Hon Derek Pang J (giving the judgment of the Court):
高等法院原訟法庭法官彭偉昌頒發上訴法庭判案理由書：

This matter lies from the District Court. The applicant pleaded guilty to, and was therefore convicted on, three counts of “dealing 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. He was sentenced to imprisonment for a total term of 52 months and ordered to pay certain sums of money by way of compensation. He now applies for leave to appeal the sentence (confined to the terms of imprisonment).
本案源於區域法院。申請人經認罪後被裁定三項「處理已知道或相信為可公訴罪行的得益」罪成立，違反香港法例第455章《有組織及嚴重罪行條例》第25(1)及(3)條，總共被判入獄52個月，另加若干數額的賠償令。申請人不服，就判刑（單指刑期）提出上訴申請許可。

The charges and the facts
控罪與案情

Chronologically, the three offences took place on 5 September, 6 September and 28 October 2013. The particulars of all three offences are that the applicant “together with a person known as ‘Ah Ming’, knowing or having reasonable grounds to believe that certain property in whole or in part directly or indirectly represented the proceeds of an indictable offence, dealt with the said property”.
涉案三項控罪的案發日期依次為2013 年的9 月5 日、9 月6 日及10 月28 日，罪行詳情均指申請人「連同一‍名稱為“阿‍明”的人，知道或有合理理由相信某項財產，全部或部分、直接或間接代表從可公訴罪行的得益而仍處理該財產」。

All three offences arose from phone scam. The facts are summarized as follows by Judge Sham, the trial judge:
上述三罪的源頭罪行皆為電話騙案。它們的的案情由原審法官（沈‍小‍民法官）簡述如下：

Facts of Charge 1: Madam Lee (transliteration), aged 76, received a call on the day in question at her home in Ping Shek Estate, Ngau Tau Kok. The man on the phone asked her if she wanted to pay a ransom for the release of her son who was being held captive, and if she was, she would have to pay a sum of $200,000. Madam Lee asked the man if he knew the name of her son. The man replied that it was ‘Man Chai’ (transliteration) and went on to say that if the money was not paid, the limbs of ‘Man Chai’ would be chopped off. The man said her son and his business partner owed his company HK$200,000. Madam Lee said she was able to borrow $50,000. The man instructed her to pay by instalments of HK$50,000 each, and told her to take a taxi right away to Metropark Hotel Kowloon in Prince Edward to pay the money. Madam Lee took cash of $39,500 from home and went to the Hotel.
控罪一的案情：76歲的李婆婆當日在牛頭角坪石邨的單位中收到電話。電話中的男子問她是否想贖回她被扣留的兒子，如果想贖回的話就要支付$200,000。李婆婆問該男子知否她兒子的名稱。該男子回答是“民仔”，還對李婆婆說如果不付款的話，會斬掉“民仔” 的手腳。該男子說她的兒子及其生意夥伴欠下他的公司港幣$200,000。李婆婆說可以借到$50,000，該男子則吩咐她分期付款，每次港幣$50,000，並指示她立刻乘坐的士前往太子九龍維景酒店付款。李‍婆婆從家中拿了現金$39,500去該酒店。

Madam Lee arrived at the Hotel after one-odd hour. 20 minutes later, [the applicant] approached her. Madam Lee asked [the applicant] if the money was to be paid over there, and he said yes. Madam Lee handed the $39,500 over to [the applicant] and at the same time asked him if he knew her son’s name. [The applicant] replied that it was ‘Man Chai’ and then left.
大約個多小時後，李婆婆去到酒店。20分鐘後，[申請人]走近她。李婆婆問[申請人]是否在該處收錢，對方回答是。李婆婆把$39,500交予[申請人]，同時問他知否知道她兒子的名字。[申請人]回答是“民仔”，然後離去。

Facts of Charge 2: on the day immediately following the date of the offence in Charge 1, Mr Wong (transliteration), aged 81, received a call at his home in Choi Ying Estate, Ngau Tau Kok. The caller asked him to repay in full a debt of $200,000 that his son owed. Mr Wong told the caller that he only had HK$30,0w00 [sic]. The man on the phone asked Mr Wong for his home address. 10 minutes later, [the applicant] showed up at the door of Mr Wong and asked for $30,000. Mr Wong handed $30,000 over to [the applicant].
控罪二的案情：發生在控罪一的翌日，81 歲的王‍先生在牛頭角彩盈邨的單位收到電話，對方要求他清還其兒子的$200,000債項。王先生告知對方他只有港幣$30,0w00。電話中的男子問王先生的住址，10分鐘後[申請人]便到達王‍先生的家索取$30,000。王先生把$30,000交給[申請人]。

Facts of Charge 3: Around noon on 28 October 2013, Madam Choi (transliteration), aged 80, received a call at her home in Lower Ngau Tau Kok Estate. The man on the phone cried ‘mum’ as soon as she had picked up the phone. Madam Choi responded by asking, ‘Is it Ah Tong (transliteration)?’ (‘Ah Tong’ was the name of her youngest son). The man then called himself Ah Tong and said that he was being held captive. Then another man took over the phone, told Madam Choi that her son had made his friend pregnant, and demanded a sum of HK$400,000 to resolve the matter. At the same time, Madam Choi heard the man who had called himself ‘Ah Tong’ shout ‘Don’t hit me. Mum save me!’. Madam Choi told the caller not to hit her son and said that she did not have $400,000. The caller asked her if she had $100,000. She said she had to check how much cash there was at home, and came up with $75,000 in the end.
控罪三的案情：2013 年10 月28 日中午時分，80 歲的蔡‍婆婆在牛頭角下邨的單位收到一‍個電話，電話中的男子第一‍句便叫喊“阿媽” 。蔡婆婆回答：『阿‍棠呀？』（「阿‍棠」是她最小的兒子的名字）對方便自稱是阿棠，並表示正被扣留。然後另外一‍名男子接過電話，告訴蔡婆婆她的兒子令他的朋友懷孕，要索取港幣$400,000去解決事情。蔡‍婆婆同時聽見剛才聲稱“阿棠” 的人叫喊『唔好打呀，阿媽救我呀。』蔡婆婆叫電話中的人不要打她兒子，並向對方表明她沒有$400,000。對方問她有沒有$100,000，她說要查看一下家中有多少現金，最後找到$75,000。

The parties agreed to meet up and hand over the money at Ngau Tau Kok Market. Madam Choi left home with the $75,000. Using a quadripod walking aid, she walked slowly to the Market. She then took a rest at a staircase nearby. About 10 minutes later, [the applicant] approached her and said, ‘This is Ah Tong’, and then handed a mobile phone to her. Madam Choi recognized the voice of the person on the phone to be that of the person who had talked to [her] just now, but as it was noisy out there, she could not hear him clearly. [The applicant] took the $75,000 from Madam Choi, but he had in fact been followed by police all along. Since [the applicant] entered Hong Kong at 10:15 am on 28 October 2013, he had been under police surveillance all the time. The police subsequently intercepted [the applicant] and found from his person the $75,000 that he had just taken from Madam Choi.”
雙方同意在牛頭角街市會面及交錢。蔡‍婆婆拿了$75,000離家。她依賴一‍個四腳架慢慢地步行去街市，然後在附近的樓梯休息。大約10分鐘後，[申請人]走近她並對她說『阿棠呀』，然後把一‍部流動電話交給她。蔡‍婆婆認出電話中的人是剛才和講電話的人的聲音，但由於街上太過嘈吵，她聽不清楚對方說甚麽。[申請人]拿走了蔡婆婆的$75,000，但其實他一‍直被警方跟踪著。自[申請人]於2013 年10 月28 日早上10時15分進入香港後，他一‍直被警務人員監視。稍後警員把[申請人]截停，亦在他身上找到剛才拿走蔡婆婆的$75,000。」

According to the Summary of Facts to which the applicant pleaded, after being arrested, he denied having taken part in defrauding people. He only admitted collecting and dealing with the sums in question:
根據供申請人答辯用的《案情撮要》顯示，申請人在被捕後否認參與騙人，他只承認收取及處理有關的款項：

The police conducted a number of video-recorded interviews with [the applicant]. Under caution, he admitted that as he owed Ah Ming money, he followed his instructions to come to Hong Kong to collect money. Two days before that (that is, on Saturday), Ah Ming told him to come to Hong Kong. On 28 October 2013, Ah Ming told him to go to Ngau Tau Kok Market to meet up with an old lady dressed in grey. Upon arrival in Ngau Tau Kok, he saw PW1 outside the Market. As instructed by Ah Ming, he handed the phone to PW1. Following a brief exchange over the phone with Ah Ming, PW1 handed a black plastic bag to him. According to the agreement between him and Ah Ming, he would receive 10% of the amount collected as reward (Charge 3).
警方為[申請人]進行了多次錄影會面。在警誡下，他承認因為欠阿明金錢，於是他便按吩咐來港收錢。兩‍天前(即星期‍六)，阿明叫他到香港。在2013 年10 月28 日，阿‍明叫他去牛頭角街市與一‍名穿灰色衣服的老婦會面。他到達牛頭角後，看見控方第一證人在街市外，阿明着他把電話交給控方第一證人，他便照辦。控方第一證人與阿明交談一‍會兒後，把一‍個黑色膠袋交給他。根據他與阿明的協議，他可獲得所收款項的百分之十作為報酬 (控罪 3)

As regards Charge 1, [the applicant] admitted that as he owed Ah Ming gambling debt, the latter told him to come to collect money. He therefore came to Hong Kong a few days before 5 September 2013. On the day in question, Ah Ming telephoned him and asked him to go to Metropark Hotel Kowloon to meet up with a woman and collect money from her. Upon arrival, he saw a woman dressed in red. As instructed by Ah Ming, he handed the phone to that woman. She then handed him the money. Ah Ming said it should be a sum of HK$39,500, but he did not count it. He later went to Mongkok and remitted the money to a Jiangmen account at a money changer. Having made the remittance, he sent a message to Ah Ming. He had already lost the account number. Ah Ming gave him $3,900 after he returned to Jiangmen.
有關控罪1，[申請人]承認因為欠阿明賭債，所以阿‍明叫他來收錢。他於2013 年9 月5 日之前幾天來港。案發當日，阿明致電叫他去九龍維景酒店與一‍名婦人會面，向她收錢。他到達該處，看見一‍名穿紅色衣服的婦人，他便按阿‍明指示把電話交給該婦人，該婦人然後把錢交給他。阿‍明說款項應該是港幣39,500 元，但他沒有點算。他其後前往旺角，在找換店把錢匯到中國江門一‍個帳戶，並在匯款後傳送訊息給阿明。他已遺失該帳戶號碼。他返回江門後，阿‍明給他3,900元。

In respect of Charge 2, [the applicant] admitted that on 6 September 2013, Ah Ming telephoned him and asked him to go to a certain unit to collect money. He went as instructed to Ying Lok House, Choi Ying Estate. He knocked on the door of Room 915. He then handed the phone to the elderly gentleman who opened the door. The elderly gentleman handed him HK$30,000. He then went to Mongkok and remitted the money to an account the number of which he had already forgotten. He then returned to Jiangmen, and Ah Ming gave him $3,000 as agreed.
有關控罪2，[申請人]承認在2013 年9月6日，阿‍明致電叫他去某單位收錢。他依照指示前往彩盈邨盈樂樓，前往915 室敲門，然後把電話交給開門的老伯。老伯把港幣 30,000 元交給他。他接著前往旺角把現款匯款到一‍個帳戶，但己忘記該帳戶號碼。他其後返回江門，阿明按照協議給他3,000 元。

He contacted Ah Ming all along using a pre-paid phone card.”
他一直是用預繳電話卡與阿明聯絡。」

Background of the applicant and mitigation
申請人背景及輕判請求

The applicant came from the Mainland. At the time of the conviction, he was aged 21 and had no prior conviction in Hong Kong. Before the trial judge, he was adamant that he came to Hong Kong to collect money on behalf of Ah Ming because he owed Ah Ming gambling debt of $8,000. He admitted that he had reason to believe that the three sums in question were proceeds of an indictable offence.  He denied knowing that the three sums came from phone scams.
申請人來自內地，被定罪時21歲，在香港沒有前科。他在原審法官席前堅稱自己是因欠下阿明8千元賭債而替阿明到香港收錢。他承認自己有理由相信有關三筆款項是可公訴罪行的得益。他否認知道有關三筆款項來自電話騙案。

Sentencing at first instance
原審量刑

The applicant and the fraudster belonged to the same gang
申請人與騙徒同屬一夥

The trial judge refused to accept the applicant’s contention that he knew nothing about the phone scams. The judge took the view that the applicant and the fraudster in question were in the same gang:
原審法官拒絕接受申請人對電話騙案不知情的說法。他認為申請人與有關的騙徒同屬一夥：

After the defendant pleaded guilty to the charges and admitted the facts, I tried to ascertain from defence counsel the nature of the mitigation to be advanced. I learned that the defence was going to submit that [the applicant] did not know that the sums in question came from phone scams. At that time, I pointed out to defence that based on the evidence before the court, I might not accept that submission. After hearing the mitigation advanced by the defence explaining how [the applicant] committed the offences, I made it clear to defence counsel that I would not accept that the defendant had no knowledge, but I also made it clear that I was prepared to hear further evidence for consideration.  In the end, defence indicated that no further evidence would be adduced. The evidence now before the court comes mainly from the facts the prosecution case — facts to which [the applicant] agreed.
在被告人承認控罪及同意案情後，本席向辯方律師了解求情方向，知道辯方的說法會是指 [申請人] 不知道那些錢是來自電話騙案。本席當時向辯方律師指出，按法庭前的證據，法庭未必會接納辯方的說法。當聽取辯方求情說話交代 [申請人] 如何犯下本案後，本席向辯方律師說明不會接納辯方不知情的說法，也同時表明願意聽取進一步的證據再作考慮。辯方最後表示不會提供進一步的證供。現在法庭前的證據主要都是來自控方的案情 – [申請人] 同意的案情。

Generally speaking, as far as offences involving ‘money laundering’ in phone scams are concerned, the culprit usually instructs the victim to leave the money at a certain place. The offender (defendant) will then go to that place to pick up the money. There is in fact not much contact between the two of them. In such a case, if the defendant’s explanation is that ‘I only followed others’ instructions to pick up the money at a certain place, and I knew nothing about whether the money came from phone scam or other circumstances’, I am prepared to accept that he had no knowledge.
一般處理電話欺案涉及『洗黑錢』的罪行而言，匪徒通常指示受害人把錢擺放在某一個地方，然後由犯事者（被告人）去該處拿取款項，兩者之間其實沒有甚麼接觸。如果在這情況下被告人解說『我純粹聽從他人指令到某某地方拿取金錢，對於錢的來源是否來自電話騙案或其他情況則不得而知』，本席可以接納他是不知情。

The circumstances of the present case are, however, different. There is no dispute that the background to it is phone scam. The question is whether or not [the applicant] knew that the sums of money came from phone scams. In the present case, [the applicant] not only showed up to collect the sums of money and hence had direct contacts with the victims, he had actually spoken with them. As far as the facts of Charge 1 are concerned, it was falsely represented over the phone that Madam Lee’s son was being held captive and a ransom of $200,000 was needed to secure his release. And over the phone, Madam Lee asked the caller for the name of her son and the caller answered that it was ‘Man Chai’. When [the applicant] had contact with Madam Lee, she also asked the defendant if he knew the name of her son, and [the applicant] replied that it was ‘Man Chai’.
但本案的情況不同。沒有爭議的是本案的背景是電話騙案，問題是[申請人]是否知悉那些金錢是來自電話騙案呢？本案中[申請人] 除了因為出現去收錢而與受害人有直接接觸外，其實他們之間還有對話。就控罪一的案情而言，行騙電話中訛稱的事情是李婆婆的兒子被扣留，要以$200,000去贖回。而李婆婆在電話中曾問過對方她兒子的名字，對方回答是“民仔”。當[申請人] 和李婆婆接觸時，李‍婆婆也曾問過被告人知否她兒子的名字， [申請人] 回答是“民仔”。

The facts of Charge 2 do not reveal such a situation. As for the facts of Charge 3, it is beyond doubt that after the call was made to Madam Choi, someone cried ‘mum!’ on the phone, and Madam Choi answered, ‘Is it Ah Tong? Is it Ah Tong?’ (Ah Tong was her youngest son). The culprit then immediately called himself ‘Ah Tong’. When [the applicant] approached Madam Choi to take the money, the words he said to her were also ‘Ah Tong’.
第二項控罪的案情沒有顯示有這種情況。第三控罪的案情而言，毫無疑問致電蔡婆婆的人來電時有人在電話中呼喊“阿媽”後，蔡婆婆便回答『阿棠呀，阿棠呀。』（阿‍棠就是她最小的兒子），而這個賊人隨即自稱是“阿棠”。當[申請人] 去接觸蔡婆婆拿錢時，他對她說的那句說話也是『阿‍棠』。

Therefore, the present case is not simply a case of the defendant showing up to take the money, but rather a case of him showing up prepared, knowing full well the exchanges made over the phone earlier. Judging by the facts of Charge 1, Madam Lee had asked the caller on the phone if he knew the name of her son and he was able to give the answer, as a result of which she believed that her son was being held captive. The facts disclose that when [the applicant] approached Madam Lee, she asked him the name of her son and he was able to say that it was ‘Man Chai’. There is no doubt that [the applicant] was aware of the content of the phone conversation, and also knew that when he approached the victim he might be asked about the information exchanged over the phone. He must have had full knowledge of such information, otherwise he would not have been able to answer the questions.
所以就本案而言，並非單單是被告人出現去拿錢這樣簡單，他是有備而來，是清楚了解較早前那通電話的對話內容。觀乎第一控罪的案情，李婆婆曾在通電話時已經問過對方是否知道她兒子的名字，而對方能回答，所以令她相信兒子是被人扣留了。案情透露[申請人] 接觸李婆婆的時候，李‍婆婆也問過他她兒子的名字，而他也能回答是“民仔”。毫無疑問[申請人]是知道這些電話對話內容，也知道他去接觸受害人時可能會被問及電話對話中的資料。他是對上述資料是一清二楚，否則他不可能回答得到。

It may be counter-argued that ‘Ah Ming’ might indeed have only asked [the applicant] to go to take the money and might have only instructed him that ‘if the other party asks you, tell her that her son’s name is Ah Man’. However, such a possibility does not, in my view, withstand close scrutiny. It is because when either ‘Ah Ming’ or the phone fraudster gave instructions to [the applicant], there was no need at all to withhold such information from [the applicant] to prevent him from knowing the content of the exchanges made over the phone. On the contrary, putting him in the picture would make it easier for him to get the money without being tripped up by questions from the other party. Therefore, from this perspective, this gang of criminals had no reason whatsoever not to let [the applicant] know the aforesaid information, particularly when they knew that the other party would ask questions. Therefore, he must have had a clear knowledge of the content of the exchanges made over the phone.
雖然可以反駁指“阿明”可能真的只是叫 [申請人] 去拿錢，也可能只是指示他『如果對方問你，你就話佢個仔叫阿‍民』。若然再深入去分析，本席認為這個可能性並不存在。因為“阿明”或那個電話騙徒指示 [申請人] 時完全沒有必要去隱瞞這些資料，不讓 [申請人] 知道電話對話內容，知道內容反會讓他更容易拿到錢而不會被對方問的問題難倒。所以，從這個角度去看，這伙犯罪份子是完全沒有理由不讓[申請人]知道上述資料，特別是當知道對方會問一些問題的時候，所以他是清楚知道電話對話的內容。

Judging by the account [the applicant] gave the police, the response he gave regarding the three contacts he had with the victims was the same, namely that he handed the phone to the victims as ‘Ah Ming’ had instructed. In respect of Charge 1, his response was that he handed the phone to the woman as Ah Ming had instructed and then she gave him the money. In respect of Charge 2, his response was he went to the target unit, knocked on the door and handed the phone to the elderly gentleman who opened the door, who then handed him $30,000. In respect of Charge 3, his response was he handed a mobile phone to Madam Choi. According to [the applicant], he handed the phone to the other party as had been instructed by ‘Ah Ming’. Clearly, the person on the phone wanted to speak to the victim. And according to the account [the applicant] gave, ‘Ah Ming’ was someone who had knowledge of this phone scam. The charges also alleged that he dealt with this ‘black’ money with this ‘Ah Ming’. The ‘Ah Ming’ who was on the phone had knowledge of the matter, and [the applicant] also handed the phone to the victim. Putting all these together, the only conclusion that the court can reach was that [the applicant] was a member of this gang of culprits who knew fully and clearly that the victims were to be contacted by phone, falsely told that their family members had been held captive, and required to pay ransom money for their release. [The applicant] was a member of this gang responsible for turning up to collect those sums of money. These are findings of fact which I make in the present case.
觀乎 [申請人] 向警方所作的交代，他對三次與受害人接觸的回應都是指按“阿明”的指示把電話交給受害人。他就控罪一的回應是按阿明的指示把電話交給該婦人，然後該婦人就把錢交給他；就控罪二的回應是他前往目標單位敲門，然後把電話交給開門的老伯，然後老伯就把港幣 $30,000交給他；就控罪三的回應是他把一部流動電話交給蔡婆婆。根據 [申請人] 所講他是按“阿明”的指示把電話交給對方，很明顯電話中人要和受害人對話。而根據[申請人]所講，“阿‍明”就是這電話騙案的知情者，控罪也指他連同這位“阿‍明“去處理這些黑錢。電話中的“阿明”是知情者， [申請人] 也把電話交給受害人聽–把所有的事情加起來，法庭達至的唯一結論就是 [申請人] 是這一伙賊人的一份子，他完全是清楚知道以電話去找受害人，訛稱扣留了他們的家人，要求他們拿錢去贖回。而[申請人]是這伙人的一份子，他負責出面去拿取那些金錢，這就是本席在本案中就事實的裁決。

For Charge 2, although there is no evidence that [the applicant] had said the words uttered over the phone, I also draw the inference that he had knowledge. It is because I have already drawn the inference in respect of Charge 1 that he and ‘Ah Ming’ and perhaps others defrauded Madam Lee by means of this kind of phone call. And when he was in Hong Kong, he took money from 81-year-old Mr Wong on the following day by the same means. Therefore, it can logically be inferred that he was a member of that gang. After committing an offence on the first day, he re-offended the following day. The third offence that followed was the same.”
雖然第二項控罪沒有證供顯示 [申請人] 曾說過電話中的內容，但本席同樣推斷他是知情的。因為本席在第‍一項控罪已經推斷他和“阿明”或者還有其他人以這種電話方式去欺騙李婆婆，而他身在香港時候，第二天就以同樣方式向81 歲的王先生拿錢，所以邏輯推斷他根本就是那伙人的一‍份子。第一天犯完案，第二天再犯，接著第三宗控罪都是一‍樣。」

Appropriate starting point
適當的量刑基準

In view of the above findings, the trial judge considered that the starting point for each offence should be 4 years:
基於上述的裁決，原審法官認為每罪的量刑起點應為4 年：

Defence counsel has referred the court to a number of decided cases, of which two are worthy of note: Hung Yung Chun (CACC 453/2009) and Wu Jian Bing (CACC 32/2011). Simply put, both are phone scam cases. In Hung Yung Chun, the defendant was charged with, and pleaded guilty to, conspiracy to defraud. The trial judge adopted 3 years’ imprisonment as the starting point and enhanced it by 50% pursuant to the Organized and Serious Crimes Ordinance. On appeal, the Court of Appeal considered that this kind of offence was even more serious then street deception cases and that the starting point should be 4 years, but an enhancement by one-third was considered sufficient.
辯方律師呈遞了多宗案例給法庭參考，值得留意的兩‍宗案例是洪‍永‍俊（CACC 453/2009）及吳‍建‍兵（CACC 32/2011）。簡單而言，這兩宗案例都是電話騙案。洪‍永‍俊一案，有關的被告人被控以串謀詐騙並承認控罪。原審法官以3 年監禁作為基準，再根據《有組織及嚴重罪行條例》加刑50%。上訴後，上訴庭認為這類罪行比街頭騙案更嚴重，量刑起點應為4 年監禁，但認為三份一的加幅已經足夠。

After Hung Yung Chun, the defendant in Wu Jian Bing was charged with ‘money laundering’. The trial judge adopted 4 years’ imprisonment as the starting point and enhanced it by one-third, and the total term was 42 months. On appeal, the Court of Appeal considered that in the circumstances the starting point should be 3 years and enhanced it by one-third (adding 8 months to it), and the total term for the offence was 32 months.
洪永俊一案後，吳建兵一案的上訴人被控『洗黑錢』的控罪，原審法官以4 年監禁作為量刑起點，另外再加刑三‍份一，共42個月監禁。上訴時，上訴庭認為這個情況應該以3 年監禁作為量刑起點，再加刑三份一（加8 個月），控罪的刑期共32個月監禁。

In Wu Jian Bing, it appears that the court did not think that the appellant had knowledge of the phone scam or was a member of the gang of phone fraudsters. Therefore, the situation in Wu Jian Bing was that the appellant had reason to believe that the money he was dealing with was from an indictable offence, but he had no knowledge of the phone scam.
就吳建兵一案的案例來看，似乎法庭並不認為上訴人對電話騙案是知情或他是那伙電話騙案騙徒的其中一‍份子，所以吳建兵一案的情況是該上訴人有理由相信他所處理的錢是來自可公訴罪行，但對於電話騙案則並不知情。

[The applicant] in the present case is also charged with ‘money laundering’ but in view of the findings of fact I made earlier, he was a member of this gang of phone fraudsters. Although he is not charged with conspiracy to defraud, in fact the circumstances were basically identical to those in Hung Yung Chun. Therefore, I rely on the sentencing of Hung Yung Chun in considering the present case.”
本案 [申請人] 都是被控以『洗黑錢』的罪行，但基於本席剛才所作的事實裁定，他就是這伙電話騙徒的一‍份子。雖然他沒有被控串謀詐騙，但實際的情況基本上與洪‍永‍俊一‍案的案情一模一樣，因此本席倚賴洪永俊一案的量刑情況來考慮本案。」

Enhancement of sentence pursuant to the Ordinance
根據條例加刑

Furthermore, the trial judge considered that the sentence in the present case should be enhanced pursuant to the Organized and Serious Crimes Ordinance, the extent of such enhancement being one-third (10 months) of the starting point (4 years) as reduced on account of the guilty plea (32 months). As a result, the term of imprisonment for each count should be 42 months. The trial judge reasoned as follows:
此外，原審法官認為本案應根據《有組織及嚴重罪行條例》加刑，加幅是量刑基準（4 年）經認罪扣減後（32 個月）的三‍分‍一（10 個月）。因此，每罪的刑期應為42 個月。以下是他的理由：

Pursuant to section 27 C and D [sic, for section 27(2)(c) and (d)] (the harm caused to the community and the prevalence of the offence) of the Organized and Serious Crimes Ordinance, the prosecution also applies for an enhancement of sentence in the present case. The prosecution has submitted a report prepared by Chief Inspector Lam (transliteration) which sets out the statistics and circumstances of this kind of phone scam cases in recent years. Paragraph 22 of the report sets out the annual statistics from 2007 to 2013 and also statistics from January to February 2014.
控方也根據《有組織及嚴重罪行條例》第27條C及D兩‍項（造成社會傷害和罪行的普遍性）就本案申請加刑。控方呈交了一份林總督察的報告，報告交待了這一類電話行騙案在近幾年的統計數字和情況。報告第22段列出由2007 年到2013 年整年的統計數字及2014 年1 月至2 月的統計數字。

As far as the amount of loss was concerned, the total amount of reported loss in 2007 as a result of successful phone scam cases exceeded 20 million dollars. The amount jumped to more than 23 million dollars in 2008 and to more than 29 million dollars in 2009. It went down to around 25 million dollars in 2010 and dropped further in 2011 to around 22 million dollars before leaping to more than 33 million dollars in 2012 and then rising to almost 40 million dollars in 2013.
損失金額方面，在2007 年成功電話行騙的報告的損失金額總數是2千多萬元；2008 年跳升至2千3 百多萬元；2009 年是2千9百多萬元；2010 年回落至2千5 百多萬元；2011 年再跌至2千2百多萬元；2012 年又跳升至3 千3 百多萬元；2013 年更上升至差不多4千萬元。

At the hearing, the prosecution sought to adjourn the matter for 3 weeks in order to allow the prosecution to include more figures in the report for the court’s reference. The prosecution intended to set out the number of instances in these phone scam cases where the offenders were charged with ‘money laundering’ offences. Having inquired into the situation, in the end I refused the application for adjournment. I was of the view that the further information sought to be provided could not in fact directly assist the court in considering whether or not to enhance the sentence, because the prosecution was basically asking the court to consider the first report on cases of reported phone scams and the second report on cases of successful phone scams.
聆訊時，控方曾經要求法庭把案件押後3星期，以便控方在報告上列舉多一些數字給法庭參考。控方想列出這些電話騙案中有多少涉及以『洗黑錢』的罪行檢控有關犯事者。本席了解過情況後，最終不批准押後申請。本席認為他們想提供的進一步資料其實並不能直接協助法庭考慮是否加刑，因為控方基本上都是要求法庭考慮第一項接獲電話行騙報告的情況和第二項接獲電話行騙成功報告的情況。

In my view, these figures alone are sufficient to assist the court in considering whether or not an enhancement is called for in the present case. It is my view that this type of phone scams takes only one form: the perpetrators contact the victim by phone, falsely claiming over the phone that a family member of the victim has been held captive for a certain reason and demanding payment of money by the victim for the release of the family member. Therefore, this type of offence involves, firstly, a gang of people who conspire to defraud, and then contacts are made with victims by phone, and, with the abovementioned lies, the victims are led to believe that the culprits have held their family members captive. If the victims believe the story, they will hand over money. Therefore, whatever the charge preferred against the perpetrators is, whether it is ‘money laundering’ or conspiracy to defraud, it does not affect in any way the modus operandi of this kind of phone scams.
就這些數字而言，本席認為已經足夠讓法庭考慮本案是否需要加刑。本席認為這類電話騙案只有一種模式，就是犯事者利用電話去接觸受害人，在電話中訛稱受害人的家人被扣留，再訛稱他們是因為某事故被拘留，進而要求受害人交出金錢令他們的家人獲釋。所以，這類罪行其實是先有一伙人串謀去詐騙，然後利用電話接觸受害人，以前文提過的謊言令對方相信匪徒扣留了他們的家人。如果受害人信以為真的話，他們就會交出金錢，所以其模式是不會因為被控以何種控罪，無論是『洗黑錢』或是串謀詐騙，完全不會改變這種電話騙案的犯事模式。

Defence counsel has also submitted that, according to the decided cases referred to, the power to enhance the sentence is not arbitrary, and the court is not bound to enhance the sentence in each and every case. Judging from the report prepared by Chief Inspector Lam, there has clearly been a huge jump in the number of such cases over the last two years. In 2007 and 2008, the average number of reported cases of receipt of scam phone calls was 1,500; by contrast, the number of such cases had risen above 2,000 by 2012 and 2013. Turning to the statistics for reported cases of successful phone scams, the numbers of such cases over the last two years exceeded 700 cases; whereas the figures in 2007 and 2008 were, respectively, over 500 and almost 500 (over 480).  Compared with the situation a few years ago, these offences have been on the rise recently and the numbers thereof are by no means negligible.
辯方律師也提及根據已呈遞的案例顯示行使加刑的權力並非隨意，不是每宗案件都一定要加刑。觀乎林‍總督察的報告，很明顯近兩年的案件數字跳升很多。相比2007 年或2008 年的接獲電話行騙報告數字，2007至2008是平均1500宗，但2012和2013已經超過2000宗。再看一看電話行騙案成功報告的統計，同樣近兩年的數字都超過700宗；2007和2008是5百多宗及接近500宗（四百八十多宗）。相比幾年前，近來這些罪行都增加了，而且數字也不少。

Having considered the decided cases and Inspector Lam’s report, I am of the view that these offences are prevalent, have been on the rise in recent years, and have caused considerable harm to the community. Judging by the number of reported cases of scam phone calls as set out in Inspector Lam’s report, it is clear that culprits have not stopped using this method to continue to practice deception. The numbers of reported cases of successful phone scams show that there are still people in the community who will fall prey to the fraud and lose money as a result. In my view, the rising numbers show that [the fraud] has caused considerable harm to the community.  By reference to the above decided cases, I allow the prosecution’s application for enhancement and enhance the sentence by one-third.
考慮過有關案例和林督察的報告，本席認為這些罪行有普遍性，近年也有所上升，而且對社會造成了一定的傷害。就林督察報告而言，接獲電話行騙報告的數字，很明顯賊人沒有放棄用這樣的方法去繼續行騙；接獲電話行騙成功報告的數字顯示社會上是還有些人會受欺騙而損失金錢。本席認為數字上升顯示了對社會構成一定的傷害。參考上述的案例，本席批准控方的加刑申請–加刑三份一。

For each count, I adopt a starting point of 4 years. There are no other powerful mitigating factors apart from his guilty plea. Giving one-third discount for the guilty plea, the total term is 32 months. Enhancing it by one-third (10 months), the final sentence for each count is 42 months’ imprisonment.”
每項控罪都以4 年作為量刑起點，求情方面除了他的認罪外，沒有其他有力的求情因素。認罪扣減三份一，共32 個月，再加刑三份一（加10個月），每項控罪最終被判監禁42個月。」

Total term of imprisonment
總刑期

Finally, the trial judge considered that the total term of imprisonment in the present case should be 52 months. This already included the discount to which the applicant was entitled by reason of his having, in respect of Charge 1, voluntarily confessed to facts which were otherwise undetectable. The judge had this to say:
最後，原審法官認為本案的總刑期應為52個月。這個刑期已包括控罪（1）非由申請人自行招認不可偵破的事實而應得的扣減。法官是這樣說的：

As regards the total sentence, defence counsel has sought a further reduction of the sentences for Charges 1 and 2 for the reason that prosecution on those charges was made possible by confessions made by the defendant upon arrest.  In respect of Charge 2, the evidence shows that when he entered the building in which Mr Wong resided, his features were captured by the CCTV in the lift. I asked the defence whether the image clearly showed the defendant’s features, and the defence indicated that it did. Although the defence claimed that Mr Wong was not able to recognize the person who visited his premises and took the money on the day in question, the evidence regarding the defendant’s identity did not, in my view, necessarily have to be given by Mr Wong because the CCTV had recorded the defendant’s features. Wearing the hat of a juror, I could also look at this evidence and decide if that person was the defendant. Besides, from the temporal evidence, it could be inferred that it was the defendant who visited Mr Wong and took the money. Therefore, it is not the case that prosecution was made possible only by the defendant’s confession. However, in respect of Charge 1, I do accept that prosecution would not have been possible but for the defendant’s confession. I shall make allowance for this fact in sentencing.
總刑期方面，辯方律師要求法庭就第一和第二項控罪再作減刑，原因是基於被告人被拘捕後招認才會出現第一和第二項控罪的檢控。第二項控罪的證供顯示被告人進入王‍先生大廈時，他的容貌被電梯的閉路電視攝錄下來。本席向辯方了解過該影像是否可以清楚看到被告人的容貌，辯方表示可以。雖然辯方指王老伯是認不到當日上他門拿錢的人，但本席認為閉路電視拍下被告人的容貌，這些有關被告人身份的證據不一定要由黃老伯說出。本席作為陪審員也可以看這些證據，決定究竟那人是否被告人。再者，如果根據時間方面的推斷，是可以推斷到被告人去找王先生拿錢，所以並非只靠被告人的招認才成功檢控。不過，本席接納第一項控罪只是基於被告人的招認才可以成功檢控這項罪行，本席會在量刑方面反映這點。

I imposed on the defendant, who committed three similar offences on his visit to Hong Kong, a total sentence as follows: the term of 42 months for Charge 3 is to be served consecutively to 6 months of the term for Charge 2 and 4 months of the term for Charge 1, and the remaining sentences are to be served concurrently, making a total term of 52 months.
就被告人到香港犯下三宗同類的罪行，總刑期方面頒令如下：第三項控罪的42個月與第二項控罪的6個月，再與第一項控罪的4個月作分期執行，餘下的作同期執行，總共判監52個月。

I was at first minded to order that 6 months each of the terms for Charges 2 and 1 were to be served consecutively to the term for Charge 3, but in view of the fact that Charge 1 was derived from the defendant’s confession, 4 months instead of 6 months of the term for that Charge will be made consecutive so as to reflect this fact.”
本席原本打算把第三項控罪的刑期與第二和第一項控罪每項控罪中的6個月作分期執行，但考慮到第一控罪是基於被告人的招認而引申出來，所以不以6個月作分期執行，會以4個月作分期執行以反映這個情況。」

Grounds of appeal
上訴理由

The grounds of appeal put forward by Counsel for the applicant can be distilled into two major grounds.
經梳理後，申請人代表大律師提出的具體上訴理由可分為兩項。

The first ground is that the term of 42 months imposed for each charge is manifestly excessive because:
第一項理由指每罪42個月的刑期明顯過重，原因是：

the trial judge erred in finding that the applicant was a fellow gang member of the culprits with whom he acted in concert in committing the three “phone scam” offences. It is argued that this conclusion is inconsistent with the evidence adduced.
原審法官錯誤裁定申請人與三宗電話騙案的騙徒同屬一‍夥，共同犯案。這個結論據稱與現有的證據相悖。

the trial judge erred in referring to the statistical report compiled by the police in respect of phone scam cases. Counsel argues that, as the offence in question is “dealing with property known or believed to represent proceeds of an indictable offence” and not “fraud”, the figures in the report do not have any referential value.
原審法官錯誤引用警方就電話騙案而製作的統計報告。由於本案涉及的罪行是「處理可公訴罪行的得益」而非「詐騙」，大律師認為報告中的數字根本沒有參考價值。

the trial judge erred in not reducing the sentences for Charges 1 and 2. Counsel submits that the sentences as they stand do not fully reflect the fact that the offences could not have been detected but for the confession voluntarily made by the applicant.
原審法官錯誤地沒有把控罪（1）和控罪（2）的刑期下調。大律師認為，現有刑期未能充分反映出此兩罪非因申請人自行招認便不會偵破的事實。

The second ground is that the total term of 52 months is manifestly excessive because:
第二項理由指52個月的總刑期明顯過重，原因是：

the total loss flowing from the three offences is merely HK$68,022.
三案合計的損失只約港幣68,022元。

taking a reverse calculation, the term of 52 months represents a total starting point of as high as 78 months.
由52個月逆向計算，總量刑基準會高達78個月。

viewed as a whole, this sentence goes against the totality principle.
整體而言，這個刑期有違數罪併罰不能過重的原則。

Discussion
討論

In sentencing, the trial judge relied mainly on the case of HKSAR v Hung Yung Chun [2011] 2 HKLRD 167 . The two defendants in that case also played the role of money collectors, but they were charged with “conspiracy to defraud” and not “dealing with property known or believed to represent proceeds of an indictable offence”.  In this regard, the Court of Appeal had said that phone scam cases (that is, the fraudulent acts that the two defendants in that case had participated in) were more serious than general street deception cases in that phone fraudsters often terrified victims by uttering excuses such as family members of the victims being held captive.  It was therefore necessary to adopt a higher starting point for phone scam cases. On the facts of that case, the starting point should be 4 years. Besides, due to the sharp rise in the number of similar cases, the sentence was enhanced by one-third pursuant to the Organized and Serious Crimes Ordinance. As for the two defendants’ assertion that they were merely responsible for taking the money and had no knowledge whatsoever of the underlying phone scams, the Court of Appeal also pointed out that such assertion  was not consistent with their pleas of guilty to the charge of “conspiracy to defraud”. However, what is noteworthy is another observation made by the Court of Appeal which does shed light on the sentencing approach to be adopted in the present case:
原審法官賴以科刑的主要案例是香港特別行政區訴洪‍永‍俊 [2011] 2 HKLRD 167。該案兩名被告的角色仍然是收錢，但面對的卻是「串謀詐騙」而非「處理可公訴罪行的得益」罪。就此，上訴法庭表示，電話騙案（即涉案兩名被告有份參與的詐騙行為），常以受害人家人已遭禁錮等藉口令受害人受驚，所以比一般的街頭騙案嚴重，須採納更高的量刑基準，以該案的案情而言則應為4 年，另因同類案件飆升而按《有組織及嚴重罪行條例》加刑三分之一。至於涉案兩‍名被告聲稱自己只負責取錢，對之前的電話行騙毫不知情，上訴法庭亦指出，這個說法與他們承認「串謀詐騙」的答辯不符。然而，要注意的是，上訴法庭的另一觀察，它對本案應如何判刑不無參考價值：

the so-called ‘money laundering’, in general, refers to cases where the prosecution preferred the charge of ‘dealing with property known or believed to represent proceeds of an indictable offence’ against the defendants mainly because they may not be able to prove beyond reasonable doubt their direct involvement in a conspiracy to defraud. Also, in that kind of cases, although the defendants did not know that the property was obtained from the proceeds of an indictable offence, they are convicted for dealing with property ‘believed’ to be proceeds from an indictable offence. In the present case, both applicants pleaded guilty to conspiracy to defraud. The facts they had admitted also indicate their active participation in the scheme. Their acts were more serious than the ones in a general ‘money laundering’ case.”
一般而言，控方選擇以『處理已知道或相信為可公訴罪行的得益的財物』為控罪，主要原因是控方未能在毫無合理疑點的標準下，證明被告人直接參與串謀詐騙；而且在該類案件中，雖然不知道該財物是從可公訴罪行得益而來的，但是因為他們處理他們『相信』為可公訴罪行得益的財物被定罪。在本案中，兩名申請人承認串謀詐騙罪，他們同意的案情亦顯示兩人積極參與計劃，其行為的嚴重性比一般『洗黑錢』者更甚。」

The same issue arose in the recent case of HKSAR v Cen Huakuo CACC 21/2014 (date of judgment: 4 July 2014). The victim in that case was a 78-year-old lady. She received a phone call in which she was told that her son had committed some offences of indecency, for which $50,000 had to be paid in order to ensure his safety. The defendant then showed up at the designated place. He asked the victim if she had brought along the money, and he was able to say the name of her son. He claimed that her son was being held captive. He handed a mobile phone to her so that another male could continue to put pressure on her. As a result, the defendant was convicted after trial on one count of “conspiracy to deal with property known or believed to represent proceeds of an indictable offence”. Having referred to Hung Yung Chun, the judge also adopted 4 years as the starting point and enhanced the term by 50% on the ground that there had been a sharp increase in the same type of cases. On appeal, the Court of Appeal considered the sentence clearly excessive and took the view that the appropriate starting point was 3 years and that the extent of enhancement should not exceed one-third. The Court of Appeal reasoned as follows:
同一議題，在近期的另一案例再度出現：香港特別行政區訴岑‍華‍擴 CACC 21/2014（判案書如期：2014 年7 月4 日）。該案受害人是一名78 歲的老婦。她接獲電話指其兒子因犯下某些淫褻罪行而需要支付5 萬元以確保他的安全。接著，涉案被告在指定的地方出現。他問老婦是否有帶錢，並能說出老婦的兒子的名字。他聲稱老婦的兒子正遭人扣押。他把一部手提電話交予老婦，讓另一男子繼續向老婦施壓。結果，被告經審訊後被裁定一項「串謀處理可公訴罪行的得益」罪成立。法官在援引過洪永俊案後同以4 年為量刑基準，並因同類案件飆升而給被告加刑50%。就此刑期，上訴法庭認為無疑是過重的。上訴法庭認為，適合的量刑起點是3 年，加刑的幅度也不應超過三分一。以下是上訴法庭的理由：

The sentences passed in Hung Yung Chun were based on the fact that the defendants knew the details of the deception offences including the fact that the victims were put into fear because someone told them that their family members were being detained or beaten up, and the victims gave the culprits several hundred thousand dollars out of that fear. Owing to the above factors, the Court of Appeal was of the view that the culpability of the defendant of a phone deception case was more serious than that of the defendant of a street deception and thus adopted the starting point of 4 years.
洪永俊案的判刑是建基在被告人知悉詐騙罪行的犯案詳情，包括受害人遭人恐嚇，指其家人遭人禁錮或毆打而受害人是在恐慌下向賊人支付數十萬元。亦因為上述原因，上訴法庭認為電話騙案的罪責較街頭騙案更為嚴重而要採納4 年的量刑基準。

In ‘money laundering’ cases, some defendants have no knowledge or only have an incomplete or sketchy understanding about the indictable offence in connection with the ‘money laundering’ offence, but some defendants, even though they have not taken part in the relevant indictable offence, may have detailed knowledge and understanding of it and are also aware of the adverse impact arising out of their acts of ‘money laundering’. The Court has to take into account these factors when considering the sentence.
在“洗黑錢”案件，某些被告人對和“洗黑錢”罪行有關的可公訴罪行不知情或只有一些偏面及粗略的理解，某些被告人即使沒有參與有關的可公訴罪行，但他們可能對該些罪有詳細的認知及了解，亦知悉他們的“洗黑錢”行為會做成的不良後果。在考慮適當判刑時，法庭須將上述因素考慮在內。

The applicant did not take part in the deception, he told Madam Chan that her son was being detained, but that only shows his sketchy understanding about the relevant indictable offence and does not mean that he knew the details. When considering the applicant’s knowledge about the relevant indictable offence, the trial judge should not have interpreted the facts in the most unfavourable way against the applicant.
申請人沒有參與詐騙罪行，申請人向陳婆婆說其兒子遭人捉著只顯示他對有關的可公訴罪行有粗略的理解，不代表他知悉詳情。在考慮申請人對有關可公訴罪行的認知時，原審法官不應以對申請人最不利的方式銓釋案情。

The prosecution evidence was insufficient to show that the applicant knew the culprit did tell Madam Chan that harm would be done to her son as he had committed some offences of indecency. The trial judge considered that what happened was equivalent to kidnapping Madam Chan and that she was subjected to far greater fear and stress than those experienced by victims in street deception cases, and he blamed the applicant for that. In the circumstances of the present case, this approach was unfair to the applicant.
控方證據不足以證明申請人知悉賊人有向陳婆婆聲稱其兒子犯了因某些淫褻行為而會被人傷害。原審法官以事件如同綁架陳婆婆，令她受驚嚇和壓力的程度遠比街頭騙案為大歸罪於申請人。以本案的背景而言，上述的處理方法對申請人是不公平的。

In any event, the criminal acts of the defendants in Hung Yung Chun were far more serious than that of the applicant. The applicant did not take part in the relevant deception offence, and it is very likely that he was just instructed to collect money from Madam Chan.
無論如何，洪永俊案的被告人的罪行遠較申請人的罪行嚴重。申請人沒有參與有關的詐騙罪行，亦極有可能只是遭人指使去向陳婆婆收錢。

Although the applicant must have known that the money collected from Madam Chan was obtained unlawfully and the incident was in connection with the phone deception, it was too harsh to apply the starting point in Hung Yung Chun to him.
雖然申請人必然知悉向陳婆婆收取的金錢是非法獲得而事件和電話騙案有關，但以洪永俊案所採納的量刑基準施用於申請人身上屬過份嚴苛。

Aggravating factors may vary in different cases. In respect of ‘money laundering’ offences, the amount of the ‘black money’ involved is certainly a major sentencing consideration (see paragraph 38 of the judgment in Boma and paragraph 44 of the judgment of HKSAR v. Ngai Fung Sin Apple [2013] 5 HKLRD 95). The amount of the ‘black money’ involved in this case is $50,000. The starting point of 4 years adopted by the trial judge is still manifestly excessive even if sentencing is considered from the point of view most unfavourable to the applicant. His approach of enhancing the sentence by 50% due to the rising trend of this type of offence is also too severe. In fact, there is no authority to support the trial judge’s enhancement by 50%. We do not consider it a proper approach, especially on the facts of this case.
不同案件都可能會有不同的加重罪責因素，但以“洗黑錢”罪行而言，涉案“黑錢”的數額必然是判刑的主要因素（見Boma案判案書第38段和香港特別行政區訴倪‍鳳‍仙 [2013] 5 HKLRD 95案判案書第 44 段）。本案涉及的“黑錢”是5 萬元，即使以對申請人最不利的角度考慮判刑，原審法官採納的4 年量刑基準屬明顯過重。而他因同類案件有上升趨勢而將刑期加長50%亦屬過份嚴苛。事實上過往並沒有案例支持原審法官加刑50%的處理方法，本庭亦不認同該處理方法，特別是以本案的案情而言。

Taking into account all the circumstances of the case and the requirement that a sentence should have deterrent effect in order to prevent mainlanders from taking part in such an abhorrent and despicable offence like ‘phone deception’ in whatever manner, we are of the view that the appropriate starting point is 3 years’ imprisonment, and the sentence should be enhanced by one-third pursuant to the Organized and Serious Crimes Ordinance.”
考慮到案件的整體背景及判刑須具阻嚇力避免內地人士以任何形式參與“電話騙案”這類極為令人討厭及不恥的罪行，本庭認為適當的倆高興基準為3 年，而根據《有組織及嚴重罪行條例》加刑的幅度應為三分一。」

In our view, the above analysis is entirely applicable to the present case. Sensible as it is, the trial judge’s understanding of the applicant’s role in the offences could not possibly have led to the conclusion that the applicant was of the same gang as the fraudster.  The situation of the applicant falls squarely within that referred to in Cen Huakuo, namely that he had no more than some sketchy idea about the predicate offence. We do note that the trial judge had clearly indicated to the defence that he did not believe that the applicant had no knowledge of the deception, but the defence chose not to adduce evidence on that issue in a voir dire.  Even so, the problem remains that the trial judge did not have sufficient evidence before him to reach the conclusion that he did. The trial judge had plainly reversed the burden of proof by drawing a conclusion adverse to the applicant as a result of the defence’s failure to adduce evidence.
本庭認為，上述的分析，在本案完全適用。原審法官對申請人犯案時的角色的理解，雖有一定道理，但也絕不至於能讓人得出申請人與有關騙徒同屬一夥的結論。申請人的情況，完全可以是岑‍華‍擴案所提到的，對源頭罪行只有粗略認識的狀態。當然，本庭亦注意到，原審法官曾清楚向辯方表明不信申請人對騙案不知情，但辯方卻選擇不就相關的議題在案中案舉證。問題是，就算這樣，原審法官仍然沒有足夠的現存證據來達致他所作出的結論。原審法官因辯方不舉證而對申請人有不利的結論，無疑是顛倒了控辯雙方的舉證責任。

In view of the above findings, a starting point of 4 years for each offence is in our view manifestly excessive. As regards whether or not the sentence should be enhanced, we respectfully adopt another observation made in Cen Huakuo, namely that the court “may … take into account the overall circumstances of the case in so far as they are related to the defendant’s culpability”. This means that the applicant’s acts were after all an important part of the phone scams, and at the material time phone deception was indeed rampant and caused great harm to the community. Therefore, it is appropriate to enhance the sentence in the present case pursuant the Organized and Serious Crimes Ordinance, as was the case in Cen Hua Kuo.
基於以上的裁決，本庭認為，每罪4 年的量刑起點，是明顯過重。至於是否應加刑的問題，本庭會採納岑‍華‍擴案的另一觀察，即法庭「可考慮和被告人罪責有關的整體背景來作出判刑」。意思是，申請人的行為，始終是電話騙案的重要一環，而電話騙案在有關時段實在猖獗，對社會構成很大傷害。因此，按《有組織及嚴重罪行條例》來加刑，在本案也是合適的，就正如岑華擴案的被告被加刑一‍樣。

Finally, the applicant complains that but for his own confession, the prosecution would not have had any evidence to prosecute him on Charges 1 and 2, but this was not fully reflected in the sentence imposed by the trial judge. This argument is open to question. For example, the applicant, a Mainland resident, was in Hong Kong on the day in question, and his features were captured by the CCTV when he entered the building in question. All these, as the trial judge clearly pointed out in his judgment, are independent pieces of evidence against the applicant on Charge 2. Even more importantly, the Court of Appeal has already decided on the same issue in HKSAR v Ma Ming [2013] 1 HKLRD 806, reaching a conclusion different from what the applicant contends:
最後，申請人投訴，控罪（1）和控罪（2）得以偵破，全賴他的自行招認，否則控方根本沒有證據向他進行起訴，但原審法官卻沒有就這點在刑期上有足夠反映，這點是有爭議的。例如，作為內地居民的申請人在案發當日身在香港，他進入案發大廈時又被閉路電視拍下容貌，這都是指證控罪（2）的獨立證據，原審法官已在判詞清楚指出。不過，更重要的是，上訴法庭已就同一議題在香港特別行政區訴馬‍明 [2013] 1 HKLRD 806作過裁決，結論與申請人的主張並不一樣：

The applicant cooperated with the police and after he was arrested he frankly confessed.  This led to his being charged with the 1st charge.  We are of the view that this factor should also be subsumed within the one third discount, and should not be treated as a reason for giving any discount more than one third. Otherwise, it would be in conflict with the policy and purpose of giving the one third discount.  Not only would it create uncertainly but also it would give rise to disputes, and so it is against public interest.
本庭認為申請人和警方合作，在被捕後坦白招認而導致被控第一項控罪這因素亦應歸納在三分一刑期扣減之內，而非導致超過三分一刑期扣減的因素，否則會和三分一刑期扣減的政策和目的有抵觸，不但構成不明確因素，更會導致爭拗，和公眾利益不符。

When dealing with individual cases and when considering the totality of the sentence, the court, in exercising its discretion, can take into account the fact that the frank confession of the defendant provides the only evidence which support the charge or charges and therefore make minor adjustments to the total sentence.  To this we do not object.  However, this factor does not support the argument that this kind of defendants must be given a further discount over and above the one third discount.  If the court does not give such defendants any discount in addition to the one third discount, that does not constitute an arguable ground of appeal.
本庭不反對在個別案件及在處理整體判刑時，法庭可以行使酌情權，因為被告人的坦白招認是唯一支持控罪的證據，而將整體判刑作出輕微調整。但該因素不支持法庭必需給予該類被告人超過三分一的額外刑期扣減的立場。在法庭沒有給予該類被告人超過三分一的額外刑期扣減時，該因素亦非可爭拗的上訴理由。

In giving the one third discount to the applicant upon his pleading guilty, the trial judge had already taken into account the applicant’s cooperation with the police, his voluntary confession and his guilty plea entered in court.  That he was denied a further discount in addition to the one third discount cannot constitute a reasonable complaint, nor can it be a ground of appeal against sentence.  This ground put forward by Mr. Ma is not substantiated.”
原審法官因申請人承認控罪而給予他三分一的刑期扣減已包括了申請人和警方合作、自動招認及在法庭上承認控罪等因素。申請人不能以未能獲得超過三分一的刑期扣減而有合理投訴，更不能以此為上訴理由，要求減刑。馬‍大律師提出的這一點上訴理由不成立。」

It should also be mentioned that it was in fact not correct for the trial judge to adjust the sentence for Charge 1 by making part of the term concurrent in order to reflect that the charge resulted solely from the applicant’s confession. The correct approach would have been to treat the special circumstances of Charge 1 as an additional mitigating factor (if it was indeed necessary to consider such circumstances) and make adjustment to the sentence for Charge 1 during the pleas of guilty and application for enhancement, and then determine the total sentence for the case having regard to the totality principle.
還要一提的是，原審法官以部分同期執行的方法來調整控罪（1）的刑期，以反映它乃純出於申請人的招認的做法，其實並不正確。正確的做法，是把控罪（1）的特別情況（如果真要考慮的話），視作額外的求情因素，在認罪答辯及加刑申請的過程中對控罪 （1）本身的刑期作出調整，然後再在數罪併罰不能過重的原則下設定全案的總刑期。

In our view, a starting point of 3 years can be adopted for both Charge 1 and Charge 2 which took place on two consecutive days. The applicant defied the law again after 53 days by committing the offence in Charge 3, and a starting point of 3 years and 3 months is warranted for that charge. In view of the decision in Ma Ming, we see no reason for giving more than one-third discount for Charges 1 and 2. Therefore, only the usual discount for guilty pleas will be given to these two charges and Charge 3, which means the terms therefor are reduced to 2 years, 2 years, and 2 years and 2 months respectively. The sentences should then be enhanced by one-third pursuant to the Organized and Serious Crimes Ordinance, to 32 months, 32 months and 34 months respectively. The total sentence should in our view be 46 months in order to reflect the overall seriousness of the case. To this end, the sentences for Charges 1 and 2 can be made wholly concurrent, but 12 months of that term is to run consecutively to the sentence for Charge 3, making a total term of 46 months. The compensation order will remain undisturbed.
本庭認為，控罪（1）和控罪（2）在連續兩天發生，可同時以3 年作量刑基準。五十三天之後，申請人不惜再度以身試法，進一步犯下控罪（3），則應以3 年3個月作起點。基於馬‍明一案的判決，本庭不認為控罪（1）和控罪（2）應有多於三分一的扣減，所以此兩罪與控罪（3）只會因申請人的認罪答辯而獲得一般的扣減至2 年、2 年及2 年2個月。之後，有關的刑期應按《有組織及嚴重罪行條例》加刑三分一至32個月、32個月及34個月。總刑期方面，本庭認為應設定於46個月以反映本案的整體嚴重性。為此，控罪 （1）及控罪（2）的刑期可完全同期執行，但其中十二個月則須與控罪（3）的刑期分期執行，合共46個月。賠償令不變。

Decision
判決

We allow the applicant’s application and, treating the hearing as the appeal proper, allow the appeal. The outcome is set out in paragraph 19 above.
本庭批准申請人的申請，並視之為正式的上訴，兼宣判其得直，結果見上文第19段。

Miss Vivien Chan, Senior Public Prosecutor of the Department of Justice, for the respondent, the HKSAR.
答辯人：由律政司高級檢控官陳文慧代表香港特別行政區。

Mr James Tze, instructed by Messrs Pang, Wan and Choi and assigned by the Legal Aid Department, for the applicant.
申請人：由法律援助署委派彭溫蔡律師行轉聘謝英權大律師代表。