HKSAR v. Ng Kin Keung
Read the full judgment text of DCCC 120/2020 on BabelCite. This District Court judgment was delivered on 15 July 2021.
1. Mr Ng pleaded guilty before me to 4 charges of dealing with property known or believed to represent proceeds of an indictable offence, contrary to section 25(1) and (3) of the Organized and Serious Crimes Ordinance, Cap 455.
Cited by 1 case · Cites 6 cases
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DCCC 120/2020 [2021] HKDC 869 IN THE DISTRICT COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION CRIMINAL CASE NO 120 OF 2020 ________________________
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________________________ REASONS FOR SENTENCE ________________________ 1.Mr Ng pleaded guilty before me to 4 charges of dealing with property known or believed to represent proceeds of an indictable offence, contrary to section 25(1) and (3) of the Organized and Serious Crimes Ordinance, Cap 455. 2.The particulars are that he, between A and B, both dates inclusive, in Hong Kong, knowing or having reasonable grounds to believe that property, namely a sum of C in the account numbered D held under his name with E, in whole or in part directly or indirectly represented any person’s proceeds of an indictable offence, dealt with the said property. 3.For Charge 1, A is 3 May 2005; B is 11 June 2012; C is $15,908,105.07 Hong Kong currency; D is 039-6-073694; E is The Hongkong and Shanghai Banking Corporation Limited. 4.For Charge 2, A is 23 June 2005; B is 18 June 2012; C is $58,392,618.79 Hong Kong currency; D is 012-387-1-000761-2; E is the Bank of China (Hong Kong) Limited. 5.For Charge 3, A is 30 June 2005; B is 31 May 2012; C is ¥1,956,577.11 Renminbi; D is 012-616-9-202496-5; E is the Bank of China (Hong Kong) Limited. 6.For Charge 4, A is 23 February 2006; B is 7 June 2012; C is $31,370,723.56 Hong Kong currency; D is 039-844212-833; E is The Hongkong and Shanghai Banking Corporation Limited. SUMMARY OF THE FACTS ADMITTED BY MR NG Background 7.Mr Ng was the sole authorized signatory of the four subject bank accounts namely, AC1 (Charge 1), AC2 (Charge 2), AC3 (Charge 3) and AC4 (Charge 4). 8.The four bank accounts had numerous transactions with four persons, namely Yeung Kiu Sang, Chan Li Fong, Chui Hi Yeung and Bai Ying (Mr Ng’s girlfriend). They were arrested and charged with money laundering offences in DCCC 724/2017. Bai Ying was released in that case. Charge 1 9.This charge relates to AC1 – the HSBC account specified under Charge 1. The offence spanned about 7 years 1 month. The total amount deposited into the account is almost HK$16M (charge amount). During the same period, the total sum of slightly over HK$15M was withdrawn from the account. Charge 2 10.This charge relates to AC2 – the BOC account specified under Charge 2. The offence spanned 7 years, more or less overlapping with the charge period of Charge 1. The total amount deposited into the account is over HK$58M (charge amount). During the same period, the total sum of over HK$60M was withdrawn from the account. Charge 3 11.This charge relates to AC3 – the BOC CNY account specified under Charge 3. The offence spanned 6 years 11 months, more or less overlapping with the charge period of Charge 1. The total amount deposited into the account is about RMB1.95M (charge amount). During the same period, the total sum of about RMB2M was withdrawn from the account. Charge 4 12.This charge relates to AC4 – the HSBC account specified under Charge 4. The offence spanned 6 years and 3½ months, which period is enveloped within the charge period of Charge 1. The total amount deposited into the account is over HK$31M (charge amount). During the same period, the total sum of about HK$30M was withdrawn from the account. HOUSE SEARCH 13.During a house search of Mr Ng’s residence in 2013, cash of HK$1,101,910 and RMB1,543 was found in a safe located in the master bedroom. ARREST 14.On 12 September 2019, Mr Ng was arrested at the Hong Kong Macau Terminal in Sheung Wan when he returned to Hong Kong from Macau. CRIMINAL RECORD 15.Mr Ng has 20 previous convictions none similar. ANTECEDENTS 16.Mr Ng is aged 57 (41-48 at the time of the offences), educated to primary level, worked as a businessman all along. He is separated from his wife and cohabited with his girlfriend and their two children in Fanling. MEDICAL REPORTS 17.A medical report was ordered on 10 May 2021 in order to verify some of the claims of Mr Ng regarding medical matters. Two medical reports came back: one from LCK Reception Centre, the other from Dept of Neurosurgery of Queen Mary Hospital. 18.The medical report compiled by the Senior Medical Officer of LCK Reception Centre is unremarkable. It reported that (a) on the day following Mr Ng’s remand into custody, Mr Ng reported having history of, among other things, brain benign tumour with operation done in the Mainland in 2018; (b) relevant follow-up appointment(s) on that topic in special outpatient clinic had been arranged; and (c) his general health condition remains unremarkable. 19.The medical report from a Consultant of QMH stated that a CT of brain with contrast was performed on Mr Ng on 2 March 2021 which showed evidence of left frontal craniotomy with underlying encephalomalacia; that a dural based contrast enhancing mass at the left anterior falx that could represent residual meningioma after treatment or recurrent disease, pending reassessment in November 2021. The medical report further explained that Mr Ng was stable clinically with no active medical complaint. MITIGATON 20.Messrs Khattak and Conan Tsang of counsel mitigated on behalf of Mr Ng. 21.The following is a summary of the mitigation submissions. 22.Mr Ng had worked in various businesses when young. In or around 2000, he set up Ng’s Construction and was involved in large scale aluminium window replacement projects and has earned substantial income. 23.Mr Ng has 2 daughters with his ex-wife Li Sin Wai. Elder daughter (19) is studying in a Canadian University and younger daughter (17) is studying in a university in Hong Kong. 24.Mr Ng has two other daughters with girl-friend Bai Ying. YM (9) is studying in primary 3 while SC (7) is studying in primary 1. YM is said to be suffering from Attention Deficit Hyperactivity Disorder and she has exhibited symptoms of mental illnesses. SC was born after Mr Ng’s detention in the Mainland. 25.In 2018, Mr Ng underwent two major surgeries in brain tumour resection and is still undergoing regular check-ups to ensure no relapse. 26.Defence submitted that Mr Ng was arrested, detained, and later prosecuted by the PSB in Shenzhen in synchronized raids with Hong Kong on 16 June 2013; that Mr Ng was convicted of the related offence of “Operating illegal gambling establishment” on 30 June 2014 and sentenced to 4 years’ imprisonment (actual custody time was 39 months). 27.Defence further submitted that Mr Ng was released from the Mainland prison at the end of 2016 and that he had the most difficult part of his life while being detained in the Mainland; that since release, Mr Ng spent time in the Mainland and Macau until his return to Hong Kong in September 2019. 28.Defence submitted excerpts from the affirmation prepared by the Senior Inspector in the application for “Restraint Order”, parts of which are reproduced below:-
29.Defence relied on HKSAR v Lam Pak Lok [1997] 3 HKC 650 and HKSAR v Lee Kwan Yee & Anor [2004] 1 HKC 462 to submit that a sentencing court has a discretion to take or not to take into account any period of time that a defendant had spent in custody outside of Hong Kong which discretion is to be exercised in the light of relevant circumstances. 30.Defence submitted that Mr Ng returned to the Mainland one day before arrest, ie he returned on 15 June 2013, in the hope of celebrating Father’s day with girlfriend Bai Ying and his 3rd daughter YM, and not for the purpose of evading anything. 31.Defence referred to Holding no 1 in the headnote of HKSAR v Boma [2012] 2 HKLRD 33 ie “Given the highly variable circumstances in which the offence might be committed, it was difficult and undesirable to offer guidelines. This was a category of offence which called for the sentencing judge to engage his “feel” for the case and his sentencing experience bearing in mind always the mischief at which the legislation was directed. The best one could do was to draw the attention of judges to relevant considerations.” 32.Defence then referred to two other Court of Appeal cases which are no more than instances of how individual sentences were handed down either at first instance or on appeal/review under different fact matrices. They are of limited value. 33.Defence also submitted para 59(4) (with a table of figures immediately below it) of the same affirmation. That table is similar but not identical to the table at para 8 of the Amended Summary of Facts dated 4 May 2021. Para 59(4) reads:-
34.Defence argued that the court should sentence Mr Ng on the basis of this hugely reduced sum (HKD + CNY bolded above) rather than the raw total sum reflected by the 4 charges which amounted to HK$105,671,447.42 plus CNY1,956,577.11. 35.Upon enquiry by the court, on the Boma considerations, Defence submitted that:-
36.Defence submitted a mitigation letter (in Chinese) written by Mr Ng himself. Contents are generally that Mr Ng has been remanded in custody for 20 months; that he asked for a lighter sentence in light of his body condition and the fact that he had spent some hard times in Mainland prison; and that he wishes to spend more time with his 4 daughters. Defence also submitted a birthday card drawn by the youngest daughter for Mr Ng. 37.On the resumed hearing date of 28 May 2021, Defence asked for a lenient sentence for Mr Ng to effect an early reunion with family members especially the 3rd and 4th daughters. Defence indicated Mr Ng would not take the witness-stand to explain some of the dealings in his subject bank accounts due to lapse of time, loss of memory as a result of removal of brain tumour; that his long period of custody both in the Mainland and in Hong Kong made it difficult for him to explain the various deposits into his accounts. Defence will simply rely on submissions made from the Bar table. 38.Defence further submitted a medical report dated 5 May 2021 under the hand of Dr Chan Kam Hon of North District Hospital which confirmed the various claims made about Mr Ng’s medical conditions in the written mitigation submissions. Of significance in the report are that his diabetes though complicated is under stable control; that his hepatitis C virus is likely to have been eradicated; that he is now free of symptoms of ischemic heart disease. There is also history of other disease and operation but they were some time ago. The report concluded by saying that Mr Ng now has stable medical condition. 39.Defence lastly submitted a copy Sale and Purchase Agreement of Shares between Tan Kim Chuan and Mr Ng signed on 27 March 2008 together with a copy transfer slip relating to the transfer out of AC2 (BOC account) of the sum of $3M in an attempt to persuade the court of the veracity of a transaction. SENTENCE 40.I have considered all of the mitigation submissions. 41.Money laundering is a serious offence because it facilitates the funneling of ill-gotten gains of other serious offences. To stop or reduce money laundering activities by handing down deterrent sentences on offenders will help to curb the proliferation of pecuniary crimes. 42.Defence referred to one of my own sentencing cases namely, HKSAR v Chow Lai Ying, Candy, DCCC 656/2019, in particular paras 33 and 53-54 thereof for comparison purposes. As has been said many times by higher courts on this type of case, a bland comparison of sentences handed down in cases with different fact matrices and different defendants is rarely useful. 43.In Boma, supra, it was said that one must first recognize that for the offence of money laundering, the maximum sentence is 14 years’ imprisonment and that deterrence is the paramount sentencing principle; that the amount laundered, though not the be-all and end-all of a case, is nonetheless a significant feature. Further, a sentencing court should take into account the following non-exhaustive list of features:-
44.In this case, on the Boma considerations, (a) the predicate offence appears to be unlawful bookmaking or operating a gambling establishment, the maximum sentence for both of which is 7 years’ imprisonment; (b) Mr Ng appears to be in full knowledge of the unlawful bookmaking/ gambling activities and the nature of the funds; (c) it was conceded that there was cross-border dimension in the operation of the business; (d) the money laundering operation does not appear to be too sophisticated; (e) the operation appears to involve three other specific persons namely, Yeung Kiu Sang Victor, Chan Li Fong and Chui Hi Yeung, who have all been convicted of money laundering under DCCC 724/2017 and whose starting points of sentence were respectively 3½ years, 2½ years, and 4 to 4½ years (international element not taken into account), and hence can be regarded as an organized criminal syndicate on behalf of which Mr Ng committed the present offences; (f) there were multiple transactions within each of the 4 named accounts spanning slightly more or less than 7 years; (g) Mr Ng all along knew that he was engaging in money laundering relating to unlawful bookmaking/gambling activities; (h) it seems that Mr Ng was himself engaged in unlawful bookmaking/gambling activities (given his arrest and conviction in the Mainland) and all the pointers indicate that he was the director of the laundering scheme. 45.In sentencing Mr Ng, I feel able to take a global view of the matter. The total period of the four charges spanned over a period of more or less 7 years. 46.On the topic of the total amount laundered, I do not accept the figure that I should work on is that submitted by the Defence, namely the “Total Net Deposit” amount stated in the table in para 8 of the said Amended Summary of Facts, which was HK$43,633,957.14 + CNY1,587,354. 47.After hearing from the prosecution, I feel able to deduct the “Rental income” amounts and the “Business transactions” amounts as stated in that table for the calculation of the amount laundered, but that is all. Of the other individual amounts on that table, some are insignificant as compared with the “Total Deposit” amount for that charge/account. Others relate to the usual money laundering techniques (juggling to and fro) eg “betting” through HKJC, “buying” and “selling” of securities, and inter-account transfers. Defence have not been able to persuade me without calling evidence that these are genuine transactions free from money-laundering overtones. In short, I am not impressed by the submissions made from the Bar table that some of the transactions shown in the table in para 8 of the Amended Summary of Facts (save to the limited extent as indicated at the beginning of this present paragraph) are legitimate. In this connection, the copy Sale and Purchase Agreement does not take the Defence case any further. 48.So the amount I will work on for the sentencing task before me is:- Total Deposit – Rental income – Business transactions = HKD91,763,259.42 + CNY1,956,577.11 49.To make things simpler, I shall use a conversion rate of 1:1 for the conversion from CNY to HKD. So the amount of HKD I will work on is HK$93,719,836.53. 50.I bear in mind the principle of totality. I bear in mind the predicate offence is unlawful bookmaking/operating gambling establishment the maximum sentence for both of which is 7 years’ imprisonment and I also bear in mind the relevant Boma considerations. 51.Having taken into account the above matters, I adjudge a global starting point of 5 years 6 months to be appropriate. Mr Ng pleaded guilty in good time and so is entitled to the full 1/3 discount. 52.Mr Ng’s family circumstances are not effective mitigating factors. 53.Mr Ng’s general health condition is unremarkable and his medical condition is stable and there is no evidence of a relapse on his brain tumour-related disease. So this is not an effective mitigating factor either. Discretion on reducing sentence because of incarceration in the Mainland 54.After some persuasion by the court, Defence eventually and voluntarily produced a copy of the Mainland judgment (in Chinese) involving Mr Ng which resulted in his receiving a 4 years’ sentence from a Mainland court. 55.It emerged from the judgment that Mr Ng was found by the court there to be the main perpetrator (p 19) of a group of 8 persons convicted of “Operating a casino” contrary to Article 303 of the Criminal Code of the PRC and he was sentenced the heaviest of all accused to 4 years’ imprisonment and fined RMB100,000 Yuan (p 20). 56.The facts as found by the court (p 11) were that in year 2011, Mr Ng and others not before the Mainland court had through D5 Liu Chun Wah and D8 Sung (both IT professionals) rented a (computer) server located in Taiwan, China, and designed webpage(s) and established respectively 3 gambling websites in Shenzhen, one of which was Dor Sing Mong (a gambling website for placing bets on horse racing) and this website was the focus of the Mainland court. It was found that Mr Ng had a substantial shareholding in it and had unlawfully profited from it. Dor Sing Mong had 6 levels of accounts, namely Administrator, Shareholder, General Agent, Agent, Member, and Outbound Banker. Mr Ng and others not before the Mainland court had developed under-levels through various means and accepted bets from Mainland and Hong Kong punters. Between 8 September 2012 and 16 June 2013, Dor Sing Mong had received 569,872 bets, total betting amount being HK$916,656,450. The website had profited an amount of HK$6,433,338 with the profit to shareholders being HK$1,302,754. Throughout the same period, D5 and D8 continued to service and upkeep the three websites (pp 12-13). 57.Defence asked me to apply the principle of totality by taking also into account the Mainland sentence that Mr Ng had received; that it would be best if I could sentence Mr Ng as if the Mainland case was also before me. 58.As I see it, Defence faces three difficulties, namely:-
The time factor 59.The four charges before me relate to offences of money laundering spanning between 3 May 2005 and 18 June 2012 – the predicate offence(s) being unlawful bookmaking. The gist of the Mainland offence related to activities of operating a virtual gambling website (created in the Mainland called Dor Sing Mong which related to horse racing) between 8 September 2012 and 16 June 2013 (date of Mainland arrest). It can be immediately seen the two periods are quite different and distinct – there was no overlapping period. In other words, although it might be argued there was bound to be some money laundering activities relating to the Mainland offence, those activities were not connected to the 4 charges before me. The nature factor 60.Defence argued that there was a link between the Mainland offence and the Hong Kong offences in that there were synchronized raids on the same day ie 16 June 2016. 61.Defence prayed in aid the following extract from para 4 of the affirmation of the Senior Inspector responsible for the restraint aspect of this case:-
62.Defence submitted that one of those arrested in Hong Kong was Yeung Kiu Sang Victor, ie D1 in the earlier case of DCCC 724/2017, a case resulting from the raid and arrests in Hong Kong. No doubt, if Mr Ng was in Hong Kong that day, he would have been arrested by the Hong Kong police and put in the same proceedings as Yeung for the 4 charges of money laundering before me. 63.One can readily see a connection between the two separate arrests in Mainland and Hong Kong. However, the group arrest in the Mainland did not involve Mr Ng and his girlfriend alone; it involved at least 8 other persons (some Hong Kong and some Mainland residents) 7 of whom including the two Mainland IT professionals were convicted together with Mr Ng of the same Mainland offence. There is a substantial Mainland element in the Mainland offence. 64.Therefore, it is doubtful whether it would be appropriate to indict Mr Ng in Hong Kong of an offence for the activities in the Mainland. 65.There is another reason why I should not apply the principle of totality in such a way as if I am at the same time also dealing with the Mainland activities under the cloak of a Hong Kong offence. The Mainland and Hong Kong courts are under totally different legal systems and operate under separate legal jurisdictions. The respective criminal laws including the sentencing limits thereunder in the two legal jurisdictions are by and large if not wholly different. It would be against the comity of legal jurisdictions for me to attempt to re-sentence (even notionally) Mr Ng for an offence for which he had already been dealt with by a Mainland court. 66.To complete the picture, Defence has lately referred to a case of the Supreme Court of Australia, namely Morgan v The Queen (2013) 231 A Crim R 299, in particular paras 37 and 86-107 thereof which were helpfully summarized in the headnote on p 300 as an obiter remark to the effect that “factors of nature and time may bear significantly upon the weight to be given to totality, but do not operate as a limiting factor on the invocation of totality in the context of inter-state or overseas offending”. Defence has not referred me to any Hong Kong authority which has considered this obiter remark. I decline to follow it. The completed sentence factor 67.Mr Ng had completed his 4 years’ Mainland sentence in September 2016 (actual time in custody being 39 months) before being arrested by the Hong Kong police in September 2019 on his return from Macau. In other words, there was a period in between of 3 years during which he was a free man. This is a long period. I don’t see how, in light of this factor alone, I can justifiably take into account his Mainland sentence on a strictly legal basis when considering totality. To allow this inroad into the totality principle is to open a dangerous floodgate – where do we draw the line? 68.Defence attempted to argue otherwise by referring to a case of the High Court of Australia, namely Mill v R (1988) 83 ALR 1, judgment dated 8 December 1988. In that case, the appellant committed three armed robberies in a six-week period from December 1979 to January 1980. Two of these offences were committed in Victoria, for which the appellant on conviction received eight years’ imprisonment on the first charge and eight years’ imprisonment with six years of it concurrent on the second charge, thus receiving an effective head sentence of 10 years, with a non-parole period of eight years. On his release on parole in Victoria, he was arrested and returned to Queensland to be tried for the third offence. He was sentenced to eight years’ imprisonment with a three-year non-parole period. Leave to appeal to the Court of Criminal Appeal in Queensland was refused. The appeal was allowed by the High Court of Australia. It was held, per curiam, that the proper approach to be taken was to ask what would be likely to have been the effective head sentence imposed if the applicant had committed all three offences of armed robbery in one jurisdiction and had been sentenced at the same time. 69.Defence submitted that the appellant/applicant in Mill had completely served his sentence yet that fact did not seem to have deprived him of the benefit of a totality sentence. There are three problems with this submission: (a) the appellant/applicant in Mill was still on parole for the Victorian convictions when he was sentenced by the Queensland court and therefore could not be said to have completed his earlier sentence; (b) there was no indication that the point Defence now relied on was argued on appeal to the highest court there; and (c) in any event, that judgment, however respectful the delivering court was, has no binding effect on the courts of Hong Kong. 70.In conclusion, in strict legal logic, I am unable to take into account the Mainland conviction or sentence when sentencing Mr Ng herein. Discretion 71.However, that is not to say that I may not, in tempering justice with mercy and in exercise of discretion, extraordinarily give Mr Ng a discount on sentence for his relatively lengthy period of incarceration in the Mainland. In HKSAR v Lee Kwan Yee & Anor [2004] 1 HKC 462, 464, Hartmann J (as he then was), in giving the judgment of the Court of Appeal, said:-
72.I have already found a connection between the respective arrests in the Mainland and Hong Kong. In the nature of things, had Mr Ng not been prosecuted and convicted and sentenced in the Mainland, it was likely that he would be “escorted” back to Hong Kong to face the present 4 charges, in the same proceedings as Yeung Kiu Sang Victor found himself in. What happened was an unfortunately belated prosecution of Mr Ng here when all his known confederates had been dealt with, not, I might add, due to the fault of the police, Mr Ng or the Mainland authorities. I am of the view that justice demands that some credit be given for his incarceration in the Mainland. 73.Having weighed everything in the round, for his incarceration in the Mainland, I will give Mr Ng an extra reduction of 11 months from the result of taking 1/3 off the global starting point of 66 months. 74.I can find no other mitigating factors of sufficient weight to justify any further reduction in sentence. 75.The mechanics in which this exceptional reduction of 11 months factors into the individual sentences is as follows: after the usual 1/3 reduction, 2 months is to be taken off from the sentence on Charge 1, 5 months is to be taken off from the sentence on Charge 2, one month is to be taken off from the sentence on Charge 3, and 3 months is to be taken off from the sentence on Charge 4. 76.I will impose the following individual sentences on Mr Ng. (Mr Ng, please stand) 77.For Charge 1, I adopt a starting point of 51 months; a discount of 1/3 and a further reduction of 2 months will result in a sentence of 32 months’ imprisonment. 78.For Charge 2, I adopt a starting point of 57 months; a discount of 1/3 and a further reduction of 5 months will result in a sentence of 33 months’ imprisonment. 79.For Charge 3, I adopt a starting point of 36 months; a discount of 1/3 and a further reduction of one month will result in a sentence of 23 months’ imprisonment. 80.For Charge 4, I adopt a starting point of 54 months; a discount of 1/3 and a further reduction of 3 months will result in a sentence of 33 months’ imprisonment. 81.In order to arrive at the final sentence of 33 months, I simply order that all sentences are to be served concurrently.
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