HKSAR v. CHAN NOK WAI

DCCC 193/2024

[2025] HKDC 328

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 193 OF 2024

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REASONS FOR SENTENCE

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1.  Charge 1 is conspiracy to defraud.

2.  Charge 2 is an alternative charge to Charge 1 money laundering.

3.  The Defendant pleaded guilty to the alternative Charge 2.

Summary of facts

4.  On 26 April, 2023, a 92 old victim (PW1)  received a phone call and the caller claimed to be his son and said he was in need of $10,000 to pay the bail money.  The victim agreed to pay the sum.

5.  A few minutes later, the caller called again and said that “Wai Jai” would come to collect the money.

6.  Another caller called PW1 and claimed himself to be “Wai Jai” and arranged to meet PW1 at a designated place.

7.  PW1 found out that her son was safe and reported this matter to the police.

8.  The Defendant was arrested during a controlled meeting.

9.  In the VRI, the Defendant said under caution that:-

(a)  He was in debt of $80,000 and applied to a delivery job in respond of an advertisement on a Facebook page.

(b)  In April, his boss assigned him a delivery task. He went to collect a work phone from an unknown male in a public toilet.

(c)  His boss then instructed him to go to a minibus-stop in Shan Ha Tsuen and descripted to him the clothing that PW1 was wearing.

(d)  When he met PW1, his boss asked him to call a phone number and was instructed to pass the phone to PW1 who refused to take the call.

(e)  PW1 asked him if he was “Wai Jai”, he had no idea how to respond, so he just nodded his head.

(f)  He followed his boss instruction to take PW1 to a less crowded area.

(g)  He was then arrested.

(h)  He had no idea of the phone scam.

Criminal record

10.  The Defendant has a clear record.

Background of the Defendant

11.  The Defendant is now 23 years old.  His mother passed away in 2013.  His father has to work as a crane operator to support the family.

12.  In 2023, the Defendant is engaged.  His finance is also in Court today to support him.

13.  The Defendant was unemployed in 2022 and was persuaded by a friend to involved in a pyramid scheme.  He borrowed $100,000 from four financial institutions to purchase some stock of a company.

14.  In January 2023, he was required to repay a minimum of $7,000 per month to those financial institutions.  However, his sales performance was poor.

15.  This is in this circumstances, he looked for a job in the Facebook that offered a daily income of $800.

16.  I have three letters before me:-

(a)  The Defendant is now very remorseful and determined to reform himself after his discharge prison.

(b)  His current employer is willing re-employ him after his discharge from prison.

(c)  Today, his cousin also wrote to this Court to tell me the Defendant is remorseful.

Sentence

17.  The maximum sentence for an offence of money laundering is one of 14 years.

18.  In HKSAR v Boma[1], the Court of Appeal list out a number of sentencing factors.

19.  In the case of Lin Zong Yue[2], the Defendant pleaded guilty to 3 charges of money laundering.  The offences involved a telephone fraud; the Defendant collected a total of $144,500 from three victims.  On appeal, the Defendant received a sentence of a starting point of 3 years for Charges 1 and 2 (as they were committed on 2 consecutive days), 3 years 3 months for Charge 3 as it was committed some 53 days later.  Those sentences were enhanced by 1/3 pursuant to the application under OSCO Cap 455.

20.  In the judgement of the HKSAR v Cen Huakuo[3], the Court said that “in money laundering cases, some defendant have no knowledge or only have an incomplete and sketchy understanding about the indictable offence in connection with the money laundering offence.” (para 17)

21.  As said in the judgement of HKSAR v Hung Yung Chun[4] it would be too harsh to pass a sentence of 4 years in such a nature of money laundering.[5]

22.  In the present case, I accepted what the defence said that the Defendant:-

(a)  Was not involved in the predicated offence, as he has no knowledge of the nature of the predicated offence.

(b)  However, the Defendant has reasonable ground to believe that the money in question was proceeds of crime.

(c)  The actual amount $100,000 did not pass on to the Defendant.

(d)  There is no evidence to suggest an international element.

(e)  The Defendant was acting as a courier.

23.  Finally, I considered that the scheme was well planned as it was properly organized with different people with at least 3 phone numbers.  The Defendant received a work phone from an unknown male in a public toilet.  There was also another person at the scene to inform the Boss what PW1 was wearing.

24.  All these people are living in very low moral ground with a view to deceive the old lady.

25.  With all the information in mind, a deterrence sentence is necessary.  I take 3 years as  starting point and reduce to 2 years after 1/3 discount.

Enhancement

26.  Pursuant to S 27(2)  of OSCO Cap 455, the prosecution applied for enhancement of sentence.  In support of this application, the Prosecution furnished a report from Chief Inspection Cheng.  From the content and data of the report, I am satisfied that this specific offence is prevalent.

27.  The defence has no objection to the present application.

28.  As such I consider that the 1/3 enhancement rate is appropriate.

29.  The formula of the sentence is as follow:-

(a)  The sentence after 1/3 discount is 2 years (24 months);

(b)  Enhancement of sentence by 1/3 is 8 months

(24 x 1/3 = 8);

The total sentence is 2 years 8 months (24 + 8 = 32 months).