HKSAR v. KUO YUNG SEN

DCCC 341/2013

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 341 OF 2013

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HKSAR
v
KUO YUNG-SEN

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Before: HH Judge Dufton

Date: 15 July 2013

Present: Mr Pierre Lui, PP, of the Department of Justice, for HKSAR
Mr Richard Wong instructed by Elaine Tam & Co assigned by the Director of Legal Aid, for the defendant

Offence: Conspiracy to deal with property known or reasonably believed to represent proceeds of an indictable offence (串謀處理已知道或合理相信為代表從可公訴罪行的得益的財產)

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REASONS FOR SENTENCE

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1. The defendant is convicted after trial of one charge of conspiracy to deal with property knowing or believing the property representedthe proceeds of an indictable offence, contrary to section 25(1) and (3) of the Organized and Serious Crimes Ordinance, Chapter 455 and sections 159A and 159C of the Crimes Ordinance, Chapter 200.

2. In summary on the 17 January this year Madam Tam Shuk Kin was telephoned at home by someone impersonating her son pretending hehad been captured and beaten up. A second male demanded Madam Tam to pay $100,000, which sum was reduced to $20,000. Madam Tamthen went to the bank where she asked the bank staff to call the police.

3. The second male told Madam Tam to go to China Hong Kong City to hand over the money. On arrival at China Hong Kong City the secondmale instructed Madam Tam to place the money under a tree. Instead of money the police gave Madam Tam an envelope filled with scrappaper. When the defendant picked up the envelope he was intercepted and arrested by the police.

4. In passing sentence I take into account everything said on behalf of the defendant by Mr Wong, including that he has a clear record.This however carries little weight where the defendant has only been in Hong Kong for a few days before he commits crime.

5. There being no evidence to prove that the defendant was a party to the telephone deception or that he knew the source of the moneyI proceed to sentence the defendant on the basis his role was limited to collecting the money.

6. Money laundering is a serious offence for which deterrent sentences are required. A number of significant factors have been identifiedas relevant in determining the culpability of a defendant, including the nature of the offence that generated the laundered moneyand the extent to which the offence assisted the crime or hindered its detection; whether the defendant had knowledge of that underlyingoffence or has turned a blind eye to the source of the money; whether there was an international element to the commission of theoffence; the degree of sophistication of the offence and the level of the defendant’s participation, including the length of timethe offence lasted and the benefit he derived from the offence; and the amount of money involved (see for example Secretary for Justice v Jerome Yuval Arnold Herzberg [2010] 1 HKLRD 502; HKSAR v Hsu Yu Yi [2010] 5 HKLRD 545; and HKSAR v A male known as Boma Amaso [2012] 2 HKLRD 33).

7. Whether or not the defendant knew the source of the money the courts have emphasised that a defendant is to be sentenced on thefacts of the money laundering charge and not on the facts of the underlying offence(see for example HKSAR v Chen Szu Ming CACC 270/2005 and HKSAR v Yam Kong Lai [2008] 5 HKLRD 384).

8. In HKSAR v Wu Jianbing [2012] 2 HKLRD 781 the defendant, who travelled from the Mainland, collected money on four occasions, over 4 days, which resulted in 4 charges of dealingwith the proceeds of crime. The sums collected ranged from $20,000 – $200,000 and totalled altogether $310,000. All monies arosefrom telephone deception cases. The Court of Appeal, taking into account there was no evidence to show that the defendant participateddirectly in the telephone deceptions, said that the proper starting point after trial was 3 years imprisonment on each charge.

9. Taking into account the amount to be collected was HK$20,000; the role of the defendant was limited to collecting the money; thiswas a single occasion; and the defendant has a clear record, I am satisfied the proper starting point after trial is one of 2 yearsimprisonment.

10. Mr Wong asks that I give credit to the defendant for admitting almost the entirety of the prosecution case, including the videointerviews and by saving Madam Tam giving evidence. Whilst some court time has been saved as a result I am satisfied this is notan appropriate case for discount to be given on account of admitting certain evidence. Whilst the defendant could have put the prosecutionto strict proof of everything he could hardly have challenged the evidence of Madam Tam.

Enhancement of sentence

11. The prosecution apply for enhancement of sentence pursuant to section 27(2) of the Organized and Serious Crimes Ordinance on the grounds of the prevalence of the offence and the nature and extent of any harm, whether direct or indirect, caused to thecommunity by recent occurrences of the offence.

12. In support of the application the prosecution submit a statement of Detective Chief Inspector Lam Cheuk Ho, dated the 3 May 2013together with update statistics as of June 2013. There has been no objection to the admission in evidence of DCIP Lam’s statementwhich has been read pursuant to section 65B of the Criminal Procedure Ordinance, Chapter 221.

13. The statement of DCIP Lam clearly shows a significant increase in what he has termed “Drop-off” cases and the consequentialloss in such cases. DCIP Lam concludes that the modus operandi of “Drop-off” in telephone deception cases and the associatedmoney laundering activity by culprits tasked to retrieve the money, is a prevalent crime in Hong Kong with obvious concern to thecommunity. On this evidence, which I accept, I am satisfied beyond reasonable doubt both grounds for enhancement are made out.

14. I am satisfied in the circumstances enhancement of one third is appropriate, the same as approved in HKSAR v Wu Jianbing. This enhances the sentence by 8 months. The defendant is convicted and sentenced to 2 years and 8 months imprisonment.

(D. J. DUFTON)
DISTRICT JUDGE