COURT: The defendant’s husband, Justin Ng, committed serious breaches of trust whilst employed by five consecutive employers as an accountant between February 2018 and May 2020. He would steal from each employer until it was obvious he had been discovered before disappearing, becoming out of reach and contact. Within a short period of time, he would find another job and repeat the cycle of stealing. He pleaded guilty to a total of ten charges in HCCC 63/2022.
Here, in this case, his wife, the defendant, faced three counts, two counts of money laundering and one count of attempted theft. She pleaded not guilty. A jury acquitted her of the 1st count. She was convicted of the 2nd and 3rd counts. Count 1 was sequentially earlier than Count 2.
Count 2 involved a total of $1,390,545.52 deposited between 28 June 2018 and 15 November 2019 in the defendant’s bank account, which in whole or in part, directly or indirectly, represented proceeds of an indictable offence. That is money stolen by her then boyfriend, now husband, from his employers.
Paragraph 51 to 60 of the Admitted Facts, Exhibit P1, sets out in full the details of the fund flows into and out of the defendant’s bank account. The prosecution’s case was that the defendant’s husband would deposit money into her account on various dates, and withdrawals soon after of the full amount or part thereof can be seen.
Count 3 is one of attempted theft. The defendant’s husband attempted to steal $376,910 whilst working as an accountant for OPS Design Consultant Limited in the month of May 2020. This offence involved him stealing four company cheques to try to cash them for $376,910. He gave them to the defendant to take to a bank to cash immediately. She was arrested when it became clear that the cheques were stolen, and the police were called. They were jointly charged with this offence.
Paragraphs 61 to 65 of the admitted facts, P1, sets out the particulars of Charge 3. In essence, the defence admitted in full the actus reus and facts of each charge. All that was in dispute was her knowledge. The defendant elected to give evidence.
In short, the defence was that she was told by her husband he needed her bank accounts to deposit profits of investments that he had made with his boss. His boss did not want to use his own personal bank accounts so his wife would not know of these investments. The defendant’s husband did not want to use his accounts because working full-time meant he had little time to go to the bank to deal with withdrawals to share the profits with his boss.
The defendant had no idea her husband had had a total of five employers between February 2018 and May 2020. She believed he had long and continuous employment as an accountant with one employer only. She believed him when he said he was a successful investor who did well in the cryptocurrency market. She had no reason to doubt what he told her.
Their lifestyle, over a period of time since they began to cohabit, had improved gradually, steadily, and especially financially. They moved out of housing estate accommodation to private accommodation, and when arrested were renting a house in Tai Po for $50,000 a month. They had two domestic helpers and a Mercedes-Benz. She has had two children with Justin Ng who also adopted her eldest child born out of wedlock before they met. He treated her and her family very well. He was very generous, kind and loving. This was obvious from Facebook posts over that period of time.
As for the facts of Charge 3, he told her the four cheques represented his investment in a company with a family member. He was withdrawing his investment because they needed some money for legal fees since he had been arrested not long before her. He was bailed out. He told her that he had been framed by his boss and he was innocent. She believed him. She believed the cheques were what he described and took them to the bank to attempt to withdraw cash. The bank called the police, the cheques were not cashed, and she was arrested.
Mitigation
The defendant is now 33 years old and living with her mother and three daughters aged 13, 5 and 3. She has a domestic helper to assist them. They live in a public housing unit. Justin Ng did live with them as well until he jumped bail before sentencing.
Her background was as follows, her mother brought her up on her own when her father died. He died when she was only one years old. She has four elder siblings. She did not do well at school and scored zero in her Form 5 final exams.
She fell pregnant with a boyfriend when 18 years old who abandoned her. He gave her money to abort her child, but she refused. He has not been in their lives at all. She then worked in simple labour-intensive jobs in restaurants and kitchens.
She dabbled in drugs and has one previous conviction in 2015 for possession of dangerous drugs and possession of apparatus for the inhalation of dangerous drugs. She served a probation order and has managed to maintain a drug-free life since then. There is evidence she has turned to religion and the church for support.
She met Justin Ng, her co-defendant, in July 2017 and soon fell in love. Within months they were cohabiting and within a year had moved to private premises in Kowloon. She stopped working at his insistence and relied on him financially. He gave her no cause for concern and appeared to be able to support her, her mother and elder child. They have had two daughters together, born in May 2019 and September 2020. They married in February 2023. In August 2019, by way of a deed poll, the defendant’s elder daughter by another man, assumed her co-defendant’s name and he treated her like his own child.
I will say here from the evidence that I saw and heard during her trial, I have no doubt the defendant was in love with her husband, the co-defendant, and believed he was a loving father as well as a kind, caring husband.
I adjourned sentencing in order to obtain a background report. The family situation is complicated. There are three young children completely reliant on their parents. Their father, the defendant’s husband, has jumped bail before I sentenced him. The children are now in the care of their grandmother who is 76 years old.
Two of the defendant’s elder siblings fortunately give them support, and I note they are in court today. They clearly saw through the defendant’s husband and knew he was not reliable and had debts which he attributed to his own mother. Contrary to what the defendant has said in her evidence, two of her siblings appear to have had to financially support them from time to time to settle bills and debts.
Her siblings saw the defendant as naive, simple-minded, and an ignorant person who was addicted to love or craved love from a very early age. She craved love and affection but has always been, according to them, attracted to the wrong men and made mistakes. She obviously loved Justin Ng, as she borrowed money to help him pay legal fees even when it became clear that he was a thief and a perpetual offender.
Her siblings considered her brainwashed and exploited by Justin Ng and were furious that he has put her in this position. They are furious that the children are victims. I called for a report to establish the situation going forward for these young children who are innocent victims here.
The probation officer observed a close and natural relationship between the defendant’s mother, domestic helper, and the three children. The eldest daughter clearly cares for her two much younger siblings.
The defendant’s mother does not want the children to be removed from the family home by the authorities, and will look after them with the assistance of family and hopefully a successful application for CSSA financial assistance.
Mr Lee, leading Mr Pang, has said all he can possibly say in mitigation on behalf of the defendant. I am grateful for written submissions and authorities he has submitted to support his mitigation. He has provided me with mitigation letters from the defendant and Justin Ng himself, who has let her down now at this crucial stage.
Mr Lee submits I can consider the guidelines for laundering money to be a starting point of 3 years for laundering between HK$1,000,000 and HK$2,000,000, relying on HKSAR v Hsu Yu Yi [2010] 5 HKLRD 536. The amount of money involved here is $1,400,000 in Count 2. He has taken me through factors relevant to sentence as set out in that Court of Appeal authority.
He has also referred me to HKSAR v Boma [2012] 2 HKLRD 33, which also discusses significant features or factors to consider. In particular, he has referred me to where the Court of Appeal point out that offences of money laundering are a category of offence in which the sentencing judge is called upon to engage his “feel” for the case, bringing to bear his sentencing experience.
Specific submissions from Mr Lee involve urging me to consider a discount for the conduct of the defence case at trial. The prosecution are in full agreement with the defence that they essentially agreed everything in the Admitted Facts that considerably shortened the length of trial. Mr Lee has referred me to HKSAR v Xu Xia Li [2004] 4 HKC 16, where a sentencing discount for the conduct of the defence case at trial is deserved where the consequences are time has been saved and the trial shortened.
The other specific submission from Mr Lee involves me taking into account that the defendant has committed these offences because of the close emotional relationship with her husband. Under such circumstances, a sentencing court may consider exercising its discretion to give a further discount to sentence. I have been referred to HKSAR v Chiu Kit and Another, CACC 210/2009 and HKSAR v Chan Wai Yan [2012] 4 HKLRD 189.
In Chiu Kit, one applicant was the father of his co-accused, the other applicant. This applicant was 75 years old. They were convicted after trial in the District Court of one count of money laundering a total of $42,000,000. Both accused dealt with this amount of money in two different bank accounts of two different companies. A starting point of 5 years’ imprisonment was found appropriate with the elder applicant’s sentence reduced by 6 months to reflect his age.
The Court of Appeal reduced the elder applicant’s sentence to 2½ years’ imprisonment to reflect his culpability. In sentencing, the District Court judge had not taken into account the elderly applicant was acting under the influence of his daughter, played a passive role and got himself involved because of his blind faith in his child.
In Chan Wai Yan, the applicant was convicted after trial of two counts of money laundering a total of $2,700,000. Her boyfriend asked to use her bank account to receive some business-related remittances from Taiwan because his bank account had been frozen. She opened another account so he could use it for purported business purposes. Both these accounts were used to launder the proceeds of an offence. By way of background, this boyfriend supported her and her son from a previous marriage financially so that she did not have to work when they began to cohabit, and she went on to have two children by him. The background is strikingly similar to the defendant in this case.
The trial judge in that case took a starting point of 3 years’ imprisonment and reduced it by 3 months for the applicant’s clear record and the need for her to take care of her three children single-handedly. On appeal, the Court of Appeal held the sentencing court may consider exercising its discretion to give a further discount to sentence when a defendant has committed an offence for the sake of maintaining the relationship with her partner or by reason of having been used by her partner.
The Court of Appeal reduced the sentence of each charge from 3 years’ imprisonment to 2 years’ imprisonment due to that relationship and a further 3 months for her clear record and need to look after three young children. She was sentenced to a total of 1 year and 9 months’ imprisonment for laundering $2,700,000.
In this case, from the evidence, there is no doubt their relationship is a genuine one of husband and wife with a young family. The defence have suggested that she would not have refused his instructions because of her naivety, simplicity, love and trust in her partner. That I accept. I do not doubt he lied to her and portrayed himself as a successful man with a good job and prospects financially.
Following an analysis of the Boma authority, Mr Lee has pointed out that the nature of the predicate offence is theft. And that according to the verdicts of the jury, they appear to accept that at the beginning, for Count 1, the defendant did not have reasonable grounds to believe money put in her account were the proceeds of an indictable offence. Their conviction in the 2nd count appears to suggest that after Count 1, they believed any reasonable person who shared the defendant’s knowledge would be bound to believe the money was tainted or dirty.
As for other relevant factors, here there is no international element, the scheme was not sophisticated, there is no evidence of any organised criminal elements and the length of time these offences were committed was up to 16 months.
Mr Lee suggested that it is not easy to determine whether the defendant continued to allow funds to be laundered through her account after believing the funds were tainted and the proceeds of an offence. I agree that there is no evidence of actual knowledge. Her role was limited to allowing him to use her account and withdrawing money upon his instructions. Without doubt, her husband was the mastermind of the predicate offences. There is no evidence she had any knowledge of the predicate offences let alone participated in the commission of those offences.
Another mitigating factor suggested by the defence is a consideration of the impact upon the defendant and her family of the time it has taken for these offences to come to trial. She was arrested in May 2020, first brought up to court on 22 February 2021. The first return date in the Magistrates’ Court was 12 April 2021. She was eventually committed to the Court of First Instance for trial on 23 May 2022. At a trial which was originally scheduled to take place in 2023, it was refixed to August 2024. That adjournment was not the fault of the defendant.
Obviously, COVID and the general adjournment period affected the court’s diary and the progress of this trial. The defence do not allege or suggest an inordinate and excessive delay, but invite the court to reduce the sentence for the anguish suffered by the defendant in waiting for a determination.
Reasons for Sentence
The offences and facts are so serious that a non-custodial sentence would not be appropriate. This is however a case where my feel for the facts, background and criminality will count. I am mindful but for the seriousness of her husband’s charges and the amount he stole, over $9,400,000, the defendant would have faced these three charges in the District Court, not here.
I have taken into account the amount involved in both these charges and the authorities cited by counsel, my feel for this particular case and the facts. And I find a starting point of 24 months’ imprisonment for Charge 2 and 18 months’ imprisonment for Charge 3 appropriate.
I intend to exercise my discretion and reduce the starting points by 4 months to take into account the defendant has committed these offences for the sake of maintaining the relationship with her boyfriend/husband, or by reason of having been used by him, as discussed in the case of Chan Wai Yan referred to above.
I find there to be merit in the submission that there should be a discount to reflect the conduct of the defence before and during the trial. There is no doubt, and the prosecution has agreed, the conduct of the trial by Mr Lee meant time was saved and the trial shortened. I exercise my discretion and reduce the starting points by a further 3 months.
Lastly, there is a genuine and pressing need for this mother to get home as soon as possible and look after her three vulnerable children, two are in particular very young and now deprived of both parents. The heavy task of parenting now rests squarely on the shoulders of their elderly grandmother. I exercise my discretion further and reduce the starting points by another 2 months to take into account the need of the children as well as, through no fault of her own, the fact it has taken four years for this trial to conclude against the defendant.
I have exercised my discretion in this manner due in most part to my feel for the case and this specific defendant without losing sight of the seriousness of the offences.
After applying those discounts to the starting points, the starting point for Charge 2 is now reduced to 15 months’ imprisonment and the starting point for Charge 3 is reduced to 9 months’ imprisonment. I intend both counts to be served concurrently, taking into account the totality principle.
Accordingly, and I repeat, the defendant is sentenced 15 months’ imprisonment for Charge 2. The defendant is sentenced to 9 months’ imprisonment for Charge 3. I order both sentences to be served concurrently.
The defendant is sentenced to a total of 15 months’ imprisonment.