HKSAR v. LO TSZ YEUNG

DCCC 506/2023

[2024] HKDC 841

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 506 OF 2023

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REASONS FOR SENTENCE

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1.  The D pleaded guilty to an alternative charge of money laundering. Charge 1 is now ordered to be left on Court’s file and ordered not to be proceeded with without the leave of the Court.

2.  The facts of the case showed that on 6 November 2022 at about 5:30 pm, PW1 (92 years old)  received a phone call from an unknown person claiming to be his son and he needed $80,000 bail money.

3.  The next day at about 10:40 am, PW1 received a call from an unknown person who said that Lee Wai would meet him at the On Yam Bus Terminus to collect the $80,000 cash.

4.  PW1 later found out from his son that it was a scam and the case was reported.

5.  A controlled delivery operation was mounted by the police.

6.  At about 2:30 pm on 7 November, 2022, when the D approached PW1 to collect the shopping bag which contained dummy cash from PW1, the D was arrested.

7.  Under caution, the D said that he collected money for his friend Ah Chun and he did not know anything.

8.  In the record of interview, the D said that Ah Chun asked him to collect the bail money from his father (PW1)  and handed the money to Ah Chun in Tsuen Wan Police station.  The D did not know whether Ah Chun was arrested and what he was arrested for, he did not know the actual amount of bail money.  There was no mention of any remuneration for collecting the bail money.

Criminal record

9.  Between 2013 to 2024, the D had 8 court appearances with 14 convictions.  In November 2021 the Defendant was convicted for an offence of robbery, he was sentenced to two years and four months and was discharged from prison in July 2022.  His last conviction in January 2024 was an offence of blackmail.

Background of the Defendant

10.  He is now 31 years old, single.  At the time of his arrest, he is a transportation worker earning about $17,000 per month.

11.  In his mitigation letter, he said that he is now remorseful, his mother keeps visiting him during this period of remand.  His employer also undertakes to re-employ him when he discharges from prison.

12.  He committed the present offense because of his friend and he did not ask too much of the background of the present incident.

13.  In 2009, he contributed to the success of the 5^th East Asian Games and had a Certificate of Appreciation before me.

Sentence

14.  The maximum sentence for this offence is 14 years.

15.  The defence said that there was no sentencing guideline for this offence, but quoted the judgment of HKSAR v Hsu Yu Yi CACC 159/2009 that there are a number of factors to be considered for the purpose of sentencing.

16.  Same as in the case of HKSAR v Boma [2012] 2 HKLRD 33, the Court pointed out that given the highly variable circumstances in which the offence might be committed, it was difficult and undesirable to offer guidelines.  However, the Court of Appeal provided a non-exhaustive list of relevant sentencing factors for consideration.

17.  In the present case:-

(a)  The nature of the predicate offence was scam phone calls.

(b)  There was no evidence that the Defendant was aware of the predicate offence. However, as stated in HKSAR v Cen Huakuo CACC 21/2014 that “ignorance of the indicatable offence could not be treated as mitigating factor.”

(c)  It was not a case involved international element.

(d)  The offence was committed between the Defendant and another person.

(e)  It involved one transaction and the amount was $80,000.

(f)  The Defendant acted as a foot soldier and he was responsible for collecting the money from PW1.

18.  As said in the judgment of Hsu Yu Yi, at paragraph 9 that:-

“… (2)  The culpability of the offence lies in the assistance, support and encouragement offered to the commission of an indictable offence. So a defendant's level of participation and the number of occasions on which he is involved in the ‘money laundering' activities are relevant factors to be considered.”

19.  In the same judgment, the court also said that it was the amount of money involved, rather than the amount of benefit received by a defendant, is the major sentencing consideration.

20.  In such circumstances and having considered all the mitigating factor before me, I adopt a starting point of 3 years.  

21.  The defence agreed that there is an aggravating factor in term of sentencing as the Defendant committed the offence 3 months after his release from prison.  I further enhance the sentence by 3 months, it aggregates to 3 years 3 months.  I reduced the sentence to 2 years 2 months after ¹/₃ discount. 

Enhancement under s27(2)  of OSCO Cap 455

22.  In support of this application, the Prosecution provided a statement from Chief Inspector Tang and with the following table to show the data:-

Year	(1)  No. of GW TD cases	(2)  No. of GW TD cases with monetary loss	% of GW TD cases with Monetary loss (=(2)/(1))	Accumulated monetary loss for GW TD cases (in HK$ million)	(3)  No. of GW TD cases that victims handed over cash to culprit(s)	% of ‘By Hand’ GW TD cases in (3)  with Monetary loss (=(3)/(1))	Accumulated monetary Loss for ‘By Hand” GW TD cases (in HK$ million)
2018	262	237	90.46%	13.52	2	0.76%	0.18
2019	418	408	97.61%	22.76	3	0.72%	0.20
2020	509	498	97.84%	26.02	3	0.59%	0.02
2021	497	483	97.18%	27.54	114	22.94%	8.70
2022	1,540	1,395	90.58%	114.12	747	48.50%	72.52
2023	2,237	1,920	85.83%	188.68	1,130	50.51%	139.31

23.  The Defence said that according to the chart as stated in paragraph 22 of the statement shows a decreasing trend in the “% of case with monetary loss” since 2019, that it has come down to 85.83% in 2023.

24.  What the defence did is taking the data out of the context.  There is a need to look at the chart as a whole, all the figures tell me that there is rising trend, such as the number of cases in column one has increase substantially from 1,540 to 2,237 in the year of 2022 and 2023 respectively.

25.  The accumulated monetary loss was from $72.52 million (2022)  to $139.31 million (2023).

26.  The number of cases that victims handed over cash to culprits increased from 747 (2022)  to 1,130 (2023).

27.  The table in paragraph 25 of Chief Inspector Tang’s statement showed a table of “number of telephone deception cases with arrest”:-

Year	No. of Telephone Deception cases with arrest
2018	7
2019	12
2020	75
2021	68
2022	795
2023	1,202

28.  With all the information and data before me, I accepted the analysis and conclusion from Chief Inspector Tang that telephone deception and associated money laundering activities are prevalent in Hong Kong.  These crimes are of obvious concern to the society of Hong Kong in terms of harm caused to community with such repeated occurrence.

29.  As to the level of enhancement rate, the Defence is aware of the authority of HKSAR v Hung Wing Chun [2011] 2 HKLRD 167.  The defence also submitted the recent authority of HKSAR v Chan Ho Kit CAAR 1/2024 to this Court and asked me to consider a lower percentage of enhancement rate on 2 grounds: -

(a)  The late application by the Prosecution; and

(b)  D will be re-employed after discharge.

30.  I disagree.  The purpose of enhancement of sentence is to send a message to the public and to deter people from committing similar offences.  A lower percentage of enhancement will not serve the purpose of deterrence.

31.  To this end, I enhance the sentence by ¹/₃.

32.  The formula of the sentence:-

(a)  Starting point is 3 years 3 months, reduced to 2 years 2 months after ¹/₃ discount.

(b)  Enhanced by ¹/₃, it arrived at 8.5 months.

(c)  The total sentence is 2 years 2 months plus 8.5 months, equals to 34 months 15 days.

33.  The D is to serve a sentence of 34 months and 15 days.