HKSAR v. RONG GUOPING

 DCCC1260/2009

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 1260 OF 2009

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Reasons for Sentence

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1.  The defendant pleaded guilty to 1 charge of "Conspiracy to defraud" (Charge 1) and 1 charge of "Conspiracy to deal with property known or believed to represent proceeds of an indictable offence" (Charge 2).

Summary of Facts

2.  In the morning of 22 September 2009, Mr. YIP (PW1) received a phone call from an unknown male (Male 1) claiming to be his son. Male 1 told PW1 that an unknown male was detaining him because he has guaranteed a debt for a friend. Then another male (Male 2) took the phone and demanded PW1 to pay $200,000 for the release of his son. PW1 does not have a son, but he pretended to negotiate with Male 2. Finally, Male 2 agreed to accept $50,000 from PW1 for releasing his son. This is Charge 1.

3.  PW1 immediately reported the matter to the Police. DSPC 110 (PW2) gave him an envelope containing some scrap paper. Later, Male 2 called PW1 and instructed him to put the money into a rubbish bin located at the junction of Canton Road and Austin Road. PW1 did as instructed and walked away. Thereafter, PW2 and other police officers, who were laying ambush in the vicinity, saw the defendant picking up the envelope from the rubbish bin and then boarding a taxi.

4.  Shortly afterwards, Male 2 called PW1 to check whether PW1 had placed the money in the rubbish bin because his man could not find any money inside the rubbish bin. PW1 assured Male 2 that he had already done so. Male 2 asked PW1 to return to the rubbish bin.

5.  PW1 returned to the rubbish bin. Male 2 called him again to ask whether he could find the money in the rubbish bin. PW1 told Male 2 that he could still see the envelope inside and pretended to put the envelope into his shoulder bag. At that moment, PW1's mobile phone ran out of battery. He remained in the vicinity to see if Male 2 would approach him. At the same time, PW1 saw the defendant wandering back and forth in the vicinity.

6.  Eventually, the defendant approached PW1. PW1 asked if his son was safe and the defendant nodded. The defendant also handed his own mobile phone to PW1. Over the phone, Male 2 told PW1 to put the money into the rubbish bin again and then pass the phone back to the defendant. This time, PW1 put a paper bag containing scrap into the rubbish bin and left.

7. PW2 and other police officers then saw the defendant picking up the paper bag and leaving the scene. They immediately intercepted and arrested him. This is Charge 2. Later on, the defendant brought PW2 and other police officers to Hung Hom to recover from a rubbish bin the 1^st envelope which he had picked up earlier that day.

8.  In his video interview, the defendant admitted, under caution, that he was asked by Ah Shing to pick up money at Tsim Sha Tsui. He saw PW1 putting an envelope into a rubbish bin. Ah Shing told him to pick up the envelope. He then took a taxi to Hung Hom but discovered that the envelope contained scrap paper. He discarded the envelope in a rubbish bin at Hung Hom. Later on, Ah Shing asked him to return to the rubbish bin at Tsim Sha Tsui, at where he saw PW1 again. At that time, he was talking to Ah Shing on the phone and Ah Shing asked him to pass the phone to PW1. When PW1 finished talking to Ah Shing, PW1 put a paper bag into the rubbish bin and left. The defendant then picked up the paper bag from the rubbish bin.

9.  The defendant now also admits that at all material times, he and other persons unknown had conspired together to defraud PW1.

Mitigation & Sentence

10.  The defendant is now 39 years old and has a clear record. He is a mainland resident. He came to Hong Kong legally in the morning of the offence date. His wife and his 10-year-old son also reside in the mainland. He has been unemployed since mid-2009. Before that, he worked as a construction worker earning RMB1,500 per month.

11.  Defence counsel Mr. PANG submitted that the present case lacks most of the usual features in phone deception cases, such as the victim is not an elderly person (only aged 43); the phone call was not made to the victim's residence (to his office number instead). Furthermore, the victim was not deceived at all and the amount involved, $50,000, is a relatively small sum.

12.  The Prosecution has applied for enhanced sentence in respect of Charge 1 on the basis of prevalence only (irrespective of its written application dated 26 November 2009). Mr. PANG objected to this application, arguing that there is a decreasing trend in phone deception cases generally. He also pointed out that according to the statement of CIP Williams, out of the 1,775 phone deception cases reported in 2009 and the 1^st quarter of 2010, only 158 cases (i.e. 8.9%) involved physical collection of cash by the suspects (vis a vis transferring money to a stooge bank account). In other words, this case falls within a minority category of phone deception cases.

13.  Miss LEUNG for the Prosecution has helpfully drawn my attention to the Court of Appeal decision in HKSAR v XU Mai Qing CACC 464/2005. Yeung JA 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." (see paragraph 16, p.4 of the judgment)

14.  As revealed in the statement of CIP Williams, the number of phone deception cases may appear to have been decreasing since its peak in 2006; however, the numbers remained at the 1,400 level in 2008 and 2009. Adopting a straight-line projection, the final number for 2010 will still be about 1,100 cases. I note that there is a steady increase in the value of stolen funds from 2007 to 2009. In my view, there is clear and cogent evidence before me that phone deception (regardless of the mode of receiving payments) is still widespread and is still commonly being practised today. 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 for Charge 1 by 25%.

15.  For Charge 1, I am not aware of any sentencing tariff. Again, based on the factors I have just mentioned, I set the starting point at 2 years imprisonment. One-third discount is given for the guilty plea, reducing the sentence to 16 months. Apart from this, I see no other mitigating factors which warrant any further reduction. With the 25% enhancement, the sentence is therefore 20 months.

16.  For Charge 2, I have considered the decision in HKSAR v NG Tsz Ming HCMA 454/2005 (Chinese judgment). The appellant in that case allowed someone, whom he met on ICQ, to use his bank account to accept some funds in return for a commission. As a result, a sum of $49,000, which were proceeds of a theft offence, were transferred into the appellant's account. Deputy High Court Judge To (as he then was) upheld the starting point of 12 months imprisonment adopted by the trial magistrate.

17.  I consider the appropriate starting point for Charge 2 to be 12 months imprisonment. One-third discount is given for the guilty plea, reducing the sentence to 8 months. In the present case, the criminal conduct in Charge 2 is factually part and partial to Charge 1. According to the Amended Summary of Facts, the defendant was primarily involved in the physical collection of cash. In fact, his exact involvement in Charge 1 is not so clear. On this basis and having considered the totality principle, I order the sentence in Charge 2 to run concurrently with Charge 1. Hence, the total prison term for both charges is 20 months.