HKSAR v. Gania Richel Gabales

DCCC 751/2023

[2024] HKDC 857

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 751 OF 2023

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REASONS FOR SENTENCE

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1.D2 has pleaded guilty to the 2^nd Charge of dealing with property known or believed to represent proceeds of an indictable offence, contrary to section 25(1)  and (3)  of the Organized and Serious Crimes Ordinance, Cap 455.

2.The allegation against D2 is that between the 1^st day of April, 2018 and the 1^st day of November, 2020, both dates inclusive, in Hong Kong, together with a person unknown, knowing or having reasonable grounds to believe that property, namely a total sum of $189,110.04 Hong Kong currency held in the account of D2 with Hang Seng Bank Limited (“the Account” )in whole or in part, directly or indirectly represented any person’s proceeds of an indictable offence, dealt with the said property.

3.The charge against D2 was that she was the sole account holder and signatory to the Account, which was opened with Hang Seng Bank on 24 February 2012 and closed on 7 November 2020. D2 claimed to be a domestic helper in the opening mandate.

4.Between 1 April 2018 and 1 November 2020, the Account possessed, for the purpose of the present charge, HK$189,110.04 by way of 37 deposits. During the same period, the Account processed HK$189,158.50 by way of 61 withdrawals.

5.The feature known as “mirror transaction pattern” was present between deposits and withdrawals of similar amounts. D2 did not own any property or vehicle in Hong Kong and she could not be identified from the record of the Inland Revenue Department (2018-2020).

6.Under caution, D2 admitted that she lent the Account to another Philippine female friend with a reward of HK$1,000 and D2 passed the ATM card together with the password to her. D2 subsequently got back the ATM card from her friend.

Criminal records and background of D2

7.D2 is a 45 year old Filipino lady. She was born and educated up to third year of college in the Philippines. She is married and has two daughters who are 15 and 21 years of age.

8.D2’s elder daughter is in third year college and her younger daughter is in the second year of high school. D2 first came to Hong Kong in 2011 as a foreign domestic helper and she has a clear record in Hong Kong.

9.Since March 2019, D2 has been working as a foreign domestic helper at a public housing unit in Tin Shui Wai. Her monthly salary is HK$4,730. Her daughters and husband are fully dependant upon her financially and she is the only child able to provide occasional financial assistance to her parents.

Mitigation

10.Mr Richmond stated that D2 was arrested on 4 August 2020 at her employer’s flat. She disclosed that her friend, who had a “side business” of selling bags and handbags, had asked her to “lend” her account and ATM card to deposit the proceeds of her business. D2’s friend said she would return the ATM card within 14 days.

11.Subsequently, D2 received a bank statement for the Account and discovered large sums of money had been deposited and withdrawn from the Account. D2 asked her friend about it but was told to ignore it by her friend. D2 trusted her friend and paid no further attention to it.

12.The ATM card was returned to D2 with a payment of HK$1,000 about 5 to 6 days later.

13.Mr Richmond stressed that mitigation arose primarily from D2’s plea of guilty and her non-prejudicial statement (NPS)  dated 8 December 2023. There should be no reason to deny the award of full one-third discount to D2 for her plea.

14.Mr Richmond submitted that D2 had already provided all the relevant information to assist the prosecution. He stated that at page 6 to the NPS, D2 stated that in January 2020 a friend proposed that D2 “lend” her bank account to her in return for HK$1,000. In addition, D2 had provided the full name, HKID card number and date of birth of that person who was allegedly also to be a Filipino national. D2 was also ready to testify in court if necessary. That person was subsequently arrested, charged and pleaded guilty recently.

15.Mr Richmond submitted that D2 should be given further discount on top of her guilty plea discount because of D2’s assistance to the prosecution.

16.Mr Richmond further submitted that D2 had no understanding that the Account would be used in relation to a predicate offence and that the Account would be used unlawfully. Mr Richmond stressed that D2 was only used as a means to an end by other persons who are clearly more culpable.

17.Mr Richmond asked this court to consider the following factors before sentence:-

(i)  Despite the fact that money laundering is a serious offence, insofar as this case is concerned the circumstances are not the most serious.

(ii)  The amount laundered is HK$189,110.04 which is not, of itself, a particularly large amount in comparison to other cases of this type.

(iii)  D2 was merely used as an account holder. D2 had no control over the Account during the relevant period and had no knowledge of the predicate offence behind the laundering.

(iv)  The “mirror transactions” occurred between 20 February 2020 to 4 March 2020, which is similarly a period over which D2 had no control over the Account.

(v)  D2 was recruited on the basis that she had no knowledge that her bank account would be used for money laundering. D2 had no knowledge that her friend had actually been transferring and withdrawing funds to the Account. D2 did not know where the money was coming from other than her belief that her friend needed to use the account to receive the money for the sale of bags in her business.

(vi)  D2 received HK$1,000 by way of benefit for her participation in this offence. Compared to the actual sum of HK$189,110.04 the court will note that her benefit is disproportionate.

(vii)  Although the actual nature of the predicate offence is not known, it is understood that this is not a case with an international element. The prosecution does not suggest that the deposits to the Account came from overseas.

18.Mr Richmond submitted that in the recent case of HKSAR v Marquez Charity Alonzo & Others [2023] HKDC 1307, Deputy District Judge Edward Wong adopted a starting point of 24 months for D3 in that case who had loaned her ATM card and account in a similar way to the defendant in this case.

19.In that case, D3 had knowingly permitted her account to be used in the receipt and handling of HK$319,200.00 over a period of 4 months.

20.Mr Richmond agreed that a non-custodial sentence in the form of a Community Service Order is inappropriate. He suggested that the Court should consider a starting point of no more than 24 months imprisonment and gave credit to her guilty plea and assistance to the prosecution.

Sentencing considerations

21.Money laundering is a serious offence for which deterrent sentence is required. A number of significant factors have been identified as relevant in determining the culpability of a defendant, including the nature of the predicate offence that generated the laundered money; the extent to which the offence assisted the crime or hindered its detection; whether the defendant had knowledge of that underlying offence or has turned a blind eye to the source of the money; the amount of money involved; whether there was an international element to the commission of the offence; the degree of sophistication of the offence and the level of the defendant’s participation, including the length of time the offence lasted and the benefit he derived from the offence (see for example Secretary for Justice v Jerome Yuval Arnold Herzberg; HKSAR v Hsu Yu Yi and HKSAR v A male known as Boma Amaso).

22.The courts have emphasised that a defendant is to be sentenced on the facts of the money laundering charge and not on the facts of the underlying offence (see for example HKSAR v Chen Szu Ming and HKSAR v Yam Kong Lai). Further, sentence should mainly reflect the amount of the money laundered (see for example Secretary for Justice v Ngai Fung Sin, Apple).

23.In determining the proper starting point, I have reminded myself of the sentencing principles laid down in HKSAR v Hsu Yu Yi [2010] 5 HKLRD 545 and HKSAR v Boma Amaso [2012] 2 HKLRD 33. I have also borne in mind the amount of money involved, the duration of the offence, the defendant’s role in relation to the movements of funds as well as her personal circumstances.

24.In SJ v Ngai Fung Sin Apple [2013] 5 HKLRD 104, Yeung V-P held:-

“Generally speaking, the sentence passed in a “money laundering” case is primarily to reflect the amount of the “illicit/‌black money” involved. Neither the fact that the “illicit/‌black money” was actually not derived from an indictable offence nor the defendant’s ignorance of the actual source of the “illicit/‌black money” is necessarily a valid mitigating factor…”

25.I accept that in the present case, there is no evidence that the money was generated by an organized criminal syndicate. I also accepted that there is no evidence that D2 had actual knowledge of the predicate offence behind the laundering.

26.However, taking into account the duration of the offence and the circumstances to which D2 let other people control her account for reward, I consider that a starting point of 18 months’ imprisonment is appropriate in this case.

27.The prosecution confirmed that D2 had provided assistance to prosecution.

28.For D2, with her guilty plea and assistance to prosecution, she is entitled to 45% discount[1]. I sentence her to 9 months and 27 days’ imprisonment.