April 2015 on a two-way permit and rented a room at a guest house in Nathan Road, Kowloon.  He then called the male who had recruited him, and was instructed to delete all their conversation records from his telephone, and to buy a new mobile telephone and SIM card.

7.  On 14 April 2015, the applicant was instructed to go to the Bank of China near Prince Edward MTR station where he was to follow an old man to a building and pick up the item which the old man had left.  The applicant knew that he was going to pick up some money.  He further admitted that he knew what he was doing was illegal and that the money he was picking up was the proceeds of a scam.  The applicant had yet to receive any remuneration.

Mitigation

8.  The applicant was 21 years of age at the time of his sentence. He was single and had received primary school education in the mainland.  He had been a factory worker earning about RMB$3,000 per month but had lost his job in early 2015.

9.  It was said on his behalf that the applicant was lured into committing the offence because of financial difficulty.  Not only had he recently lost his job, but he had indulged in gambling and was in debt for some RMB$60,000.  As the applicant seemed to have limited knowledge of the predicate offence and his offending could be considered to be a single incident, the judge was invited to take a lenient view of sentence, having particular regard to the applicant’s plea of guilty.

Reasons for sentence

10.  In his reasons for sentence, the judge expressly stated that he took into account the fact that the offence was committed because of the applicant’s financial difficulties, and that he was young and of good character.  However, he considered that coming to Hong Kong for the purpose of committing a crime in this jurisdiction was an aggravating feature of offence.

11.  The judge remarked that money laundering was a serious offence for which deterrent sentences were required.  In determining the culpability of a defendant, the court had to look to the nature of the predicate offence and the extent to which the defendant’s actions assisted the crime or hindered its detection; the extent of the defendant’s knowledge of that underlying offence; the amount of money involved; whether there was an international element involved in the commission of the offence; the degree of sophistication involved; the level of defendant’s participation, including the duration of that participation; and any benefit derived from the offence.

12.  Accepting that there was no evidence that the applicant knew about the details of the scam, the judge said he was prepared to find that the applicant had no more than a “sketchy idea” of the predicate offence.  He noted that the applicant had been recruited to come to Hong Kong to commit a specific offence; that, although the applicant believed that the money was obtained from a scam, he was not a party to the actual telephone deception; and that, although there was a degree of planning in the operation, the applicant’s role was limited to collecting the money.

13.  The judge referred to a number of similar appellate cases, namely HKSAR v Wu Jianbing [2012] 1 HKLRD 781, HKSAR v Cen Huakuo [2015] 2 HKLRD 951, and HKSAR v Lin Zong Yue (unrep., CACC 141/2014), in all of which starting points of 3 years’ imprisonment had been held to be appropriate. Accordingly, he considered that the proper starting point in this case should also be 3 years’ imprisonment.  Giving full credit for the plea of guilty, the judge reduced the sentence to 2 years’ imprisonment.

14.  The prosecution had applied for an enhancement of sentence, pursuant to section 27(2) of the Organized and Serious Crimes Ordinance on the grounds, firstly, of the prevalence of the offence; and, secondly, of the nature and extent of the harm, whether direct or indirect, caused to the community by recent occurrences of the offence.  The judge was satisfied that both grounds for enhancement were made out and thus enhanced the sentence by one-third, namely 8 months, giving a total sentence of 2 years and 8 months’ imprisonment.

Grounds of appeal

15.  In the applicant’s letter dated 30 July 2015 attached to his Notice of application for leave to appeal (Form XI), he asked for an earlier release so that he could take care of his parents, who suffered from various medical conditions.

16.  In his written submissions in support of his grounds of appeal, the applicant explained that because he was young, ignorant and lacking in social experience, he was tricked by criminals into helping them do wicked things.  He said he had pleaded guilty out of remorse.  He referred to two first instance decisions, namely HKSAR v Liu Chang Cai (DCCC 296/2015) and HKSAR v Li Wen Min (DCCC 504/2015), which each concerned multiple charges of money laundering arising from telephone scams. The amounts involved in the two cases were not dissimilar to the present case, although some money was actually parted with by the victims in those cases.  As the sentences passed in the two cases cited were similar to the present case, the applicant seemed to be arguing that, since PW1 did not actually suffer any loss, unlike the victims in those cases, his sentence should be lower.

17.  The applicant has this morning referred to the report in a newspaper of another recent “similar” case (DCCC 678/2015), in which the sentence after plea was reported as being 2 years’ imprisonment.

18.  Accordingly, he suggests that an overall starting point of 2 years’ imprisonment would in the circumstances have been sufficient to reflect his culpability, while at the same time allowing him to learn from his mistake whilst in prison.

The respondent’s reply

19.  Mr Lui, on behalf of the respondent, submits that the most relevant and applicable authority was the one referred to by the judge himself, namely Cen Huakuo.  In that case, an 18-year-old mainlander of clear record was similarly charged with conspiracy to deal with property known or believed to represent the proceeds of an indictable offence, in circumstances where he had tried to collect a sum of $50,000 from the 78-year-old victim of a telephone scam.  There was no evidence that the defendant took part in the deception itself or knew about the details of the scam.  However, he had had what was characterised as a “sketchy understanding” about the relevant indictable offence and his role was merely to collect money.  In those circumstances, the Court took the view that the appropriate starting point should have been 3 years’ imprisonment, with a one-third enhancement pursuant to the Organized and Serious Crimes Ordinance.  Mr Lui points out that, while the starting point and the level of enhancement was the same in Cen Huakuo, the amount to be collected by the present applicant was more than twice as much.

20.  It was argued that taking advantage of vulnerable members of society by placing them in situations where significant stress and anxiety would inevitably be caused to them was callous and hard-hearted.  “Abhorrent and despicable” is how the Court in Cen Huakuo, at para 25, had described telephone deception.  He pointed to recent statistics (as at 2 July 2015), which were placed before and accepted by the judge in the District Court, and which revealed that such “drop-off” telephone deception cases[1] had became increasingly prevalent in Hong Kong, and suggested that deterrent sentences must be imposed on those who participate in organized crime.  He submitted that the judge’s sentencing approach cannot be faulted and the application should be refused.

Discussion

21.  In this case, a young man was recruited to cross the border in order to collect what he must have appreciated, in view of the elaborate preparations and arrangements which had been made, was going to be a significant sum of money derived from a telephone scam.  Indeed, he accepted in interview that he knew his act was illegal and that it involved picking up money from the victim of such a scam.  To put it bluntly, the applicant knowingly came to Hong Kong in order to commit a serious crime in this territory.  He may not have known all the details of the scam, and he may not have been involved in that side of the offence, but without his ready participation for reward, the crime could not have been achieved.

22.  The recruitment of people from outside the jurisdiction to collect the proceeds of a scam with which they have no apparent connection, and then to be spirited back across the border when they have done what they are required to do, will no doubt make these particular crimes difficult to detect.  Deterrence must be a significant component in sentencing for these unpleasant offences, which, as the judge noted, are becoming increasingly prevalent.

23.  As the courts have said before, there is a significant difference between someone visiting Hong Kong, who happens to commit a criminal offence while he is here, and someone who comes here for the specific purpose of committing a serious criminal offence: see HKSAR v Aguilar Garcia Milner Javier (unrep., CACC 485/2012) at para 19; and also Cen Huakuo, at para’s 24-25.

24.  The judge properly and carefully considered all relevant authorities and I can see no error in his approach, either to the substantive sentence or the enhancement of that sentence.  Decisions at first instance which have not been the subject of appellate review are of limited relevance in gauging the appropriate levels of sentence in other cases. However, the authority of Cen Huakuo, a decision of the Court of Appeal, has certain obvious similarities with the circumstances of the present case, as the judge recognised.  Accordingly, I can at this stage see no reasonably arguable grounds of appeal against sentence.

Conclusion

25.  The application for leave to appeal against sentence is accordingly refused.  The applicant is duly advised of his right to renew his application for leave to appeal against sentence to the Court of Appeal, but is also warned of the consequences of so doing, which may include a direction for any loss of time spent in custody pending his appeal, if the Court of Appeal were to come to the view that there was no justification for the renewal of the application.

[1] “Drop-off” telephone deception is the name given to a type of scam in which the victim is instructed to place money somewhere for someone to pick up at a later time