HKSAR v. LI YU SIAN

DCCC4/2009

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 4 OF 2009

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Reasons for Sentence

1.  The defendant came from Taiwan.  He had a clear record in Hong Kong.  He is 29, married, and has a 3 month-old son.  He is the sole breadwinner of the family.  His father has suffered a stroke, and huge medical expenses are needed for his treatment and maintenance.

2.  The defendant committed these offences for a reward.  He was promised NT$150,000 for coming to Hong Kong to participate in these offences.  He knew the moneys he was handling were proceeds of crimes.  The scheme was well organised.  Taiwanese fraudsters used Hong Kong to handle the proceeds of fraud.  It has an international dimension as well for some of the victims are in Australia.  The defendant was a visitor here, and once he had left Hong Kong, it would probably be the end of the investigation.  Even when the defendant was caught, the people behind the scheme remained at large.

3.  This kind of crime is very serious, and detection is very difficult.  Worse still, the victims would suffer huge losses.  In many of these crimes, the moneys might not be recovered at all.  All we have here is this defendant who knew the risks he was taking when he was doing these crimes.  The defendant must have known that he would face a lengthy jail sentence when apprehended.

4.  The only mitigating factor I could see here is the defendant’s plea of guilty.  Defence counsel has kindly assisted me with two cases.  The first one was HKSAR v Abayomi Bamidele Fayomi CACC197/2005.  In that case, $1.2 million was involved, and the defendant was sentenced to three years and three months after trial.  The second case was HKSAR v Javid Kamran, CACC400/2004.  The defendant pleaded guilty in that case and was sentenced to 32 months’ imprisonment.  It involved drugs trafficking.  On appeal, the 32 months’ sentence was reduced to two years.

5.  There is no tariff for this type of offences.  It is difficult to draw comparison and fix any fixed scale for such an offence.  Each case would depend on its own facts.  The court would consider the sophistication of the offence, the amount involved, the defendant’s share of the reward, etc.

6.  As for the amount involved, it is a factor which I do not think that would carry much weight when it is an ongoing scam.  Just as in this case, if the defendant had not been caught and stopped, the scam would probably continue.  More moneys would go through the defendant’s accounts.

7.  One thing that strikes me is that people from another country came to Hong Kong and used Hong Kong as a place to deal with proceeds of crimes.  In a way, they are exploiting the freedom in Hong Kong and the banking system here.  And, of course, they are damaging Hong Kong’s international reputation.

8.  Where huge amounts are involved in fraud and huge losses were caused to the victims, five years’ imprisonment as a starter had been adopted as in the case of HKSAR v Chen Szu Ming, CACC270/2005.  So, very much will depend on the facts of each case.

9.  In this case, I think it is appropriate to take three and a half years as a starter.  I would give the defendant one-third discount for his plea.  And I consider that all these offences are part of a series of transactions, and I will make the sentences concurrent.  I, therefore, sentence the defendant to 28 months’ imprisonment on Charges 1, 2, 3, 8, 10 and 11.  The terms are to run concurrently.