HKSAR v. Vignesh Ramadoss
Read the full judgment text of DCCC 293/2016 on BabelCite. This District Court judgment.
1. The Defendant has been convicted after trial ofone countof conspiracy to deal with property known or believed to represent the proceeds of an indictable offence, contrary to section 25(1) and (3) of the Organized and Serious Crimes Ordinance, Chapter 455 and Sections 159A and 159C of the Crimes Ordinance, Cap. 200.
Cites 4 cases
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DCCC 293/2016 IN THE DISTRICT COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION CRIMINAL CASE NO 293 OF 2016 -----------------
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------------------------------------------- REASONS FOR SENTENCE ------------------------------------------- 1.The Defendant has been convicted after trial ofone countof conspiracy to deal with property known or believed to represent the proceeds of an indictable offence, contrary to section 25(1) and (3) of the Organized and Serious Crimes Ordinance, Chapter 455 and Sections 159A and 159C of the Crimes Ordinance, Cap. 200. 2.Full particulars of the offence are set out in my verdict delivered on 12 September, 2016. Briefly, a limited company called Aurdin Ltd. was incorporated on 23 January, 2014 and it is still in operation – Nominee Secretarial Ltd. provided company secretarial services for Aurdin Ltd. It resigned as the company secretary on 23 January, 2015. The first director was Sathiya Nesan Lenin Singh. He was to come to Hong Kong to set up the bank accounts for the company. Instead he informed PW1 Ms. Chung Kwai-fong by e-mail that he was unable to come – he would transfer his shares to a friend and the friend would also replace him as the director of Aurdin Ltd. He sent her by e-mail the copy of his friend’s passport – this was the copy of the Defendant’s passport, Exhibit P7 which the Defendant had showed to PW1 and PW2 when the Defendant attended at their offices – as well as his friend’s e-mail address. She sent him the form D2A, Exhibit P5, which was the form for notification of change of secretary and director (Appointment/Cessation) for him to read and complete. He signed on it, and the form was brought back to her at her office on 13 February, 2014 by another Indian male who had accompanied the Defendant to her office that day and he was introduced to her as the manager of the Defendant. The Defendant had come to Hong Kong on 12 February, 2014. The Defendant signed on page 2 of Exhibit P5 in her presence after she explained the document to him in English – he had no difficulties understanding her. He also signed the transfer of shares document in her presence. The next day 14 February, 2014, she and her colleague went with the Defendant and the other Indian male to HSBC where she had made an appointment with the bank for the setting up of the bank account for Aurdin Ltd., of which the Defendant was the sole director. At the bank, the Defendant filled in the application form to open the bank account and he was the sole signatory of the account. The form signed by the Defendant was exhibited as TWP 1 to TWP 19 to the banker’s affirmation, Exhibit P1. The bank account of Aurdin Ltd. also had internet banking facilities. The bank account was also activated and funds put into the bank account via the ATM machine. The Defendant left Hong Kong later the same day, i.e. 14 February, 2014, and did not return to Hong Kong again until the day of his arrest when he entered Hong Kong from Macau on 2 December, 2015. The bank account was closed by HSBC on 18 July, 2014 for administrative reasons. Whilst the bank account was active, deposits into the account were made from various countries and withdrawals were made from the account soon after the deposits were received, and sent to recipients in various countries by internet banking or telegraphic transfers. The total deposits into the bank account between 14 February and 18 July, 2014 was HK$48,839.27, US$722,771.77 and Euros 38,110.17, which is about HK$6.02 million. There was a total of 28 deposit transactions and 105 withdrawal transactions in the period set out in the particulars of the charge. Of the deposits, two were identified to have been made by victims of an investment fraud. It was not disputed by the Defence that the sums that had been deposited into the account amounted to ‘property’ and held in the account and that these in whole or in part directly or indirectly represented any person’s proceeds of an indictable offence and that this property was dealt with through the bank account. 3.I was satisfied beyond all reasonable doubt that in opening the bank account and passing control of that bank account to a third party the Defendant had reasonable grounds to believe that the account would be used to deal with the proceeds of an indictable offence. His involvement in the conspiracy was to facilitate the opening of the bank account. There is no direct evidence that the Defendant was aware of the exact nature of the criminal offences by which or through which the money was obtained that was transferred to the bank account of Aurdin Ltd. 4.At the request of Defence Counsel, mitigation was adjourned until yesterday to allow him time to prepare mitigation. Mr. Beel had filed his mitigation in writing. Mr Beel has made full and thorough mitigation on behalf of the Defendant. I have taken all that he has had to say into account when deciding what is the most appropriate sentence to pass. Previous Convictions 5.The Defendant has a clear record. Mitigation 6.In his testimony, the Defendant did give evidence as to his background. He was born in India and is now aged 28 years. He is an Indian national. He had received education in India up to the 10th standard in the Tamil medium, after which he did a one-year diploma course in electrical engineering. He had also studied English but only for 2 years. He is single. His family is in India. In India he worked for his father at his father’s coffee stall as well as in his maternal uncle’s vegetarian restaurant. He has also worked in Singapore and Malaysia. He had entered Hong Kong from Macau in December, 2015 and planned to return to Macau to extend his visa to stay in Macau until his work visa for working in Macau was approved. 7.Mr. Beel submitted in mitigation that the Defendant’s involvement in the conspiracy was to facilitate the opening of the bank account. He was not involved in the control of the account once it was opened or of the money deposited into the bank account nor was he involved in the predicated offences by which the money was obtained. It was submitted that although his role in the offence was significant, in relation to those actually responsible for the predicated offence and the disposal of the sums of money deposited into the account, he played a relatively minor role in the conspiracy. Sentence 8.Money laundering is a serious offence for which deterrent sentences are required not only to punish the defendants but also to deter others from behaving in this way. It is not wrong in principle to impose an immediate custodial sentence on a first offender (see HKSAR v HUI Kam [2000] 3 HKLRD 211). There are no guidelines for offences of this nature, the reason for this being that the circumstances of each case may vary almost infinitely. There is a general recognition that sentences must be custodial and must be substantial to deter others. The sentences must also reflect public and commercial concerns about the use of bank accounts to launder funds derived from criminal enterprises. The fact that the victims were being asked to pay money into bank accounts adds a veneer of legitimacy to the underlying scam and serves to reassure the victims. Anybody who attaches himself to an international fraudulent scheme must expect to be dealt with severely if he is caught. 9.As to the seriousness of the offence and the need for deterrence the Court of Appeal in HKSAR v XU Xia-li & another, CACC 395/2003, said,
10.In the case of HKSAR v. Hsu Yu Yi, [2010] 5 HKLRD 345, referred to by Mr. Beel, the Court of Appeal discussed the factors to be taken into consideration when sentencing money laundering cases. The Court of Appeal held:
10. In the later case of HKSAR v Boma Amaso,CACC335/2010. Stock VP, in giving the judgment of the Court of Appeal, said:
11.Stock VP went on to identify some of the significant features for which the court should look and take into account although it was not possible to produce an exhaustive list, set out in paragraph 40 of his judgment, and include the amount of money laundered, the nature of the indictable offence involved and whether the defendant is aware of it, role of the defendant, whether international dimension and organized crime syndicate are involved, duration of the laundering and the degree of planning and sophistication. 12.The Court of Appeal stressed that the paramount objective in sentencing is deterrence. Guidance for the appropriate sentence can be adduced from reviewing sentences passed in previous cases. 13.In passing sentence I take into account everything said on behalf of the Defendant by Counsel. Whether or not the Defendant received a reward and the size of it is insignificant as a sentencing factor for the reality is that the offence of money laundering is very serious (see HKSAR v CHEN Szu-ming, CACC 270/2005 at paragraph 23). 14.In my view this was a carefully planned operation with a very clear international dimension, all the remittances to the bank account having come from overseas. The opening up of bank account to facilitate the moving of the funds make the detection of the crime all the more difficult. In a short period of time, over HK$6 million was dealt with through the bank account of which the Defendant was the sole signatory. Two of the deposits into the bank account were identified to be the proceeds of an investment fraud. However, there is no evidence that the offences were committed by the Defendant on behalf of an organized criminal syndicate. 15.There is no direct evidence that the Defendant played a part in the fraudulent scheme itself which harvested the illicit funds or played any part in the disbursement of the illicit funds from the bank account but he was an essential cog in the processing of the money, although I would not describe his role as being very sophisticated. He was the sole director and signatory of Aurdin Ltd., and he opened the bank account of the company through which the illicit funds were channeled. Almost immediately after receipt, almost the entire sum was transferred to other accounts on each occasion. Certainly once the offence came to light, the Defendant’s part in it would also come to light. 16.The maximum penalty for the present offence under Section 25(1) is one of 14 years’ imprisonent and a fine of $5 million. The maximum sentence is the same for a conspiracy to commit the offence. Deterrence is also of paramount importance. The nature of the predicate offence is one of fraud, for which the maximum sentence is 14 years’ imprisonment. 17.The Defendant has been convicted after trial, and he has shown little remorse. The only appropriate sentence must be a custodial sentence. Taking into account the role played by the Defendant and all the circumstances of the offence as well as the personal circumstances of the Defendant, the Defendant is sentenced to 3 years’ imprisonment.
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Cases cited in this judgment
Further hearings and rulings under DCCC 293/2016