Hon Yeung JA (giving the judgment of the Court):
上訴法庭法官楊振權頒發上訴法庭判案書：

Background
背景

This case involved a number of telephone deceptions and there were a total of 4 victims.  What happened to the victims in these deceptions was similar.  Each of them received a telephone call and heard a person crying for help on the phone and that person claimed to be his or her son.  Then another person said that the son of that victim owed him a large amount of money and demanded that the victim pay a sum of money (the sum paid by each victim was not the same) to secure the release of his or her son.
本案涉及多宗電話詐騙案件，共有四名受害人。各受害人受騙的過程相同，他們收到電話，聽到有聲稱是他們兒子的人之求救聲，其後有人指受害人的兒子欠下巨款，要受害人支付不同款額以確保他們的兒子獲釋。

For these incidents, the two applicants faced a series of charges.  Charges 1, 3, 5 and 7, which were conspiracies to defraud, and charges 2, 4, 6 and 8, which were conspiracies to commit “money-laundering”, were against the 1st applicant Yang Chia-cheng; while the 2nd applicant Pan Jung-wen was only charged with charge 7, conspiracy to defraud and charge 8, conspiracy to commit “money-laundering”. The conspiracies to commit “money-laundering” were alternative charges to the conspiracies to defraud.
事件導致兩名申請人面對多項控罪。第一申請人楊家誠被控第1，3，5，7項串謀詐騙罪及第2，4，6，8項串謀“洗黑錢”罪。第二申請人潘榮文則只被控第7項串謀詐騙罪及第8項串謀“洗黑錢”罪。串謀“洗黑錢”罪是串謀詐騙罪的交替控罪。

The two applicants pleaded not guilty and were tried before Deputy District Judge Johnny Chan.  On 30 September 2009, the learned judge convicted Yang of the conspiracy to defraud charges 1, 3, 5 and 7; and charge 7, the conspiracy to defraud against Pan was also established.  It was not necessary for the learned judge to give his verdict as to the alternative conspiracy to commit “money-laundering” charges.
兩名申請人否認控罪並在區域法院法官陳仲衡席前受審。2009年9月30日，陳法官裁定楊家誠第1，3，5，7項串謀詐騙罪罪名成立，而潘榮文第7項串謀詐騙罪罪名亦成立。陳法官無需就交替之串謀“洗黑錢”罪作出裁決。

The two applicants were sentenced to 57 months for each charge, and it was ordered that 8 months from each of charges 3, 5, 7, which were against Yang, were to run consecutively to the 57 months for charge 1.
陳法官判兩名申請人每項控罪入獄57個月。陳法官同時下令針對楊家誠的第3，5，7項控罪，每項控罪的判刑中有8個月要和第1項控罪的57個月判刑分期執行。

The total term of imprisonment for Yang was 81 months, and that for Pan was 57 months.
楊家誠的總刑期為81個月，而潘榮文的刑期則為57個月。

Yang applied for leave to appeal against both conviction and sentence, while Pan applied for leave to appeal against sentence only.  After hearing, we dismissed Yang’s application concerning his conviction, but reserved our judgment in respect of their applications regarding their sentences.  The reasons for our dismissing Yang’s application concerning his conviction and our judgment about their applications regarding their sentences are set out below.
楊家誠不服定罪及判刑的決定，現提出上訴許可申請，要求獲准就定罪及／或判刑上訴。潘榮文則只是不服判刑，現要求獲得許可，申請減刑。經聆訊後，本庭駁回楊家誠就定罪的申請，但押後宣判兩名申請人就判刑的申請。以下是本庭駁回楊家誠就定罪申請之理由，及兩名申請人就判刑申請的裁決。

Prosecution case
控方的案情

There was no dispute over the prosecution case; indeed, it was presented to the court by way of admitted facts.
控方的案情，並沒爭議，更以同意事實向法庭呈示。

The victim of the 1st charge conspiracy to defraud was Madam Wong, who was 50 years of age.  On 25 March 2009, Madam Wong received a telephone call.  A man, who claimed to be her son, cried for help on the phone.  Immediately after that was the voice of another man, who told her that her son owed them $200,000 and he demanded money from her.  She said she had $40,000 only.  Then the man pressed her to go to the bank at once to withdraw cash.  He also obtained the mobile phone number of Madam Wong.  He telephoned to Madam Wong and told her that she had to maintain telephone communication with him at all times.
第一項串謀詐騙罪的受害人是50歲的黃女士。2009年3月25日，黃女士接到一個來電，一名聲稱是她的兒子的男子在電話求救。另一名男子隨即取過電話並聲稱黃女士的兒子欠他們20萬元，故向黃女士索取金錢。當黃女士表示只有4萬元時，該男子催促黃女士立刻往銀行提取現金。他取得黃女士的流動電話號碼後，打電話給黃女士，並著她一路保持通話。

Madam Wong managed to raise $40,000 and went to the junction of Canton Road and Saigon Street as instructed.  At that time, Yang went up to her and she, acting on instructions coming from the telephone, handed the $40,000 to Yang.  Subsequently, Madam Wong realized that she was deceived.  Her son had never called her for help.
黃女士最終籌足4萬元並按指示前往尖沙咀廣東道和西貢街交界。當時楊家誠走近黃女士，而黃女士亦依照從電話得到之指示，將4萬元交了給楊家誠。事後黃女士發現被騙，其兒子根本沒有向她求救。

The victim of the 3rd charge conspiracy to defraud was Madam Ko, who was 67 years of age.  On 30 March 2009, Madam Ko received a telephone call.  A man, who claimed to be her son, cried for help. Thereupon, another man took over the phone and told her that her son was detained by him, and he demanded a ransom of $200,000.  Madam Ko said that she had only $20,000.  The man agreed.  He obtained Madam Ko’s telephone number, called her and told her not to ring off.  Then Madam Ko went to the Mira Hotel in Tsimshatsui as instructed and handed $20,000 to Yang.  Later, the man who called Madam Ko earlier called again and demanded $50,000 more.  At that time, Madam Ko already knew that his son had never been detained and that she was deceived.
第三項串謀詐騙罪的受害人是67歲的高女士。2009年3月30日，高女士接到來電，有一名自稱是其兒子的男子求救。另一男子隨即取去電話，指高女士的兒子遭他扣留，並要高女士支付20萬元之贖金。高女士表示自己只有2萬元。該男子同意，並取得高女士的電話號碼後和高女士通話，更不許她掛斷電話。隨後，高女士按照指示前往尖沙咀美麗華酒店，並將2萬元交了給楊家誠。其後較早前打電話給高女士的男子再來電，要多5萬元。當時，高女士已知悉她的兒子從未遭人扣留，而她只是受騙。

The victim of the 5th charge was Mr. Lau, who was 58 years old.  On 31 March 2009, Mr. Lau received a telephone call.  A man, who claimed to be his son, cried out loudly for help.  Another man then took over the phone.  He said that Mr. Lau’s son was a guarantor of some debts and that he was being detained.  The man told Mr. Lau to pay $80,000, otherwise his son’s hand would be chopped off.  After bargaining, the man agreed to accept $60,000.  He told Mr. Lau to maintain telephone communication with him at all times through the mobile phone.  Mr. Lau went to the fire station in Tsimshatsui as instructed, and handed $60,000 to Yang outside the fire station.  Later, Mr. Lam found out that he was deceived.
第五項控罪的受害人是58歲的劉先生。2009年3月31日，劉先生接到來電，一名自稱其兒子的男子高聲求救。另一名男子取過電話，指劉先生的兒子是欠款擔保人，遭人扣留，並要劉先生支付8萬元，否則會斬斷其兒子的手。經討價後，該名男子同意收取6萬元，並要劉先生透過流動電話，和他一路保持通話。劉先生按指示前往尖沙咀消防局外，將6萬元交了給楊家誠。事後劉先生發現遭騙。

The victims of the 7th charge conspiracy to defraud were Mr. Chow and his wife.  At the material time, a friend of theirs Madam Xu came to visit them from the Mainland and stayed at their flat in Mongkok.
第七項串謀詐騙罪的受害人是周先生和其太太。事發時，周先生夫婦的朋友許女士從國內探訪他們，並住在他們的旺角居所。

On 3 April 2009, Madam Xu received a phone call and heard a man cried for help.  She asked him whether he was the younger son “Lo Lo” of Mr. and Mrs. Chow.  The man who cried for help answered in the affirmative.  Immediately after that, another man spoke on the phone and said that “Lo Lo” owed him $200,000 and so was detained by him.  Madam Xu immediately told Mr. Chow about this.  Mr. and Mrs. Chow returned home and talked with the man who demanded payment.  The man demanded that Mr. Chow pay $200,000 to exchange for the release of their son.  After bargaining, it was agreed that the ransom would be reduced to $50,000.  The man instructed Mr. Chow to withdraw cash from the bank and told him to maintain telephone communication with him.  When all these were going on, Mr. Chow somehow learnt that both of his two sons were safe and sound and then he made a report to the police.
2009年4月3日，許女士接到電話，聽到一名男子求救。許女士問他是否周先生夫婦的幼子“佬佬”時，求救者答是。隨即有人取過電話，聲稱“佬佬”欠下他20萬元，故遭他扣留。許女士立刻通知周先生。周先生夫婦返家後和索取款項的人通話。該人要周先生支付20萬元，以贖回兒子。雙方討價後同意贖金減為5萬元。該男子吩咐周先生前往銀行提款，並著他保持通話。期間，周先生知悉兩名兒子都安全無恙後知會警方。

Later, Mr. Chow, acting on instructions he received, first went to a certain place on Ferry Street near a signboard with the characters “Lap Sing [transliteration of 立勝] Removal Company”; but he went there in the company of police officers.  After a while, he was further instructed to dump an envelope with banknotes inside into a rubbish bin which was in the vicinity.  He did as instructed.  At that moment, Yang was close by.  He picked up the envelope at once, walked away hurriedly and was arrested.  The police officers searched Yang and found on him a telephone, inside which there was an Easy Own（神州行）SIM card, numbered 13672654313.  All the money was recovered.
其後，周先生在警員陪同下，按指示先前往渡船街近“立勝搬屋”的招牌處，後再按指示將有鈔票的信封扔入附近的一個垃圾筒。當時楊家誠在附近並隨即拾起信封後，急步離開，但結果遭拘捕。警員在楊家誠身上搜獲電話，內有一張“神州行”電話咭，號碼為13672654313及起回有關的款項。

At the same time, the police also arrested Pan and found two mobile phones on his person, with one SIM card in each of them.  One of the cards showed that the number of the last outgoing call made was the number of the phone found on Yang.
警員亦同時拘捕潘榮文，並在其身上搜出2部手提電話，內各有一張電話咭，其中一張顯示最後打出的號碼是楊家誠身上搜出的電話。

Yang had been interviewed by police officers on a number of occasions on a voluntary basis.  He admitted that he and Pan came here together to collect money.  He stated that “Ah Hung” [transliteration of 阿鴻] told him to collect gambling money for placing bets on Mark Six and soccer matches.  The clients worried that their gambling activities might be discovered, so they did not pay by bank transfer, but asked them to collect the money at designated places instead.
楊家誠曾多次自願接受警方會面。他同意和潘榮文一起來拿錢，並表示“阿鴻”對他說要收取下注六合彩和足球的賭金，但因客戶害怕賭博行為遭人知悉，故不用銀行匯款，而要他們在指定地點拿錢。

Yang said that he came to know Pan through the introduction made by “Ah Hung” in Zhuhai.  The purpose of their coming to Hong Kong was to collect money and bring it to Zhuhai.  He said Pan telephoned him and told him to go to the rubbish bin to pick up a paper bag, and as a result he was arrested.
楊家誠表示潘榮文是“阿鴻”在珠海介紹給他認識的。兩人來港目的是拿錢回珠海。他指是潘榮文打電話給他要他前往垃圾桶拾紙皮袋，但結果遭拘捕。

Yang admitted that before he was arrested he had on 3 occasions, acting on the instructions of “Ah Man” [transliteration of 阿文]， received money from some victims and then handed the money to “Ah Man”.
楊家誠亦承認遭拘捕前曾三次按“阿文”指示，從受害人取得金錢，並將錢交給“阿文”。

According to Yang, the telephone of the number 13672654313 was provided by “Ah Hung”.  When he and “Ah Man” went to collect money, he would hold this phone in his hand for [using it to] communicate with “Ah Man”.
楊家誠指13672654313號電話是“阿鴻”提供的，而他和“阿文”去收錢時會手持該部電話和“阿文”保持聯絡。

Yang also told the police officers that he felt that the money was not gambling money, because he had come to Hong Kong to collect money for “Ah Hung” twice before and “Ah Hung” had told him that the monies were proceeds from deceptions.  It was not the case that what he needed to do was only to go to designated places in Hong Kong to collect money.
楊家誠亦有向警員表示覺得錢並非賭金，原因是曾兩次幫“阿鴻”來港拿錢，而“阿鴻”有向他說過錢是騙來的，而非他只需到香港指定地點拿錢就得。

Yang further stated that the accomplices of “Ah Hung” included “Shek Tau” [transliteration of 石頭] and “Ah Lung” [transliteration of 阿龍]。 Both of them were Taiwanese.  Each time, “Ah Hung” directed him and “Ah Man” through a mobile telephone to go by boat to Hong Kong to collect money.  After they collected the money, they returned to Zhuhai and handed it to “Ah Hung”.
楊家誠更表示“阿鴻”的同黨包括“石頭”及“阿龍”。他們都是台灣人；而“阿鴻”每次都是用手機指揮他和“阿文”乘船來港拿錢；而拿到錢後他們會返回珠海及將錢交給“阿鴻”。

Yang said that “Ah Hung” would give him reward, but there was no fixed amount.  How much it was was decided by “Ah Hung”.
楊家誠表示“阿鴻”會給他報酬，但數額不定，要由“阿鴻”決定。

Grounds of defence
答辯理由

Yang admitted that he had on 3 occasions obtained money from the victims, and on the occasion on which he was arrested, he had the intention to do that; but he argued that he did not know that the monies were proceeds from deceptions.
楊家誠同意三次由受害人身上取得金錢，而被捕那一次他亦已在打算這樣做，但他指不知悉金錢是詐騙所得。

The evidence he gave was that he went to Zhuhai to work on the strength of an Entry Permit for Taiwan Residents, and came to know “Ah Hung”.  He said that he trusted “Ah Hung” and had come to Hong Kong 4 times on behalf of him to collect gambling money for placing bets on Mark Six and soccer matches.
作供自辯時，他表示自己持台灣居民通行證前往珠海工作，並認識了“阿鴻”。他指自己相信“阿鴻”，替他四次來港收取六合彩及足球賭金。

Yang explained that after he collected money the second time, he felt suspicious because during both these two times the people who handed him the money were elderly ladies.  He asked “Ah Hung” about that and indicated to him that if the monies were proceeds from deceptions, he would not take part any more in the arrangement of coming to Hong Kong to collect money.  “Ah Hung” told him that the monies were not proceeds from deceptions.  Having considered how the monies were collected, he believed that they were not proceeds from deceptions, so he agreed to continue with his cooperation with “Ah Hung”.
楊家誠表示第二次取得金錢後，因兩次交款的人都是上了年紀的女士，令他起疑，故曾向“阿鴻”查問並向“阿鴻”表示，如金錢是騙回來的，他不會參予來港拿錢。但“阿鴻”向他表示錢不是騙來的，而考慮過取錢的方法後，他相信錢並非是騙來的，故同意繼續和“阿鴻”合作。

Yang said that he allowed his intelligence be blinded by his desire to earn money, so he did not examine closely whether the monies were proceeds from deceptions.  He stated that he only 80% believed “Ah Hung”’s words, and that each time after he collected the monies, he would receive 1,000 dollars/yuan to 2,000 dollars/yuan as his reward.
楊家誠表示自己財迷心竅，故沒有深入探討錢是否詐騙得來，而他亦只是八成相信“阿鴻”的說話。他表示每次取錢會得到1,000至2,000元的報酬。

Yang stressed that if he had known that the monies were proceeds from deceptions, he would not have agreed to go to collect the monies for such meagre rewards.  He said that the “Ah Man” he mentioned during the interviews with the police officers was not Pan Jung Wen, but was another person.
楊家誠強調，如自己知悉錢是詐騙所得，他不會因這麼少的報酬而去拿錢，他表示在和警員會面時說及的“阿文”並非潘榮文而是另一人。

Yang had told the police officers that “Ah Hung” had told him that the monies were proceeds from deceptions.  His explanation of his doing so was that he just wanted to tell the truth to the police.  However, in fact he 80% believed “Ah Hung”’s statement that the monies were not proceeds from deceptions.
楊家誠指自己向警員表示“阿鴻”曾對他說錢是騙來的，是要將實情向警方說出。但事實上，他有八成相信“阿鴻”的說法指錢不是騙來的。

Yang said that he had asked “Ah Hung” why he did not come to Hong Kong himself to collect the monies, but “Ah Hung” just spoke equivocally and did not answer the question directly.
楊家誠表示曾問過“阿鴻”為甚麼不自己來港拿錢，但“阿鴻”只是支吾以對，沒有正面回答。

Yang explained that “Ah Hung” had once said that the monies were proceeds from deceptions, but later he withdrew this remark and said that the monies were not proceeds from any deception.  Yang believed what he said because the monies were not collected in any tricky way.  Yang admitted that he let his intelligence be blinded by his desire to earn money and did not examine closely to confirm whether the monies were proceeds from deceptions.  He admitted that when he went to collect money on the fourth occasion, [he] picked up the money from a litter bin.  He thus realized that the money was come by as a result of deception, because to put the money in the litter bin was a kind of trick.  However, he denied that during all the 4 times of his coming to Hong Kong to collect money he knew that the monies were proceeds from deceptions.
楊家誠強調“阿鴻”曾說過錢是騙來的，但後來改口說錢不是騙來的，而他亦相信錢不是騙來，原因是取款方法並非以掉包方式。他同時承認自己財迷心竅，沒有深入確認錢是否騙人得來的。楊家誠同意第四次收錢時是由垃圾筒取得，故他清楚錢是騙人所得，因為將錢扔在垃圾筒內，就是掉包。但他否認四次來港收錢，他都知道錢是騙來的。

Findings made by the trial judge
原審法官的裁定

The learned judge had considered and analysed what Yang said when he was interviewed by the police officers and what he said in evidence.  The learned judge found that his explanation was unbelievable, unreliable and untrue.
原審法官有考慮和分析楊家誠和警員會面時的說話及他作供時的證言。原審法官指出他的解釋不可信亦不可靠，更非事實。

The learned judge carefully set out the version of facts given by Yang and explained why his explanation was not convincing.
原審法官詳細列出楊家誠的說法，並指出為何他的解釋不具說服力。

The learned judge pointed out that when Yang was asked about what role he played in these deceptions, he answered that “Ah Hung” was the mastermind in these deceptions and that he and “Ah Man” came to Hong Kong to collect money on his instructions.  The learned judge stressed that in view of Madam Ko’s age, Yang could not possibly believe that the money received from her was gambling money for Mark Six or soccer matches, and that the way in which he collected the money was inconsistent with his story that the money was gambling money.
原審法官指出楊家誠被問及他在行騙案擔任的角色時，表示“阿鴻”在行騙案中擔任指揮，而他和“阿文”則按指揮來港收錢。原審法官強調，以高女士的年齡，楊家誠不可能認為她交的是六合彩或足球賭金，而他收錢的方式亦和錢是賭錢的說法不符。

The learned judge found that Yang knew what was really going on behind these money-collecting arrangements and was also aware of how the deceptions operated.  The learned judge found that the applicant was a voluntary participant in the deceptions, not someone who, ignorant of the truth of the matter, was made use of.  He therefore convicted Yang of all the 4 charges of conspiracy to defraud.
原審法官裁定楊家誠知道收錢背後的底蘊，亦知道案中騙局的運作。原審法官亦裁定申請人有自願參予騙局，而非遭他人利用的不知情者。因此原審法官裁定楊家誠四項串謀詐騙罪罪名全部成立。

Grounds of Appeal
上訴理由

Yang complained that the guilty verdicts were not supported by evidence and were the result of pure speculation.  He explained that the statement “[I] knew that the monies were proceeds from deceptions” which he uttered to the police officers was an honest statement, but that when he gave evidence, he had explained in detail how come he would utter this statement and everything that happened in relation to this statement.
楊家誠指原審法官的定罪決定沒有證據支持，全是憑空猜想導致。他表示向警員表示“知道金錢是詐騙所得”時，是誠實告知警察，但在自辯時，有對該說法的前因後果加以詳說。

Yang emphatically asked this question: “Would anyone who broke the law be so stupid as to confess his crime on his own initiative?” He said that if he had really known the truth, he would have pleaded guilty at the outset in order to obtain the one third discount on his sentence.
楊家誠強調，“犯罪者會笨到自己招供嗎”，而如他真的知情，他亦早已認罪以取得三分一之刑期扣減。

Yang submitted that no victim had ever asked him any question, therefore the argument —— he, being a character on the front line charged with the task of collecting money, necessarily knew what was going on, otherwise if any victim asked him anything about what happened, he would not know how to answer —— was not convincing.
楊家誠亦強調，受害人從沒有向他有任何提問，因此指他作為收錢的前線角色，一定知道過程，否則受害人查問時，他不知如何回答的說法不具說服力。

Discussion about conviction
討論定罪

The undisputed evidence showed that the deceptions practised on 3 out of the 4 victims were successful.  Judging from the modus operandi, it is certain that some people conspired together to take advantage of the victims’ concern for the safety of their sons to deceive them into giving them as much money as possible.
無爭議的證據顯示，四名受害人中有三名遭人成功詐騙，以犯案的手法及過程，必然是有人串謀，利用受害人擔心兒子安危而盡量詐騙他們金錢。

On each occasion, Yang was responsible for collecting money from the victim concerned.  The issue is that when he was playing his role as the money collector, did he know that the monies he was to collect were proceeds from the deceptions.  If he knew that the monies he was to collect were proceeds from the deceptions, then he certainly was a participant in the conspiracies.
楊家誠每次都負責向受害人拿取金錢。案件的爭議是扮演收錢的角色時，他是否知悉收取的錢是行騙所得。如他知悉收取的錢是行騙所得，他必然是串謀詐騙的一份子。

Yang claimed that he was misled into believing that the monies he was to collect were for placing bets on Mark Six and soccer matches.
楊家誠指遭人誤導，認為收取的錢是六合彩及足球的賭金。

Taking into account the identities of the victims and the way in which they handed over the money, we find that the case advanced by Yang is devoid of any force of persuasion.  By such a story, he can only delude himself.  Furthermore, when he was being interviewed, he clearly said he knew that the monies were proceeds from deceptions.
以受害人的身份及交錢的方法，楊家誠的說法根本不具任何說服力，更是自欺欺人。遭查問時，他更明確表示知道錢是詐騙所得。

Even if Yang did not make this confession, the only reasonable inference that can be drawn from the facts and the undisputed evidence of this case is that he was aware that the monies were proceeds from the deceptions.  This inference is of course strengthened by his confession.
即使楊家誠沒有作出上述招認，以案件的背景及無爭議的證據而言，唯一的合理推論是他知悉金錢是行騙所得。當然他的招認更強化了上述推論。

We do not see there is anything unsafe in convicting Yang of the conspiracy to defraud charges.  We dismiss his application for leave to appeal against conviction.
對楊家誠被裁定串謀詐騙罪罪名成立，本庭不覺有任何不穩妥之處，本庭駁回他就定罪提出的上訴許可申請。

Sentencing
判刑

Both applicants are residents of Taiwan and have no criminal record in Hong Kong.  However, both have a history of drug addiction.
兩名申請人都是台灣居民，在香港沒有犯罪記錄，但他們都曾有吸毒習慣。

When sentencing the applicants, the learned judge emphasized that the purpose of the swindlers was to swindle the victims out of their life savings by deceiving them into believing that they had to use their money in exchange for the safety of their sons.  They committed the crimes by playing a mean trick on the victims.  Such conduct was tantamount to blackmail and intense fear was stricken into the hearts of the victims.
原審法官判刑時強調，騙徒是要去騙取受害人的畢生血汗積蓄，以換取兒子的安全，而犯案手法卑劣，形同勒索，令受害人感到極度驚慌。

The learned judge considered that the crimes of the two applicants were more serious than street deceptions because the victims suffered greater agonies in the course of their crimes as a result of the threats they experienced.
原審法官認為兩名申請人的罪行較街頭騙案更為嚴重，原因是受害人在犯案過程中遭威嚇所受的痛苦更大。

The learned judge used 40 months as the starting point for each individual charge.  The two applicants accepted the evidence of the victims, so that the victims did not need to go to court to give evidence.  For this, the starting point was reduced to 38 months.
原審法官裁定就單項控罪量刑基準應為40個月，但因為兩名申請人同意受害人的證言，無需他們出庭作供，故原審法官將量刑基準下調至38個月。

The learned judge granted the application made by the prosecution and, by reason of the prevalence of the crimes, enhanced the sentences by 50% pursuant to the Organized and Serious Crimes Ordinance, arriving at the term of 57 months for each charge.
原審法官應控方的申請，以罪行普遍而根據《有組織及嚴重罪行條例》加刑50%，而得出每項控罪57個月的量刑基準。

As far as Yang is concerned, the learned judge pointed out that different victims were involved in charges 1, 3, 5 and 7 and the crimes occurred on different days.  Having considered the totality principle, he ordered that for each of the charges after the first charge, Yang was to be imprisoned for 8 months more.
就楊家誠而言，原審法官指出第1，3，5，7項控罪涉及不同受害人，亦是在不同日期發生。考慮到整體判刑，原審法官下令每多一項控罪，楊家誠要加服8個月的刑期。

Accordingly, Yang was sentenced to 81 months’ imprisonment in total, and Pan was 57 months.
因此原審法官判楊家誠共入獄81個月，而潘榮文則要入獄57個月。

Grounds of appeal against sentence
減刑理由

Yang asserted that he had, on his own initiative, provided information to the police to enable them to arrest other people who perpetrated these crimes.
楊家誠強調曾向警方主動提出線索，令他們能緝獲其他犯案人士。

Yang argued that any conspiracy necessarily meant that there was premeditated commission of offences and that in many commercial fraud cases large amounts of money were involved, but these factors did not lead to enhancement of the sentences.  Yang maintained that there was no evidence which showed that he was the person who threatened the victims, so this should not be the reason for giving him a heavy sentence.  Yang further submitted that the Government of Hong Kong should give a great deal of publicity to this kind of deception, so that the prevalence of these crimes could be checked, rather than severely punish people who did not know the truth for the wrongdoing of somebody else.  He also said there were similar cases in which the sentences passed were lighter than those he received.  For these reason, he asked for a chance to have his sentences reduced.
楊家誠亦指任何串謀案件都涉及有計劃犯案，而眾多的商業詐騙案涉及的金額都很大，但法庭都不會特別加刑。楊家誠力稱沒有證據證明是他恐嚇受害人，故不應以該理由重判他。楊家誠更認為香港政府應針對這類騙案作出廣泛宣傳，令這類罪行不致變得太猖獗，而非重判一些不知情者，令他們成為代罪羔羊。他亦指有同類案件的判刑較他的判刑為輕，因此要求法庭讓他有減刑機會。

As for Pan, he stressed that he just gave help by receiving some phone calls, and that because he wanted to do business, he was made use of.  He submitted that he had a clear record and gained no benefit in these activities, but that his sentence of 57 months was heavier than the sentences passed in similar cases.  Pan also pleaded for reduction of his sentence.
潘榮文亦強調他只是幫人接電話，為了做生意而遭人利用。他力稱自己沒有犯罪記錄，在事件亦沒有得益，但57個月的判刑則較其他同類案件為重。潘榮文亦要求獲得減刑。

Discussion about sentence
討論判刑

We agreed with the views held by the learned judge, i.e. the crimes committed by the two applicants are very serious.  They took advantage of the victims’ love towards their children and threatened them with the likelihood that harm would be done to their children.  The targets of these swindlers were members of the underprivileged class, and their purpose was to squeeze as much money out of them as possible.
本庭認同原審法官的立場，即兩名申請人干犯的罪行，非常嚴重。他們利用受害人愛護子女之心而以他們子女的安危恐嚇受害人。騙徒針對的對象亦是一些較弱勢的社群，目的更是盡量從他們身上取得金錢。

Even though it can be said that the amount of money which the swindlers ultimately obtained was less than that involved in other commercial fraud cases, the money could be the life savings of the victims built up through years of their hard work.
雖然騙徒最終取得的金錢和其他商業詐騙案相比，可屬較少，但卻可能是受害人畢生的血汗積蓄。

Both applicants were adamant that the roles they played in these crimes were not major ones and that they were made use of by somebody.  In any conspiracy case, the people participate in it have different roles to play.  They are like acting in a play.  Other people will never know what really went on backstage, but everyone of them does participate in the crime and not one of them can be dispensed with.  The fact that the roles played by the applicants were not major ones is not a mitigating factor.
兩名申請人都力稱自己在罪行所扮演的角色不重，更是遭人利用。在任何串謀犯罪案件，不同串謀者扮演的角色不同。由於他們都只是“做戲”，其確實角色，他人無從知悉。但他們都有參與罪行，其扮演的角色亦是缺一不可。申請人指自己扮演角色不重，並非減刑理由。

The crimes committed by the two applicants have done great harm to the victims and to the society as a whole.  Heavy sentence must be imposed to deter anyone from committing these crimes.  Yang’s claim that he was a scapegoat being punished for the wrongdoing of somebody else is simply incredible.
兩名申請人所犯的罪行，對個別受害人及社會整體都做成極大危害，必需重判，以收阻嚇作用。楊家誠指自己成為代罪羔羊，更屬指鹿為馬之說法。

None of the applicants is a local resident.  Their sole purpose of coming to Hong Kong was to commit the crimes.  If they had been successful, to track them down would have to surmount immense difficulties.  This factor warrants additional punishment for them.
兩名申請人都不是本地人，他們專程到港犯案，如他們成功，則偵破他們罪行更是困難重重。上述因素令兩名申請人的罪行罪加一等。

Information shows that telephone deceptions are prevalent and the number of these cases is on the increase.  The learned judge is justified and correct in granting the prosecution’s application and enhancing their sentences by 50% pursuant to the Organized and Serious Crimes Ordinance.
有資料顯示電話詐騙的罪行非常普遍，更有上升趨勢。原審法官應控方申請，根據《有組織及嚴重罪行條例》加刑50%，亦是有根據及正確的。

We endorse the learned judge’s conclusion that the telephone deceptions committed by the two applicants are more serious than the common street deceptions.  Usually the victims in the street deceptions fell prey to the evildoers because of their own greed, superstition or stupidity.  This kind of victims are not too many in number and since street deceptions are committed in public places, there can be eyewitnesses and so there will be more chances to crack these cases.  These two applicants deceived the victims by taking advantage of the victims’ concern for the safety of their sons.  There is an element of blackmail in their conduct.  People who are not greedy, superstitious or stupid might also be deceived.  The two applicants committed their crimes in such a way that the victims were overcome by fear, and by making the victims maintain telephone communication with them, they created formidable obstacles to any attempt to find out the truth.
本庭同意原審法官的立場，即兩名申請人所犯之電話詐騙案較一般的街頭詐騙案更為嚴重。街頭詐騙案的受害人多是因為貪婪、迷信或愚蠢而令壞人有機可乘。該類受害人數目不會太多而街頭詐騙因在公眾地方干犯，會有其他人士目睹而遭偵破的機會亦較大。兩名申請人是利用受害人對兒子安危的關注而詐騙他們，罪行有勒索成份，一些並非貪婪、迷信或愚蠢的人士亦極有可能受騙。兩名申請人的罪行會令受害人感到極度恐慌，而他們的犯罪手法，包括要受害人一直以電話和犯案者保持通話更令有關案件極難偵破。

In HKSAR v. Hung Yung Chun and another (CACC 453/2009), this court stated that the culpability in telephone deception cases was more serious than that in street deception cases, and that a higher starting point should be adopted.  In fact, it was held in that case that the starting point for telephone deception should be 4 years, which is higher than the 40 months used by the learned judge in this case.
本庭在香港特別行政區 訴 洪永俊及另一人（CACC 453/2009）案已認定電話騙案的罪責較街頭騙案更嚴重，應採納的量刑基準亦要更高。事實上，本庭在該案裁定電話騙案的量刑基準應為4年，較原審法官在本案所採納的40個月更高。

The court certainly should also take into account the totality principle.  In Hung Yung Chun, the percentage by which the court enhanced the sentences pursuant to the Organized and Serious Crimes Ordinance was only 30%, while the learned judge enhanced the sentence by 50%.  However, if the starting point is 4 years, then the sentence arrived at after enhancing it by one third is 64 months, which is more than the 60 months arrived at by the learned judge by adopting a 40 months’ starting point and then enhancing it by 50%.
當然，法庭亦要考慮整體判刑。在上述洪永俊案，法庭根據《有組織及嚴重罪行條例》加刑之幅度只是30%，而原審法官採納的加刑幅度是50%。但如以量刑基準四年, 即使是加刑三份之一，得出的刑期是64個月，較原審法官採納之40個月，加刑50% 後得出之60個月判刑更高。

The two applicants admitted most of the prosecution case so that the victims did not need to go to court to give evidence and was spared the agony of having to go through and bring up again their unhappy experiences.  The learned judge was correct in deducting 2 months from the starting point.
兩名申請人承認大部份控方案情，免卻受害人出庭作供，令他們無需回憶及重提不快往事。原審法官將量刑基準扣減兩個月是合適的。

Encouraged by his success in the deceptions, Yang broke the law 4 times within just a short period.  The learned judge was entitled to make him serve 8 more months for each charge other than the first one.
楊家誠食髓知味，在短期內4次犯案，原審法官有權每項額外控罪加刑8個月。

We find that the ultimate sentences imposed by the learned judge on the two applicants are appropriate and not manifestly excessive.  Therefore, there is no room for any reduction.  We dismiss the applicants’ application for leave to appeal against sentence.
本庭認為原審法官針對兩名申請人的最終判刑是恰當，而非明顯過重，故沒有扣減餘地。本庭亦駁回兩名申請人就判刑之上訴許可申請。

Ms. Lily Wong, Senior Public Prosecutor of the Department of Justice, for the Respondent.
答辯人：由律政司高級檢控官王詩麗代表。

The 1st Applicant, acting in person, present.
第一申請人：無律師代表，親自應訊。

The 2nd Applicant, acting in person, present.
第二申請人：無律師代表，親自應訊。