HKSAR v. Wong Che Wing (also known as Wong Wing)

DCCC 347/2016

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 347 OF 2016

____________

____________

REASONS FOR SENTENCE

1.The defendant pleaded guilty to 1 charge of "Conspiracy to exercise control, direction or influence over other persons for the purpose of or with a view to those persons' prostitution" (Charge 1); 1 charge of "Living on earnings of prostitution of others" (Charge 2); and 1 charge of "Conspiracy to deal with property known or believed to represent proceeds of an indictable offence" (Charge 3).

Summary of Facts

Charges 1 & 2

2.On 31 August 2015, PC 8549 (PW1) posed as a customer seeking sexual services through "WeChat", a mobile phone application.  About 6:35 pm, PW1 was instructed by someone of the username "6313" to go to Room 206 of Imperial Hotel in Tsim Sha Tsui ("the Hotel").

3.PW1 soon arrived at Room 206 and rang the doorbell.  A mainland female named ZHANG opened the door and offered to provide sexual services to PW1 in the room at the price of $750.  PW1 agreed.  After taking a shower together, PW1 gave ZHANG 2 marked $500 banknotes, made up an excuse and left the room.

4.Between 26 August and 1 September 2015, PC 13012 was deployed to monitor the CCTV at the Hotel.  He saw the defendant going in and out of 2 to 8 guest rooms each day.  On some days, the defendant visited the same guest room multiple times (from twice to 6 times).  A detailed breakdown of those visits is set out at paragraph 5 of the Amended Summary of Fact.

5.On 1 September 2015, the defendant was seen entering the Hotel around noon.  He left around 1:00 pm and was intercepted by DSPC 33460 (PW2) on the street.  Upon search, PW2 found the following items in the defendant's shoulder bag :-

(i) Hong Kong currency cash in the sum of $33,720 (including one of the 2 marked $500 banknotes given to ZHANG by PW1) and RMB cash in the sum of ¥3,875;

(ii) 2 Chinese Two-way Permits and 1 Chinese Passport belonging to 3 mainland females respectively;

(iii) a receipt issued by Dai Chung Wah Renminbi Exchange Shop ("Dai Chung Wah") dated 31 August 2015 in respect of a remittance to an account with China Construction Bank ("CCB") in the mainland;

(iv) 4 guest bills of the Hotel; and

(v) a notebook with handwritten accounting records.

6.PW2 arrested the defendant.  Under caution, he admitted that he was working for someone by collecting commission money from and delivering towels to prostitutes.

7.In his video recorded interview, the defendant admitted in details as to his role in the prostitution syndicate.  In gist, he claimed that he started his job in February 2015 and worked alone.  He arranged for prostitutes to stay in the guest rooms of the Hotel; delivered towels, condoms, mouthwash and lubricants to them; and collected commission money from them.  Through WeChat, his boss (under the username "6313") would on a daily basis tell him to collect commission money from the prostitutes.  The defendant would keep $500 as his daily wage, and remit the rest to a designated bank account in the mainland.  The travel documents found in his shoulder bag belonged to 3 prostitutes, who surrendered their travel documents to the defendant upon arriving at Hong Kong.

Charge 3

8.The 2 proprietors of Dai Chung Wah confirmed that the defendant was their customer. They were required to record the customer's personal particulars if the remittance amount was over HK$8,000.  According to their records, between 22 March and 31 August 2015, the defendant had on 59 occasions remitted a total sum of HK$1,441,073 to the same CCB bank account held in the name of TSE Oi-ling.  The remittances ranged from HK$8,202 to HK$54,552.  Their details are set out at paragraph 7 of the Amended Summary of Fact.

Mitigation & Sentence

9.The defendant is now 62 and married. He has 14 conviction records, the majority of which are drug-related offences. Defence counsel Mr. CHENG informed me that the defendant's wife is a mainland resident. She was expected to finalize her One-way Permit application on 20 October 2016, which required the defendant's presence. But now, her application cannot be processed any further. Mr. CHENG also informed me that the defendant did not commit any more drug-related offences after he was sent to a Drug Addiction Treatment Centre in June 2005.

10.In mitigation, Mr. CHENG submitted that in December 2014, the defendant's wife sustained a hip injury at home. As a result, the defendant borrowed a total sum of RMB15,000 from friends and relatives to fund his wife's operation. In order to repay his loans, the defendant made a wrong decision by taking up his illegal job in the present case. Mr. CHENG further submitted that with his background and minimal education[1], it was not easy for the defendant to find a proper job.

11.The defendant has a long history of criminal convictions (dating back to 1974 when he was only 20). He performed the illegal tasks in the present case for about 6 months. The syndicate occupied 2 to 8 guest rooms per day, and the total sum remitted to the CCB bank account was about HK$1.4 million. I have every reason to consider it a medium-sized operation at least.

12.Time after time, the court has expressed in very clear terms that being in financial difficultyis no mitigating factor for committing a crime, even if a close family member was sick and in need of money for medical purpose. Being a released prisoner, the defendant must have known how to seek help. There must have been proper ways for him to raise funds for his wife's operation.

13.There are no tariffs for the offences in Charges 1 and 2. Prosecuting counsel Ms. YAM has submitted a few cases on sentencing[2] for my reference.

Charges 1 and 2

14.There is no evidence showing how much control the defendant had exerted over the prostitutes (in particular, their liberty). It appears that he was performing more or less the tasks of an errand boy. There is also no evidence suggesting that any of the prostitutes were underage or unwilling. Furthermore, they seemed to have entered Hong Kong on the strength of proper travel documents[3]. In my view, the appropriate starting point for each charge is 15 months' imprisonment. With the guilty pleas, the sentence is reduced to 10 months each. Apart from this, I see no other mitigating factors which warrant any further reduction. I sentence the defendant to 10 months' imprisonment for each charge.

Charge 3

15.The Court of Appeal in SJ v WAN Kwok Keung [2012] 1 HKLRD 201 held:

"Money laundering" is a serious offence for not only does it encourage criminal activities indirectly, but also attempt to legitimize the proceeds of crime. In order to crack down on serious crimes, to prevent offenders from getting financial gains, it is necessary to deter the commission of the "money laundering" offences.

Generally, the sentence for "money laundering" offences should mainly reflect the amount of "black money" laundered and not the benefit obtained by the defendant or others. The reason being that it is very difficult to prove the benefit concerned, and in most "money laundering" cases, there may not be evidence to show from what indictable offence the "black money" are in fact derived. Of course, if there is information to prove that the "black money" is originated from serious crimes, including drug trafficking, kidnap and blackmail, illegal human trafficking, other organized crimes, etc. or the defendant's benefit is huge, then the sentence should be adjusted upward.[4]

16.In determining the proper starting point, I have reminded myself of the sentencing principles laid down in HKSAR v HSU Yu Yi [2010] 5 HKLRD 545 and HKSAR v Boma Amaso [2012] 2 HKLRD 33. I have also borne in mind the amount of money involved, the duration of the offence, the defendant's role in relation to the movements of funds as well as his personal circumstances.

17.In SJ v NGAI Fung Sin Apple [2013] 5 HKLRD 104, Yeung V-P held :-

Generally speaking, the sentence passed in a "money laundering" case is primarily to reflect the amount of the "illicit/black money" involved. Neither the fact that the "illicit/black money"was actually not derived from an indictable offence nor the defendant's ignorance of the actual source of the "illicit/black money" is necessarily a valid mitigating factor…[5]

18.By remitting the proceeds of prostitution to the mainland, the defendant played a pivotal role in allowing the mastermind(s) of the syndicate access to the illegal funds without setting foot in Hong Kong. Without him, the culprit(s) behind would not have been able to receive a cent sitting comfortably in the mainland.

19.Based on the reasons stated above, I adopt a starting point of 3 years' imprisonment[6] for this charge. With the guilty plea, the sentence is reduced to 2 years. I sentence the defendant to 2 years' imprisonment for Charge 3.

20.Bearing in mind the totality principle, I consider a global starting point of 3.5 years' imprisonment to be appropriate. A one-third discount is given for the guilty pleas, reducing the overall sentence to 28 months. To achieve this result, I order the sentences for Charges 1 and 2 to run concurrently; but 4 months to run consecutive to Charge 3. Thus, arriving at a total prison term of 28 months.