HKSAR v. Fong Chun Yi and Another

DCCC 1109/2020

[2021] HKDC 1008

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 1109 OF 2020

________________________

________________________

________________________

Reasons for Sentence

________________________

1.The defendants in this case have pleaded guilty to a single charge of dealing with property known or believed to represent proceeds of an indictable offence, contrary to sections 25(1) and (3) of the Organised and Serious Crimes Ordinance, Cap 455.

2.Particulars are the named defendants on 3 July 2019 at the Lok Ma Chau Control Point in the New Territories, knowing or having reasonable grounds to believe the property, namely cash of a total sum of $1,683,800 United States currency, in whole or in part, directly or indirectly represented any person’s proceeds of an indictable offence, dealt with the said property.

3.Given that no predicate offence has been disclosed in the facts which I am going to look at shortly, it would mean the defendants would be convicted on the basis of having reasonable grounds to believe that the property represented the proceeds of an indictable offence.

4.The facts show that the defendants were arrested on 3 July 2019 in the New Territories inside a taxi and a large sum of money was found on board the taxi in rucksack and recycle bag carried by the respective defendants.  A total of $1,683,800 United States currency cash was found in D1’s rucksack and the white recycle bag carried by the 2^nd defendant.

5.The facts show that the defendants were in fact arrested as they were the targets of another case involving a conspiracy to rob.

6.There was initially questioning by the police and the 1^st defendant offered an explanation that he came to know the 2^nd defendant, then they were engaged in what is described as parallel goods trading in late 2011.  He was offered a job through a WeChat platform involving bringing US dollars from the Mainland into Hong Kong.  The person who had contacted him would arrange people to bring US dollars in cash from the Mainland to Hong Kong via Lok Ma Chau Immigration Control Point.  The defendant was instructed to collect the cash near a public toilet at Lok Ma Chau Control Point in the Hong Kong bound section.  After collecting the cash, he was to exchange the US dollars to Hong Kong dollars at a designated currency exchange shop, take that money to Macau, and deposit it into different casino accounts.

7.As the volume of cash was heavy, the 1^st defendant would invite the 2^nd defendant to join.  The 1^st defendant earned HK$2,600 while the 2^nd defendant earned HK$2,100 on each occasion.  There was reference in that admission that this had been done some 20 times between May and July 2019 but none of those occasions are evidenced and charged.

8.On the day in question - that is 2 July 2019 - the 1^st defendant was requested to collect the money at the Lok Ma Chau Control Point at about 5.30 in the morning.  He was told there would be 21 persons handing money to him.  He informed the 2^nd defendant about the arrangements accordingly and the 2^nd defendant came to assist.

9.On 3 July 2019, they collected the cash from the 21 persons, put the cash into the rucksack and into the 2^nd defendant’s blue-and-white recycle bag, got on the taxi, went to Sheung Shui Railway Station.  The 1^st defendant said he did not know the source of the monies and the 2^nd defendant said she did not know the persons who handed her the monies but she said she knew that they were parallel goods traders.  She also did not know the source of the monies as this was arranged by the 1^st defendant.

10.Those are the basic facts relied on by the prosecution.

11.As far as the defendants’ backgrounds are concerned, 1^st defendant is now aged 60, educated to secondary Form 5 in China, described himself as a parallel trader, had been a fruit seller.  He has some family and a daughter.  He has some previous convictions relating back to the 1990s and a conviction in 2015 for which he was fined.  The offences appear to be relatively minor and somewhat old now.  They are not relevant in respect of sentencing for the 1^st defendant.

12.2^nd defendant is a 42-year-old lady, educated up to secondary level in China.  She was unemployed at the time of arrest other than doing this job with the 1^st defendant.  She is married with a daughter. She had a suspended sentence for breach of condition of stay in 1999, again an old offence and a relatively minor offence.  I shall disregard her conviction for the purpose of sentencing her.

13.Looking at the sentencing of this offence, there is no guideline sentence.  The circumstances in which money laundering, as is described, can occur are so varied that it is not possible to lay down a guideline for money laundering offences. 

14.There are some sentencing principles which have been set out in appellate cases. 

15.The most comprehensive of those is the case of HKSAR v Boma [2012] 2 HKLRD 33.  There is a list provided with some of the factors that should be taken into consideration, and they are relevant to consider in this case, of course:

(a)  the nature of predicate offence. That is not disclosed. It may have some relationship to bookmaking, but it is not clear. The money was to end up eventually in Macau into gambling accounts;

(b)  state of the offender’s knowledge. Neither of the defendants were privy to what the predicate offence was. They were simply carriers of the money, described by Mr Chau as being mules;

(c)  the third part is what is described as international element. Clearly, there is no international border crossed here but there are regional borders crossed when the money comes from China into Hong Kong, which is, to a certain extent, an aggravating factor;

(d)  another factor is the sophistication of the planning. As far as these defendants are concerned, there is no sophistication at all. They simply received the money and changed it into another currency and moved it on;

(e)  whether an organised criminal syndicate was involved. There is no evidence that that occurred;

(f)  the number of transactions involved. We are dealing here with one charged transaction. There is reference in the facts to other occasions when money may have been moved but there is no indication as to what sums were involved and there is no evidence in support of that;

(g)  seventh, whether the defendant continued to launder funds even after discovery. That is not relevant here; and

(h)  finally, the role of the offender. I have already described that the role of these offenders, both were simply to move the money, a form of courier. I already indicated the defendants will be convicted on the basis they had reasonable grounds to believe and there is no evidence of the source of the monies in respect of this case.

16.I have been referred by counsel in both submissions to cases they see that are relevant in respect of the amounts of money involved.  Although the culpability of the offence lies in the assistance, support and encouragement offered to the commission of an indictable offence, the defendants’ level of participation is relevant as is the amount of money involved in the case.  The amount of money involved in this case is in the region of HK$13 million. 

17.I was referred to two cases, which is said are somewhat relevant:  HKSAR v Chow Lai Ying, Candy, where a large sum of money was in fact laundered but in relation to Charge 6 involving HK$15.9 million to HK$2 million, the court imposed a sentence of 24 months’ imprisonment, which had been a starting point of 24 months’ imprisonment; and of course the other case is HKSAR v Xu Xia Li, CACC 395/2003, where a starting point of 2 years and 9 months’ imprisonment was adopted for the laundering of money amounting to HK$11 million.

18.As I have said earlier, the culpability of the defendants is important.  The raw sum of money or HK$13 million is not the sole determinant of the sentence in a case like this.  It is a significant factor that large sums of money were being laundered in this case, but I also have to look at the nature of the defendants’ involvements in this case, which I have already set out.

19.I also bear in mind the defendants’ own personal circumstances.  They are relatively unsophisticated people and have made a living through some form of trading in the past.

20.Given the factors that I have set out, I am going to adopt the same starting point in respect of both defendants.  I am going to take a starting point at 33 months’ imprisonment and reduce that to 22 months’ imprisonment for the defendants’ pleas of guilty.  So the final sentence of the court is one of 22 months’ imprisonment.