HKSAR v. LIN JIAYUAN

DCCC 678/2015

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 678 OF 2015

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Reasons for Sentence

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1.  The defendant has pleaded guilty to two charges. The 1st charge is conspiracy to deal with property known or believed to represent proceeds of an indictable offence. And the second offence is possession of a forged identity card.

2.  The defendant has agreed the facts of the case and I have convicted him of both offences.

3.  The first offence is what is described as a telephone deception case and that occurred on 23 June 2015, when a police officer received a phone call from unknown man, while he was in his office in Kowloon.  The person claimed to be the police officer’s son and asked for help.  

4.  That could not be the case because the police officer did not have a son and he realised this and realised that it was an attempted deception and made an alert.  The police officer is described PW1 in the facts. Originally, the request was for HK$230,000 but that was negotiated down to HK$22,000 and a dummy money bag was prepared in order to try and trap the perpetrators.

5.  PW1 supplied a mobile phone number to the person he was talking to, who is described as ‘WP’ or ‘wanted person’, and they called that number and the wanted person instructed PW1 to stay on the line so a negotiation could be made to hand over the cash.  Eventually PW1 was instructed to go to the Water Supplies Department in Sai Yee Street, in Mong Kok, and told to wait there.  While he was waiting, he saw the defendant on the other side of the street, talking on his mobile phone and looking at him. Eventually PW1 was asked by the wanted person to show the money, and then told to walk along Sai Yee Street and go to a flower-bed.  He was told to leave the money on the flower-bed and he did so, he dropped the bag into the flower-bed.  Then other police officers saw the defendant go to pick up the bag immediately after PW1 had dropped it.  At that stage the bag was not taken away though.

6.  Further instructions were made to PW1 to pick up the bag and go away to Mong Kok Station.

7.  Eventually, police decided to arrest the defendant.   When the defendant was arrested, he was searched.  At the time of his arrest, he said, he was there to collect money.  But when the defendant was arrested, a Hong Kong Identity Card in his name was seized from his right shoe and it was found that this card was a forgery, and that constitutes the second offence the defendant has pleaded guilty to his possession of that forgery.  The defendant said he purchased that card in mainland.  

8.  A video-recorded interview was conducted with the defendant.  His admissions were as follows.  He understood his mainland friend “Ah Kin”, whom he had never met, asked him to collect money from an illegal source or money that is unclean and this was the first time he did this.  After he collected the money, he was to transfer it to the mainland.  He would receive 5 per cent of the amount he collected as reward.  

9.  He received instructions from a friend on his mobile phone on the date of the offence to pick up the money.  He knew that someone was instructing PW1 to drop off the money.  He was informed of PW1’s physical appearance on the phone and also of the direction which PW1 was walking.  He picked up the bag, which is E1 when he saw PW1 drop that and discovered there was only newspaper and no money inside and put it back and told the person who he, the defendant, had been talking to on the mobile phone. He also admitted in relation to the identity card, he had bought it for $800 in Mainland China so he would receive better service when renting a room in China.

10.  The travel record shows the defendant entered Hong Kong on 18 June 2015 with a stay of three months.  Those facts are agreed and clearly support the charge which the defendant faces.

11.  The defendant’s antecedents show that he is of clear record.  He is 26 years old.  He has worked in car rental business in the mainland and has a daughter.

12.  In mitigation, as far as defendant’s personal background is concerned, I heard that he is aged 26, he is divorced, and he has a 2-year-old daughter who lives with his ex-wife in China and he pays her about HK$2,000 per calendar month in maintenance.  He has been working in the car rental business, making about RMB8,000 to RMB12,000 per month.  He lives with his mother and younger brother.  His father lives in Hong Kong.  There had been some financial stress in his family and he had become involved in this matter.  His parents are supportive of him; his father and mother have written to the court asking for leniency and the defendant himself has written a letter, explaining himself and showing his remorse.  It is apparently his plan to marry at some stage in the future his girlfriend.

13.  Now turning to the approach to sentencing.  I note firstly that the prosecution have asked for an enhancement of the sentence in this case.  In support of that application for enhancement, there is a statement from Detective Chief Inspector Lam Chuk-ho.  This is, as I have already said, a telephone deception case with a what is called a drop-off modus operandi.  There are a number of cases involving the correct approach to sentencing in these cases.  I have been referred to the case of HKSAR v Chen Jianchao which can be found at Criminal Appeal 184/2014, when the correct approach to sentencing was discussed.

14.  In the judgement, the court cited and identified a number of factors that are relevant for a sentencing judge to decide in arriving at a proper starting point.  Such factors would include the amount of money involved in the case.  Here the final set-upon sum was one of $22,000.  Secondly, the level of the sophistication of the crime. The crime here is relatively unsophisticated; and it took a short time to take place.

15.  The background to the offence, of course is the telephone deception conducted by the wanted person.  The defendant’s awareness and involvement in that element of the crime can be gleaned from his record of interview.  He is not directly linked to the telephone deception.  He said he was there to collect illegal or unclean money.  But as I said, this is not a direct link to the telephone deception in that he was not aware of the precise modus operandi of this particular crime.  The defendant’s role was to collect the money but he would benefit, according to his own admission, of up to 5 per cent of the money collected as reward.  The defendant clearly had come from China but there is no evidence that he came to Hong Kong specifically for the purpose of this offence.  He had travelled to Hong Kong some, think it was, five days previously to the commission of the offence.

16.  As far as the application for enhancement is concerned, the prosecution have issued a notice pursuant to section 27(2) of the Organized and Serious Crimes Ordinance, Cap 455, for an application to enhance the sentence on the grounds of prevalence and harm down to society and this is supported by an affirmation of Detective Chief Inspector Lam Chuk-ho.  He has given a statement explaining the particular modus operandi of the present offence which is a drop off, a variation of the telephone deception offences, and it sets out the way in which these offences are difficult to interdict.  He has also furnished datato show that such cases and associated money-laundering activities are prevalent and appear to be increasing year by year.  

17.  The defence in this case has not challenged the information contained in the statement, and having read the statement, I am clearly satisfied beyond reasonable doubt that by reason of matters referred to in that statement, it is appropriate to pass a more severe sentence than I otherwise would have done under the relevant section of the Organized and Serious Crimes Ordinance.

18.  In determining the appropriate sentence in respect of Charge 1, I bear in mind the level of the defendant’s involvement. the amount of money concerned, which is on the lower side, and the fact that the defendant does have some involvement in benefit from the offence had it in fact been successful, that the defendant is a man of previous good character.  Although living in the mainland, he is obviously involved in useful and productive work there.  He will be anxious eventually to return home and get married.  These are all mitigating factors I take into account.

19.  Each case will be decided on its own facts.  The case of Chen Jianchao can be authority for the proposition that where a person is not directly involved in the telephone deception but is simply there to collect the money, a starting point of 3 years’ imprisonment can be appropriate.  Here, of course, I am dealing with a small amount of money and a one-off occasion, but in this case, the defendant had some knowledge of the fact that it was to be dirty money, as he describes it.

20.  What I shall do, having taken all those factors into consideration on the 1st charge, is adopt a starting point of 24 months’ imprisonment. The defendant is entitled to a one-third deduction from that, for which he will receive a sentence of 16 months’ imprisonment.  By reason of the prevalence of the offence and the harm done to society, I enhance that sentence by the order of 25 per cent which will give a figure of 20 months’ imprisonment on the 1st charge.

21.  As far as the 2ndcharge is concerned, the defendant has again pleaded guilty to the offence of possession of a forged identity card.  I have been referred to the case of Lee Chang Lee, a case in 2005 where the Court of Appeal said for an offence such as this, even where the defendant has entered Hong Kong legally, the starting point upon a plea of guilty should ordinarily be 12 months’ imprisonment to reflects the seriousness of the offence and to serve deterrent purposes.  I see no reason to depart from that starting point, and so I will take that as the starting point after deduction for the defendant’s plea of guilty.  That leads to a sentence on the 2nd charge of 8 months’ imprisonment.  

22.  I now have to consider the question of overall totality.  The sentences are separate identifiable offences so could be served consecutively.  However, having regard to overall totality, what I shall order is that 4 months of the second offence to be served concurrently to the first offence and 4 months consecutively.  That will give an overall total sentence for the two offences of 24 months’ imprisonment.