HKSAR v. Chan Tin Sum

DCCC 483 & 811/2022 (Consolidated)

[2025] HKDC 610

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 483 & 811 OF 2022

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REASONS FOR SENTENCE

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1.D3 was convicted after trial of one charge (Charge 5)  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.Particulars are that D3, between 2 July 2019 and 20 November 2019, in Hong Kong, knowing or having reasonable grounds to believe that property, namely a total sum of $2,614,187.34 Hong Kong currency in the account numbered 012-358-2-007157-0 held under the name of D3 with Bank of China (Hong Kong)  Limited, in whole or in part directly or indirectly represented the proceeds of an indictable offence, dealt with the said property.

Facts which form the basis of sentence

3.At all material times, D3 did not have any landed properties or connections to the companies registered in Hong Kong.  According to the records of IRD, D3 was reported to be employed as a guest experience service crew with salary totalling HK$11,206 from 10 June 2016 to 31 March 2017 and as a part-time staff with salary totalling HK$11,339 from 5 September 2019 to 31 March 2020 respectively.

4.On 3 July 2019, D3 opened a personal savings account numbered 012-358-2-007157-0 with Bank of China (Hong Kong)  Limited (“BOC”)  in her name (“Account 4”).  D3 was the sole signatory of Account 4.  On 10 July 2019, an application was made to the bank to change the mobile phone contact number and email to 6999 0184 and [email protected] respectively by filling in and returned in person a “Customer Information Amendment Form” to BOC.  Account 4 was closed on 19 November 2019.

5.Between 3 July 2019 and 19 November 2019, a total of HK$2,614,187.34 were deposited into and withdrawn from Account 4.  Most of the funds (usually in small amount)  deposited into the account were often withdrawn or transferred out in bulk amount (mostly by several withdrawals)  within short period of time.  Other features of the flow of funds of Account 4 during the said period are mainly as follows :

Deposit

(a)  the monthly average amount of the deposits were HK$475,306.79;

(b)  there were a total of 6,672 deposits via FPS amounting to HK$2,595,675.50;

(c)  there were a total of 8 ATM cash deposits amounting to HK$18,500;

(d)  most of the transactions were in multiple of hundreds, ranging from HK$0.1 to HK$10,000 per transaction. At least 398 counterparties were involved in the deposit of the account;

Withdrawal

(a)  there were a total of 376 withdrawals via FPS transfer amounting to HK$1,406,203.1;

(b)  there were a total of 108 ATM cash withdrawals amounting to HK$1,110,000; and

(c)  most of the transactions were in multiple of hundreds and thousands, ranging from $0.1 to $20,000 per transaction. At least 169 beneficiaries were involved in the withdrawal of the account.

6.On 30 August 2021, D3 was arrested at her residence in Kwai Chung for money laundering.

7.On 3 July 2019, D3 went with her then boyfriend Ng (a heavy gambler)  to the BOC to open the subject account and to apply for an associated bank card both for Ng’s use.  D3 let Ng choose the card PIN.  D3 left the bank first leaving Ng to collect the related documents.  Within days, D3 relinquished control of the account and the card into the hands of Ng and allowed others to use them.

8.D3 had reasonable grounds to believe the property stated in the charge, in whole or in part, directly or indirectly represented any person’s proceeds of an indictable offence.

Criminal record

9.D3 has four previous minor convictions all related to gambling.

Antecedents

10.D3 is aged 24 (19 at the time of the offence), educated to F2 level. She had previously worked as a salesperson between 2016 and 2017.  Since that time, she remained unemployed.  D3 lives with her mother, stepfather and her son in public housing in Kwai Chung.

Mitigation

11.Mr Boyton of counsel[1] mitigated on behalf of D3.  The following is a summary of the mitigation submissions.

12.D3 has three children now and she is taking care of the youngest one. Her earliest criminal conviction was in July 2020 ie after[2] the current offence.  The court is asked to treat her as a person of clear record.

13.It was submitted this case did not involve international dimension; there was no sophistication; the evidence did not disclose an organized criminal syndicate.  The money involved ie $2.6 million was not a huge sum. She has been under some pressure as a result of the proceedings and she has been receiving psychiatric assistance in Queen Mary Hospital.

14.Imprisonment is inevitable and the court is asked to be as merciful as possible.

Sentence

15.The maximum penalty for the offence of money laundering is 14 years’ imprisonment.  There are no sentencing guidelines but a deterrent sentence is called for.

16.The amount of money involved is a major consideration: HKSAR v Hsu Yu Yi [2010] 5 HKLRD 545, 551 at para 9(a).

17.In HKSAR v Boma [2012] 2 HKLRD 33, the Court of Appeal said a sentencing court should take into account the following non-exhaustive list of features when dealing with offences of money laundering:-

(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 aggravating 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.

18.In Secretary for Justice v Wan Kwok Keung [2012] 1 HKLRD 201, Yeung JA, in giving the judgment of the Court of Appeal, said at para 15:

“In HKSAR v Hsu Yu Yi [2010] 5 HKLRD 545, Cheung JA set out the amounts of money involved and the sentences passed in a number of “money laundering” cases. The sentencing starting point is 3 years or so where the “black money” involved is between $1 million and $2 million; 4 years or so where it is between $3 million and $6 million; and could be over 5 years where it is above $10 million.”

19.In the present case, the amount laundered was $2.6 million.  The predicate offence appears to be “Bookmaking”; however, there is little evidence that D3 knew about this.  The duration of the offence was just less than 5 months. Transactions are in the thousands and counterparties are in the hundreds.  The role of D3 was simply to allow others to use her account.  There is no evidence of D3 receiving any remuneration.  I also noted the lack of aggravating factors as highlighted by Mr Boyton.

20.With all those factors in mind, I adopt a starting point of 2 ½ years’ imprisonment.  D3 did not plead guilty, so there could not be any sentencing discount for remorse.

21.However, I will treat D3 as being a person of clear record.  For that reason, I will deduct one month from her sentence.  Other than that, I do not find anything in the mitigation which would allow me to give her any further sentencing discount.

(D3, please stand)

22.The sentence is therefore 2 years and 5 months’ imprisonment.