HKSAR v. CHEN YAOFU

DCCC 243/2014

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 243 OF 2014

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Reasons for Sentence

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1.  The defendant has pleaded guilty to one offence of dealing with property known or believed to represent the proceeds of an indictable offence, contrary to section 25(1) and (3) of the Organised and Serious Crimes Ordinance, Cap 455, and also the Crimes Ordinance.

2.  The defendant has accepted the facts of the case and I have convicted him accordingly.

3.  The facts of the case which have been accepted show that this case falls within the type of case that is described as telephone deception cases, the case involving, as a first prosecution witness, a 69-year-old woman who lives with her husband in Mei Foo.  They have three daughters and a son.

4.  On 24 January of this year at about 10.30 in the morning, an anonymous call was received by the first prosecution witness.  A voice was heard on the phone.  It was a male purporting to be one of her children.  A man appears on the phone and tells the victim, PW1, she can obtain his freedom by paying $200,000.  The witness is told to get a mobile phone and stay on the phone while directions are given, and also to obtain the money to pay for the release of her son.  

5.  Eventually PW1 is able to contact her son and know that he is safe.  She knows it is a deception, so she communicates with the police.  Communication is maintained with the perpetrators of the crime through the phone.  Eventually a situation is set up whereby she will go to drop off what is purported to be the money, and she is told to put the money in an envelope and go to a place called Pacifica in Cheung Sha Wan, Kowloon, and then to another location called Aqua Marine.

6.  Throughout this time, PW1 is in communication with a man by way of a mobile phone that the police had provided, and police are also present at the location where the money is to be dropped off.  They see the defendant loitering in this vicinity near the first prosecution witness. The defendant is seen to be talking on his own mobile phone and following the first prosecution witness.

7.  Eventually the first prosecution witness is directed to place the money, or the envelope in which the money is, into a flowerbed.  The defendant was observing her when she did that.  PW1 is directed to leave the scene by the man on the mobile phone, and the defendant, also on his mobile phone, goes over, picks up the envelope, and takes it away.

8.  There is in fact no money in the envelope because red envelopes had been substituted for money.

9.  As I said, the defendant was intercepted and arrested by the police.  His mobile phone was communicating with an overseas call number in the People’s Republic of China.

10.  In subsequent cautioned interviews, the defendant said that he had come into Hong Kong on 20 January as a two-way permit holder.  On 24 January he had gone to Sham Shui Po to buy a shaver for a friend, seen the envelope at the flowerbed, and picked it up to find out its contents.

11.  The prosecution case evidenced by this is the defendant had agreed with another person to deal with the money - that is, the money in the envelope - knowing that that money was the proceeds of an indictable offence.  The prosecution allege in fact that the defendant would have had reasonable grounds to believe that the property was the proceeds of an indictable offence.

12.  The facts clearly evidenced that offence, and I convicted the defendant accordingly.

13.  As far as the defendant’s antecedents are concerned, he is a person of clear record in Hong Kong.  He is 25 years old and attained Junior Secondary education level in China.  He had been a factory and kitchen worker in China.

14.  As far as the legal matters of the respective sentences are concerned, there are two factors.  Firstly, there is the starting point for the offence that I must consider, and secondly, there is an application by the prosecution for enhancement of sentence under section 27(2) of Cap 455 based on the prevalence of the specified offence.

15.  I have described this offence as falling into the category of telephone deception cases, and such offences encompass charges under the Theft Ordinance and also under this ordinance, Cap 455, a common feature of these offences being that victims, usually aged victims, receive phones from unknown callers falsely representing to them that one of their family members is detained and owes money.  The callers demand money from the victims to repay the debt the family member is alleged to have had to obtain the family member’s release.  They are instructed to deliver money to designated locations for collection sometimes known as a “drop-off”.

16.  In this case, the defendant is charged under section 25(1) of OSCO.

17.  Money laundering is a serious offence, and the sentence should reflect the amount of black money agreed to be laundered.  It is also relevant to consider the degree to which the defendant participated in the offence and whether the offence was organised and sophisticated.

18.  In this case, the total amount involved is $200,000.  The offence encompassed a short period of time.  The defendant is what they describe as a “leg man”; he is there to carry the money away.  There is no evidence to show the defendant participated directly in connection with the black money, nor is there evidence of a benefit received by the defendant.

19.  In the case of HKSAR v Wu Jianbing, CACC 32/2011, the Court of Appeal indicated that a person committing this offence in those circumstances can expect a starting point of 3 years’ imprisonment. The offence in this case is almost identical with at least one of the charges in the Wu Jianbing case.  I see no reason to depart from that starting point in this case.

20.  The starting point for sentence will be one of 3 years’ imprisonment.  The defendant is entitled at this stage to a one-third deduction from that, giving a sentence of 2 years’ imprisonment.

21.  I have to consider whether it is appropriate for that sentence to be subject to enhancement.

22.  The prosecution have made an application to enhance this sentence under section 27(2) of OSCO.  They say that the offence is prevalent.  The offence I am concerned with here is the offence charged in this case under section 25(1) of Cap 455.  I have a statement from Chief Inspector Lam, and I have statistics in relation to what are classified as telephone deception cases.  The initial classification is whether the offence falls under the definition in section 17 of the Theft Ordinance, Cap 210, but the offence itself clearly can involve commission of offences under section 17 of the Theft Ordinance and also section 25 of the Organised and Serious Crimes Ordinance, and the charge presented against the defendant will depend on his particular role in the telephone deception.

23.  It is clear from the statement that of late, a particular modus operandi of telephone deception has been what is known as “drop-off”, where the money has to be dropped off in a specific location.  I am told by the inspector concerned that “drop-off” cases are not only prevalent, but have been increasing in the past few years.

24.  The evidence presented by the Chief Inspector clearly shows that the offence of telephone deception by way of drop‑off is a prevalent offence in Hong Kong, and that form of criminality involves the commission of a specified offence under section 25 of this ordinance, and so I consider for those reasons that an enhancement of sentence is an appropriate form of sentencing in respect of this case and this charge.

25.  I will adopt the enhancement set out in the case of Wu Jianbing, which is of one-third.  That brings the charge to be enhanced by one-third, ie 8 months, which gives a final sentence of 32 months’ imprisonment.