HKSAR v. LI QIMING

DCCC 233/2015

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 233 OF 2015

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REASONS FOR SENTENCE

1.The defendant pleaded guilty to an offence of conspiracy to commit "money laundering". The sum involved is $15,000.

Summary of Facts

2. About 11:00 am on 6 February 2015, 84-yeaer-old Madam HUI (PW1) received a call made to her home phone.  A male voice pretending to be her son told PW1 that he was being beaten up.  Another male voice told PW1 that her son owed him $100,000 odd.  PW1 said she did not have enough money; the caller agreed to reduce the sum to $15,000.

3. Meanwhile, PW1 contacted her daughter (PW2 Madam CHAN).  PW2 asked PW1 not to go to the bank and to wait for her at home.  PW2 alerted the Police.  She also confirmed with her 2 brothers that both were safe.  Police officers soon arrived at PW1's home to handle the matter.

4. PW1 later received another phone call, asking her to hand over $15,000 at Chai Wan MTR Station.  The caller asked PW1 to describe her appearance and clothes, which she did.  The Police gave PW1 an envelope containing dummy banknotes ("P1").  PW1 then went to Chai Wan MTR Station with some plain clothes police officers.

5. About 1:10 pm, the defendant approached PW1 at Chai Wan MTR Station asking her for money.  He passed her a mobile phone, and she spoke on the phone saying "Son, how are you doing".  The defendant took back the phone and asked PW1 for money.  PW1 handed P1 to him.  When the defendant was about to leave, DPC 3745 arrested him.  Under caution, the defendant admitted that he was instructed to collect money for a reward of 10% of the sum collected.

6. In his video-recorded interview, the defendant admitted that he met a male named Ah Fat in the mainland 3 months ago.  Ah Fat offered him a job collecting dirty money in Hong Kong.  On 2 February 2015, the defendant came to Hong Kong alone.  He purchased a pre-paid SIM card and informed Ah Fat the phone number.  About 11:00 pm on 5 February, Ah Fat phoned the defendant telling him someone might call him later. On 6 February, the defendant received a phone call from a male whose voice was different from Ah Fat.  The caller asked him to go to Chai Wan.  Later, the caller asked the defendant to look for an old woman in a hat, a blue outfit and walking with a stick.  About 1:00 pm, the defendant noticed PW1 matching the description. He followed the caller's instructions to approach PW1.  He asked her if she was looking for a Mr. CHAN; passed her a mobile phone; took the phone back; collected P1 from her and left.

Mitigation & Sentence

7. The defendant is 33 and has a clear record.  He is married with 2 children (aged 5 and 6 months old respectively).  The defendant resides with his parents, wife and children. Defence counsel Mr. CHAN informed me that the defendant is the sole bread winner of his family. He is a factory worker earning RMB2,000 per month.

8. Mr. CHAN submitted that the defendant committed the offence out of greediness; he wanted to earn some quick money.  Mr. CHAN stressed that the defendant did not take part in the phone deception and had no knowledge of the scam.  After arrest, he fully cooperated with the Police.

9. The prosecution has applied for enhanced sentence pursuant to section 27(2)(c) and (d) of the Organized and Serious Crimes Ordinance (Cap.455) on the basis of prevalence as well as the nature and extent of harm caused to the community.  Mr. CHAN objected to the application.  He submitted that in the present case, the purpose of enhancement is to deter phone deception; however, the defendant had no knowledge of the phone deception against PW1.  Hence, it would be unfair to enhance his sentence.

10. 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 to the "Drop-off" mode phone deception.  Although the "collector" may or may not have knowledge of the underlying phone deception, the circumstances under which he/she picks up or collects the money are usually peculiar and would thus arouse his/her suspicion about the legality of his/her collecting act and/or the nature of the money collected.  That is the reason why the "collector simpliciter" is usually charged with a money laundering offence (instead of deception).  On this basis, the statistics of the "Drop-off" mode cases are still directly relevant.

11. I bear in mind the Court of Appeal's decision in HKSAR v XU Mai Qing CACC 464/2005, whereas Yeung JA (as he then was) 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." [1]

12. According to the witness statement of DCIP LAM dated 6 May 2015, the number of successful "Drop-off" mode phone deception cases in 2008 was 38, which accounted for 7.9% of the overall successful phone deception cases.  The numbers then gradually increased to 80 cases in 2009; 126 cases in 2010; 149 cases in 2011; 169 cases in 2012; 200 cases in 2013; and 183 cases in 2014.  In 2015, there are already 62 successful "Drop-off" mode cases from January to April.  The number of attempted "Drop-off" mode cases from 2011 to 2014 remained in the range of 1,000 each year. 

13. The amount of monetary loss in successful "Drop-off" mode cases also has a steady increasing trend from 2008 to 2013 (from $3.01 million to $13.75 million).  In 2014, the figure dropped slightly to $12.87 million.  And for 2015, the monetary loss is already $4.6 million as at April.

14. 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 send a clear message to the general public that people who play the role of "collector" will receive severe punishment, so that there is a deterrent effect.  When there are fewer or no willing "collectors", the "Drop-off" mode phone deception method would fail.

15. Although the defendant claimed that he did not take part in or had any knowledge of the underlying phone deception, the scam would have been meaningless without a willing "collector".  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 by 20%.

16. The Court of Appeal in SJ v WAN Kwok Keung [2012] 1 HKLRD 201 held:

Generally, the sentence for "money laundering" offences should mainly reflect the amount of "black money" laundered and not the benefit obtained by the defendant or others. The reason being that it is very difficult to prove the benefit concerned, and in most "money laundering" cases, there may not be evidence to show from what indictable offence the "black money" are in fact derived. Of course, if there is information to prove that the "black money" is originated from serious crimes, including drug trafficking, kidnap and blackmail, illegal human trafficking, other organized crimes, etc. or the defendant's benefit is huge, then the sentence should be adjusted upward.[2]

17. In determining the proper starting point, I have reminded myself of the sentencing principles laid down in HKSAR v HSU Yu Yi [2010] 5 HKLRD 545, HKSAR v WU Jianbing [2012] 1 HKLRD 781, HKSAR v Boma Amaso [2012] 2 HKLRD 33 and HKSAR v LIN Zong Yue CACC 141/2014 (unreported Chinese judgment).  I have also borne in mind the amount of money involved, the duration of the offence, the defendant's role in relation to the movements of funds as well as his personal circumstances.

18. In SJ v LAU Man Ying [2012] 4 HKLRD 435, Yeung V-P held "The defendant’s ignorance of the actual source of the "illicit money" is not necessarily a mitigating factor." [3]

19. In the present case, the defendant admitted that he came to Hong Kong to collect dirty money.  There is, however, insufficient evidence to show that the defendant took part in or had knowledge of the underlying phone deception.  Be that as it may, he still played a vital part in the overall scam to deceive an elderly person.  For the purpose of sentencing, I accept that the defendant probably had no knowledge of and did not take part in the phone deception against PW1.  To this extent, his culpability is perhaps less than the perpetrator(s) of the underlying phone deception.[4]

20. Since PW1 did not suffer any monetary loss and the sum of cash involved is relatively small, I adopt a starting point of 2.5 years' imprisonment.  A one-third discount is given for the guilty plea, reducing the sentence to 20 months.  Apart from this, I see no other mitigating factors which warrant any further discount. With the 20% enhancement, the sentence is therefore 24 months' imprisonment.