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Hksar v Chen Jianchao

Judgment Cited authorities 2 Cited in Precedent Map Related
Vincent
Judgment Date09 January 2015
Year2015
Judgement NumberCACC184/2014
Subject MatterCriminal Appeal
CourtCourt of Appeal (Hong Kong)
CACC184/2014 HKSAR v. CHEN JIANCHAO

CACC 184/2014

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 184 OF 2014

(ON APPEAL FROM DCCC NO. 288 OF 2014)

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BETWEEN

HKSAR
 Respondent
and
CHEN Jianchao (陳健超) Applicant

____________
Before : Hon Lunn VP and D. Pang J in Court
Date of Hearing : 12 December 2014
Date of Judgment : 9 January 2015

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J U D G M E N T

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Hon Lunn VP (giving the Judgment of the Court) :

1. The applicant seeks leave to appeal against the total sentence of 52 months’ imprisonment imposed on him on 23 May 2014 by District Court Judge Browne, after his pleas of guilty on 15 May 2014 to two charges of conspiracy, on specified dates in the first week of February 2014, to deal with property known or believed to represent proceeds of an indictable offence, contrary to section 25(1) and (3) of the Organized and Serious Crimes Ordinance, Cap. 455 and sections 159A and 159C of the Crimes Ordinance, Cap. 200. At the conclusion of the hearing we reserved our judgment, which we hand down now.

The Facts

2. At around 1:15 pm on 6 February 2014, Madam Wong Ng King, an octogenarian received a telephone call from an unidentified male who claimed that her 45-year-old son had been detained due to an outstanding debt. He asked Madam Wong to pay him a ransom of HK$230,000 for his release. In fear, Madam Wong agreed to do so and was instructed to wait outside the bank from which she said that she would withdraw that money.

3. Madam Wong’s nervous condition, as she requested to withdraw the monies in cash from the branch of the Bank of East Asia at No. 345 Chai Wan Road, Chai Wan alerted the teller, to whom she then imparted her dilemma. As a result, after determining that Madam Wong’s son was safe and well after all, the matter was reported to the police, who mounted an undercover operation which resulted in the arrest of the applicant. Having been provided with a bag which appeared to contain banknotes, Madam Wong waited outside the bank, where she was approached by the applicant. Having secured answers in the affirmative to his questions as to whether she was Madam Wong and that she had the $230,000, the applicant passed a mobile telephone to Madam Wong. She recognised the male voice on the telephone as the man to whom she had spoken earlier, after which she handed over the bag of what purported to be money to the applicant. As he was about to leave, the applicant was intercepted and arrested by police officers.

4. Under caution, the applicant admitted he was given $2,000 by his friend in the Mainland to go to Hong Kong to collect the money. Also, he said that he was to be given a small part of the money collected as a reward. In a subsequent interview under caution, the applicant identified the person who recruited him to carry out the collection of the money as Chan King Fung, a friend on the Mainland. On the afternoon of 2 February 2014 Chan King Fung had given him instructions about his role in collecting money in Hong Kong and then remitting it to the Mainland. In addition to the $2,000 he was to be given as travelling expenses he was told that he would receive 8% of the proceeds as his reward. Later that day he travelled to Hong Kong. On the day of his arrest, 6 February 2014, he had been contacted by telephone by an unknown man who had given him instructions to go to the bank to meet the old lady who turned out to be Madam Wong. Having arrived at the bank and having identified the person whom he was to meet he had been told on the telephone by the same unknown man to approach to collect money. He did so and passed the mobile phone to Madam Wong or her to speak to the unknown man. She passed a bag to him and as he was about to leave he had been arrested by the police.

5. In another interview under caution the applicant denied involvement in four other similar cases, but admitted having been involved in a case of which the police were unaware. He said that in the afternoon of 5 February 2014 whilst he was in Hong Kong on the instructions by telephone of the same unknown man he met an old lady at Exit B of Shatin MTR Station and on his instructions took her to a nearby park, where she gave him a yellow plastic bag containing cash. Then, he left and, on further instructions, went to a RMB Money Exchange Shop in Mong Kok, where at around 4 p.m. he remitted a total of HK$17,700 to a stipulated account.

6. The applicant admitted that he knew that the monies that he had collected were paid as the result of deceptions practiced by telephone.

7. Immigration records evidence the fact that the applicant entered Hong Kong at around 10:21 pm on 2 February via Lo Wu on the strength of his ‘two-way’ permit and that he had permission to stay in Hong Kong for 7 days.

8. In his Reasons for Sentence the judge noted that the applicant, a man of 22 years of age, had been educated in the Mainland and was of “clear record”. Further, that the applicant had cooperated with the police and voluntarily admitted his participation in the offence the subject of Charge 2.

9. In respect of the prosecution’s application for an enhancement of sentence, pursuant to section 27 of the Organized and Serious Crimes Ordinance, Cap. 405, the judge observed that the statement advanced in support of the application “makes it clear that this kind of offence is still a prevalent offence”. Further, he noted that from the statistics provided to the Court it was clear that in the preceding two-year period the courts had “almost invariably agreed to applications for enhancement of sentence”. [1]

10. Having noted that he had been referred to the judgment of this Court in HKSAR v Wu Jianbing [2] and the District Court Judge’s Reasons for Sentence in HKSAR v Tsang Jiakpeng [3], in which offences were committed against the same provision of the Ordinance, the judge said that the circumstances of the present case were different from those two cases, in that : [4]

“ the applicant knew what the predicate offence was; and he knew the predicate offence involved elderly victims, elderly ladies, and he also knew the amount of money involved. In relation to the 1st charge, the amount involved was substantial.”

11. Of the circumstances of the commission of the offences, the judge said [5]:

“ In my view, these offences are despicable. They seek in a callous and hard-hearted manner to take advantage of vulnerable members of the society. They are cold-blooded and pre-planned. They inevitably subject the victims to great anxiety.”

12. The judge went on to say : [6]

“subjecting elderly persons to this kind of stressful situation can have very serious consequences, and such offences must attract meaningful deterrent sentences.”

Starting point

13. The judge stipulated a starting point of 4 years for each offence.

Discount

14. The judge afforded the applicant a discount of one-third from the stipulated starting point for sentence.

Enhancement of sentence

15. Stating that he was satisfied that all the criteria for an enhancement pursuant to section 25 (sic) of the Organized and Serious Crimes Ordinance, Cap. 455 were present, the judge enhanced each of the sentences by 10 months’ imprisonment.

Sentence

16. In the result, the judge sentenced the applicant to 42 months’ imprisonment on each charge.

Totality

17. Finally, stating that he had regard to the totality principle, the judge ordered that 10 months of the sentence of imprisonment imposed in respect of Charge 2 be served consecutively to the sentence of imprisonment and those in respect of Charge 1. Accordingly, the total sentence imposed on the applicant was 52 months’ imprisonment.

Grounds of appeal against sentence

18. On behalf of the applicant, Mr John McNamara submitted that in stipulating the starting points to be taken for sentence the judge did not “take any or any proper notice of the factors which should be taken into account when determining sentence as set out in HKSAR v Hsu Yu Yi ” [7]. First, although the amount of money involved in the two charges were quite different, namely $230,000 and $17,700 the judge stipulated the same starting point for the sentence. Secondly, the judge gave improper weight to the immorality of the offences [8]. Thirdly, the judge failed to consider the length of time over which each offence was committed.

19. Then, it was submitted that if the judge had paid proper regard to those and the other factors discussed in HKSAR v Hsu Yu Yi, he would have stipulated a starting point significantly lower than four years for each of the offences. Mr McNamara suggested that the judge ought not to have distinguished the instant case from the circumstances obtaining in Wu Jianbing, where this Court said that the appropriate starting point for sentence in that case for offences contrary to section 25(1), where the defendant’s role was to collect monies in a telephone deception case, was 3 years’ imprisonment, rather than the 4 years’ imprisonment taken by the judge as the starting point. No issue was taken with the subsequent discount of those sentences by one-third to reflect the pleas of guilty or the enhancement of sentence by one-third, pursuant to section 27 of the Ordinance. Further, it was contended that if the judge had stipulated different starting points for sentence for each of the offences, as he should have done, the starting point taken for Charge 2 would have been significantly lower than the starting point for Charge 1. In those circumstances, the order that part of the sentence of imprisonment imposed in respect of Charge 2 be served consecutively the sentence imposed in respect of Charge 1 would have been less.

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