HKSAR v. OU BINGKANG

DCCC 862/2014

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 862 OF 2014

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Reasons for Sentence

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1.   The defendant pleads guilty to one charge of conspiracy to deal with property known or believed to represent proceeds of an indictable offence.  The predicate offence is a telephone deception.

2.   The facts admitted by the defendant reveal that on 21 July 2014, Madam Wong Choi-mei, aged 78 (PW1), received a phone call at her residence in Hong Kong.  The man on the other end of the line told PW1 to pay HK$180,000 to save her son who had an affair with a married woman on the Mainland and had been held hostage.  Upon negotiation, PW1 agreed to pay HK$50,000.

3.   Another voice also pretended to be PW1’s son, claiming that he was blindfolded and requesting PW1 to pay up.

4.   PW1 went to a bank to withdraw the money.  The bank staff found it was suspicious and the matter was reported to the police after the safety of PW1’s son had been confirmed.

5.   As instructed by a culprit calling her mobile phone, PW1 went to North Point to give the money.  Subsequently, the defendant approached PW1 and collected an envelope containing dummy money from PW1.  Police officers ambushed nearby arrested the defendant.

6.   After he was arrested, the defendant admitted entering Hong Kong on 21 July 2014 to collect money for a male called “Chiu” and remit the said money to the Mainland.  The defendant would receive 10 per cent of the money collected as a reward.  He was aware of the illegal nature of the money to be collected.

7.   The movement record of the defendant shows that he entered Hong Kong on 21 July 2014 at around 9.22 am.

8.   The prosecution also applies for enhancement of sentence under Section 27(2) of the Organised and Serious Crimes Ordinance, Cap 455.  The application is not opposed to by the defendant.

9.   The defendant, aged 24, is a visitor from the Mainland.  He has a clear record in Hong Kong.

10.   In mitigation, Ms Chan, solicitor for the defendant, tells the court that the defendant is single, living with his parents in Toishan.  He was a kitchen worker in a hotel, earning RMB2,500 before he was arrested in Hong Kong.

11.   As his father was unable to work due to a stomach disease, the defendant’s family suffered from financial hardship.  The defendant was therefore eager to earn some quick money. 

12.   He came to know a man, Chiu, who was referred to in the facts admitted by the defendant.  Chiu told him to come to Hong Kong to collect “black money”, by which the defendant understood to mean money of illegal nature.  However, he did not know the exact nature of the deception scheme.  His role was only to collect money.  Chiu told him the maximum sentence would only be a few months, if he were caught by the police.

13.   It was the first time he came to Hong Kong.

14.   Upon arrest, he cooperated with the police.  It is also emphasised that the victim suffered no loss and the defendant has not received his reward.

15.   Miss Chan accepts that the usual enhancement is one-third.  She asks the court to take a slightly lower starting point than the usual 3 years, as the amount in this case is small. 

16.   I accept the mitigation that the defendant only acted as a legman to collect money in Hong Kong.  He might not know the exact details of the deception scheme.  He should therefore be sentenced on the basis of the conspiracy to commit Section 25 offence, the offence he is charged with and convicted of.

17.   Money laundering is a serious offence. Sentences should generally reflect the amount of “black money”.  It is also relevant to consider the degree of participation by the defendant, whether the offence was organised and sophisticated, and whether it involved an international element.  See HKSAR v Boma Amaso [2012] 2 HKLRD 33.

18.   In this case, the initial ransom amount asked for was HK$180,000 and the agreed amount to be delivered was HK$50,000. The victim is a senior citizen aged 78.  I note that the offence encompassed only a short period of time on 21 July 2014.

19.   The offence, though serious and typical, was not particularly sophisticated.  The victim suffered no financial loss.  I accept that the defendant was only a legman.

20.   There was, however, a cross-border dimension, as the defendant clearly came to Hong Kong to commit the offence.

21.   In HKSAR v Wu Jianbing (吳建兵), CACC 32/2011, the Court of Appeal indicated that a person committing this kind of offence in those circumstances can expect a starting point of 3 years’ imprisonment, even with a clear record.

22.   The fact that the defendant has a clear record in Hong Kong carries little weight.

23.   In HKSAR v Cen Huakuo (岑華擴), CACC 21/2014, and HKSAR v Lin Zong Yue (林宗悅), CACC 141/2014, the Court of Appeal adopted similar approach in this kind of legman case.

24.   Having considered all the circumstances in this case and the mitigation made on behalf of the defendant, I am of the view that the appropriate starting point for the present case is 3 years’ imprisonment.

25.   The defendant will have one-third reduction for his plea of guilty.  There is no other effective mitigating factor in this case.

26.   In support of the application for enhancement of sentence, the prosecution submits a statement of Detective Chief Inspector Lam dated 28 October 2014, pursuant to Section 65B of the Criminal Procedure Ordinance.  This statement clearly proves a significant increase in what he has termed as “drop-off cases” and the consequential loss in such cases. 

27.   I am satisfied that the drop-off type telephone deception cases and the associated money laundering activities are specified offences and prevalent crimes in Hong Kong, and that they are causing great harm to the community by their recent occurrences.  The requirement and necessity for enhancement of the sentence is proved.

28.   I will adopt the proportion of enhancement set out in the aforesaid authorities by one-third, ie, 8 months.

29.   The final sentence is therefore 2 years and 8 months’ imprisonment.