HKSAR v. Lakthong Somsamai

HCMA 313/2017
[2018] HKCFI 96

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO 313 OF 2017

(ON APPEAL FROM ESCC NO 2433 OF 2015)

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Before: Deputy High Court Judge Anthony Kwok in Court

Date of Hearing: 21 November 2017

Date of Judgment: 21 November 2017

Date of Reasons for Judgment: 24 January 2018

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REASONS FOR JUDGMENT

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INTRODUCTION

1.On 21 November, 2017, the Appellant appeared before me and sought to appeal against the concurrent terms of 18 months’ imprisonment imposed by Ms. Veronica Heung (“the Magistrate”) on 28 April 2017 following her convictions after trial in respect of nine charges of “Dealing with property known or believed to represent proceeds of an indictable offence”) or what is commonly known as “Money laundering”.  After the hearing, I dismissed the appeal forthwith and confirmed the sentences imposed by the Magistrate.  I have indicated that I shall give my full reasons for my judgment in due course which I now do.

PROSECUTION CASE

2.The prosecution case has been correctly summarized by Ms. Catherine Ko, SADPP of the Respondent and in this judgment, I simply adopt the summary as appeared in her written submission:

“ Prosecution Case

3. The facts accepted by the Magistrate^[1], together with the Admitted Facts (Formal Admissions)[2] agreed by both Prosecution and defence are summarized as follows:-

Charges 1 – 4

4. On 10 September 2012, the Appellant opened a passbook savings account numbered 012-791-1-018779-0 in her own name (‘BOC Account’) with herself as the sole account signatory.^[3]

5. On 12 October 2012, a remittance in US dollars from ‘Borg Bigum Danmark A/S’ was credited to the BOC Account. After deduction of bank charges, the sum credited was HK$54,487.49.^[4]

6. On different occasion between 12 and 13 October 2012, the Appellant withdrew 4 sums of HK$10,000 (Charge 1), HK$34,000 (Charge 2), HK$1,900 (Charge 3) and HK$8,000 (Charge 4) from the BOC Account.^[5]

7. On 17 October 2012, cash in the sum of HK$500 was withdrawn from the BOC Account. Thereafter until it was closed on 15 January 2013, the BOC Account was dormant except for one interest deposit.^[6]

Charges 5 – 9

8. On 24 September 2012, the Appellant opened a company cheque book current account numbered 020-633-000-1352-2 withWing Lung Bank for a company called Idea List (‘WL Account’). The Appellant was the only named account operator and sole account signatory. Idea List was registered on 25 June 2012 with the Appellant as the sole proprietor. It reported to have ceased business on 21 January 2013 and no tax return was ever filed.^[7]

Charge 5

9. On 23 November 2012, Ms Wu Lai Suk deposited a cheque in the sum of HK$112,615.25 (Charge 5), which sum wascredited into the WL Account on the same day. On 26 November 2012, upon Ms Wu Lai Suk’s instruction, the cheque transaction was cancelled. As a result, HK$112,615.25 was debited from the WL Account.^[8]

10. The remittance and cheque deposit were sums originating from email scams.^[9]

Charges 6 and 7

11. On 28 November 2012, two remittances (after deduction of bank charges) respectively from Venezuela in the sum of HK$334,263.99 and Israel in the sum of HK$259,081.02 were credited into the WL Account.^[10]

12. On 29 and 30 November 2012, the Appellant withdrew respectively HK$200,000 (Charge 6) and HK$130,000 (Charge 7) cash from the WL Account.^[11]

Charges 8 and 9

13. On 3 and 19 December 2012, the Appellant withdrew HK$250,000 (Charge 8) and HK$13,000 (Charge 9) respectively from the WL Account.^[12]

14. On 15 January 2013, the Appellant withdrew the remaining balance in the sum of HK$1,495 in the WL Account and closed the same.^[13] ”

MITIGATION

3.Mr. McGowan, counsel for the Appellant, has also represented the Appellant during the trial and has highlighted the following grounds to the Magistrate for mitigation:

(i) The Appellant was then aged 53 years, has a clear criminal record and is a Hong Kong permanent resident who is responsible for the care of her 14-year-old son;

(ii) She first came to Hong Kong from Thailand in 1990 as a domestic helper; she married a Hong Kong citizen in 1998 and was divorced in 2011;

(iii) She later cohabited with a boyfriend, which resulted in the birth of the son, whose father left her many years ago with whereabouts unknown;

(iv) The Appellant and the son are currently dependent on CSSA for their living; and

(v) Offences were committed out of naively and stupidity and the reward was small.

REASONS FOR SENTENCE

4.Ms. Ko, SADPP also succinctly summarized the reasons for sentence as provided by the Magistrate in her Reasons for Sentence and I can do no better than to quote her summary in its entirety from her written submission:

“ Reasons for Sentence^[14]

16. In sentencing the Appellant, the Magistrate noted that she has a clear criminal record in Hong Kong. Of the seriousness of the offence of money laundering, the Magistrate said that it required a deterrent sentence. Further, she listed the ‘significant factors’ which had been identified as being relevant in determining the culpability of a defendant. In doing so, she adverted to the judgment of the Court of Appeal in Secretary for Justice v Herzberg^[15], HKSAR v Hsu Yu Yi^[16] and HKSAR v Boma^[17], the principles derived therefrom have been applied in HKSAR v Chen Jianchao (陳健超)^[18].

17. The Magistrate also referred to the fact that a defendant is to be sentenced on the facts of the money laundering charges as opposed to the facts of the underlining offence. In doing so, she adverted to the judgment of the Court to Appeal in HKSAR v Chen Szu-ming^[19] and HKSAR v Yam Kong-lai^[20].

18. Taking into account a number of factors^[21] including multiple charges, the use of two bank accounts solely operated by the Appellant, email scams were involved in Charges 1 – 5, presence of an international element as remittances were from accounts of Denmark, Venezuela and Israel; and the Appellant had actively and personally dealt with the money laundered, the Magistrate adopted a starting point of 18 months’ imprisonment for each of the nine charges.  Taking the totality principle into account, the Magistrate ordered all sentences to run concurrently, resulting in a total sentence of 18 months’ imprisonment.”

GROUNDS OF APPEAL

5.Mr. McGowan has raised three grounds of Appeal in the present hearing which can actually be conveniently absorbed into the following two grounds:

(1) The starting point of 18 months’ imprisonment adopted by the Magistrate is manifestly excessive, in view of the Appellant’s simple and extremely unsophisticated role in the commission of the offences,the amount of money laundered and a further discount ought to be given for the delay in the case.^[22]

(2) When assessing the Appellant’s criminality, the Magistrate failed to give sufficient consideration and/or weight the Psychological Report of the Appellant dated 8 March 2017 (D9).

CONSIDERATION

Ground (1)

6.Mr.McGowan complained that the starting points of 18 months’ imprisonment was, in all the circumstances, too high.  He submitted that thetotal amount of the monies which the Appellant has “actively and personallydealt with” should not include the cheque deposited into the WL Account in the sum of $112,616.25 (Charge 5) which has been subsequently stopped by the issuer of the cheque.  He submitted that since the Magistrate has referred herself to the Court of Appeal decision in Wan Kwok Keung[23] which held that for the amount involved between $1,000,000 and $2,000,000 the starting point should be 3 years or so, the amount dealt with by the Appellant after deducting the amount on relation to Charge 5 represented only about 25% of $2,000,000 and thus the overall 18 months’ imprisonment imposed by the Magistrate was disproportionately higher than the sentencing range as indicated by the Court of Appeal. 

7.This is a bold submission.  The argument, however, has obviously overlooked the definition of “dealing” in section 2 of the Organized and Serious Crimes Ordinance (Cap. 455) which includes “receiving or acquiring the property”.  I therefore fail to see how and why the court should exclude the amount of cheque which were originating from email scams from the total amount of monies laundered by the Appellant.  In any event, as rightly submitted by Ms.Ko, SADDP, there are no sentencing guidelines for the offence of money laundering and a purely mathematical approach to consider the starting point for money laundering case is not appropriate. 

8.In Boma, Stock VP (as he then was) has said:

“ This non-exhaustive postulation of the variety of circumstances suffices to illustrate why it is difficult and undesirable to offer guidelines. It is, in other words, a category of offence in which the sentencing judge is called upon to engage his ‘feel’ for the case bringing to bear his sentencing experience bearing in mind at all times the mischief at which the legislation is directed.”

9.In  relation to cases involving smaller sum of laundered money, the Court of Appeal went on to observe the following:

“ 33. At the other end of the spectrum, it is difficult to provide guidelines for much smaller sums, for if the amount of money is to be the central basis of the guideline, there is a danger of an inadequate sentence where the sum is relatively small but the predicate offence is particularly serious: for example, where the laundering is intended to prevent the detection of an offence of child kidnapping.

34. Without structured legislation along the lines of the Australian model—the benefits or disadvantages do not fall for our consideration—the best one can do is to draw the attention of judges to relevant sentencing considerations.

…

39. We were at one stage of our deliberations minded to provide a suggested starting point for a specified relatively low sum involved in an offence, leaving courts to use that as a base for other sentences but we at once could conjure a myriad of factual variations which might render even that single starting point unwise with the further risk that it might encourage a rigid mathematical approach and progression without proper regard to other individual relevant factors.” [emphasis added]

10.Mr. McGowan’s argument was therefore untenable in the light of the above opinions expressed so clearly by the Court of Appeal.  Obviously, the starting point for money laundering offences depend wholly on a variety of factors but in the present case, I did not consider that the role played by the Appellant was simple and unsophisticated at all.  Not only did she open the BOC Account using her own name for the purpose of receiving overseas remittances in Charges 1 – 4, she also withdrew the sums from this account.  As for the remaining charges 5 – 9, the Appellant went so far as to set up a company and then opened a company current account (WL Account) for the purpose of receiving overseas remittances again and she also withdrew the sums in the account as the sole signatory of the WL Account.  There is also an international element in this case as the remittances received into the accounts were from far-flung countries such as Denmark, Israel and even Venezuela and the underlying offences were in the nature of email scams.

11.Mr. McGowan sought a further discount in sentence for the delay in prosecution. Ms Ko, SADDP submitted that whilst a part of the delay was due to the awaiting of the decision by the Court of Final Appeal in HKSAR v Yeung Ka Sing Carson and HKSAR v Salim Majed [24], the delay could be attributed to by the Appellant for applying an oversea defence witness from Thailand to testify on her behalf.

12.In my judgment, even if there was such a delay, the delay in the present case was not at all serious and was no more than 7 months.  According to the chronology of events as so carefully prepared and submitted by the Respondent, the fixing of a trial date which normally takes place after the Pre-Trial Review was adjourned from 15 February 2016 to 8 September 2016 pending the Court of Final Appeal’s decision.  In any event, even if the court were minded to consider granting a discount on account of delay, the discount should be no more than 1 month in the circumstances.  By ordering the sentences on all nine charges to run concurrently, the Magistrate was already indeed extremely lenient but in so doing, she failed to reflect that the Appellant was in fact dealing the black monies in two separate bank accounts which merit at least a partly consecutive sentence even taking into account the totality principle.  As a result, the Appellant should now be grateful and even considering the overall sentences afresh by way of a re-hearing, as a matter of both principle and reality, I do not see how the Appellant was prejudiced and could still ask for a further discount for delay.

Ground (2)

13.I totally agree with Ms. Ko, SADPP’s reply that the allegation that the assessment of the Appellant’s “intellectual function” being “in the range between low average and the higher end of borderline” would have impact on both her criminality and her culpability is wholly without basis. Ms. Ko was correct to point out that such assessment of the Appellant was not relied upon in mitigation by Mr. McGowan and it was only mentioned in the closing submission^[25] for the apparent purpose of asking the Magistrate to take that into consideration for excluding the culpable state of mind of the Appellant.^[26]  It follows logically that in convicting the Appellant of all charges, the Magistrate must have rejected the submissions advanced by the Appellant at trial.

14.Mr. McGowan based his argument on this ground on HKSAR v Chiu Peng [27] but as correctly submitted by Ms. Ko, SADPP, the applicant’s mental condition in that case can clearly be distinguished from the Appellant’s condition in the present case.

15.Before me, Mr. McGowan has fairly and properly conceded that he was unable to find an authority which can support his argument that a defendant’s somewhat lower intellectual capacity can ever form a valid basis for discount in sentences as opposed to ill or retarded mental conditions in the other authorities.

16.For the above reasons, I disagree with Mr. McGowan when he submitted that there was sufficient basis before the Magistrate for her to further reduce the sentence on account of the Appellant’s lower intellectual ability.  

CONCLUSION

17.Accordingly, there is no merit on each ground of appeal advanced by the Appellant and the sentences imposed by the Magistrate were neither excessive nor wrong in principle.  The appeal against her sentence is therefore dismissed.

Ms. Catherine Ko, SADPP of the Department of Justice, for the Respondent

Mr. James McGowan, instructed by Li & Partners, assigned by Director of Legal Aid, for the Appellant