HKSAR v. NI XIAODI

DCCC 378/2017

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 378 OF 2017

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REASONS FOR SENTENCE

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1.  The defendant pleaded guilty to a charge of conspiracy to deal with property knowingly believed to represent proceeds of an indictable offence, contrary to section 25(1) and (3) of Organized and Serious Crimes Ordinance, Cap 455, and section 159A and 159C of the Crimes Ordinance, Cap 200.

Summary of facts

2.  A couple of a 15-year-old boy received calls from an unknown male claiming that their son was kidnapped and demanded a ransom of $230,000.  The mother felt scared and cried.  At the meantime, the couple found out that the son was safe.  The case was reported to the police.  As directed by the police, the father went to the collection point with the dummy money in his rolled jacket.  The defendant approached the father as he was talking over the phone and asked him to hand over the money.  The father said he only had $200,000 and handed over the dummy money to the defendant.  The defendant was then intercepted by the police. 

3.  Under caution, he said that he was responsible for collecting money and knew nothing else.  In a record of interview, he said that he came to Hong Kong on 13 March 2017 as he was unemployed.  At the material time, he was instructed by Lo Tai to collect $200,000 from a particular person.  If the collection of money was successful, he would be rewarded for $10,000.

Previous record

4.  The defendant has a clear record.

Mitigation

5.  He came to Hong Kong to commit the offence because he was in debt of $130,000.  He previously worked as a cook, earned about RMB¥3,500 per month.  He played a small part in the scam and knew very little of it.

Prevalence

6.  The prosecution served a notice to the defence in May this year with the intention to furnish information pursuant to section 27(2) of the Organised and Serious Crimes Ordinance, Cap 455, for the purpose to seek an enhancement of the sentence.  The prosecution furnished Chief Inspector Tam’s statement to support the application.  The defence argued that there was a decrease in number as shown in annex A, a table prepared by chief inspector’s statement.  As such, the defence objected to the prosecution’s application. 

7.  In the case of HKSAR v Chung Chi King CACC 504/2001 ( date of judgment 4 March 2003) ,  the court held that the prevalence of the offence must be considered at the time of sentence; in our present case, in August 2017. 

8.  In determining the issue of prevalence, I also bear in mind of the case HKSAR v Wong Fung Ming & Others CACC 515/2001 ( judgment date 5 December 2002 ),  at paragraph 46 of the judgment, the court said that:-

“The power to enhance a sentence under section 27(11) is an extraordinary power. It enables a judge, as we have set out already, to pass a more severe sentence for a specific offence if one or more of the number of factors itemised in section 27 of OSCO has been established. We think that the power given to a judge to add to the sentence he has otherwise considered to be appropriate, which will often already have incorporated an element for deterrence, can only have been intended to spell out to others who might otherwise commit the same type of offence in the future that to do so will entail a particularly severe penalty. Inevitably, it is a power which ought to be utilised sparingly.”

9.  The Summary of Facts showed that this was a drop-off case.  According to the figure of the table in annex A, the total number of all telephone deception received in the year of 2011 was 1,916, 2012 was 2,314, 2013 was 2047, 2014 was 2220, 2015 was 2880, 2016 was 1138, and 443 for the first half in 2017.  Out of the total number as mentioned above, the number of total drop-off telephone deception reported cases in 2011 was 1,230, 2012 was 1,190, 2013 was 1,041, 2014 was 1,195, 2015 was 1,117, in 2016 was 271, and 39 in the first half-year of 2017. 

10.  The prosecution referred me to the case of HKSAR v Xu Mai-Qing CACC 464/2005.  At paragraph 15 and 16 of the judgment, it said that:-

“While the number of street deception cases might have decreased since its peak in 2002, it was still widespread and was still commonly being practised in 2005. 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.”

11.  In Xu Mai-Qing case, the reported street deception cases in 2001, 2002, 2003 and 2004 were respectively 623, 811, 576 and 479.  For the first eight months in 2005 was 283.  One cannot dispute that 283 cases was indeed a large figure even when there was a decrease in numbers.  The court considered that the offence was still prevalent at the time of sentence. 

12.  According to the 7th edition of Sentencing in Hong Kong, Chapter 33, prevalence of sentence, the first paragraph of that chapter quotes the case of Moore v Materna [1996] 136 TLR 142 that prevalence denotes something being widespread or of regular occurrence.

13.  In our present case, the drop-off cases were decreased from 271 in 2016 to 39 in 2017 for the first six months, a drop of 232 cases, about a decrease of 85 per cent.  39 cases in the first six months in 2017 was about 6.5 cases a month.  By all standards, these figures cannot fit into the meaning of being “widespread or of regular occurrence”.  To this end, it is clear to me that the prosecution’s application cannot succeed.  I refuse the application to enhance the sentence.

Sentence

14.  The maximum sentence under section 25(3)(a) on conviction upon indictment is a fine of 5 million and imprisonment for 14 years. 

15.  In the case of HKSAR v Cen Huakuo CACC 21/2014, the judgment said:-

“A defendant must be sentenced on the offence of which he is convicted. However, when considering the appropriate sentence, the court may of course take into account the overall circumstances of the case insofar as they are related to the defendant’s culpability.”

16.  The defence referred me to a number of telephone deception (dropped-off) cases to determine the starting point:-

(1) HKSAR v Li Yunghong CACC 254/2015 that the appellant demanded a ransom of AUD$300,000 for the release of the victim’s son, starting point was 3 years.

(2) HKSAR v Li Sung-Yue CACC 141/2014, the appellant pleaded guilty to three counts, first two counts with an initial demand of $200,000 and $400,000 to release the son of the victim respectively. Starting point was also 3 years.

(3) HKSAR v Cen Huakuo CACC 21/2014 that the appellant demanded an initial ransom of $250,000 but reduced to $50,000, a starting point of 3 years was affirmed.

17.  I also have regard to:-

(i) HKSAR v Wu Jianbing CACC 32/2011 that the Appeal Court substitutes a starting point of 3 years instead of 4 years’ starting point.

(ii) HKSAR v Chen Jianchao CACC 184/2014, a demand of $230,000 (the same amount in the present case) for telephone deception, the appellant “knew what the predicate offence was”. The Court commented that the 4 years’ starting point was on the top end of the appropriate range of sentence but upheld the sentence.

18.  In the present case, the amount demanded was $230,000 and it was indeed a very substantial one.  It was fortunate that the family acted very quickly to ascertain the safety of their child.  At the end, he did not hand in any actual cash to the defendant.  However, they have been subjected to a great deal of stress and anxiety. 

19.  However, there is no evidence to suggest that the defendant was the mastermind of the scheme.  Nonetheless, he came from mainland to Hong Kong with a view to collect money with reward.  According to his own words to the police, every $10,000 he received, he would be given $500.  The fact that the defendant was in dire straits situation was not a mitigating factor.  The only valuable mitigating factor in his favor is his guilty plea. 

20.  With all the information in mind, I consider a proper starting point is 3 years, reduce to 2 years because of his guilty plea.  

Conclusion

21.  2 years’ imprisonment.