HKSAR v. Tsui Kin Ping

DCCC 255/2022

[2023] HKDC 170

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 255 OF 2022

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REASONS FOR SENTENCE

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1.Mr Tsui pleaded guilty before me to 4 charges of Dealing with property known or believed to represent proceeds of an indicatable offence, contrary to section 25(1)  and (3)  of the Organized and Serious Crimes Ordinance, Cap 455.

2.Particulars are that he, on or about (a day D)  of November 2021, in Hong Kong, together with other persons unknown, knowing or having reasonable grounds to believe that property, namely a sum of (X)  Hong Kong currency, in whole or in part directly or indirectly represented the proceeds of an indictable offence, dealt with the said property.

3.For Charge 1, the day D is 15, and the sum X is $100,000.

4.For Charge 2, the day D is 17, and the sum X is $70,000.

5.For Charge 3, the day D is 18, and the sum X is $200,000.

6.For Charge 4, the day D is 23, and the sum X is $150,000.

Facts admitted by Mr Tsui

Charge 1

7.On 15 November 2021, at about 1100 hours, a lady PW1, aged 67, received a phone call from a male (M1).  M1 claimed to be her eldest son Ah Keung.  PW1 asked why his voice was different.  He explained he had a toothache.  He further said he had a fight with the husband of a colleague and was therefore arrested.  He said he needed money for bail.  He asked PW1 to bring all the money (meaning $100,000 cash kept at home)  to his friend Mr Li at Lok Fu.

8.At about 1330 hours the same day, PW1 took all of her $100,000 cash from home to Lok Fu Place in Lok Fu as directed by M1.  On arrival, PW1 was approached by Mr Tsui who asked if PW1 was the mother of Ah Keung.  Worried about her son, PW1 handed all the $100,000 to Mr Tsui.  The money has never been recovered.  When her eldest son returned home and learned about this episode, he accompanied PW1 to make a police report.

Charge 2

9.On 17 November 2021, at about 1100 hours, a gentleman PW2, aged 73, received a phone call from a male (M2)  who falsely claimed to be a friend of Ah Wing, the second son of PW2.  M2 said Ah Wing had hit, and injured the head of, a man; that Ah Wing was arrested and therefore needed $100,000 for bail.  PW2 told M2 he had only $70,000 of savings.  After some discussion, M2 asked PW2 to take $70,000 to the Clock Tower in Tsim Sha Tsui.

10.PW2 withdrew all of his $70,000 savings from the bank and rushed to Tsim Sha Tsui.  There, Mr Tsui approached PW2 and asked whether he was the father of Ah Wing.  Worried about his son, PW2 handed over the sum of $70,000 to Mr Tsui. The money has never been recovered.  When the second son of PW2 returned home and realized his father had been deceived, they went to make a police report.

Charge 3

11.On 18 November 2021, at about 1532 hours, a lady PW3, aged 76, received a phone call from a male (M3)  who claimed to be a friend of Ah Kun, her youngest son.  M3 said Ah Kun had had a fight with other people and needed money for medical expenses.

12.PW3 took $200,000 from home and boarded a taxi and called M3 as previously directed.  Over the phone, M3 directed the taxi driver to go to Mong Kok East MTR.  Upon arrival, PW3 was approached by Mr Tsui who asked if PW3 was the mother of Ah Kun.  Worried about her son, PW3 handed over the sum of $200,000 to Mr Tsui.  The sum has never been recovered.  When the youngest son of PW3 later learned about what happened, he accompanied PW3 to make a police report.

Charge 4

13.On 22 November 2021, at about 2100 hours, a lady PW4, aged 77, received a phone call (with an unfamiliar displayed number)  from a male (M4)  who falsely claimed to be her son Yiu Ming.  M4 said he had clanged to a new number.  They had a brief conversation.

14.On 23 November 2021, at about 1030 hours, PW4 received another phone call from the same number.  It was M4 again.  He said he had been arrested by the police for fighting and he needed $150,000 cash for bail.  PW4 rushed to the bank and withdrew $150,000 cash.

15.At about 1125 hours the same day, PW4 boarded a taxi with the cash as directed by M4.  PW4 dialled the same number and let the taxi driver talk to M4. The taxi then took PW4 to Kwong Wah Hospital in Yau Ma Tei.  There, Mr Tsui approached PW4 and claimed himself to be a friend of her son.  Worried about her son, PW4 handed over the sum of $150,000 to Mr Tsui.  The money has never been recovered.  The son of PW4 later learned about what had happened and accompanied PW4 to make a police report.

Arrest

16.On 2 December 2021, a detective police officer arrested Mr Tsui for “Obtaining Property by Deception” related to Charge 1.  Under caution, Mr Tsui said, “At that time a friend named Ah Keung asked me to collect $100,000 from an old woman at Lok Fu Place; he gave me $10,000 as reward; the remaining $90,000 was then given to another person called Ah Hing.”

Records of Interview

17.On 2 and 3 December 2021, police conducted cautioned interviews with Mr Tsui during which time he stated:-

Regarding Charge 1

(a)  At the beginning of October 2021, he was introduced to a man called Ah Keung who asked Mr Tsui to earn some quick money by remitting money to the Mainland; Mr Tsui agreed;

(b)  Ah Keung asked him to buy a new phone and new telephone value storage SIM card for communication between them;

(c)  He was later asked by Ah Keung to go to Lok Fu Place to collect from an elderly woman $100,000 of which $10,000 was later given to him as remuneration whereas the remaining $90,000 was given to another man called Ah Hing;

(d)  On 15 November 2021, Ah Keung instructed him to go to the Taxi Station near Lok Fu Place to collect money from PW1;

(e)  When he saw PW1, he mentioned the name of PW1’s son and asked PW1 to call her son on a certain telephone number;

(f)  After PW1 called her purported son, she gave the money to Mr Tsui;

(g)  After collecting the money from PW1, Mr Tsui handed over the same to Ah Hing nearby according to the instructions of Ah Keung; he realized by then Ah Hing was watching him all along; he later used the money given to him by Ah Hing to buy a watch;

(h)  He originally thought it was a way to earn easy money; but after he stopped working with Ah Keung and Ah Hing, he started to realize that the deal did not make sense because of the ease with which he could earn so much money; and

(i)  He had a feeling that he had been used as a scapegoat;

Regarding Charge 2

(j)  He was asked by Ah Keung to help a friend collect money from his father for the purpose of bail; after collecting the same, Mr Tsui handed it over to Ah Hing who then paid him a few thousand dollars as remuneration;

(k)  On 17 November 2021, Mr Tsui received a call from Ah Keung telling him to go to Clock Tower, Tsim Sha Tsui, to collect money from a man as bail money for the latter’s son;

(l)  On arrival, Mr Tsui approached PW2 and asked if he was the father of Ah Wing;

(m)  PW2 then called “Ah Wing” by a number provided by Mr Tsui; during the phone call, PW2 asked if he should pass the money to Mr Tsui; after the call ended, PW2 gave cash of $70,000 to Mr Tsui;

(n)  Mr Tsui called Ah Hing and handed over the money to him outside the Hong Kong Cultural Centre; and

(o)  Ah Hing gave Mr Tsui $4,500 cash as remuneration which the latter later spent on food;

Regarding Charge 3

(p)  Mr Tsui was asked by Ah Keung to help a friend collect money from his mother for remittance to the Mainland as bail money; Mr Tsui then handed the money to Ah Hing who paid back a sum of about $10,000 to him as remuneration;

(q)  On 18 November 2021, Mr Tsui received a call from Ah Keung who instructed him to meet PW3 in Mong Kong East Station;

(r)  He went as instructed and on arrival, he saw PW1 and asked her to call her son;

(s)  After the call, PW3 gave him cash of $200,000 which was wrapped into piles;

(t)  He then passed the cash to Ah Hing; and

(u)  Mr Tsui was paid $7,000 to $8,000 by Ah Hing as remuneration; he had spent it on food;

Regarding Charge 4

(v)  Mr Tsui was asked by Ah Keung to help a friend collect money from his mother for remittance to the Mainland for purpose of bail; after collection, he handed the money to Ah Hing who then paid cash of about $10,000 to him as remuneration;

(w)  On 23 November 2021, Mr Tsui received a call from Ah Keung who instructed him to meet PW4 outside Kwong Wah Hospital and collect money from her for bail of her son; Ah Keung told Mr Tsui to ask if she was waiting for a Mr Li;

(x)  When Mr Tsui met PW4, he asked her if she was waiting for a Mr Li; he then asked her to call her son;

(y)  After making the call, PW4 gave $150,000 to Mr Tsui; he later passed the same to Ah Hing; and

(z)  He was paid a sum of about $10,000 by Ah Hing as remuneration, which he had spent on food.

18.Mr Tsui now admits all of the particulars of the 4 charges that he faces.

Criminal record

19.Mr Tsui has 28 previous convictions none similar.

Antecedents

20.Mr Tsui is aged 63 (62 at the time of the offences), born and educated to junior high school level in the Mainland.  He has a HKID card and was a driver by occupation.  He is divorced and used to live in Shenzhen.

Mitigation

21.Mr Roderick Wu of counsel assigned by the Director of Legal Aid mitigated on behalf of Mr Tsui.  The following is a summary of the mitigation submissions.

22.Mr Tsui made a full and frank confession to the police and pleaded guilty in court.  He is also a first offender of this kind of case.

23.Mr Tsui was born in the Mainland and he came to Hong Kong in 1979.  Mr Tsui used to be a truck driver in Shenzhen, earning a monthly income of RMB9,000 of which RMB2,000 was remitted to his parents as support.

24.In the middle of 2021, he was made redundant as result of the pandemic. He lived on his own savings since then.  He was in need of money.

25.One day by the end of October, 2021, he was advised by his friend Ah Keung in Shenzhen to work as a casual messenger in Hong Kong.  The work involved going somewhere in Hong Kong to obtain a sum of money from a person and then hand it over to Ah Keung in return for a financial reward of not less than $10,000 on each occasion.  Mr Tsui accepted the offer immediately without thinking of the consequences.

26.Under Charge 1, Mr Tsui handed the money received to Ah Keung through Ah Hing who was consuming coffee in a coffee shop nearby.  The scenarios of the other charges followed from the first as described in the facts admitted by Mr Tsui.

27.The total amount of money involved in the four charges came to $520,000 and the facts all occurred in November 2021.  The financial rewards received by Mr Tsui totalled $32,500.

28.Mr Wu submitted that there are no sentencing guidelines for the offence of money laundering.

29.Mr Wu referred to two cases namely, HKSAR v Hsu Yu Yi [2010] 5 HKLRD 545, and Secretary for Justice v Wan Kwok Keung [2012] 1 HKLRD 201 in his written submissions.

30.Mr Wu included the case of HKSAR v Boma [2012] 2 HKLRD 33 in his List of Authorities but has no submissions to make in relation to it.

31.Mr Wu submitted there is no likelihood of Mr Tsui repeating this offence because of his age.  Mr Wu invited the court to adopt a lower starting point and to give Mr Tsui the full one-third discount in sentence.  Mr Wu invited the court to order concurrent sentences.  Mr Wu asked the court to bear in mind that the offences were of similar nature and were committed within a month.  Mr Wu reminded the court of the principle of totality.

32.Mr Wu acknowledged Mr Tsui acted in joint enterprise with others in the offences.

Sentence

33.The maximum sentence of imprisonment for this offence is a term of 14 years.

34.In general, a deterrent sentence should be imposed on offenders of money laundering offences because without their assistance, the commission of pecuniary offences would be greatly hampered.

35.The maximum imprisonment sentence for the possible predicate offences in this case are as follows:-

(a)  Fraud: 14 years;

(b)  Conspiracy to defraud: 14 years;

(c)  Obtaining property by deception: 10 years; and

(d)  Theft: 10 years.

36.The following is taken from the holding of one of the most important cases on sentencing principles in Money Laundering cases, namely, HKSAR v Boma [2012] 2 HKLRD 33, 34:-

“(4)  Fourth, the question of the amount of money laundered was not the be-all and end-all of a case, but it was a significant feature. (See para.38.)

(5)  Fifth, the Court should take into account some of the other significant features inter alia, (a)  the nature of the predicate offence; (b)  the state of the offender’s knowledge; (c)  where the operation involved an international dimension, this would be a significant aggravating feature; (d)  the sophistication of the offence, including the degree of planning; (e)  where the offence was committed by or on behalf of an organized criminal syndicate would be an aggravated feature; (f)  whether there was one transaction or many and the length of time over which the offence was committed; (g)  whether the offender continued to launder funds after he had discovered the nature of the funds were proceeds of an offence or a serious offence was involved; (h)  the role of the offender and the acts performed by him. The list was non-exhaustive. (R v Gonzalez [2003] 2 Cr App R (S)  35, R v Monfries [2004] 2 Cr App R (S)  9, R v Farrow [2007] 1 Cr App R (S)  558 applied; Secretary for Justice v Herzberg [2010] 1 HKLRD 502 considered). (See para.40)”

37.Here, the total amount laundered ie $520,000, though not huge, is of a significant amount.  The nature of the predicate offence is akin to Fraud or Conspiracy to defraud.  From his lengthy criminal record (which included giving false information to pawnbroker and conspiracy to rob)  and his previous dealings with Ah Keung (which included Ah Keung inviting him to earn quick money and asking him to get a new phone and stored value SIM card for communication between them, I found that Mr Tsui clearly knew the general nature of the predicate offence from day 1 and it follows that he knew the various funds he was dealing with represented the proceeds of an indictable offence from the date of Charge 1.  There is a degree of sophistication in the offence in that Mr Tsui did not simply deal with the money; he actually had interaction with the victim by first identifying the victim and then asking him/her to call his/her purported son, sometimes even providing the phone number.  Although there is no clear evidence as to the scale of the criminal syndicate on behalf of which Mr Tsui was acting, from the facts it seems that there must be some degree of organization in it such that the telephone numbers and backgrounds of the victims could have been previously garnered.  There were four transactions committed over a period of 9 days.  There is an aggravating feature because Mr Tsui continued to launder funds after he knew about the seriousness of the predicate offence.

38.The role of Mr Tsui, as has already been mentioned, was not just a passive launderer of funds.  He was actually a player in the bigger scheme of how the various sums of money were taken from the victims.  Mr Tsui has benefitted in the total amount of $32,500, again not an insignificant sum for somebody with his background.

39.I bear also in mind the aggravating factors of Mr Tsui acting in money laundering as a member of a joint enterprise, and of the ages of the various victims with whom Mr Tsui had face-to-face encounters and from whom large sums have been ripped off.

40.For Charge 1, I take as a starting point 3 years and 6 months’ imprisonment.

41.For Charges 2 to 4, I take as a starting point 3 years 9 months’ imprisonment for each.

42.In principle, as the offences were committed on different dates and in relation to different victims, the related sentences ought to be served consecutively.

43.However, taking a global view of the matter and factoring in the principle of totality, I am of the view that a global starting point of 54 months is warranted and should be sufficient.

44.Mr Tsui pleaded guilty in good time earning for himself a 1/3 discount in sentence.  There are no other mitigating factors of weight to justify any further reduction in sentence.

45.I impose the following sentences.

(Mr Tsui, please stand)

46.For Charge 1, the sentence is 2 years 4 months’ imprisonment.

47.For each of Charges 2 to 4, the sentence is 2 years 6 months’ imprisonment.

48.I order that 2 months of the sentence on Charge 2, and 3 months each of the sentences on Charges 3 and 4 are to run consecutively among themselves, and to run consecutively to the sentence on Charge 1, making an aggregate sentence of 36 months’ imprisonment overall.