Hon Chu JA giving the judgment of the Court:
由上訴法庭法官朱芬齡頒發上訴法庭判案書：

The applicant pleaded guilty to four charges in the District Court. The first and fourth charges were conspiracy to deal with property known or believed to represent proceeds of an indictable offence (commonly known as “money laundering”), contrary to section 25(1) and (3) of the Organized and Serious Crimes Ordinance, Cap. 455 and sections 159A and 159C of the Crimes Ordinance, Cap. 200, Laws of Hong Kong. The second and third charges were 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, Laws of Hong Kong.
上訴人在區域法院承認4項罪名。第一及第四項控罪是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(俗稱「洗黑錢」)，違反香港法例第455 章《有組織及嚴重罪行條例》第25（1）和（3）條，以及第200章《刑事罪行條例》第159A和159C條。第二及第三項控罪是處理已知道或相信為代表從可公訴罪行的得益的財產，違反香港法例第455章《有組織及嚴重罪行條例》第25（1）和（3）條。

On 28 December 2010, District Judge S.T. Poon, Acting Chief Judge of the District Court, sentenced the applicant to 42 months’ imprisonment on each charge, and ordered that 6 months of the sentence imposed on the fourth charge to be served consecutively with that on the third charge, the remainder to be served concurrently, i.e. making a total of 4 years’ imprisonment.
2010年12月28日，署理區域法院首席法官潘兆童判處上訴人每項控罪接受42個月監禁，第四項控罪的刑期其中6個月與第三項刑期分期執行，其餘刑期同期執行，即總刑期是4年監禁。

The applicant applied for leave to appeal against sentence. With no objection from the respondent, Yeung JA granted his application for leave to appeal on 15 April 2011.
上訴人就判刑提出上訴許可申請。在答辯人不反對的情況下，楊振權法官在2011年4月15日批准上訴許可申請。

Facts of the case
涉案的案情

The four charges of the present case took place on 8, 9, 10 and 11 June 2010 respectively. The four victims concerned respectively received phone calls from unknown caller(s) who falsely represented to them that their family members were assaulted and detained as they owed money acting as guarantors for others. (The caller(s)) demanded money from them to repay the debts as a condition of their family members’ release. They were also instructed to deliver the money to designated locations for collection. The amounts in respect of the four charges are $200,000, $30,000, $20,000, and $60,000 respectively. As a matter of fact, family members of the victims were not indebted to others or detained.
本案的4項罪行分別發生在2010年6月8、9、10和11日。所涉的4名受害人分別收到來歷不明的電話，訛稱他們的親人因為充當擔保人欠下債務而遭到毆打和扣押，要求他們代為償還債項作為釋放其親人的條件，並指示他們把款項送到指定地方交收。4項控罪所涉的款項分別是200,000元，30,000元，20,000元和60,000元。事實上受害人的親人既沒有欠債，亦沒有遭人扣押。

When the victim of the fourth charge put an envelope containing $60,000 at the designated location as instructed, the applicant went to pick it up. He was later arrested by the police. In the cautioned interview, the applicant admitted that a man named Wai Gor (transliteration) asked him to come and work in Hong Kong. (He) also gave him $1,000 for his expenses and promised to give him 15% of the profit made as reward. He came to Hong Kong from Shenzhen on 7 June 2010. On the same day, and the following three days, he collected money at different locations acting on the phone instructions given by an unknown man. On 9 and 10 June 2010, he successfully collected $30,000 and $20,000 and remitted the amounts to an account in the Mainland. He had yet to receive his 15% reward when he was arrested.
當第四項控罪的受害人按指示把載有60,000元的信封放在指定地點後，上訴人前去拿起信封。他之後被警方拘捕。在警誡下進行的會面中，上訴人承認一名叫偉哥的男子叫他到香港工作，及給了他1,000元作開銷，並答應給他15%的利潤作為酬金。他在2010年6月7 日從深圳到達香港。在同日及其後的三天內，他根據一名不知名男子的電話指示，前往不同地方拿取金錢。他在2010 年6月9日和10日成功拿到30,000元和20,000元，並將款項滙到內地一個戶口。他在被捕時尚未收到他的15%酬金。

The $200,000 and $60,000 in the first and fourth charges were not lost. However, the $30,000 and $20,000 in respect of the second and third charges could not be recovered.
第一項和四項控罪所涉的200,000元和60,000元並沒有失去，但第二項和三項控罪所涉的30,000元和20,000 元則不能尋回。

Sentence imposed by the trial judge
原審法官的判刑

The applicant was aged 25 years, a Mainland resident, who came to Hong Kong on a two-way permit. He claimed that his father suffered from disability in both legs and lost his ability to work. He committed the offences as he wanted to relieve the family’s burden.
上訴人25歲，是內地居民，持雙程證來香港。他稱父親雙腿殘廢，沒有工作能力，他為了想減輕家庭負擔而犯案。

The trial judge took the view that though the applicant’s role was limited to that of a “legman”, a deterrent sentence should still be imposed. He adopted a starting point of 4 years’ imprisonment on each charge, reduced it to 32 months’ imprisonment on account of the applicant’s plea of guilty, then enhanced it by one-third, i.e. 10 months, upon the application of the prosecution pursuant to the Organized and Serious Crimes Ordinance, resulting in 42 months’ imprisonment on each charge. Besides, the trial judge ordered that 6 months of the sentence imposed on the fourth charge to be served consecutively with that on the third charge, the remainder to be served concurrently, making a total of 4 years’ imprisonment.
原審法官認為雖然上訴人只是扮演「跑腿」的角色，仍須判以阻嚇式的刑罰。他採用4年監禁作為每項控罪的量刑起點，因上訴人認罪減為32個月監禁，但應控方申請，根據《有組織及嚴重罪行條例》加刑三分之一，即10 個月，故此每項控罪判刑42個月監禁。此外，原審法官頒令第四項控罪的刑期其中6個月與第三項控罪的刑期分期執行，其餘刑期同期執行，總刑期為4年監禁。

Grounds of appeal
上訴理由

The applicant submitted that the sentences imposed were manifestly excessive. His grounds of appeal included: (1) he did not know the source of the money collected nor was there evidence in the case to show that he was aware of it; and (2) it was inappropriate for the trial judge to refer to HKSAR v Hung Yung Chun [2011] 2 HKLRD 167, because the charge therein was conspiracy to defraud, and the judge in that case did not accept the defendant’s claim that he had no knowledge. At the same time, the applicant referred the Court to HKSAR v Lam Chun Chung (transliteration), DCCC 1007/2010, arguing that the two cases were similar and the Court could make reference to the sentence imposed in that case.
上訴人指判刑過重。他的上訴理由包括：（1） 他不知道拿取的款項的來源，而案中亦沒有證據顯示他對此是知情的；以及（2）原審法官引用香港特別行政區訴洪永俊[2011] 2 HKLRD 167不恰當，因為該案是一宗串謀詐騙罪，而且案中法官並不接納被告是不知情的說法。上訴人同時援引香港特別行政區訴林俊忠DCCC 1007/2010一案，認為兩案情況相若，本庭可參考該案的刑期。

Discussion
討論

In Secretary for Justice v Wan Kwok Keung, CAAR 13/2010, this Court pointed out that “money laundering” was a serious offence. Generally, the sentence should mainly reflect the amount of “black money” laundered and not the benefit obtained by the defendant or others. Other factors relevant to sentencing included the number of offences, the duration, the degree to which the defendant participated in the offence involving “black money” and whether or not it was an organized and sophisticated crime etc. See paragraphs 12 to 14 of the judgment.
在律政司司長訴雲國強CAAR 13/2010案中，本庭指出「洗黑錢」是嚴重罪行，一般而言判刑應主要反映清洗「黑錢」的數額，而非被告人或其他人的得益；而其他與判刑有關的因素包括犯案的次數和時間的長短、被告人參與和「黑錢」有關的罪行的程度、罪行是否有組織和是否精密等：見判案書第12至14段。

In Wan Kwok Keung, the defendant pleaded guilty to one charge of “money laundering” and one charge of bookmaking. The “black money’ involved in the case was from bets placed on illegal soccer gambling. The defendant had participated in “money laundering” for 7 years, and the amount involved was 14 million dollars. At the same time, he also participated in the bookmaking offence. On the other hand, the bookmaking offence was not well-organized, the money the defendant obtained was not huge either. The Court was of the view that the appropriate starting point adopted should not be lower than 4 years’ imprisonment even if the defendant was to be dealt with in a way most favourable to him.
在雲國強案，被告人承認一項「洗黑錢」罪和一項收受賭注罪。案中的「黑錢」源自非法收受足球博彩賭注。被告人參予「洗黑錢」7年，所涉金額達1,400 萬元，他同時亦有參予收受賭注的罪行。另一方面，該等收受賭注的罪行的組織並不嚴密，被告人取得的金額亦非巨大。法庭認為即使以對被告人最有利的方法處理，適用的量刑基準亦不應低過4年。

Concerning the “money laundering” offence, the defendant was sentenced to 2 years and 6 months’ imprisonment, to be served concurrently with the 2 months’ imprisonment imposed on the other charge of bookmaking.
就「洗黑錢」罪，被告人被判以2年6個月的監禁，判刑與另一項收受賭注罪的2個月刑期同期執行。

In the present case, the total amount involved was $310,000, and the four charges took place within a very short period of time. There was no evidence to show that the applicant participated directly in the offences in connection with the “black money”, nor was there evidence to prove the benefit he obtained. The respondent agreed that under such circumstances a starting point of 4 years’ imprisonment on each charge adopted by the trial judge was manifestly excessive; and took the view that 3 years’ imprisonment should be adopted as the starting point.
在本案中，所涉金額共310,000元，4項控罪在很短的時間內發生，並沒有證據顯示上訴人直接參予和「黑錢」有關的罪行，亦沒有證據證明他得到多少利益。答辯人同意在這些情況下，原審法官採用4年作為每項控罪的量刑起點是過重，及認為應採用3年作為量刑起點。

The Court took the view that judging from the amount of “black money” and the other circumstances in the present case, the appropriate starting point for each charge should be 3 years’ imprisonment. The applicant could be given one-third discount for his plea of guilty, the sentence was thus reduced to 24 months’ imprisonment. However, the sentence on each charge should be enhanced by one-third, i.e. 8 months, pursuant to the Organized and Serious Crimes Ordinance. Consequently, the sentence on each charge was 32 months’ imprisonment. Given the four charges involved four different kinds of crimes, part of the sentences should be served consecutively. Having considered the totality principle, the Court ordered that 6 months of the sentence imposed on the fourth charge to be served consecutively with that on the third charge. The total sentence imposed on the applicant is 38 months’ imprisonment.
本庭認為以本案所涉的「黑錢」的數額和其他情況看來，每項控罪的合適量刑起點是3年。上訴人承認控罪可獲三分一扣減而成為24個月，但根據《有組織及嚴重罪行條例》，每項控罪的刑期應加刑三分之一，即8個月。因此每項控罪的刑期是32個月。有鑑於4項控罪涉及4 項不同的罪行，部份刑期應分期執行。在顧及總刑期的原則下，本庭把第四項控罪的刑期其中6個月，與第三項控罪分期執行。上訴人的總刑期是38個月。

Conclusion
總結

The Court allowed the applicant’s appeal against sentence, substituted a term of 32 months’ imprisonment in relation to each charge; and ordered that 6 months of the sentence imposed on the fourth charge to be served consecutively with that on the third charge, and the remainder to be served concurrently, making a total of 38 months’ imprisonment.
本庭批准上訴人就判刑提出的上訴，把判刑改為每項控罪判以32個月監禁；第四項控罪刑期中的6個月與第三項控罪的刑期分期執行，而其餘刑期同期執行，總刑期是38個月。

The Applicant, in person, present
上訴人：無律師代表，親自出庭

Mr. Eddie Sean, Senior Assistant Director of Public Prosecution of the Department of Justice, for the Respondent
答辯人：由律政司高級助理刑事檢控專員單偉琛代表