HKSAR v. TANG CHI WANG

DCCC 27/2024

[2024] HKDC 2191

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 27 OF 2024

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REASONS FOR SENTENCE

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1.  The defendant has pleaded guilty to the alternative charge on the indictment of attempting to deal with property known or believed to represent the proceeds of an indictable offence, the particulars of that offence being on 3 August 2023, in Tsing Yi, knowing or having reasonable grounds to believe the property, namely $73,000 of Hong Kong currency in whole or in part, directly or indirectly represented any person’s proceeds of an indictable offence, attempted to deal with that property.

2.  The defendant has been convicted by me of an attempt to commit the offence, nevertheless the sentences for the completed offence and the attempted offence would be in the same range.

3.  The facts are relatively straightforward, and on 3 August, an elderly lady received a phone call from an unknown male at home claiming her son to be in urgent need of $80,000 for bail as he had been arrested by the police for a prostitution-related offence.  Believing it was true, the victim retrieved the $73,000 from the bank.  Around noon of that day, she was informed there was still $7,000 short but that ‘Ming Jai’ would be arranged to go to her flat to collect the money, regardless.

4.  Fortunately, the victim, PW1, realised the scam and called her son.  The case was reported to the police and police were dispatched to create what we call a “dummy drop” of the money.  That afternoon, the defendant knocked on the door and introduced himself as the person called Ming Jai, there to collect the money for her son.  He was heard by a witness to say he was there to collect mah-jong gambling debt for a friend before the dummy package was passed to the defendant.  The defendant was then intercepted by the police.

5.  Under caution, the defendant said the following.  He was asked by another person called ‘Chun Jai’ to attend PW1’s flat to collect mah-jong gambling debts for a reward of $3,000.  ‘Chun Jai’ was introduced to him by another person during his sentence of imprisonment and he had only ever contacted ‘Chun Jai’ by Telegram and he had never seen him in person.  The defendant was then arrested for obtaining property by deception.  He said there would be $3,000 as his reward for doing this.

6.  The facts admitted by the defendant clearly show his involvement in the attempt to commit this offence and I convicted the defendant accordingly.

7.  As far as the defendant’s background antecedents are, we can see that he was born on 3 November 2003, currently age 21.  He worked as a part-time food stall employee in July 21 and his antecedents show he was sentenced to a Training Centre.  In fact, the defendant has a number of previous convictions, a total of four previous appearances in court, originally in 2019, sentenced to probation of 18 months and in 2021 for the offences of taking a conveyance without authority, possession of a dangerous drug, driving without a licence and using a motor vehicle on a road against third party risk.  He was sentenced to Training Centre and I have a letter from the Correctional Services Department that show that he was discharged from his Training Centre Order on 17 April 2023 but re-admitted again on 4 August 2023 under the Supervision Order and finally discharged on 29 January 2024.  So we can see that this offence was committed during his period of discharge from the Training Centre between 17 April 2023 and 4 August 2023.

8.  As far as the defendant’s mitigation is concerned, he fully admits the offence that he has committed and has admitted all the facts and provided the police with information on his arrest, so has been cooperative throughout.

9.  He is a single man, lived with his mother within the family.  He is said to not have a triad background.  He has worked as a part-time food stall employee and after that was unemployed.  He admits and confirmed his criminal record in the court.

10.  In mitigation, it is noted that the defendant had been sentenced to a Training Centre Order, which means that the defendant is now ineligible for the orders that can be made for younger people in respect of the Correctional Services Department’s programmes, meaning that the available sentence for the defendant in this case, given the severity of the offence, is a sentence of imprisonment.

11.  Defendant is now aged 21 and the restrictions on imprisonment under Section 109A of the Criminal Procedural Ordinance, Cap 221, do not apply to him.

12.  The court also obtained a background report on the defendant which sets out similar background to the one put forward in mitigation.  In the final paragraph, the expression is as follows: That the defendant has expressed verbal remorse for his wrongdoing and acknowledged the impact of his actions on the victim and felt sorry for his family.  He is said to have learned a harsh lesson from the court experience, wanted to reform himself and lead a lawful life thereafter.  He has disappointed his family and they seek, of course, for the court to treat him with leniency.

13.  The defendant is said to be ready to shoulder his legal responsibility and begs the court for the shortest possible custodial sentence, so it would appear from the context of that report that there is some realisation by the defendant of the severity of his actions and the fact that the life that he has previously lived is liable to lead him to continuous sentences of imprisonment.

14.  I have to determine what is the appropriate starting point for sentence.  I have been referred to various authorities by the defence which deal with similar cases dealt with in the District Court.  Defendant, of course, in this case has been convicted of the offence of attempting to deal with property known or believed to represent the proceeds of an indictable offence.

15.  It is common ground that there is no actual guideline sentence for this offence because the ways in which the offence can be committed are many-fold and it is not appropriate for the court to create a guideline for this offence.  Nevertheless, one has to have regard to the case of HKSAR v Boma which sets out a number of steps that the court can take when determining how to assess the appropriate sentence for this offence.  I have also been referred to HKSAR v Fok Tsz Hin, a case in 2023 in the District Court; the case of HKSAR v Cheung Ka Chun and Another, 2024, Hong Kong District Court and also the cases of Secretary for Justice v Wan Kwok Keung [2012] 1 HKLRD 201 and HKSAR v Cen Huakuo [2015] 2 HKLRD 951, and I take account of what is said in those cases and the starting points that have been adopted in previous cases of this nature.

16.  Having regard to those cases and the general approach of the courts, I have decided to take a starting point for sentence of one of 30 months' imprisonment for this offence.  The defendant has shown remorse, so I am entitled to deduct a full one-third discount for his plea of guilty which leads to a sentence at this stage of one 20 months' imprisonment.

17.  I note in this case, the prosecution has notified the court that it intends to make an application for enhancement of sentence under Section 27 of what is called “OSCO” and that is supported by a statement of the police regarding the prevalence of the specified offence and the nature and extent of harm, direct or indirect, caused to the community by recent occurrences thereof.

18.  The defendant does not object to this application but asks the court to limit the enhancement of sentence to no more than 25 per cent, as has been the case in other cases of a similar nature.  I consider that an appropriate step to take.  The prosecution have clearly evidenced the need for enhancement of this sentence and I will enhance the sentence of 20 months' imprisonment by a further 25 per cent to reflect that application.

19.  That now leads to a sentence of 25 months' imprisonment.  I consider that an appropriate sentence for this defendant having regard to his background and other matters that have been brought before me.  So the sentence I will impose is one of 25 months' imprisonment.