HKSAR v. SO KA WAI

DCCC 786/2024

[2026] HKDC 450

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 786 OF 2024

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REASONS FOR SENTENCE

The defendant faces a charge of "Conspiracy to defraud" (Charge 1); a charge of attempted "Money laundering" (Charge 2; alternative to Charge 1); and a charge of "Failing to surrender to custody without reasonable cause" (Charge 3). He pleaded guilty to Charge 2, which was accepted by the prosecution, and Charge 3. I made no order as to Charge 1.

Summary of Facts

2.  Madam Lam (PW1; aged 74)  resided at a public housing unit in Lok Wah South Estate, Ngau Tau Kok ("the Flat").

3.  About 2:00 p.m. on 10 November 2023, PW1 received a phone call at home.  A male voice (Male 1)  pretending to be PW1's son claimed that he was in need of $100,000 as bail money.  Male 1 told PW1 that he had arranged for a Mr. Chan to collect the money from her at the Flat.  PW1 alerted the police.

4.  About 3:15 p.m. on the same day, PC 9556 (PW2)  and his colleagues arrived at the Flat.  In the presence of the police officers, PW1 called her eldest son, who confirmed that he was not being detained.

5.  About 3:30 p.m. on the same day, PW1 received a call from another male voice (Male 2)  claiming to be Mr. Chan, a friend of PW1's son.  Male 2 told PW1 that he would meet her at the fountain near Man Wah House ("the Fountain")  in half an hour to collect the money.

6.  About 4:00 p.m. on the same day, PW1 received a call from Male 2 telling her that he had arrived at the Fountain.  PW1 left the Flat together with PW2 and other police officers.

7.  About 4:25 p.m. on the same day, a male (later confirmed to be the defendant)  approached PW1, claiming to be Mr. Chan, who was there to collect money from her.  Upon seeing this, PW2 intercepted the defendant and revealed his police identity.

8.  PW2 arrested the defendant for the offence of "Obtaining property by deception".  Under caution, he claimed that he was paid $500 to collect $100,000 from an elderly woman at the Man Wah House fountain.  This is Charge 2.

9.  On 19 September 2024, the defendant failed to attend the mention hearing in the District Court.  The police found him in his home on 20 January 2025 and executed the warrant of arrest.

Mitigation & Sentence

10.  The defendant is 27 and has a clear record.  Defence counsel Mr. Hui informed me that the defendant is single and resides with his mother.  Prior to his arrest, he was a casual air-conditioning maintenance worker.  Owing to the pandemic, business was not good and he was in financial difficulties.  In mitigation, Mr. Hui submitted that the defendant saw a job offering quick money posted on Telegram.  When he found out that he had to collect money from an old lady, he felt suspicious but nonetheless accepted the job.

11.  The prosecution has applied for an enhanced sentence pursuant to section 27(2)(c), (d)  and (e)  of the Organized and Serious Crimes Ordinance (Cap.455)  on the basis of prevalence; the nature and extent of harm caused to the community; and the nature and extent of the total benefit gained by anyone from the present offences.  Mr. Hui did not object.

12.  I bear in mind the Court of Appeal's decision in HKSAR v Xu Mai Qing CACC 464/2005, whereas Yeung JA (as he then was)  held "Under section 27(11)  of OSCO, what the prosecution has to prove is the prevalence of the offence, not the increase in the number of such offences[1]."

13.  I have read the witness statement of CIP Cheng dated 10 February 2026.  I am satisfied that in 2023, telephone deception cases were prevalent in Hong Kong in terms of the number of cases as well as the total value of monetary loss.

14.  The "By Hand" mode phone deception cases always involve someone picking up the money left behind by the victim at a public place or collecting the money directly from the victim.  Hence, the money collection portion is part and parcel of any type of phone deception ("Guess Who", "Pretend Officials" or "Detained Son").  Although the "collector" may not have knowledge of the underlying phone deception, the circumstances under which he/she picks up or collects the money are usually peculiar and would thus arouse his/her suspicion about the legality of his/her collecting act and/or the nature of the money collected.  That is the reason why the "collector simpliciter" is often charged with a money laundering offence (instead of deception).

15.  There is clear and cogent evidence before me that telephone deception is still widespread and commonly being practised in Hong Kong today.  The court must send a clear message to the general public that people who play the role of "collector" will receive severe punishment, so that there is a deterrent effect.  When there are few or no willing "collectors", the "By Hand" mode phone deception method will fail.

16.  This is a typical case of the "By Hand" mode "Detained Son" phone deception.  Even if the defendant did not know about the deception against PW1, the scam would have been meaningless without a willing "collector".  Given the role played by the defendant, the amount involved and the overall circumstances, I grant the prosecution's application and will enhance the sentence by 25%.

17.  The Court of Appeal in SJ v Wan Kwok Keung [2012] 1 HKLRD 201 held :-

Generally, the sentence for "money laundering" offences should mainly reflect the amount of "black money" laundered and not the benefit obtained by the defendant or others. The reason being that it is very difficult to prove the benefit concerned, and in most "money laundering" cases, there may not be evidence to show from what indictable offence the "black money" are in fact derived. Of course, if there is information to prove that the "black money" is originated from serious crimes, including drug trafficking, kidnap and blackmail, illegal human trafficking, other organized crimes, etc. or the defendant's benefit is huge, then the sentence should be adjusted upward.[2]

18.  In determining the proper starting point, I have reminded myself of the sentencing principles laid down in HKSAR v Cen Huakuo [2015] 2 HKLRD 951.  I have also borne in mind the amount of money involved, the duration of the offence, the defendant's role in relation to the movements of funds as well as his personal circumstances.  A marked difference between the defendant in the present case and the applicant in Cen Huakuo is that the defendant is not a mainland resident who came to Hong Kong to commit crimes.

19.  In SJ v Ngai Fung Sin Apple [2013] 5 HKLRD 104, Yeung V-P held :-

Neither the fact that the "illicit/black money"was actually not derived from an indictable offence nor the defendant's ignorance of the actual source of the "illicit/black money" is necessarily a valid mitigating factor…[3]

20.  According to the Summary of Facts[4], the defendant only went to the Fountain to collect money from PW1.  For the purpose of sentencing,

I accept that he probably had no specific knowledge of and did not take part in the phone scam against PW1. To this extent, his culpability is perhaps less than the perpetrator(s)  of the underlying phone deception[5]. Hence, I adopt a starting point of 2.5 years' imprisonment for Charge 2. With the timely guilty plea, the sentence is reduced to 20 months. Apart from this, I see no other mitigating factors which warrant any further reduction. With the 25% enhancement, I sentence the defendant to 25 months' imprisonment for this charge.

21.  For Charge 3, the maximum sentence for conviction upon indictment is a fine of any amount and 12 months' imprisonment[6].  The defendant has absconded for 4 months.  In HKSAR v Wong Chi Hung CACC 300/2010[7], the Court of Appeal upheld a starting point of 3 months' imprisonment for a person who has absconded for 28 days.  I adopt a starting point of 3 months' imprisonment. With the timely guilty plea, I sentence the defendant to 2 months' imprisonment for this charge.

22.  Charge 3 is separate and distinct from the money laundering offence.  Notwithstanding the totality principle, I order the sentence for Charge 3 to run consecutively to Charge 2, arriving at a total prison term of 27 months for both charges.