HKSAR v. LIANG JIAWEI

DCCC 271/2015

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 271 OF 2015

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REASONS FOR SENTENCE

The defendant pleaded guilty to an offence of conspiracy to commit "money laundering". The sum involved is $30,000.

Summary of Facts

2.  About 3:00 pm on 11 February 2015, Madam LAU (PW1) received a call made to her home phone.  A male voice pretending to be her son told PW1 that he was in trouble and owed someone money.  Another male voice (WP) told PW1 that her son owed him $200,000. WP asked for repayment as well as PW1's mobile phone number.

3.  PW1 alerted her husband, who later confirmed that their son was safe.  In the meantime, PW1's mobile phone rang.  Over the phone, WP told PW1 to stay on the line, not to alert the Police and repay him as much as she could.  PW1 said she did not have much money.  WP agreed to reduce the ransom to $30,000.  WP asked PW1 to go to the Standard Chartered Bank at Hau Tak Shopping Arcade to handover the money.  The case was reported to the Police.  PW1 put a pile of leaflets in a plastic bag as dummy money (E1).

4.  About 5:00 pm, PW1 arrived at the meeting place.  The defendant approached PW1 and said to her "Someone told me to collect ransom for your son.  He would be released upon receipt of money."  He also handed a mobile phone to PW1.  Over the phone, WP told PW1 to give the money to the defendant and that her son would be released once the amount was verified.  PW1 handed E1 to the defendant and returned the mobile phone to him.  The defendant then left.  WPC 9138 immediately followed the defendant and pointed him out to PC 14390.

5.  Upon enquiry, the defendant claimed he was shopping.  Upon search, a mobile phone was seized from the defendant; E1 was also recovered from his right jacket pocket.  PC 14390 arrested him.  Under caution, he remained silent.

6.  In his video-recorded interviews, the defendant admitted that he owed about $300,000 in gambling debt.  A friend named "Ah Ba" therefore asked him to collect money in Hong Kong; and for doing so, he would receive 5% of the sum he collected as a reward.  On 6 February 2015, Ah Ba told the defendant to go to Hong Kong on 9 February.  The defendant arrived at Hong Kong on 9 February.

7.  The defendant further admitted that about 4:00 pm on 11 February, a male who claimed to be a friend of Ah Ba phoned him asking him to collect something in Tseung Kwan O.  The defendant then went to Tseung Kwan O by taxi.  About 5:00 pm, Ah Ba's friend called him again asking him to pay attention to a female (aged 50 to 60, wearing black and carrying a shoulder bag).  The defendant spotted PW1 and was instructed to hand the mobile phone to her.  He then took E1 from PW1.  The defendant claimed that he did not know what E1 contained; he believed it was money related to soccer gambling.  He was supposed to deposit E1 into an account given by Ah Ba.  He knew Ah Ba had a Taiwanese boss in the money collection business.

8.  Immigration records showed that the defendant entered   Hong Kong from the mainland at 9:48 am on 9 February 2015 (2 days before the offence) and was permitted to stay for 7 days.    

Mitigation & Sentence

9.  The defendant is 27 and has a clear record.  He is divorced with a 4-year-old son.  The defendant resides with his parents and son in the mainland.  Defence lawyer Ms. KWOK informed me that the defendant lost his job as a factory worker in 2013.  Prior to that, he was earning RMB2,500 per month.

10.  Ms. KWOK submitted that PW1 is not an elderly person.  She did not suffer any actual loss, and her potential loss was at most $30,000.  Ms. KWOK further submitted that the defendant owes a gambling debt in the sum of RMB300,000.  The mastermind of this case took advantage of the defendant's need for quick money.  The defendant committed the offence out of greed and desperation.  Ms. KWOK stressed that the defendant did not take part in the phone deception and had no knowledge of it.  A letter written by the defendant was placed before me; its contents are duly noted.

11.  The prosecution has applied for enhanced sentence pursuant to section 27(2)(c) and (d) of the Organized and Serious Crimes Ordinance (Cap.455) on the basis of prevalence as well as the nature and extent of harm caused to the community.  Ms. KWOK did not object to the application.

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.  According to the witness statement of DCIP LAM dated 13 May 2015, the number of successful "Drop-off" mode phone deception cases in 2008 was 38, which accounted for 7.9% of the overall successful phone deception cases.  The numbers then gradually increased to 80 cases in 2009; 126 cases in 2010; 149 cases in 2011; 169 cases in 2012; 200 cases in 2013; and 183 cases in 2014.  In 2015, there are already 62 successful "Drop-off" mode cases from January to April. The number of attempted "Drop-off" mode cases from 2011 to 2014 remained in the range of 1,000 each year.  The amount of monetary loss in successful "Drop-off" mode cases also has a steady increasing trend from 2008 to 2013 (from $3.01 million to $13.75 million).  In 2014, the figure dropped slightly to $12.87 million.  And for 2015, the monetary loss is already $4.6 million as at April.

14.  The "Drop-off" 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 to the "Drop-off" mode phone deception.  Although the "collector" may or 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 usually charged with a money laundering offence (instead of deception).  On this basis, the statistics of the "Drop-off" mode cases are still directly relevant.

15.  There is clear and cogent evidence before me that the "Drop-off" mode phone 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 a "collector" will receive severe punishment, so that there is a deterrent effect.  When there are fewer or no willing "collectors", the "Drop-off" mode phone deception method would fail.  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 20%.

16.  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]

17.  In determining the proper starting point, I have reminded myself of the sentencing principles laid down in HKSAR v HSU Yu Yi [2010] 5 HKLRD 545, HKSAR v WU Jianbing [2012] 1 HKLRD 781, HKSAR v Boma Amaso [2012] 2 HKLRD 33 and HKSAR v LIN Zong Yue CACC 141/2014 (unreported Chinese judgment).  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.

18.  In SJ v LAU Man Ying [2012] 4 HKLRD 435, Yeung V-P held "The defendant’s ignorance of the actual source of the "illicit money" is not necessarily a mitigating factor." [3]

19.  In the present case, the defendant uttered the word "ransom" when he approached PW1.  It is clear that he at least knew something about the illegality of E1.  There is, however, insufficient evidence to show that the defendant took part in or had knowledge of the underlying phone deception.  Be that as it may, he still played a vital part in the overall scam. 

For the purpose of sentencing, I accept that the defendant probably had no knowledge of and did not take part in the phone deception against PW1. To this extent, his culpability is perhaps less than the perpetrator(s) of the underlying phone deception.[4]

20.  In the present case, PW1 did not suffer any monetary loss and the sum of cash involved is relatively small.  I adopt a starting point of 2.5 years' imprisonment.  A one-third discount is given for the guilty plea, reducing the sentence to 20 months.  Apart from this, I see no other mitigating factors which warrant any further discount.  With the 20% enhancement, the sentence is therefore 24 months' imprisonment.