Hon Yeung VP (giving the reasons for judgment of the Court):
高等法院上訴法庭副庭長楊振權頒發上訴法庭判案理由書：

Background
背景

The applicant (Cen Huakuo) pleaded not guilty to one count of Conspiracy to Deal with Property Known or Believed to Represent Proceeds of an Indictable Offence, which is commonly known as the offence of “money laundering”, and was tried before District Judge Sham (trial judge).
申請人(岑‍華‍擴)被控一項“串謀處理已知道或相信為代表從可公訴罪行的得益的財產”罪，俗稱“洗黑錢”罪。他否認控罪，並在區域法院法官沈‍小‍民(原審法官)席前受審。

The applicant was convicted after trial and on 31 December 2013 was sentenced to 6 years’ imprisonment.
經審訊後，申請人被裁定罪名成立，並在2013 年 12 月 31 日被判監6 年。

The applicant, represented by Mr Bruce Tse, applied for leave to appeal against sentence.  After hearing, we granted leave to appeal and treated this application as the appeal proper.  We allowed the appeal and reduced his sentence from 6 years to 4 years.  The following are our reasons for judgment.
申請人不服判刑，由謝‍志‍浩‍大律師代表，提出申請，要求獲准就判刑上訴。經聆訊後，本庭批准上訴許可申請，並視其申請為正式上訴。本庭裁定申請人上訴得直，並將他的刑期由6 年減至4 年。以下是本庭的判案理由。

Prosecution case
控方案情

On 31 July 2013, the victim (an old lady surnamed Chan, aged 78) received a phone call from an unknown male in the afternoon.  The male said that her son had committed some offences of indecency, and told her to pay $250,000 in order to ensure the safety of her son.  Eventually, they agreed to reduce the amount to $50,000, and arranged to hand over the money at Fat Kwong Street Park.
受害人(一名78 歲的陳‍婆婆)在2013年 7 月 31 日下午接到不知名男子的來電，指她的兒子犯了一些淫褻罪行，要她支付25 萬元以確保她兒子的安全。最後雙方同意將金額減至5 萬元，並相約在佛光街公園交錢。

When Madam Chan knew that her son was safe, she informed the police.  As a result, she was arranged by the police to go to Fat Kwong Street Park to meet the culprit(s).  The applicant appeared at the scene.  He asked Madam Chan if she had brought along the money and told her that her son was being detained.  The applicant was able to tell the name of Madam Chan’s son, and he also handed a mobile phone to Madam Chan for her to talk to another person.  That person kept pressing Madam Chan over the phone and asked her why she had not brought along the money.  Thereafter, the applicant told Madam Chan not to leave the park, but he would leave first.  (Once he left,) he was arrested by the police officers who laid ambush in the vicinity.
陳婆婆知悉兒子安全後，知會警方，結果她被安排前往佛光街公園等候賊人。申請人在現場出現後問陳‍婆婆是否有帶錢，並向她表示其兒子遭人扣押。申請人能說出陳‍婆婆兒子的名字，並將手提電話交給陳‍婆婆和另一人通話。對方在電話不斷催促陳婆婆及問她為何仍沒有帶來金錢。其後申請人指示陳‍婆婆留在公園不要離開，而他則會先行離去，隨即遭在附近埋伏的警員拘捕。

The applicant is 18 years old, a mainlander of clear record.
申請人18 歲，內地人，無刑事犯罪記錄。

Trial judge’s reasons for sentence
原審法官的判刑理由

The trial judge indicated that the applicant was one of the culprits who took part in the phone deception, because when he demanded money from Madam Chan, he clearly stated that her son was being detained.  The trial judge considered that the applicant should be sentenced on the basis that he had taken part in the phone deception.
原審法官表示申請人有參與電話騙案，是賊人的一份子，原因是申請人向陳‍婆婆拿錢時，表明她的兒子給人扣押。原審法官認為應以申請人有份參與電話騙案來判刑。

The trial judge made reference to the approach advocated in HKSAR v Hung Yung Chun [2011] 2 HKLRD 167, and pointed out the following views of the Court of Appeal:
原審法官參照香港特別行政區訴洪‍永‍俊[2011] 2 HKLRD 167 案的處理方法，指出上訴法庭的以下立場:

(1)Phone deception cases are more serious than street deception cases and a higher sentence should be imposed because victims of phone deceptions believed that their children were being detained, so that they were under far greater fear and stress than those in street deception cases;
(一)電話騙案較街頭騙案更嚴重，量刑要更高，原因是電話騙案的受害人相信他們的子女被拘禁，他們受驚嚇程度和面對的壓力遠較街頭騙案為大;

(2)Just as in street deception cases, the victims would lose all or most of their life savings; and
(二)和街頭騙案一樣，受害人會失去畢生或大部分積蓄;及

(3)The appropriate starting point is 4 years’ imprisonment.  On enhancement, an enhancement of 1/3 will do for now.  However, should this type of cases become even more prevalent, the court may increase the rate of enhancement.
(三)恰當的量刑基準是4 年，如要加刑，幅度暫定為三分一，但如同類案件有變本加厲的跡象，法庭可將加刑幅度上調。

The trial judge placed emphasis on the fact that the applicant was not the only one involved in the crime, but there were other culprits taking part in the conspiracy to commit the offence.  Although what the applicant did was only to contact Madam Chan personally, the trial judge considered his role a crucial one because the scam would be very difficult to succeed were it not for the fact that he was willing to collect the money personally.
原審法官強調事件不只涉及申請人，更有其他賊人串謀去犯案。原審法官認為雖然申請人只是出面接觸陳‍婆婆，但其角色重要，原因是如非申請人願意出面收取騙款，賊人的騙局很難得逞。

The trial judge adopted 4 years’ imprisonment as the starting point, and because this type of offence has been on the rising trend since 2009 – it reached its peak in 2013 – and there are signs that it is becoming even more prevalent, he decided to enhance the sentence by 50% to 6 years, thus the applicant was sentenced to 6 years’ imprisonment.
原審法官以4 年作為量刑基準，並因為同類案件自2009 年有上升趨勢，更在2013 年達到高峰，有變本加厲的跡象，決定將刑期加長50%至6 年。因此原審法官判申請人入獄6 年。

Grounds of appeal
上訴理由

The major complaint of Mr Tse was that the trial judge was wrong to sentence the applicant on the basis of the underlying indictable offence.  Mr Tse emphasized that the applicant was convicted of “money laundering” rather than any underlying indictable offence.  He cited HKSAR v Chen Szu Ming（陳思銘）CACC 270/2005 and HKSAR v Xu Xia Li and Anor [2004]4 HKC 16 to support his view.
謝‍大律師的主要投訴是原審法官不應根據案中有關的可公訴罪行作出判刑。謝‍大律師強調申請人被定的是“洗黑錢”罪而非和案件有關的可公訴罪行。謝‍大律師援引HKSAR v Chen Szu Ming (陳‍思‍銘) CACC 270/2005，HKSAR v Xu Xia Li and Anor [2004]4 HKC 16 等案支持其立場。

Discussion
討論

All the defendants in the cases cited by Mr Tse relied on their ignorance of the indictable offence underlying the offence of “money laundering” as a mitigating factor.  However, the position taken by the Court of Appeal was that their ignorance of the indictable offence could not be treated as a mitigating factor, because they were sentenced on the offence of “money laundering” and not the underlying indictable offence in connection with “money laundering”.
謝‍大律師援引的案例的被告人都以他們對“洗黑錢”罪行背後所涉的可公訴罪行不知情，為求情理由。上訴法庭的立場是他們對有關的可公訴罪行不知情並非求情理由，原因是他們是因為“洗黑錢”罪行而非和“洗黑錢”罪行有關的潛在可公訴罪行被判刑。

A defendant must be sentenced on the offence of which he is convicted.  However, when considering the appropriate sentence, the Court may of course take into account the overall circumstances of the case in so far as they are related to the defendant’s culpability.  Mr Tse has no objection to that, and Chen Szu Ming mentioned above supports this approach.  At paragraph 16 of the judgment, the Court of Appeal said:
被告人的判刑必須根據他被定罪的控罪作出，但作出判刑時，法庭當然可以考慮和被告人罪責有關的整體背景來作出適當判刑，對此，謝‍大律師不表異議，上述陳‍思‍銘 案亦支持以上處理方法，在判案書第16 段，上訴法庭指出:

The trial judge’s reference to the approach adopted in Hung Yung Chun when he sentenced the applicant may be nothing more than an indication that he considered that he should take account of the objective circumstantial factors affecting the defendant’s culpability.  His approach may not necessarily be improper.
原審法官判刑時，參照洪‍永‍俊 案的處理方法可能只反映他認為要將和被告人罪責有關的客觀環境考慮在內。原審法官的做法並非一定不妥。

However, we cannot ignore the fact that the defendants of Hung Yung Chun pleaded guilty to the charge of conspiracy to defraud, and the facts they admitted showed that they had actively taken part in the phone deceptions, so they could not say that they knew nothing about the phone deceptions involved in that case.  The defendants of Hung Yung Chun were sentenced on the basis that they took part in the acts of deception in connection with the case and that they knew about that.  At paragraphs 13 and 14 of the judgment, the Court of Appeal gave a clear exposition of this stance:
但本庭不能忽視洪‍永‍俊 案的被告人承認串謀詐騙罪，而其承認的案情顯示他們有積極參與有關的“電話騙案”，因此他們不能表示對涉案電話騙案不知情。洪‍永‍俊 案的判刑是建基在被告人有份參與案件所涉的詐騙行為及對事件知情的。上訴法庭在判案書第13、14 段表明上述立場:

“13.… 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.
“13…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。

14.Both applicants claimed that before their arrest, they knew nothing at all about the phone deception cases. This claim is in contradiction with their guilty pleas to conspiracy to defraud and is to be rejected. Moreover, both of them had come to Hong Kong on many occasions to take part in those acts of deception. The 2nd Applicant even witnessed the arrest of her co-conspirator … when committing Charge 5. Therefore their professed ignorance of the crime committed by their co-conspirators is not to be believed at all.”
14.兩名申請人均聲稱自己在被捕前，對涉案電話騙案毫不知情。此等說法與他們承認串謀詐騙罪的答辯相悖，不能接納;加上他們均曾多次來港參與該等詐騙行為，第二申請人更在干犯第五項控罪時目睹同謀…落網，故他們對同謀者之犯罪行為不知情的說法絕不可信。”

The sentences passed in of 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10 萬元。亦因為上述因素，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 and 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 unfavorable 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 culprits 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。

Mr Eddie Sean, Senior Assistant Director of Public Prosecutions for the respondent, agreed that the trial judge should not have used phone deception as the basis for sentencing.  However, he stressed that as far as “money laundering” offences are concerned, there were many aggravating factors in the present case, such as, the applicant knew that the underlying offence was phone deception, he was from the Mainland and the offence was committed by an organized criminal gang etc.  Mr Sean emphasized that many of the aggravating factors set out in HKSAR v Boma [2012] 2 HKLRD 33 could be identified in the present case.  He was of the view that the trial judge was right in adopting 4 years as the starting point.
代表答辯人的高級助理刑事檢控專員單‍偉‍琛同意原審法官不應以電話騙案作為判刑的基礎，但強調以“洗黑錢”案件而言，本案亦有甚多加重罪責因素，包括申請人知悉背後罪行是電話騙案、申請人來自內地及案件是由有組織犯罪集團犯案等。單‍專‍員強調本案具HKSAR v Boma [2012] 2 HKLRD 33案列出的多項加重罪責因素。單‍專員認為原審法官採納的4 年量刑基準是正確的。

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 of 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 unfavorable 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。

“Money laundering” is a serious offence, and worse still, the applicant came from the Mainland to commit crime here.  Although the young applicant is only 18 years old and has no criminal record, he cannot expect leniency from the Court.  The “black money” involved was derived from phone deception and the applicant knew the source of the “black money”.  All these constitute aggravating factors (see Secretary for Justice v Lau Man Ying [2012] 4 HKLRD 429 and Xu Xia Li).
“洗黑錢”是嚴重罪行，而申請人更是內地人士來港犯案。雖然申請人年輕，只有18 歲，沒有刑事犯案記錄，但他亦不能期望法庭會輕判。涉案的“黑錢”源自電話騙案，而申請人亦知悉“黑錢”的來源，這些都構成加重罪責因素(見律政司司長訴劉‍文‍英[2012] 4 HKLRD 429及Xu Xia Li等案)。

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，本庭認為適當的量刑基準為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。

The total sentence of the applicant should be 4 years’ imprisonment.  Accordingly, we grant the applicant’s application for leave to appeal and, treating his application as the appeal proper, allow the applicant’s appeal and reduce his term of imprisonment from 6 years to 4 years.
申請人的總刑期應為4 年監禁。因此，本庭批准申請人就判刑提出的上訴許可申請，並視其申請為正式上訴。本庭裁定申請人上訴得直，並將其刑期由6 年減至4 年。

Bruce Tse, instructed by Messrs Patrick Mak & Tse and assigned by the Legal Aid Department, for the applicant
答辯人：由律政司高級助理刑事檢控專員單偉琛代表。

Eddie Sean, Senior Assistant Director of Public Prosecutions, for the respondent
申請人：由法律援助署委派麥家榮律師行轉聘大律師謝‍志‍浩代表。