HKSAR v. Chen Chun Wai

DCCC 113/2024

[2024] HKDC 1904

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 113 OF 2024

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REASONS FOR SENTENCE

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1.The defendant pleaded guilty to a charge of money laundering.

2.According to the summary of facts, the defendant was the sole account holder and signatory of a HSBC bank account.

3.Between 28 November and 18 December 2019, the defendant’s bank account record showed that:-

(a)  There were 4,672 deposits of a total of about $3.7 million into the account.

(b)  There were 952 withdrawals of a total of about $3.7 million from the account.

4.The Defendant was arrested on 9 June 2020.  In a record of interview , the Defendant said that:-

(i)  He met a person called Tang Shum Pong in Shenzhen. Tang wanted to use his bank account to receive funds as others owed him money.

(ii)  The Defendant then passed on the ATM card together with the password of his bank account to Tang.

(iii)  On 13 December 2019, Tang instructed the Defendant to withdraw $90,000 and brought the cash to him in China.

5.The movement record showed that the Defendant departed from Hong Kong via Lok Ma Chau Control Point on 13 December 2019.

Conviction record

6.The Defendant has 2 records in 2021 and 2023 respectively for unrelated offences.

7.He has a clear record at the material time as the present offence took place in 2019.

Background

8.The Defendant is now aged 31, single and lives with his family previously.  He worked as an air-conditioning technician. He committed the present offence because of unemployment during the period of Covid.

9.The Defendant and his father wrote to the Court to inform me that the Defendant is now very remorseful.

Sentence

10.The defence did not have much to say in mitigation, only a few lines in writing.

11.Although there is no sentence guideline in this type of offence, in the case of HKSAR v Boma [2012] 2 HKLRD 33, the Court of Appeal provided a non-exhausive list of relevant sentencing factors for consideration.

12.In the present case:-

(a)  There was no evidence to suggest that the defendant was aware of the predicate offence. However, as stated in HKSAR v Cen Huakuo CACC 21/2014 that:-

“Ignorance of the indictable offence could not be treated as mitigating factor.”

(b)  This offense involved cross border element. At least, the defendant withdrew $90,000 from his account and delivered the cash to China.

(c)  As such, the offence was committed between the defendant and Tang.

(d)  The amount was about 3.7 million over a period of about 3 weeks.

(e)  The Defendant remained in control of his account when Tang asked him to withdraw the $90,000 from the Bank.

13.As said in the judgement of HKSAR v 許有益 CACC  159/2009 (paragraph 9)  that:-

“The culpability of the offence lies in the assistance, support and an encouragement offered to the commission of an indictable offence. So a defendant’s level of participation and the number of occasions in which he is involved in the money laundering activities are relevant factors to be considered.”

14.In the same judgement, the court went on to say that it was the amount of money involved, rather than the amount of benefit received by a defendant, is a major sentencing factor.  Cheung JA also stated that the starting point is 4 years or so when the amount involved is between HK$3 million and HK$6 million.

15.With all these information in mind, I take 4 years (48 months)  as the starting point, reduce it to 32 months after 1/3 discount.

Enhancement of sentence under S 27(2)  of OSCO Cap 455.

16.The Defence has no objection to the application by the Prosecution.

17.In support of this application, the Prosecution furnished a copy of a statement from Chief Inspector Li, dated 28 October 2024.

18.In this report, Chief Inspector Li said that the use of stooge for money laundering is increasing in both figures and proportion.  There is a rising trend in the used stooge from 31.38% in 2020 to 70.19% in 2023.

19.In the months between January and August 2024, the figures has increased by 6.12%.

20.The police force have spent a lot of resources on crimes prevention to warn people not to sell or lend their bank accounts to others as it could possibility fall into traps of committing money laundering offences.  However, the data keeps rising despite all the police efforts in promoting this message.

21.I am satisfied that this is a prevalence offence and there is a need to impose a deterrence sentence in order to send a message to the public and to prevent others from committing similar offence in the future.

22.To this end, having regard to the cases of HKSAR v Hung Wing Chun [2011] 2 HKLRD 167 and HKSAR v Chan Ho Kit CAAR  1/2024, I enhance the sentence by 1/3.

23.The formula of the sentence is as follows:-

(a)  The starting point is 48 months, reduce to 32 months after 1/3 discount.

(b)  Enhance by 1/3, that is an additional 10.6 months.

32 x 1/3 = 10.6 months.

I round down to 10 months.

(c)  The total sentence is 32 months plus 10 months, it arrives at 42 months (3 years and 6 months).

Order

24.The Defendant is to serve a sentence of 3 years and 6 months imprisonment.