HKSAR v. Tam Kwok Leung

DCCC 970/2020

[2021] HKDC 725

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 970 OF 2020

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REASONS FOR SENTENCE

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1.Defendant is convicted on his own plea and agreement to summary of facts to a charge of conspiracy to deal with property known or believed to represent proceeds of an indictable offence, contrary to section 25(1) and 25(3) of the Organized and Serious Crimes Ordinance, Cap 455, and sections 159A and 159C of the Crimes Ordinance, Cap 200 (2^nd charge, alternative to 1^st charge).

2.Upon the application of the prosecution, it is ordered the 1^st charge against the defendant be put on court file and not to be proceeded with without leave of the court.

Facts

3.The offence concerns 4 incidents between 28 December 2019 and 10 January 2020 involving 4 jewellery shops.  The staff of each of these jewellery shops received WhatsApp messages from an unknown client making inquiries on high-value diamonds.  After discussion, the unknown client agreed to purchase a diamond valued at a certain value.  He said he would arrange payment and would send a courier to collect the diamond. 

4.Later, defendant attended the office of the jewellery shop for examining and collecting the diamond.  The unknown client told the staff on WhatsApp that payment had been made into the bank account provided by the jewellery shop. 

5.In the first 3 cases, seeing the deposit of the money for the diamond had been paid into the bank account, staff of the jewellery shop released the diamond to the defendant. Later on the same day, the staff would find that the deposit was voided as it was made by cheques that subsequently bounced.  Report was made to the police.

6.For the 4^th incident on 10 January 2020, after seeing a copy of the deposit slip received via WhatsApp, the staff felt suspicious as the deposit slip was of poor quality and name of the jewellery shop was written incorrectly.  Therefore, the staff of this jewellery shop did not pass the diamond to the defendant but instead made a report to the police.  The police attended the office of the jewellery shop and intercepted the defendant.  Defendant was subsequently arrested at the jewellery shop for attempted fraud. 

7.Later on 12 March 2020, defendant was arrested again at his home for obtaining property by deception in relation to the incident on 30 December 2019 regarding another jewellery shop. 

8.Under caution, defendant has said that the full name of the person who instructed him was his old schoolmate.  He admitted in the video-recorded interview that he had helped this person on 5 similar occasions but forgot the whereabouts of the diamond sellers and that on 30 December 2019, he helped him to go to 3 places to collect diamonds but he forgot about the details. 

9.Defendant now admits and accepts that between 28 December 2019 and 10 January 2020, both days inclusive, in Hong Kong, he did conspire together with other person(s) unknown, to deal with property, namely 4 diamonds sold by 4 jewellery shops in total value of HK$2.312 million, knowing or having reasonable grounds to believe that the said diamonds, in whole or in part directly or indirectly represented any person’s proceeds of an indictable offence. 

Criminal Record

10.Defendant has a clear record.

Mitigation

11.Defence counsel submitted that at the time of the offence, defendant was aged 17. 

12.He is now aged 18.  He was born in the mainland and came to Hong Kong in the year 2009. He did study in the VTC Youth College for a 3-year diploma course but he dropped out during Year 1. 

13.He is the only son in his family. 

14.His father is 70 years old and they live in a public housing estate.  His father is retired but occasionally does odd jobs at construction sites with irregular income.  It is said that defendant’s father suffered from early stage of liver cancer. Defendant’s parents are divorced and his mother now lives in the mainland. 

15.This counsel also submitted to court mitigation letters from the defendant and a social worker. 

16.He submitted to court that there are no sentencing guidelines or tariff for the present offence and he referred to the statement by Stock VP (as he then was) in the case of HKSAR v Boma[1].  He also says that the case of Boma listed out a non-exhaustive list of factors that a court needs to consider before sentencing in offences of this kind. 

17.He also referred this court to the case of Secretary for Justice v Wan Kwok Keung[2] where the Court of Appeal stated that the starting point for money laundering offences where the amount of illicit money involved is between $1 million and $2 million should be 3 years’ imprisonment. 

18.It is said that in the present case, the defendant is currently only aged 18.  Pursuant to section 109A of the Criminal Procedure Ordinance, Cap 221, the court shall not sentence him to imprisonment unless it is of the view that no other method of dealing with him is appropriate, and for the purpose of determining whether any other method of dealing with him is appropriate, the court shall obtain and consider information about the circumstances, and shall take into account any information before the court which is relevant to his character and physical condition. 

19.The court is reminded that the present offence is not an excepted offence under Schedule 3.

20.Defence counsel also referred this court to the case of HKSAR v Dhaliwal Jaspreet Kaur[3] and he submitted that imprisonment is not the only option to deal with young offenders convicted of the present offence. 

21.He referred to the case of 香港特別行政區 訴 賴尚泓[4] where the court imposed a Training Centre order on the defendant convicted of a similar offence and when the defendant was aged 20 and had a triad background. 

22.He also referred to the case of HKSAR v Lam Ching Hei[5] where the defendant pleaded guilty to a count of money laundering involving $2.6 million and was sentenced to the Rehabilitation Centre. 

23.In the case of 香港特別行政區 訴 應嘉麒[6] where the court imposed a Detention Centre order on the defendant aged 20 who pleaded guilty to conspiracy to launder money.  The total loss to the victim there was $120,000. 

24.It is conceded that the present offence is a serious one but the defence counsel invited this court to consider the role of the defendant, in the case that he might not have truly appreciated the details and extent of the scheme because of his immaturity and the limited role he was given.  The reward received by him was low compared to the value of the diamonds and the defendant was enticed by the reward offered out of his poverty. 

25.The 4 occasions took place over 14 days, which is not a long period. 

26.The defendant actively made admissions to the police including admissions to the second and third occasion for which he was not arrested for. 

27.It was said that the defendant committed the offence because of his extreme naivety, ignorance and young age and he did not appreciate at the time that he was being taken advantage by his old schoolmate Cheung. 

28.Defence counsel conceded that while imprisonment is often the appropriate sentence for this offence, there have been instances where offenders convicted of this offence are sentenced to various sentences, even when they played an active role in planning and effecting the money laundering scheme.  He said that detention at various centres would allow the defendant to rehabilitate and instil in him the discipline and maturity that he lacks as evidenced in the present case, and would prevent him from reoffending. 

29.He urged this court to accept the recommendation from the suitability report and send the defendant either to the Rehabilitation Centre or Training Centre.  

Discussion

30.On conviction upon indictment of this offence, a person is liable to a fine of $5 million and imprisonment for 14 years. 

31.There is no sentencing guideline or tariff for this offence as the culpability of the defendant in these cases can differ a lot under the highly variable circumstances in which the offence might be committed.

32.This court now considers the factors in the Boma case.  The amount of money laundered is $2.312 million, the actual loss being $1.382 million.  The predicate offence is conspiracy to defraud and a person convicted of such an offence is liable to imprisonment for 14 years. 

33.The defendant, at the time of the commission of the offence, is obviously aware of the nature of the predicate offence as he had admitted that he knew the cheque was false in the third video-recorded interview. 

34.There is no evidence of international dimension in the commission of the offence. 

35.There is certain degree of planning by at least his old schoolmate Cheung in contacting the seller of diamonds, arranging defendant to go and collect with WhatsApp images of fake cheques, and asking defendant to pretend that he was there to collect and check the diamonds. 

36.There is no evidence of an organized syndicate.  Defendant just disclosed receiving instructions from his old schoolmate Cheung and there is no mention of any other third party. 

37.The 4 jewellery shops incidents took place in the 14-day period.  Defendant continued to launder the money after he knew of the predicate offence were proceeds from fraud. 

38.The role of the offender included that of a courier presenting the staff of jewellery shops images of the fake cheque and pretending to be a person capable of examining diamonds for the genuine diamond purchaser.  His role is manifold and indispensable in the whole scheme. 

39.The gain to the defendant for commission of this offence, according to him, is a few thousand dollars. 

40.In the case of Wan Kwok Keung, it was held that money laundering is a serious offence and must be deterred.  The sentence should reflect the amount of “black money” laundered and not the benefit obtained by defendant or others.  However, it is said that if the “black money” originated from various and organized indictable offence or the defendant’s benefit was huge, then the sentence should be adjusted upwards.  It is not the case here. 

41.In the Wan Kwok Keung case, the Court of Appeal referred to the case of HKSAR v Hsu Yu Yi[7] where the sentencing starting point is 3 years or so where the “black money” involved is between $1 and $2 million and 4 years or so where it between $3 million and $6 million.  The sentencing starting point in this case, if imprisonment should be considered, would be in the region of 3 years 3 months’ imprisonment. 

42.In view of the age of the defendant, the court has called for a suitability report for Detention Centre, Training Centre and Rehabilitation Centre.  The report said that the defendant is suitable for Training Centre and Rehabilitation Centre.  It was said that defendant managed to behave himself and conform to institution rules and regulations, and that he was polite in the interview.  Defendant admitted his culpability regarding the present offence.  He said he had committed the offence without considering the legal consequences.  He undertook to work hard and lead a law-abiding life on his release and he asked for leniency from the court. 

43.Defendant in his letter dated 1 April 2021 said his father was diagnosed with early stage liver cancer last year.  He said he was deeply remorseful that he committed the offence due to greed.  He urged this court to give him a chance to mend his ways and be lenient on him in sentencing. 

44.The letter from Mr Lai, the case social worker, dated 2 April 2021 said that Lai knew the defendant in the year 2017.  He said although defendant was playful and naughty, he also performed well and was dedicated when he did volunteer work and was praised by other social workers.  He said defendant committed the offence because of undesirable peer influence and being too naive.  It is said that now he is very remorseful and is willing to start afresh.  It is said also that he has severed his ties with the undesirable peers.  He also followed his father and went to work in construction sites, making contribution to the family.  Mr Lai said his team of social workers will follow-up the career development and personal advancement of the defendant and also help him to reflect on the present offence. 

45.Whilst the defendant was convicted of a very serious offence, the sentence imposed should be deterrent in nature.  Considering the circumstances of the case, normally the only appropriate sentence is one of immediate imprisonment with the sentencing starting point of around 3 years and 3 months.  Of course, considering his guilty plea, he should be entitled to full one-third sentencing discount. 

46.Nevertheless, in view of the age of the defendant, and having regard to section 109A of the Criminal Procedure Ordinance, this court has called for a suitability report for Detention Centre, Training Centre and Rehabilitation Centre.  The report says that he is suitable Training Centre and Rehabilitation Centre.  The offence in this case, while serious, is not the most serious of its kind as not to justify by imposing a Training Centre order.

47.Whilst it must be generally in the public interest that there be a deterrent sentence for the offender in a money laundering case, in the present case, having regard to the very young age of the defendant, his clear record, his early guilty plea, the fact that he had lacked effective supervision in the past and the need for him to rehabilitate upon his release, this court finds that sending him to Training Centre is an appropriate option.  Although the report says defendant is more suited for detention in Rehabilitation Centre, no detailed reasons was given. 

48.It is clear from the admission of the defendant that he was also involved in incidents not covered by the present offence.  He still lacks parental supervision at the moment, his father being of elderly age and himself feeling unwell, his mother living apart, though the court understands that he would be looked after by social worker upon his release.  This court opines that the defendant needs, defendant and the society would benefit from the defendant receiving a period of disciplinary training. 

49.The Rehabilitation Centre is designed as an intermediate sentencing option somewhere between Training Centre and a non-custodial order is not, in view of the seriousness of the offence, appropriate. 

50.Sending the defendant to Training Centre is the most appropriate way of dealing with him in the present case.  Accordingly, detention order for Training Centre is made.