HKSAR v. KHAN ZAFRAN ALI

DCCC 459/2023

[2024] HKDC 2027

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 459 OF 2023

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REASONS FOR SENTENCE

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The Charge

1.  The defendant pleaded guilty with one charge of conspiracy to deal with property known or believed to represent proceeds of an indictable offence (more commonly known as “money laundering” offence), contrary to section 25(1)  and (3)  of the Organized and Serious Crimes Ordinance, Cap  455 and sections 159A and 159C of the Crimes Ordinance, Cap 200.  He admitted the summary of facts and was convicted of the charge.

Facts

2.  This case relates to a case of telephone deception which occurred on 7 December 2022.  The 85-year-old victim Madam Lau received a telephone call from a man early that morning who claimed to be her grandson. The man said that he had been arrested and bail money in the sum of HK$180,000 would be required for his release.  The man then asked for her address and said that someone would come to collect the money.

3.  Later at around 11 am on the same day, a man came to the residence of Madam Lau and took from her HK$180,000.  At about 2 pm, she received another phone call from a man who said that the bail money was not sufficient and a further sum of HK$300,000 was required. Madam Lau told the man that she had to borrow the money and the man hung up.

4.  Madam Lau subsequently managed to get in touch with her grandson and it was revealed that she had been deceived.  A report was made to the police.  The fraudsters kept calling Madam Lau and they eventually told her to handover the sum of HK$300,000 outside the building at which she was residing.  Madam Lau complied and the defendant was seen to approach Madam Lau while the police laid ambush in the vicinity.  The defendant was intercepted and arrested.  Upon search, 2 mobile phones were found on the defendant and one of them was of a phone number which had been used for contacting Madam Lau.

5.  Under caution, the defendant admitted that he had been asked to collect money from an old lady by a person named So Tze Yeung and would be given HK$1,000 as a reward.

Mitigation

6.  The defendant is now 21 years old.  He was born in Pakistan and started living in Hong Kong since the age of 3.  He was convicted of a total of 5 charges of theft on 2 previous occasions.  He received education up to Form 1 level and had previously worked as a part time cashier and waiter. He became unemployed about 5 months before the offence date.  Mr Woon, counsel representing the defendant, informed the court that the defendant was lured by a friend called So Tse Yeung to collect some money for a reward of HK$1000.  Mr Woon also said that there is no evidence that the defendant knew about the details of the telephone deception and was not part of the scam.

Reasons for sentence

7.  Money laundering is a serious offence for which deterrent sentences are required.  A number of significant factors have been identified as relevant in determining the culpability of a defendant, including the nature of the predicate offence that generated the “black money”; whether the defendant had knowledge of that underlying or predicate offence or has turned a blind eye to the source of the money; the amount of money involved; 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 (see 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.  In HKSAR v Wu Jianbing [2012] 1 HKLRD 781 the applicant, on four occasions over four days, collected money which had been obtained from telephone deceptions.  The sums collected ranged from $20,000 and $200,000 making a total amount of $310,000.  The Court of Appeal, taking into account there was no evidence to show that the applicant participated directly in the telephone deceptions (or was aware of the source of the money collected), held that the proper starting point after trial was 3 years’ imprisonment on each charge.

9.  In HKSAR v Cen Huakuo [2015] 2 HKLRD 951 and HKSAR v Lin Zong Yue CACC 141/2014, sums of $50,000 and a total of $144,500 respectively were collected by the applicants.  They were described by the Court of Appeal as having “no more than some sketchy idea about the predicate offence” ( i.e. telephone deception).  In both cases, a starting point of 3 years was also held to be appropriate.

10.  In the present case, the defendant stated under caution that he was recruited to collect money from an old lady, though he was found to be in possession of a mobile phone of a phone number that had been used to contact the victim.  That said, considering the evidence as a whole, I find the defendant had no more than some sketchy idea about the offence of telephone deception.  Taking into account that the amount of money to be collected was HK$300,000 and the role of the defendant, I consider that the proper starting point after trial is one of 3 years’ imprisonment.

11.  The defendant did not plead guilty at the first opportunity and in fact he indicated to plead guilty for the second time after a trial date has been fixed.  In the circumstances, taking into account the sentencing principles as laid down by the Court of Appeal in HKSAR v Ngo Van Nam [2016] 5 HKLRD 1, the defendant is entitled to a 25% discount in sentence.  The sentence is therefore reduced to 27 months’ imprisonment.

12.  There are no other valid mitigating factors and the sentence to be imposed is a term of 27 months’ imprisonment.