HKSAR v. Hsiao Yu Chi

DCCC 772/2017

[2018] HKDC 689

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 772 OF 2017

-----------------------------------

-----------------------------------

----------------------------

Reasons for Sentence

----------------------------

Charges and facts

1.The Defendant pleads guilty to 2 charges of money laundering. 

2.Two females residing in the U.S.A. received telephone calls that told them they had won lottery prizes.  They remitted money to Hong Kong as administrative fee to claim the prizes.  On 7/1/2009 PW1 remitted USD23,200 to the Defendant’s Citibank (Foreign Currency) Account (“Account 1 (Foreign Currency)”).  On 9/12/2008 PW2 remitted USD16,000 to the Defendant’s HSBC (Foreign Currency) Account (“Account 2 (Foreign Currency)”).  On 12/12/2008 she remitted USD24,000 to the same account.  Afterwards they did not receive any prizes.  They reported their cases to the Hong Kong police. 

3.Police enquiries revealed that Account 1 (Foreign Currency) was opened on 2/12/2008 by the Defendant and closed by the bank on 10/3/2009.  Account 2 (Foreign Currency) was opened on 2/12/2008 by the Defendant and closed by the bank on 9/3/2009.  Each account had a parallel Hong Kong Dollar account (“Account 1 (HKD)” and “Account 2 (HKD)” respectively).  He was the account holder and sole signatory of all such accounts.

4.Between 2/12/2008 and 9/1/2009 Account 1 (Foreign Currency) had four overseas remittance deposits, in total USD60,230, one of such remittances being from PW1.  The deposits were immediately converted to Hong Kong Dollar and transferred into Account 1 (Hong Kong Dollar), in total HKD496,231.64, by internet.  Cash sums were immediately withdrawn from this account by either ATM or over the counter, in total HKD495,845.44, the sum particularized in the 1^st Charge.   

5.Between 4/12/2008 and 19/1/2009 Account 2 (Foreign Currency) had four remittance deposits all from the USA, in total USD121,447.42, two of such remittances being from PW2.  The deposits were immediately converted to Hong Kong Dollar and transferred into Account 2 (Hong Kong Dollar), in total HKD1,020,147.17, by internet.  Cash sums were withdrawn from this account by either ATM or over the counter, in total HKD1,019,848.32 the sum particularized in the 2^nd Charge. 

6.The banks’ counter staff confirmed that they had verified the Defendant’s proof of identity before handing over the cash sums to him. 

7.Immigration movement records revealed that the Defendant was a visitor from Taiwan.  He was in Hong Kong on the dates when the Accounts were opened and when the cash sums were withdrawn over the counter. 

8.On 27/7/2017 he was arrested by the police upon arrival at the Hong Kong airport.  He remained silent under caution.    

Sentencing considerations

9.The courts recognize the extensive permutations of money laundering cases.  There are no sentencing guidelines.  Comparisons between cases are difficult, if at all helpful.  In HKSAR v. BOMA [2012] 2 HKLRD 33, 43, the Court of Appeal identifies the features relevant in the sentencing of money launderers.  Stock VP regards, apart from the amount of money laundered, as relevant the following factors:

(1) The nature and penalty of the predicate offence;

(2) The nature of knowledge or belief of the predicate offence on the part of the money launderer;

(3) The international element;

(4) The sophistication of the money laundering offence, including the degree of planning or whether deceit is practiced to achieve the money laundering;

(5) The instance of a criminal syndicate;

(6) The number of transactions and the length of time in the money laundering process;

(7) Subsequent knowledge of the predicate offence evolved from a case of reasonable belief;

(8) The role and acts of the money launderer, including his position and reward.

Personal background and mitigation

10.He is aged 32, a Taiwan citizen working as a decoration worker.  He has a clear record in Hong Kong.  He has studied up to F. 5 level.  He was aged 22 at the time of the offences.  He was married in 2006 and divorced in 2015.  His daughter is now aged 10, taken care of by his parents.  He was approached by a Taiwanese to commit the offences for a reward of HKD25,000 by equivalent.  He received the reward after the offences. 

11.His counsel Mr. Tse refers me to the case of HKSAR v 宋泰儉（D1）及黃琨宗（D2）DCCC 395/2009.  The facts for D2 there are very similar to our present case.  The difference lies only in D2 dealing with slightly less sums and receiving only about one-third reward as the present Defendant.  The judge takes 3 years as the starting point.  Mr. Tse asks me to consider a starting point of less than 3 years.

Sentencing the Defendant

12.On the one hand there is no evidence that he knew of the predicate fraud in each case.  It was not a sophisticated fraud or money laundering process.  The number of transactions was small.  The duration of the offences was short. 

13.On the other hand there were 8 remittance deposits all from the USA into bank accounts in Hong Kong opened and partly withdrawn in cash over the counter by a Taiwanese visitor.  These are marked international elements.  The total sums involved came to HKD1,515,693.76.  The Defendant received a reward of HKD25,000 by equivalent.   

14.I take 3 years as that starting point for each charge.  I give a one-third discount for the timely pleas of guilty.  There are no other effective mitigating factors.  The sentence is 2 years each on a concurrent basis.