HKSAR v. Lo Wing Shuen, Wing

DCCC 708/2022

[2023] HKDC 1637

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 708 OF 2022

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REASONS FOR SENTENCE

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1.The Defendant (“D”)  pleaded guilty to one charge of conspiracy to deal with property known or reasonably believed to represent proceeds of an indictable offence (commonly known as “money laundering”).

Summary of Facts

Sing Nok Consultant Company

2.On 15 April 2013, the D registered Sing Nok Consultant Company in Hong Kong and opened a BOC account on 29 April 2013.

1^st Victim – Eastgate Computer Corporation (Philippines)

3.On 26 June 2013, PW1 received an email from her supplier purportedly from Perfect Best requesting for payments to be made to their associated company in Hong Kong, namely Sing Nok, and to the BOC Account.

4.Eastgate therefore remitted 3 payments on:

(a)  26 June 2013, US$100,000.00 (HK$774,121.49)

(b)  5 July 2013, US$94,146.93 (HK$728,301.89)

(c)  18 July 2013, US$160,000.00 (HK$1,238,811.74)

The total remittance was US$354,146.93 (approximately equivalent to HK$2,741,235.12).

5.On 23 July 2013, PW1 learnt that Perfect Best has neither received any of the said payments nor emailed any instructions to Eastgate to deposit money into the BOC Account.

6.PW1 also subsequently discovered that her email account has been hacked.

2^nd Victim – Eastraco (in Indonesia)

7.On 24 June 2013, PW2 received an email purportedly from the supplier requesting for payment of US$30,963.00 (approximately equivalent to HK$239,540.48)  to be remitted to Sing Nok via the BOC Account.

8.PW2 remitted the money on 26 June 2013, but found out on the same day that the supplier never received the money nor sent the email to Eastgate.

Arrest and Cautioned Statement

9.D was arrested at her residence on 27 December 2013.

10.The D admitted under caution, inter alia:

(a)  D was in need of money back in March 2013.

(b)  D saw on a lamppost a moneylender’s advertisement poster for advancement of loans without the need for provision of income proof.

(c)  D called the moneylender’s number on the poster and subsequently met a man called himself “Choi Gor”（財哥）.

(d)  “Choi Gor” told D that he ran a business which helped overseas clients to set up companies and open bank accounts in Hong Kong. He said the business was legitimate and promised to give D HK$6,000 as a reward after D set up a business and opened a bank account.

(e)  D registered Sing Nok as a business and opened the BOC Account.

(f)  D then passed to “Choi Gor” the ATM card and bankbook of the BOC Account and “Choi Gor” paid her HK$6,000 cash.

(g)  Between June and mid-July 2013, “Choi Gor” asked D on 3 occasions to visit the bank in person and gave her the bankbook to withdraw all the money in the BOC Account.

(h)  D then passed the withdrawn cash and the bankbook back to “Choi Gor”. “Choi Gor” thereafter gave D HK$2,000 as a reward on each occasion. D never used the ATM card of the BOC Account.

(i)  D has in total received a total of HK$12,000 from “Choi Gor” as reward.

(j)  “Choi Gor” always contacted D with a number blocking caller’s identity.

(k)  D had the understanding that it was illegal to allow someone other than herself to use her bank account.

Bank Records of the BOC Account

11.The BOC Account was only opened from 29 April 2013 to 22 July 2013.

12.During this period of less than 3 months, the BOC Account essentially dealt with only 5 deposits, all of which were of a substantial amount of over HK$100,000 (“the 5 Deposits”)  (the remaining 5 other deposits were all of either HK$100 or HK$200 only). Out of the 5 Deposits, 4 were from Eastgate and Eastraco whose email accounts had been hacked.

13.A “temporary depository pattern” was observed in the BOC Account.

14.All of the 5 Deposits, once deposited into the BOC Account, were quickly withdrawn on the same day, or at most one or two days immediately thereafter, including the deposit made on 12 July 2013 (not from Eastgate or Eastraco).

15.The 5 Deposits amounted to a total sum of HK$4,325,834.94. The total withdrawal made by D with the bankbook on the 3 occasions as agreed with “Choi Gor” and as admitted by D under caution was HK$3,570,000.00.

Criminal record

16.The D has one conviction record of fraud in 2013.

Background

17.The D is 48 years old. Her son is 24 years old.

18.At the time of arrest, the D was unemployed and received CSSA from the government.

19.The D in her letter to this Court, tells me that she has re-established herself during this period of time. During the pandemic, she found a job in 2020, she started off as a shop assistant, than became a shop supervisor and has been promoted as a shop assistant manager recently.

20.Today, the D submitted a certificate that she had attended and completed a food hygiene manager course just 2 days ago.

21.There were 4 donation receipts of this year, each of a few hundreds.

22.The D asked for a non-custodial sentence.

Sentence

23.The offence carries a maximum penalty of a fine of $5 million and an imprisonment term for 14 years on indictment.

24.In HKSAR v Boma [2012] 2 HKLRD 33, the court provided a non-exhaustive list of the relevant sentencing factors for sentencing consideration.

25.In the same judgment at paragraph 36, it also states that:-

“The sentencing court must have regard is the fact that in this category of offence, deterrence is paramount. It is to be remembered that ‘the criminality in laundering arises from the encouragement and nourishment it gives to the crime in general. Without it, many crimes would be rendered much less fruitful and perhaps more difficult to perpetrate’.”

26.In the present case :-

(a)  It is a conspiracy charge, apart for the D, there was at least a “Choi Gor” in the scheme.

(b)  There is no evidence to suggest that the D knew the nature of the predicate offence.

(c)  The commission of the offence involved certain degree of planning, as she needed to register a company and opened a bank account. She passed the ATM card and the bankbook to “Choi Gor” while on the other hand, She was rewarded with $6,000 for doing that.

(d)  The bank account was opened for 3 months for only one purpose – that was for money laundering.

(e)  She was rewarded each time for withdrawing money from the bank account. There were 3 occasions that she personally withdrew cash in a total of $3,570,000.00 from the bank account.

(f)  There were 5 deposits of each over HK$100,000, 4 were from Eastgate and Eastraco. This is an aggravating factor as the fund were from overseas as it involved international element.

(g)  The D has been rewarded in a total of HK$12,000 for her participation in the money laundering.

(h)  The total 5 deposit amounted to about HK$ 4.3 million over a period of 3 months.

27.In HKSAR v Hsu Yu Yi [2010] 5 HKLRD 545, the court stressed against that fact-specific nature of the offence regarding sentence. However, the amount of the money being laundered is a major sentencing consideration.

28.The defence referred me to the case of HKSAR v Lam Ka Sin [2021] 2 HKLRD 32 that the applicant pleaded guilty to a charge of conspiring with another person to money laundering. She withdrew from participating in depositing the cheque into an account when there was a face issue of the cheque. At the time of appeal, she already has a son. She has a difficult and traumatic life, she had acute depression with suicidal episodes and engaged in drug abuse. After the arrest of the money laundering charge, she was sentenced to DATC for a drug offence. Her cohabitee deserted her and their son. She was 20 years old at the time of the offence. She reformed herself and committed to purse a law abiding life. She was in custody for some 11 months. In light of all the background circumstances, she was allowed an immediate release from prison.

29.In the present case, the D committed the present offence because of her financial circumstance. As said in many cases, financial hardship is never a mitigating factor. She knew that she was embarking on an illegal journey with “Choi Gor”. She went to the bank to withdraw money on his behalf and was each time given some money. The activities covered a period of 3 months.

30.I disagree with the defence that I should pass a non-custodial sentence for such a serious offence on the D as it will give a wrong message to the public and the syndicate. All I can say is that D sold her freedom cheaply to the syndicate behind her.

31.To this end, I consider that a starting point of 3 years is appropriate to reflect the culpability of the D and the gravity of the offence. I also enhance the sentence by 3 months in view of the exiting aggravating factor. Given 1/3 discount, it reduces to 2 years 2 months.

32.As previously said that the D has taken the opportunity to reform herself by working hard in her job, earned a steady income to support herself and her family, I reduce 3 months for her positive improvement in her life.

33.I further reduce 3 months as this matter had been taken a long time to reach the day of sentence.

34.The final sentence that the D is to serve is a period of 20 months.