HKSAR v.

DCCC 798/2024

[2024] HKDC 1911

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 798 OF 2024

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REASONS FOR SENTENCE

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1.  D1 pleaded guilty to one count of “dealing with property known or believed to represent proceeds of an indictable offence” (“money laundering”, Charge 2)  and one count of “conspiracy to defraud” (Charge 3).

Facts

2.  On 30 October 2023 around 4 pm, Mr Wu Kam Hon (Wu)  received a phone call from someone claiming to be his younger son (S)  and to be in urgent need of HK$60,000 for bail.  S told Wu that he would arrange a friend “Ah Chong” to collect the cash, and that Wu was to meet up with Ah Chong at the main entrance of Jazz Garden Phase II (Jazz Garden)  in Pat Heung, New Territories.

3.  At 4:45 pm, Wu received a call from someone claiming to be “Ah Chong” who told Wu that he had arrived at the main entrance of Jazz Garden.  When Wu arrived there, he was approached by D1 who introduced himself as “Ah Chong” and told Wu that he was there to collect bail money for Wu’s son.  Thereupon, Wu handed over $60,000 in cash to D1.  D1 then left.

4.  Later that evening, Wu realised that the request for bail money was a scam when he contacted his younger son.

5.  On 31 October 2023, around 9:30 am, Wu received another call from S asking for a further sum of $40,000 for bail and was told by S to hand over the money at the same main entrance as before.  Realising that this was a scam, Wu reported the matter to the police, who prepared a dummy package posing as a bag of cash for use in the hand-over during a controlled meeting.

6.  At 11 am, D1 was seen arriving at the vicinity with another male Lin Tsz Yau (Lin)  by taxi.  After alighting from the taxi, D1 walked towards the main entrance of Jazz Garden while Lin walked in another direction.  Wu noticed D1 wandering around in the vicinity when he received a call on his mobile phone that “Ah Chong” would collect the cash from him.  At 11:17 am, D1 approached Wu and told him that he was “Ah Chong”.  Recognising D1 to be same person who had collected the $60,000 cash from him on the previous day, Wu grabbed hold of the right hand of D1 who then attempted to flee but was eventually intercepted by a police officer.  With regard to this incident, D1 was arrested and cautioned for “obtaining property by deception”.  Under caution, D1 said, “someone asked me and Lin Tsz Yau to attend Jazz Garden Phase II to collect money today, therefore Lin Tsz Yau and I went there to collect money.”

7.  D1 was next arrested and cautioned for “obtaining property by deception” regarding the incident on the previous day.  Under caution, D1 said, “Yesterday it was also someone who asked me to attend Jazz Garden Phase II Pak Heung to collect money.  I went there with Lin Tsz Yau.”

8.  During a cautioned video-recorded interview held on the same day in the presence of his mother, D1 said he had agreed with a person called “Kio” to take up a job of collecting money from others for a reward of 1% of the money collected.  On 30 October 2023, on the instruction of Kio, he and Lin met up with two males (males “B” and “C”)  at the Kowloon Tong MTR station.  B took a photo of him and handed him an iPhone.  Around 4 pm that day, he received a call from Kio asking him to go to Jazz Garden to collect money.  When he and Lin arrived there at 5 pm, he was told over the phone by Kio to give him a call when he saw an elderly man.  This he did, and he was then told by Kio to call a certain number.  The person on that number asked to speak with the elderly man. The elderly man handed over $60,000 to him after speaking with the person on that number.  He then left and, as instructed by Kio, went to the University MTR station where he handed over the money to C.  On 31 October 2023, he received a call from Kio asking him to collect a further sum of $40,000.  He and Lin arrived at Jazz Garden at 11 am but he got arrested by the police when he was approaching the same elderly man whom he had met on the previous day.  He admitted that after collecting the money on 30 October 2023, he realised that the money was derived from a scam.  He knew that what he was doing was wrong.

9.  The money-collecting incidents on 30 and 31 October 2023 were captured by CCTV cameras of Jazz Garden.

10.  In a consensual search of D1’s residence, clothes matching D1’s clothing on 30 October 2023 were seized.

Defendant’s Background

11.  D1 is 15 years old and was only 14 at the time of the offences.  He was born and was educated in Hong Kong up to secondary 2 level.  His parents are divorced.  He is their only child.  Although not yet married, according to his counsel Ms Lisa Yip, D1’s girlfriend whom he met in the workplace, is now pregnant and delivery is expected in January 2025.

12.  He has a conviction dated 13 August 2024 for “conspiracy to defraud” and was sentenced to be detained in a Detention Centre.  That offence, which was committed on 29 June 2023, also involved this defendant collecting the proceeds of a telephone scam.

Mitigation

13.  Defence counsel told the court that D1 committed the present offences out of ignorance, stupidity and greed.  Naively thinking that if he had a job he could be free of his parents’ control, he agreed to take up the job of collecting money for others for a reward, and continued to do so even after learning that the money was the proceeds of a scam.

14.  His genuine remorse can be seen from his full cooperation with the police and his pleas of guilty in court, the latter being his strongest mitigation.

15.  He would like to apologise to the victim and to his parents.

16.  His detention in the Detention Centre has taught him the importance of discipline and leading a law-abiding life.  He has learned a bitter lesson and is determined to turn over a new leaf.  During his detention, he has come to realise how much his parents care for him.

17.  He wishes for an early release so he may start a new life, and help his girlfriend to look after their baby.  His parents are very supportive of his efforts to rehabilitate himself.

18.  D1 and his mother both claimed in their respective mitigation letters that D1 was led astray by bad peers that he associated with in the basketball courts.  Both are confident about D1’s determination to change for the better.

19.  D1 is aware of the prosecution’s application for enhancement of sentence pursuant to s 27(2)  of the Organised and Serious Crimes Ordinance (OSCO)  on the ground of the prevalence of the offences.  He has no objection to the application.

20.  Ms Yip pointed out that there is another aggravating feature in the present case, and that is that D1 committed the present offences whilst on bail for the offence for which he is now serving sentence.

21.  Counsel referred to the maximum sentence for both offences and pointed out that there are no tariffs for either of the offences.  HKSAR v Boma Amaso [2012] 2 HKLRD 33 and Secretary for Justice v Wan Kwok Keung [2012] 1 HKLRD 201 were then referred to for the factors to consider in sentencing money-laundering offences.

22.  While imprisonment is often the appropriate sentence for these offences, Ms Yip asked the court to consider other sentencing options and call for a pre-sentencing suitability report for Detention Centre, Training Centre and Rehabilitation Centre in light of D1’s young age, his lack of participation in the phone scam, his relatively minor role, his knowing about the scam only after the first collection of money, the victim’s loss was not very significant, and the provisions of section 109A of the Criminal Procedure Ordinance, Cap 221.

Sentencing considerations

23.  Undoubtedly, the offences committed by D1 are serious offences.  This fact, coupled with the aggravating feature of the offences having been committed while D1 was on bail for another similar offence, would normally warrant a sentence of immediate imprisonment for an adult offender.

24.  In this connection, I would like to point out that the prosecution has proved to the requisite standard the prevalence of the offences under section 27(2)  of OSCO so that enhancement of the sentence is fully justified and would be made if a sentence of imprisonment was deemed appropriate.

25.  However, in view of D1’s age, which brings him within the meaning of a “young person” under the Juvenile Offenders Ordinance, Cap  226, the court is bound, under section 11(2)  of that Ordinance, to consider sentencing options other than imprisonment.

26.  Ms Yip asked the court to consider D1’s suitability for detention in the Rehabilitation, Detention or Training Centre.

27.  As far as Rehabilitation Centre is concerned, under section 4(2)(c)(i)  of the Rehabilitation Centres Ordinance, Cap 567, a detention order shall only be made against a person who is not serving and has not previously served a sentence of detention in a detention centre.  As D1 is now serving sentence in such a centre, the Rehabilitation Centre option is out of consideration.

28.  A Detention Centre/Training Centre suitability report was called for.

29.  This report is now before the court.  Mr Leung, acting for D1 on this occasion, urged the court to adopt the recommendation of the report and make a Detention Centre order against D1.

30.  The report says that D1 is mentally and physically fit for detention in either centre, but he is considered more suitable for detention in a Detention Centre (the Centre)  after assessing his behaviour and attitude whilst undergoing training in the Centre.

31.  The report mentions that D1 showed an average response to the training programme; he managed to behave well and incurred no disciplinary report during his training in the Centre.  He was polite and cooperative during the interview.  He admitted his culpability with regard to the present offences and attributed his breach of the law to a weak law-abiding concept and greediness for easy money.  He had reflected on his misdeeds whilst undergoing training in the Centre and he wanted to apologise to the victim as well as his parent for his wrong-doing.  D1’s mother noted that her son had become more considerate and disciplined since his detention in the Centre and she would render her unfailing support towards his rehabilitation.

32.  In light of the contents of this report and the officer’s recommendation, I am satisfied that it is in D1’s interest and the public interest that he should undergo a period of detention in a Detention Centre, and I so order.