HKSAR v. Ting Sze-pin and Another

DCCC 1141/2017

[2018] HKDC 969

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 1141 OF 2017

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Reasons for Sentence

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1.The defendants have pleaded guilty to charges of dealing with property known or believed to represent the proceeds of an indictable offence.

2.The 1st charge, against the 2nd accused only, alleges in relation to a Standard Chartered Bank account loaned(?) a total sum of $238,303.05.  The 2nd charge, which the 1st accused faces in relation to his Standard Chartered Bank account, alleges a sum of $172,165, and the 3rd charge, which is against the 1st accused only, alleges a sum of $362,045.16.

3.The details of entries and deposits and withdrawals from those accounts are set out in the Summary of Facts, but the conclusion in the final paragraphs indicates the 1st defendant understands and agrees that they were having reasonable grounds to believe the property, which is a sum of $172,165, from the Standard Chartered account, represented the proceeds of an indictable offence.  He agrees the same in relation to $362,045.16 in his Bank of China account; whereas the 2nd defendant agrees the same in relation to $238,303.50 in his Standard Chartered Bank account.

4.The facts also set out that some of the moneys entered into those accounts can be attributed to what can be described as an email fraud where companies pay money they owe to others into a purported account which is in fact an account set up purely to receive that money and is done so fraudulently.

5.As far as the lengths of time that the accounts were operative for this form of money-laundering, the 1st defendant’s two accounts operated between September 2012 and November 2012, whilst the 2nd defendant’s single account operated between August 2012 and October 2012.

6.As far as the 1st defendant is concerned, the total amount of money involved in the accounts is $534,210.16, which is around about HK$4.16 billion, and in respect of the 2nd defendant, the sum is US$238,303, which leads to a sum of in the region of HK$1.6 to HK$1.7 million.

7.I will deal with their backgrounds.  Both of these gentlemen are of clear record.  The 1st defendant is currently 34 years old.  He is single and lives with his mother.  The 2nd defendant is 39 years old.  He is single as well and lives with his parents.  I did obtain background reports on the two defendants because they are of clear record and in their 30s, and it is unusual for people to become involved in serious criminality at this part of their lives.  Both of them are frank and open with the interviewing officer.  Both of them attribute their involvement in these offences to the ability to earn easy money and being paid for the rental, as it were, of the accounts.  Both of them are remorseful, and I think it would be fair to say the conclusion one could draw from the reports is their involvement in these offences is somewhat out of character for both of them, but they were driven, as I say, by greed.

8.The 1st defendant is described as remorseful and wants to reform by working hard and run a small business to support his family.  He has a cohabitant and he wishes to support her in the future, and he has, as I understand it, become a father; they have a daughter who is 1½ months old, and so he would wish to support her.

9.As far as the 2nd defendant is concerned, much the same conclusion is reached.  This defendant is remorseful.  He is ready to bear the legal consequences.  Family supports him and asks for a lenient sentence.

10.As far as the offences themselves are concerned, there is no actual guideline sentence for these offences, because the way in which they can be committed is widespread and there are many different ways in which these offences can be set to and brought about.

11.I have been referred to some authorities which set out the major considerations that the court should take when dealing with offences of this nature.  The court should look primarily at the amount of money that has been involved in the case; what is the nature of the defendant’s participation; how sophisticated is his role; what is the kind of offence from which the money originates; and do the offences involve offences which involve cross‑border fraud, which is seen as more serious than offences committed purely within Hong Kong.

12.From the facts we can see, as I said, I have very simply stated the facts, but we can see the predicate offences for both defendants appear to involve some kind of internet fraud I do not think one could describe as particularly sophisticated; however, it does involve an overseas element which is conceded by counsel to be an aggravating factor.

13.As far as these defendants are concerned, of course, there is no elaborate planning at all.  They simply provided the accounts and were paid some money for the provision of those accounts.  I think the figure that was given was $3,000.  I believe that was the figure that was given to me by counsel.  So the defendants were not involved in the predicate offences or in any sophisticated way in operating the accounts.

14.The amounts of money therefore would provide the most significant factor in determining the level of sentencing for the defendants.

15.A review of the previous sentences for these offences was conducted in the case of HKSAR v Hsu Yu Yi [2010] 5 HKLRD 545, and a precis of the findings of that court can be found in the case of Secretary for Justice v Wan Kwok Keung Application for Review 13/2010 HKLR [2012] 1 HKLRD 200.  This case sets out the money involved and the sentences passed in a number of money‑laundering cases. 

16.The sentencing starting point is 3 years or so if what they call the “black money” involves is between 1 million and 2 million; 4 years or so when it is between 3 million and 6 million; and could be over 5 years where it is above 10 million.

17.In sentencing these defendants I do of course bear in mind the amount of money involved and their involvement, but I also do bear in mind their clear records and their otherwise blameless lives before they were involved in these events, and I believe that the guideline or the suggested sentences that one can find in Hsu Yu Yi or that range provides a helpful guide as to where the starting points should be located, subject to some deduction, of course, for the defendants’ previous clear records.

18.I will deal with the 1st defendant first.  He faces two charges, which will be the 2nd and 3rd charge.

19.The 2nd charge is the sum of $172,000‑odd found in the Standard Chartered Bank account.  I consider the appropriate starting point in relation to that charge is one of 30 months’ imprisonment, which I will reduce to 20 months’ imprisonment for his plea of guilty.

20.On the 3rd charge, the sum involved is 362,000 in the Bank of China account.  In that case I will take a starting point of 3 years’ imprisonment, 36 months, and reduce that to 24 months for the defendant’s plea of guilty.

21.I have got to look at the overall total figure because these sentences could be served consecutively.  What I shall do is look at what I consider to be the overall proper total for these two offences, and I consider the proper starting point for this defendant for those two offences should be one of 48 months’ imprisonment.  I will reduce that by 3 months to reflect the defendant’s previous plea of guilty, so my overall starting point will be one of 45 months’ imprisonment, which leads to a sentence, after deduction for the plea of guilty, of 30 months’ imprisonment, an overall total sentence of 30 months’ imprisonment.

22.I shall achieve that by simply ordering that 10 months on the 3rd charge be served consecutively to the 2nd charge, leading to an overall total of 30 months’ imprisonment.

23.As far as the 2nd defendant is concerned, he faces one charge, namely the 1st charge, involving a sum in the region of $1.6 to $7 million.  I consider that the starting point for sentence in that offence would normally be one of 36 months’ imprisonment.  I will reduce that to 33 months’ imprisonment for his plea of guilty.

24.After a deduction of one-third, that leads to a sentence of 22 months’ imprisonment.

25.So the 1st defendant’s overall sentence is one of 30 months’ imprisonment.  The 2nd defendant’s overall sentence is one of 22 months’ imprisonment.