HKSAR v. Tang Yin Ping

DCCC 811/2017

[2018] HKDC 417

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 811 OF 2017

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Reasons for Sentence

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1.The defendant has pleaded guilty to two offences of dealing with property known or believed to represent the proceeds of an indictable offence.

2.The facts are relatively simple, the predicate offences set out in the facts as being trafficking in a dangerous drug, involving a person called Leung Tak-wah, in September of 2008, who was intercepted with a large quantity of cocaine in Fanling.

3.Investigation of his bank accounts found interbank money movements involving various friends, various associates and family members, involving family members such as his ex‑wife, her sister, and the defendant, who is a niece of one of the sisters.

4.The bank accounts set out in the indictment involve two accounts.  One is an HSB account, which is HSB account 1, and a BOC account were used to launder the proceeds of the drug offences that were committed by the man described as Leung Tak‑wah.  The defendant operated two other accounts which were used for legitimate purposes.

5.The offence set out in Charge 1 involves the BOC account.  That was opened between 12 June 2007 and the relevant entries are up to 28 November 2008.  The total deposits and withdrawals were in the region of $473,914.  There were a number of transactions in cash and ATM transfers. 

6.The other account, which is the HSB account 1 involved in Charge 2, was opened on 15 June 2007 and closed on 6 February 2008. Total deposits were of $1,316,710 and withdrawals in the same amount, mainly deposited in cash and withdrawn by bank transfer, funds moving through the account within a short period being transfers to other members of the syndicate.

7.Details of the legitimate accounts are set out to show what was the actual income and expenditure of the defendant, and also details of her employment were set out.  She had worked in the last years in jobs such as receptionist and salesperson and waitress.  Her earned salary could of course not explain the amounts found in the bank accounts relating to Charge 1 and 2.

8.As far as the defendant’s background antecedents are concerned, she is now aged 41 years, she is single, and has a clear record.  We can see from the Admitted Facts she has worked generally in jobs such as a cashier and waitress.

9.As far as mitigation is concerned, she says that as far as the syndicate is concerned, it was a family operation.  It was an unsophisticated operation.  She both trusted and felt under pressure from her family members.  She says she was not aware of the precise source of the moneys, but was aware that the money was not legitimate.  She does, however, accept full responsibility.  She says her role was not a main role.  She was a receiver of instructions rather than a giver of instructions.

10.The offence was also committed some time ago; some 10 years ago now, and she prays in aid her plea of guilty, her remorse, the time since the offences ceased, her clear record, and the family nature of this operation.  She also refers to one of the aunts who, in her sentencing for a sum of money which was similar to the amounts found in this case, was sentenced to a total of 18 months’ imprisonment after a plea of guilty, and I believe says that a matter of basic fairness requires a sentence within that range.

11.There is no actual tariff for this offence.  It is a serious offence, and custodial sentences are the normal sentence of the courts.  Secretary for Justice v Herzberg [2010] 1 HKC 531 sets out the factors that should be considered by a sentencing court.  These are, amongst others, the nature of the offence that generated the money; the extent to which the offender assisted the crime or hindered its detection; the degree of sophistication of the defendant’s participation; the length of time the offence lasted; the benefit the defendant derived from the offence; the amount of money involved; the defendant’s knowledge of the nature of the underlying offence; the presence of an international element.

12.This offence does appear to be a totally home‑grown one.

13.The case of Boma Amaso CACC 335/2010 deals with the relevance or the extent of knowledge of the underlying offence. That says:

“The person who is aware of the fact that he is dealing with the proceeds of an indictable offence but chooses not to ask questions is barely less culpable than a person who asks and is told.”

14.Also, the case of HKSAR v Siu Yu Yee [2010] 5 HKLRD 545 can be seen to set out the amounts of money involved and sentences passed in a number of money laundering cases, and the sentencing starting point in a case involving between 1 to 2 million would be 3 years’ imprisonment.  That would, of course, be subject to any mitigating or aggravating features of the particular facts of the offence concerned.

15.The length of the offences:  the 1st offence is between June of 2007 and November of 2008, and in the 2nd offence, between June 2007 and February 2008; so there is some overlap between the two charges.

16.As far as the other factors are concerned, we can see the degree of sophistication of the offence.  It does seem to be what I would call a family operation.

17.The defendant says she derived no benefit from the offence.  No benefit can be shown in the facts.

18.The amount of money involved would place the total offences in the region of the 3-year starting point.

19.As I said earlier, there is no international element here.

20.I do bear in mind the sentences of her co‑offenders, as it were.  They did in mitigation to a certain extent blame this defendant, but one can hardly rely on what is said in mitigation as it does not establish any facts in the case, and reference has been made to the 4th defendant in the case of 4152/2010 as being particularly relevant to this defendant, and I do bear that in mind.

21.As far as the actual sentences are concerned, I will determine what I consider to be the appropriate starting points which will lead to the sentences to be imposed.  There are two charges here.  In determining starting points, I bear in mind all the factors I have already outlined.

22.The 1st charge involves some half a million over a period of about 17 months.  I will take a starting point of 12 months’ imprisonment and reduce that to 8 months’ imprisonment for her plea of guilty.

23.The 2nd charge is charged over a period of about 8 months and involves some $1.3 million.  That would involve normally a starting point in the region of about 33 to 36 months’ imprisonment. Having regard to the family nature of the syndicate and the time that has elapsed since the offences were committed, I will in fact take a starting point of 27 months’ imprisonment and I will reduce that 18 months’ imprisonment for her plea of guilty.

24.There is some overlap between these offences, and I will bear that in mind in determining the overall totality.

25.I am going to order that 3 months of the 1st charge runs consecutively to the 2nd charge, leading to an overall sentence of 21 months’ imprisonment.