HKSAR v. HE YINGLI

DCCC 623/2012

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 623 OF 2012

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REASONS FOR SENTENCE

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1.  The defendant pleads guilty to one charge of conspiracy to deal with property knowing or believing the property represented the proceeds of an indictable offence, contrary to section 25(1) and (3) of the Organized and Serious Crimes Ordinance, Chapter 455 and sections 159A and 159C of the Crimes Ordinance, Chapter 200.

2.  In summary on the 9th May this year Mr Li Man-chuen received a call from someone pretending to be his son, saying that he owed others money.  Another male then demanded $200,000 from Mr Li in order to save his son.  Mr Li, a former policeman, realised this was a telephone deception case.   

3.  Mr Li not wishing to alert the other party negotiated the sum to $60,000 and then asked for time to make the withdrawal.  After checking his son was safe, Mr Li reported the matter to the police.  Later the same day arrangements were made with the male for delivery of the money by WPC 18925, who pretended to be Mr Li’s daughter.  The police arranged for dummy money to be handed over in a paper bag.  The same male instructed WPC 18925 to go to a bench in Cherry Street, Mongkok and put the money in the flowerbed behind the bench.  WPC 18925 left and a minute later the defendant appeared and picked up the paper bag containing the money from the flowerbed. 

4.  As the defendant was leaving he was intercepted by the police.  Under caution the defendant admitted helping a male called “Yiu Gor”, who he came to know in the Mainland, to collect money in return for a reward of $1,000 (see paragraphs 9 & 10 of the admitted facts).

5.  In passing sentence I take into account everything said on behalf of the defendant by Miss Ho.  Miss Ho submits that the defendant was not a party to the telephone deception and that his role was limited to picking up the money on a single occasion (see paragraph 5 of Miss Ho’s written submission).  There is no evidence to prove that the defendant was a party to the telephone deception or that he knew the source of the money.  When interviewed by the police the defendant said “Yiu Gor” called him on his mobile phone and directed him where to collect the money.  This, is in part, supported by the police evidence that the defendant was seen talking on his mobile phone when he collected the money (see paragraph 8 of the admitted facts).  I therefore proceed on the basis the defendant’s role was limited to collecting the money.

6.  Money laundering is a serious offence for which deterrent sentences are required (see HKSAR v XU Xia-li & another [2004] 4 HKC 16 at paragraph 18).  In HKSAR v Javid KamranCACC 400/2004 the court, stressing the need for deterrent sentences, said that it was not possible to lay down guidelines, as there is a very wide range of culpability.

7.  A number of significant factors have been identified as relevant in determining the culpability of a defendant, including the nature of the offence that generated the laundered money and the extent to which the offence assisted the crime or hindered its detection; whether the defendant had knowledge of that underlying offence or has turned a blind eye to the source of the money; whether there was an international element to the commission of the offence; the degree of sophistication of the offence and the level of the defendant's participation, including the length of time the offence lasted and the benefit he derived from the offence; and the amount of money involved (see for example Secretary for Justice v Jerome Yuval Arnold Herzberg [2010] 1 HKLRD 502; HKSAR v HSU Yu-yi [2010] 5 HKLRD 545; and HKSAR v A male known as Boma Amaso [2012] 2 HKLRD 33.

8.  Whether or not the defendant knew the source of the money the courts have emphasised that a defendant is to be sentenced on the facts of the money laundering charge and not on the facts of the underlying offence(see for example HKSAR v CHEN Szu-ming CACC 270/2005 and HKSAR v YAM Kong-lai[2008] 5 HKLRD 384). 

9.  Generally, sentence should mainly reflect the amount of the money laundered and not the benefit obtained by the defendant             (see HKSAR v Wu Jianbing [2012] 2 HKLRD 33).  However the benefit received, said to be $1000 in this case, may be relevant in considering the role played by the defendant (see paragraph 40(8) of Boma Amaso).   

10.  In HKSAR v Wu Jianbing the defendant, who also travelled from the Mainland, collected money on four occasions, over 4 days, which resulted in 4 charges of dealing with the proceeds of crime.  The sums collected ranged from $20,000 – $200,000 and totalled altogether $310,000.  All monies arose from telephone deception cases.  The Court of Appeal, taking into account there was no evidence to show that the defendant participated directly in the telephone deceptions, said that the proper starting point after trial was 3 years imprisonment on each charge.

11.  Taking into account the amount to be collected was HK60,000; the role of the defendant was limited to collecting the money for a reward of $1000; this was a single occasion; and the defendant has a clear record, I am satisfied the proper starting point after trial is, as submitted by    Miss Ho, one of 2 years imprisonment.  Giving the defendant full credit for his plea of guilty reduces the sentence to 1 year and 4 months.

Enhancement of sentence

12.  The prosecution apply 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 and the nature and extent of any harm, whether direct or indirect, caused to the community by recent occurrences of the offence.

13.  In support of the application the prosecution submit a statement of CIP Chan Che-man, dated the 9th August 2012.  There has been no objection to the admission in evidence of this statement or the conclusion of CIP Chan.  Miss Ho, however, objects to enhancement on the sole ground that the defendant was not aware the money was from a telephone deception case (see paragraph 6 of Miss Ho’s written submission). 

14.  The statement of CIP Chan clearly shows a significant increase in what he has termed “Drop-off” cases and the consequential loss in such cases.  Whilst the focus of the information is on telephone deceptions the conclusion of CIP Chan is clear that the modus operandi of “Drop-off” in telephone deception cases and the associated money laundering activity by culprits tasked to retrieve the money, is a prevalent crime in Hong Kong with obvious concern to the community.   On this evidence, which I accept, I am satisfied beyond reasonable doubt both grounds for enhancement are made out.

15.  Whilst the emphasis of sentencing is on the facts of the money laundering charge and not on the facts of the underlying offence this does not mean the facts of the underlying offence are to be totally ignored    (see paragraph 40(1) in Boma Amaso). Further in HKSAR v Wu Jianbing where there was no evidence to show that the defendant participated directly in the telephone deceptions, the Court of Appeal approved enhancement of the sentence.

16.  I am satisfied that an enhancement of 5 months imprisonment is appropriate, which is just less than the one-third enhancement approved in HKSAR v Wu Jianbing.

17.  The defendant is sentenced to 1 year and 9 months imprisonment.