HKSAR v. Ng Ying Ho

DCCC 541/2014

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 541 OF 2014

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Reasons for Sentence

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1.The defendant has pleaded guilty to one charge of conspiracy to deal with property known or believed to represent proceeds of an indictable offence, money laundering.

2.The facts of this case are straightforward.  The defendant opened a bank account at Hang Seng Bank on 27 June 2005 and subsequently closed it on 30 October 2010.  Between those dates, $8,764,000-odd was deposited into that account.  There was 664 deposits and 749 withdrawals. Over half of the deposits were made in cash.  The defendant himself did not file any tax returns during that five year period. 

3.Due to information received by the Police about the activities in his bank account, the defendant was arrested on 10 July 2012.  The defendant admitted to the Police that he had sold this bank account for $5,000 but he did not know about any of the deposits or withdrawals.  He explained further under caution that at that time he had no full-time employment, that he was in financial difficulty and someone called ‘Ah Fai’ offered him $5,000 to open a bank account and give him the use of it.  The defendant did open such an account and gave Ah Fai his bank book and the ATM card. He did not deal with any of the transactions during the time the account was open.  He had no way to contact this Ah Fai.

4.He explained he closed the account in October 2010 because the Housing Department required details of his bank account.  He wanted to close it so he could truthfully say he had no bank account.  He told the Hang Seng Bank staff that he had lost his bank book and ATM card. 

5.The defendant is not a man with a clear record. He has 22 previous convictions obtained over 14 court appearances.  They began when he was 21 years old.  His last conviction was this year in May where in the District Court he was sentenced to 26 months’ imprisonment for theft of vehicles and possession of an identity card belonging to another.  In his previous convictions there is no similar offence.  Most of his convictions relate to possession of drugs, violence and theft. 

6.The defendant is 40 years old, single and I am told when arrested he had part-time employment.  His best mitigation is his plea of guilty. 

7.I have heard full mitigation, Mr Yu has said all he can on behalf of the defendant.  I have been told that the defendant’s mother sadly passed away when he was only 15 years old.  This made a big impact on the defendant as an adolescent.  His father works long hours and effectively there was no longer any parental supervision or control over the defendant. The defendant went astray, made bad friends and clearly got involved in dangerous drugs.  That addiction and his subsequent brushes with the law and the courts led to a poor relationship with his father and siblings.  I have been told that that has improved recently.

8.I have also been told that this offence was committed when he was a drug addict and had financial difficulties.  He needed to get hold of quick money for his habit and took the offer of $5,000 to open a bank account. 

9.I am sure he did not know where the money came from that went in and out of his account but he must have known that such an arrangement and selling his account could only mean illegal activity.  There is no evidence here that the defendant had any knowledge of the predicate offence or the origins of the money, however, it is a significant amount, over $8.70 million.  I accept there is no evidence of any international element in this case; there is no evidence of how sophisticated the illegal activity was. However, the defendant facilitated the criminal activity by providing an account for others to perpetuate the money laundering activity.

10.Mr Yu has also submitted that a delay in prosecuting this offence is a factor I should take into account.  I was referred to the authority of HKSAR v Chu On Chi CACC484/2006.  Here the defendant was arrested in July 2012 and charged two years later in June 2014. I accept that the delay was not the fault of the prosecution.  Time and time again we see the banks being slow in assisting the Police in this type of investigation.  This account had hundreds of transactions.  I accept two years is a long time but not an inordinately long delay and unlike the appellant in Chu On Chi the defendant here did not find permanent employment or turn over a new leaf as we know he later became involved in thefts of vehicles and possession of another’s identity card.  The defendant was given a trial date not long after he was charged in November 2014, some two years ago from now. This case was adjourned, as I have read from the file, because of the defendant.  Since then the reason it has taken this long to come to plea is not the fault of either the prosecution or the defence.  I do not find a delay factor exists here that will reduce the sentence. 

11.There are no sentencing guidelines for this offence.  So many factors can influence the sentence.  There is a wide range of culpability but I accept here that the defendant’s culpability is at the lower end of that range.  However, I do not lose sight of the fact the amount involved was significant and that the laundering went on for five years.

12.Having considered the salient facts, mitigation, the defendant’s plea and background, I find it appropriate to take a starting point of 2 years and 9 months.  The defendant is entitled to a discount of one-third for his plea. 

13.After that discount is applied, the defendant is sentenced to 1 year and 10 months’ imprisonment.

14.After taking into account the sentence he is serving now and mitigation put forward, I will order that 6 months of today’s sentence be served concurrently to the sentence imposed in DCCC1099/2015, the balance consecutive.