HKSAR v. Pham Van Quy
Read the full judgment text of DCCC 711/2017 on BabelCite. This District Court judgment.
1. The Defendant admits a charge of money laundering involving $15,308,157 between 20/4/2007 and 7/9/2012 (1 st Charge).
Cites 1 case
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DCCC 711/2017 [2018] HKDC 749 IN THE DISTRICT COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION CRIMINAL CASE NO. 711 OF 2017 -----------------------------------
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---------------------------- Reasons for Sentence ---------------------------- Charge and facts 1.The Defendant admits a charge of money laundering involving $15,308,157 between 20/4/2007 and 7/9/2012 (1st Charge). 2.He was the sole account holder and signatory of a personal account at Bank of China with an opening balance of $500 (‘the Account”) on 20/4/2007 and a balance of $4,500 as at 7/9/2012. He stated to be a construction site worker in the opening mandate. 3.Between the said 2 dates, the Account had processed, for the purpose of the present charge, $15,308,157in total by 565 deposits in the form of cash, transfer, ATM transfer, salary income, auto-transfer, bank charges and interests. During the said period, the Account had processed $15,328,536.28in total by 401 withdrawals in the form of cash, transfer, ATM transfer, auto-transfer, bank charges and interests. Cash deposits and withdrawals by transfers / ATM transfers constituted the majority of the transactions. 4.The feature of “mirror transaction pattern” was present with a few days between the deposits and withdrawals of similar amounts. Afterwards, the Account would be maintained at a balance of several ten odd thousand dollars. 5.Company Registry record check revealed that the Defendant had held two engineering companies, ie Great Ford Engineering Limited (“Great Ford”) and Speed Engineering Limited (“Speed”) in Hong Kong. Separate company bank accounts were involved in such business. Nothing remarkable was found with these bank accounts. 6.According to IRD records, the Defendant was reported as a worker with an annual income of $91,132 for 2005/2006, $105,000 for 2006/2007, $110,000 for 2007/2008. He was reported as a director of Great Ford with an annual income of $240,000 for 2008/2009, and $180,000 for 2009/2010. His total income between 2005 and 2010 was $726,132. 7.The tax return filed by the auditor of Great Ford showed the profit before taxation was $43,504 for 19/5/2009 – 3/2010, and $266,830 for 1/4/2010 – 31/3/2011. The director’s remunerations for the above two periods were $309,700 and $397,150 respectively. 8.Under caution, the Defendant admitted, inter alia, as follows:
9.When asked about the transactions in the Account, the Defendant remained silent. He claimed to have no knowledge of them as he did not receive any bank statements from the bank. Despite his claim of absence of knowledge, there was a transfer withdrawal of $120,000 made at the branch counter with a withdrawal slip apparently signed by him. He also admitted in his VRI that he had used the Account to receive 6 monthly salaries ranging from $650 to $11,050, ie $24,550 in total, between 14/5/2008 and 6/10/2008. Besides, there were, what he claimed to be loan repayments, 18 autopay withdrawals of $4,500 each made to a company called “Prime Credit Limited” totaling $81,000 between 7/12/2010 and 7/9/2012. 10.Immigration records and bank records construed together showed that there were 6 ATM withdrawal transfers of between $45,000 and $50,000 between 5/2008 and 4/2010 in Hong Kong whilst he was not in Hong Kong whereas she was in Hong Kong. There were 21 cash withdrawals of between $5,020 and $10,020 between 22/11/2008 and 6/10/2011 in Macau whilst he was in Hong Kong whereas she was not in Hong Kong. 11.He admitted in his VRI that he had opened the Account for receiving his salary payments. 12.Despite his claim that he had let Madam TSE use the Account, bank records showed that there were 6 salary payments between $650 and $11,050, ie $24,550, deposited into the Account between 14/5/2008 and 6/10/2008. 13.Police tried to locate Madam TSE by the phone number and address provided by the Defendant. She could not be found. Immigration record showed that she had departed from Hong Kong on 10/9/2013 via China Ferry Terminal and had not returned to Hong Kong since then. 14.On 4/9/2012, in the presence of his wife, the police searched his residence, which he occupied with his wife, yielded about $1,236,000 cash in nylon bags in the drawers of the bed and a cupboard of their bedroom. He was not present there. 15.On a subsequent date in 4/2013, he was arrested. Under caution, he claimed that the cash found from his residence was his savings and profits from business. About $700,000 belonged to him and his business partner. They intended to use the money to buy equipment and pay salary to their employees. The remaining cash belonged to him. 16.Land search showed that the residence was owned by him in his sole name. He purchased it in 3/2002 for $1,295,000 with a mortgage, which was later paid off. 17.At all material times, he laundered money in the sum of $15,308,157 in total in the Account. Sentencing considerations 18.The courts recognized the extensive permutations of money laundering cases. There are no sentencing guidelines for such offence. Comparisons between cases are difficult, if at all helpful. 19.In HKSAR v BOMA AMASO, CACC 335/2010, the Court of Appeal identifies the features relevant in the sentencing of money launderers. Stock VP regards, apart from the amount of money laundered (para 38), as relevant the following factors (para 40):
Mitigation 20.Mr. So, his counsel, has put in a written mitigation. He is 51 years of age, a Vietnamese who came to settle in Hong Kong. He first worked as a construction worker. He is the sole breadwinner of the family. He has to take care of his daughter, aged 5, and his nephew, aged 15, whose parents, ie his sister and brother-in-law, are unable to stay in Hong Kong to look after the boy. 21.He has been diagnosed with lung cancer in 2015. He has reached a rather late state of it. According to the letter dated 5/3/2018 written by Dr. Tse Yiu Cheong, a specialist in clinical oncology, he has two tumours on his body, one at stage IIA, pertaining to a survival rate of 60% and another at stage IIIB, pertaining to a survival rate of 26% respectively over a 5-year period. 22.In mitigation Mr. So says that the Defendant was merely persuaded into lending his bank account to Madam TSE on the latter’s representation that it was to pay for some equipment in the Mainland. I cannot accept this mitigation as it is in the nature of a defence, if believed by the Court. 23.Mr. So further says that the Defendant had not derived any reward from lending his bank account to Madam TSE. I agree that such aggravating factor is absent. Sentencing the Defendant 24.There were 21 ATM cash withdrawals of between $5,020 and $10,020 in Macau. They took place when the Defendant was in Hong Kong. This is the only international dimension, which is not significant, in the present case. The mode of operation was not complicated. 25.However, a regular pattern of laundering involving over $15,000,000 over a period of 5 years 4 months or more with hundreds of transactions must be regarded as a very serious case in itself. I take a starting point of 4 years. I give a one-third discount for the timely plea of guilty, the sentence is 2 years 8 months. I am alive to the dire condition of the Defendant’s illness which had not visited upon him at the time of the offence. There is some chance that he may not live to see his date of release from prison after 2 years 8 months even with the prison remission. So I further reduce his sentence by 8 months. The sentence is therefore 2 years.
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