HKSAR v. LIN JIAJIE

DCCC 966/2013

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 966 OF 2013

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REASONS FOR SENTENCE

1.  The defendant is convicted on his own plea for two charges of conspiracy to deal with property known or reasonably believed to represent the proceeds of an indictable offence,[1]

Summary of Facts - Charge 1

2.  On 5 August 2013 at about 1300 hours, Madam Fan Miu-fun, a 72-year-old lady, was telephoned at home by an unknown male. He told Madam Fan that her son “Ah Wah” was being detained as he was in debt. Someone impersonating her son shouted for help.  Madam Fan thought that her third son was being detained and therefore she agreed to pay HK$50,000.

3.  The unknown male instructed Madam Fan to go to the Kowloon Park 20 minutes later on the same day. Having stayed there for over an hour, Madam Fan was demanded to place the money of HK$50,000 on a bench. She did accordingly and left.

4.  An hour later, Madam Fan finally made contact with her third son. Her third son told her that he had never been detained. Madam Fan reported the incident to the police.

Summary of Facts - Charge 2

5.  On 6 August 2013 at about 1140 hours, Madam Lee Nui, an 80-year-old female was at home with her 18-year-old granddaughter Miss Choy.

6.  Madam Lee was telephoned at home. A male impersonated her son-in-law, Hilton, and shouted for help. Another male told her that Hilton was being detained as he was heavily in debt. This second male demanded Madam Lee to pay HK$250,000. After negotiation, the sum was reduced to HK$15,000.

7.  Fortunately, Madam Lee was in contact with Hilton and confirmed that it was a deception. Madam Lee reported to the police.

8.  Following the instructions of the police, Miss Choy took over the conversation with the second unknown male. At about 1635 hours on the same day, Miss Choy, placed the dummy money in an envelope provided by the police and arrived at the Long Ping MTR station. She was asked by the second unknown male to place the money beneath a beverage vending machine at a bus terminal near the New Yuen Long Centre (“the location”). Miss Choy followed it and left.

9.  The police was keeping the location under surveillance. About 3 minutes later, the defendant appeared. When the defendant took the envelope, the police arrested him.

10.  Under caution, the defendant admitted that he was asked by his boss to come to Hong Kong to collect the money on both charges.  The police verified that the defendant came to Hong Kong on 5 August 2013 at about 1002 hours.

11.  On charge 1, the defendant confessed that he knew the money was obtained by cheating others but his role was limited to collection of money. He found that the money was in the sum of HK$49,000 and remitted HK$39,000 and HK$10,000 to two separate accounts.  Two remittance application forms were seized at the defendant’s hotel room.

Mitigation and sentence

12.  Money laundering is a serious offence and the maximum sentence is 14 years imprisonment and a fine of $5,000,000.  There are no sentencing guidelines but it calls for deterrent sentence. The sentencing considerations include:

(a) the amount of the money involved but not the amount of benefit received by the offender,

(b) the number of transaction and offence involved,

(c) the duration of the offence,

(d) the nature of the predicate offence,

(e) the international element,

(f) the state of the offender’s knowledge,

(g) the role performed by the offender,

(h) the sophistication of the offence, including the degree of planning,

(i) whether the offence was committed by or on behalf of an organised criminal syndicate, and

(j) whether the offender continued to launder funds after he had discovered the nature of the funds were proceeds of an offence. (see HKSAR v Hsu Yu Yi [2010] 5 HKLRD 545; SJ v Wan Kwok Keung [2012] 1 HKLRD 201; HKSAR v Boma [2012] 2 HKLRD 33).

13.  As per Yeung JA in SJ v Wan Kwok Keung [2012] 1 HKLRD 201, 205 said:

“…if there is information to prove that the “black money” originated from serious crimes, including drug trafficking, kidnap and blackmail, illegal human trafficking and other organised crimes etc, or the defendant’s benefit is huge, then the sentence should be adjusted upwards.”

14.  I bear in mind that the sentence for the money laundering offence must be based on that offence and not the predicate offence (see  HKSAR v Yam Kong Lai[2008] 5 HKLRD 384).  The predicate offence is telephone deception and the usual starting point is 4 years imprisonment (see HKSAR v Yang Chia Cheng [2011] 3 HKLRD 610, 620). 

15.  In passing sentence I take into account everything said on behalf of the defendant by Mr Lam. Mr Lam said the defendant aged 16 and was a resident of mainland China. He is not an extreme youth in law but it is a reason to depart from normal tariff (see R v Li Fei, HCMA776/1996, 8 August 1996, unreported).

16.  However, there are two aggravating factors: firstly, this case had an international element involving remittance of money to China. Secondly, his sole purpose of coming to Hong Kong was to commit crime (see HKSAR v Hsu Yu Yi [2010] 5 HKLRD 545; HKSAR v Yang Chia Cheng [2011] 3 HKLRD 610, 620).  In this case, the mitigating and aggravating factors offset each other.

17.  Mr. Lam referred me to the case of HKSAR v Wu Jianbing [2012] 1 HKLRD 781. In that case, it involved 4 charges of money laundering offence and the total amount of money loss was HK$310,000. The Court of Appeal adopted a starting point of 3 years.

18.  In this case, the total loss was HK$50,000 and the two charges took place on two successive days. There was no evidence that he was a party to the deception but he knew that the money was obtained by cheating someone. His role was “legman”.

19.  The defendant has a clear record. It is noted that the defendant has only been in Hong Kong since 5 August 2013. This however carries little weight unless there is evidence of positive good character (see HKSAR v Wut Yiu Lun [2007] HKCLRT 536, 542).

20.  The fact that the defendant has cooperated and confessed to the police which led to the prosecution of charge 1, should be subsumed under the one-third discount (see HKSAR v Ma Ming [2013] 1 HKLRD 813).

21.  Taking into account the amount to be collected was HK$65,000, the actual money loss was HK$50,000, the role, age and clear record of the defendant, I am satisfied the proper starting point after trial for each offence is one of 2 years imprisonment.  Having a one-third discount for his plea of guilty, the sentence is reduced to 16 months imprisonment.

Enhancement of sentence

22.  The prosecution applied for enhancement of sentence pursuant to section 27(2) of the Organized and Serious Crimes Ordinance on the grounds of the prevalence of the offence[2] and the nature and extent of any harm, whether direct or indirect, caused to the community by recent occurrences of the specified offence. [3]

23.  It is noted that the term “the prevalence of that specified offence” is judicially interpreted as “the prevalence of the conduct constituting the specified offence” (see HKSAR v Chan Ka Kin CACC474/2004; HKSAR v Li Kin Keung [2012] 4 HKLRD 135).

24.  The dealing of proceeds of crime is an integral part of every criminal activity. Attention was drawn to what Stock VP said in HKSAR v Chan Kim Chung Nelson [2012] 2 HKLRD 263, 270 said:

“Because of the breadth of s.25 it is likewise likely that on many occasions the criminal activity underlying a predicate offence that has generated proceeds of crime will include an act by one of the participants in that offence that constitutes a dealing, under s.25, with those proceeds.”

25.  No matter what we call them – “Drop off case and the associated money laundering offence ” or “money laundering in the nature of Drop-off case”, I am satisfied beyond reasonable doubt that they are the same criminal conduct.

26.  The prosecution submitted a statement of DCIP Lam Cheuk Ho, dated the 12 November 2013.  It contained statistics of the total number of successful drop off telephone deception case and the consequential loss from 2007 to the October of 2013.  

27.  Mr Lam for the defence had no objection to the statement and the application of enhanced sentence. I accept DCIP Lam’s evidence in its entirety.

28.  “The prevalence of that specified offence” does not mean “the increase in the number of [that specified offence]” (see  HKSAR v Xu Mai Qing, CACC464/2005, 27 September 2006, unreported).

29.  The number of “Drop-off” cases and their consequential loss are huge. There was no doubt that the data and statistics clearly showed that “Drop-off” case was still widespread and commonly practised today.

30.  DCIP Lam concludes that “the modus operandi of “Drop-off” in telephone deception cases and the associated money laundering activity (by culprits being tasked to retrieve the moneybag)” are prevalent crimes in Hong Kong. He further opined that these crimes are harm caused to the community by their recent occurrences.

31.  I am satisfied beyond reasonable doubt both grounds for enhancement are made out. Pursuant to the Organized and Serious Crimes Ordinance, I am satisfied that an enhancement of one-fourth is appropriate. This enhances the sentence for each charge by 4 months.  The defendant is sentenced to 20 months imprisonment for each charge.

32.  All 2 charges are separate and distinct. The sentences should run consecutively. Having considered the totality principle, I find that an overall prison term of 21 months to be appropriate. Therefore, I order that 1 month of the sentence imposed on charge 2 be served consecutively with that on charge 1. The total sentence imposed on the defendant is 21 months imprisonment.