HKSAR v. ZHAO LIANSHENG

DCCC 454/2013

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 454 OF 2013

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REASONS FOR SENTENCE

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 15 March this year Madam Hon, an 81 year old lady received a call from a male claiming to be her son, saying that his head was being covered.  Another male then told Madam Hon her son owed him money and demanded her to withdraw $30,000 from the bank after which she was to wait for his further instructions.

3.  Feeling scared Madam Hon went to the bank and requested to withdraw $30,000.  The bank teller suspecting something was wrong told his manager who made enquiries with Madam Hon.  As a result the police were called.  The police were able to confirm Madam Hon’s sons were safe and had not made any phone calls to their mother.

4.  The police returned home with Madam Hon to wait for the caller to ring again.  When he did arrangements were made for a female police officer pretending to be Madam Hon to wait outside a 7-11 at Ho Man Tin Plaza with the money. 

5.  At around 3:05 p.m. the same day the defendant appeared and approached the woman police officer.  The defendant gave a mobile phone to the officer.  Over the phone a male told the officer to hand over the money to the defendant.  The officer then handed the phone back to the defendant who stared at her for a few seconds and then left without taking the money.  Another police officer followed the defendant and   intercepted him when he tried to hail a taxi. After a struggle the defendant was subdued and arrested. 

6.  In passing sentence I take into account everything said on behalf of the defendant by Mr Kan, including his young age and clear record. This however carries little weight where the defendant has only been in Hong Kong four days before he commits crime. 

7.  There being no evidence to prove that the defendant was a party to the telephone deception or that he knew the source of the money I proceed to sentence the defendant on the basis his role was limited to collecting the money.

8.  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.

9.  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.

10.  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). 

11.  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] 1 HKLRD 781).  However the benefit may be relevant in considering the role played by the defendant (see paragraph 40(8) of Boma Amaso).   

12.  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.

13.  Taking into account the amount to be collected was HKD30,000; the role of the defendant was limited to collecting the money for a reward which he of course never received; 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 Mr Kan, 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

14.  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.  In support of the application the prosecution submit a statement of Detective Chief Inspector Lam Cheuk Ho, dated the 14th June 2013.  There has been no objection to the admission in evidence of this statement of DCIP Lam. 

15.  Relying on the decision in HKSAR v Mo Liuchun DCCC 770/2011 Mr Kan objects to enhancement on the grounds that the prosecution have failed to show prevalence of money laundering as opposed to telephone deception cases. 

16.  The statement of DCIP Lam 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 DCIP Lam 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 the ground for enhancement is made out.

17.  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.

18.  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.

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