Read the full judgment text of CAAR 6/2016 on BabelCite. This Court of Appeal judgment was delivered on 12 May 2017 before Lunn VP, Macrae JA, Pang JA.
Criminal law – sentencing – money laundering – dealing with property known or believed to represent proceeds of indictable offence – Organized and Serious Crimes Ordinance (Cap 455) s.25(1) and (3) – Criminal Procedure Ordinance (Cap 221) s.81A – application for review of sentence – starting point – suspended sentence – exceptional circumstances – deterrence as paramount sentencing consideration – guilty plea discount – delay discount – discount for liberty since sentence – respondent, a 58-year-old unemployed CSSA-dependent woman and divorcee with a 16-year-old son with dyslexia, was arrested at an unlicensed gambling establishment operated by the 1st defendant, with whom she had been acquainted for 3-4 years and at whose establishment she played mahjong about once a month – at the 1st defendant's request she deposited a total of $630,000 in cash into his HSBC bank account on five separate occasions over a 21-month period (16 November 2009 to 18 August 2011), the individual deposits being $100,000, $120,000, $100,000, $110,000 and $200,000 – the 1st defendant provided bank account details on a piece of paper and she returned the deposit receipts to him – she guessed the cash came from commissions earned by or winnings of the 1st defendant from his unlicensed gambling operation and described him as the 'boss' – she received no monetary gain for making the deposits – whether starting point of 12 months' imprisonment was manifestly inadequate – held yes – arithmetic approach based on Yeung JA's guidance in Secretary for Justice v Wan Kwok Keung of 3 years starting point for $1-2 million black money yields starting point between 11 and 22 months for $630,000 – aggravating features included five separate transactions spanning 21 months, large cash sums of $100,000 or more, direct and personal involvement in the deposits, and commission of the offence in the context of the respondent's own commission of the offence of gambling in an unlicensed establishment – appropriate starting point 18 months – whether suspended sentence justified – held no – it is well-recognised that money laundering offences attract immediate custodial sentences even for first offenders – exceptional circumstances required to impose suspended sentence – factors of relatively significant role in offence, short time in custody and family circumstances do not amount to exceptional circumstances – whether discount for delay warranted – held yes, 1 month, as delay caused by awaiting Court of Final Appeal decisions in HKSAR v Salim Majed and HKSAR v Yeung Ka Sing, Carson on ingredients of money laundering offence and duplicity, resolved only on 11 July 2016 – whether further discount warranted because respondent at liberty since original suspended sentence imposed – held yes, 3 months, to reflect distress and anxiety of being sentenced to immediate imprisonment – application by Secretary for Justice allowed – sentence of 7 months' imprisonment suspended for 2 years imposed by Deputy District Judge Chainrai on 1 December 2016 quashed and replaced with sentence of 8 months' imprisonment – Court requested Social Welfare Department be informed of orders to enquire into welfare of respondent's son
Legal issues: Whether starting point of 12 months' imprisonment was manifestly inadequate · Whether exceptional circumstances justified a suspended sentence · Whether respondent entitled to discount for delay · Whether and what discount for respondent at liberty since suspended sentence
Outcome: Application by the Secretary for Justice for review of sentence allowed; sentence of 7 months' imprisonment suspended for 2 years quashed and replaced with sentence of 8 months' imprisonment.
Cited by 14 cases · Cites 4 cases