HKSAR v. SO MAN HO

DCCC 35/2024

[2025] HKDC 113

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 35 OF 2024

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REASONS FOR SENTENCE

The defendant faces 2 charges of "Conspiracy to defraud" (Charges 1 and 3)  and 2 charges of "Money laundering" (Charges 2 and 4; alternative to Charges 1 and 3 respectively). He pleaded guilty to Charges 1 and 3. I made no order as to Charges 2 and 4.

Summary of Facts

Charge 1 ($100,000)

2.  About 11:00 a.m. on 10 October 2023, Madam Cheung (PW1; aged 69)  received a phone call made to the landline at her home at Hei Lai House, Wah Lai Estate, Lai Chi Kok from an unknown male (Male 1)  claiming to be her son.  Male 1 told PW1 that he was arrested by the Police for fighting and needed $300,000 as bail money.  PW1 told Male 1 that she did not have that amount of cash.  She later went to a bank to withdraw cash.

3.  About 2:30 p.m. on the same day, Male 1 called PW1 again, during which she told him her address.  Respectively at 3:00, 3:30 and 4:00 in the same afternoon, PW1 gave cash in a total sum of $257,000 to 2 unknown males who claimed to be collecting money for her son.

4.  About 9:00 a.m. on 11 October 2023, PW1 called Male 1 to ask about his latest situation (thinking that he was her son).  Male 1 told her that he needed another $100,000 to pay for his bail.  About 9:30 in the same morning, PW1's real son, Mr. Huang, called PW1 and discovered the scam.  The Police was alerted.

5.  Some time later, PW1 received a phone call made to her landline at home (from a number different from Male 1's).  The caller claimed to be PW1's son and asked PW1 to prepare $100,000 cash.  PW1 pretended to agree.

6.  About 12:35 p.m. on the same day, the defendant arrived at PW1's home.  She opened the door and the defendant handed her a mobile phone.  The caller, who sounded like Male 1, asked PW1 to hand over the money to the defendant.  PW1 gave the defendant a red plastic bag containing dummy banknotes prepared by the Police.  Once accepted the red plastic bag, police officers intercepted the defendant.  PC 22248 arrested him for "Obtaining property by deception".  Under caution, the defendant said he was merely a courier; he received instructions over the phone to collect $100,000 cash at the address (i.e. PW1's home).  He also admitted on his own volition having collected $60,000 in the same morning at Lok Fu (i.e. Charge 3).

7.  Based on the defendant's confession, the Police investigated the incident in relation to Charge 3.

Charge 3 ($60,000)

8.  About 10:52 a.m. on 11 October 2023, Mr. Tang (PW3; aged 86)  received a phone call made to the landline at his home at Lok Man House, Lok Fu Estate, Kowloon from an unknown male (Male 2)  claiming to be his 2^nd son.  Male 2 told PW3 that he got drunk the day before and raped a woman.  The Police arrested him and he needed $100,000 as bail money.  PW3 told Male 2 that he only had $60,000 cash at home.  Male 2 told PW3 that his friend "Kit Chai" would go collect the money from PW3.

9.  About noon on the same day, PW3 received another phone call made to his landline at home.  The caller claimed to be Kit Chai and PW3 told the caller his address.

10.  About 12:10 p.m. on the same day, the defendant arrived at PW3's home.  Believing the defendant to be Kit Chai, PW3 opened the door and gave him $60,000 cash.  Later on the same day, PW3 spoke to his real 2^nd son and discovered the scam.  The Police was alerted.

11.  CCTV footage of the Lok Man House captured the defendant entering the building alone around 11:52 a.m. that day.

Admissions

12.  In his video recorded interviews, the defendant claimed, inter alia, that he was in need of money in early September 2023.  He saw a job advertisement on Telegram about collecting money.  If hired, one could earn several thousands of dollars per day.  The defendant contacted the recruiter (i.e. the person who posted the advertisement on Telegram), who then told him about some superficial requirements.  In the evening on 14 September 2023, the defendant met with an interviewer, who followed him home to verify his address.  Thereafter, the recruiter informed the defendant via Telegram that he was hired.

13.  The defendant said he started working around 15 September 2023.  He was given a mobile phone on his 1^st day.  The defendant claimed that in the beginning, he was unaware of the nature of the money he collected.  After a few weeks, he found something wrong.  He discovered that on each occasion, he was told to collect money from an elder person living alone.  Furthermore, each time he had to use his work mobile phone to call a number and let the elder person talk to the person on the other end.  The defendant had overheard the person on the other end, who had the same voice in each call, claiming to be the son or grandson of the elder person.  The defendant then realized that those elder persons were being deceived.  Also, the recruiter would assign the defendant a role each time and ask him to pretend to be someone when collecting money.

14.  After collecting the money, the defendant would give it to an unknown person.  The defendant would receive about 2% of the total sum he collected on a day as his reward.  He had received an aggregate sum of about $20,000 from his 1^st day on the job until his arrest.

Mitigation & Sentence

15.  The defendant is 24 and has a clear record.  Defence counsel Ms. Ma informed me that the defendant's parents are divorced.  He resides with his mother and younger brother.  The defendant has completed an associate degree and was admitted to the 3^rd year of a degree programme at a local university.  At the time of the present offences, he was in his final year. 

16.  In mitigation, Ms. Ma submitted that in early 2023, the defendant's mother purchased a flat under the Home Ownership Scheme.  In order to alleviate his mother's financial burden, the defendant started looking for part-time jobs.  Ms. Ma stressed that the defendant initially did not know that the money-collecting job was related to phone scams.  He only realized the hard truth after working for a while.  Owing to the temptation of money, his foolishness and fear for the safety of his family members, the defendant did not quit promptly but continued until his arrest.

17.  The prosecution has applied for an enhanced sentence pursuant to section 27(2)(d)  and (e)  of the Organized and Serious Crimes Ordinance (Cap.455)  on the basis of the nature and extent of harm caused to the community; and the nature and extent of the total benefit gained by anyone from the present offences.  Ms. Ma did not object to the application for enhancement.

18.  I have read the witness statement of CIP Cheng dated 17 December 2024.  I am satisfied that in 2023, the accumulated pecuniary loss resulted in telephone deception cases was substantial (over HK$1 billion).

19.  The "Drop-off" mode phone deception cases always involve someone picking up the money left behind by the victim at a public place or collecting the money directly from the victim.  Hence, the money collection portion is part and parcel of any type of phone deception ("Guess Who", "Pretend Officials" or "Detained Son").

20.  There is clear and cogent evidence before me that the "Drop-off" mode phone deception is still widespread and commonly being practised in Hong Kong today.  The court must deter people from playing the role of "collector" by imposing on them a severe punishment.  When there are fewer or no willing "collectors", the "Drop-off" mode phone deception method would fail.

21.  I accept there is no evidence suggesting that the defendant was the main perpetrator of the phone deception in this case; however, the scams would have been meaningless without a willing "collector".  By pleading guilty to Charges 1 and 3, the defendant admitted having knowledge of the telephone scams and having conspired with others to defraud PWs 1 and 3.  Given his role, the amount of money involved and the overall circumstances, I grant the prosecution's application and will enhance the sentence by 30%.

22.  In Charge 1, the defendant collected $100,000 from PW1; whereas in Charge 3, $60,000 from PW3 in the same morning.  According to the Court of Appeal's decision in HKSAR v Hung Yung Chun [2011] 2 HKLRD 174, the appropriate starting point for this type of phone deception is 4 years' imprisonment.

23.  I have borne in mind the amount of money involved, the defendant's role and the age of each victim.  I adopt a starting point of 4 years' imprisonment each for Charges 1 and 3.  With the timely guilty plea, the sentence becomes 32 months.  Apart from this, I see no other mitigating factors which warrant any further reduction.  With the 30% enhancement, I sentence the defendant to 41 months' imprisonment for each charge.

24.  Both offences took place one after another in the same morning.  Bearing in mind the totality principle, I consider a global starting point of 4.5 years' imprisonment appropriate for both charges.  With the timely guilty pleas, the overall sentence becomes 36 months.  With the 30% enhancement, the overall sentence becomes 46.8 months' imprisonment.  Regarding the evidence in relation to Charge 3, it appears that it came primarily from the defendant's own admissions.  Prosecuting counsel Ms. Lau informed me that the Police received PW3's telephone report just 4 minutes before the defendant was arrested for Charge 1.  On this issue, Ms. Ma submitted that when the defendant was arrested, those police officers did not question him about Charge 3 (probably because they did not know about it yet).  The defendant confessed to his crime in Charge 3 on his own volition. I accept that this is to his credit[1]. I would grant a further discount of 2.8 months, reducing the overall sentence to 44 months.  To achieve this, I order 3 months in Charge 3 to run consecutive to Charge 1.