Read the full judgment text of CAAR 4/2024 on BabelCite. This Court of Appeal judgment was delivered on 7 April 2025 before 彭偉昌, 潘敏琦, 彭寶琴.
Criminal law – money laundering – sentencing review – Attorney General's reference under s.81A of the Criminal Procedure Ordinance (Cap 221) – Organized and Serious Crimes Ordinance (Cap 455) s.25(1) and (3) – sentencing principles for money laundering – deterrence as primary sentencing consideration – whether sentencing baseline manifestly inadequate or wrong in principle – whether international element 'limited' – mitigation submissions suggesting accused was 'utilised' by third party – tension between guilty plea and mitigation denying knowledge of proceeds – discretion to refuse AG's reference on fairness grounds – AG's Reference No. 4 of 1989 applied – respondent XIE ZHIJIAN was sole director and shareholder of Hong Kong company 佳順 which purportedly traded lighting products but had no tax, MPF, or money services licence records – company held Hang Seng Bank account that processed approximately HK$104.38 million (US$12,233,405.84, HK$7,682,866, and EUR141,879.97) between 1 June 2018 and 23 January 2019 – sole signatory of account – mirror transaction patterns across three currency sub-accounts – US company discovered unauthorised US$342,800 transfer triggering police investigation – respondent repeatedly travelled between mainland China and Hong Kong since 2011, opening account in October 2016 and last departing Hong Kong on 11 June 2018 – arrested on 12 July 2023 upon return to Hong Kong – pleaded guilty in District Court and sentenced to 33 months' imprisonment after 3.5 year baseline, one-third reduction for guilty plea, and 20% uplift under s.27(2) of Cap 455 for use of 'puppet account' – Secretary for Justice applied out of time for sentence review citing manifest inadequacy – Court of Appeal found mitigation submissions by counsel suggesting respondent merely provided account to 'Mr Cheng' and had no knowledge of money laundering were inconsistent with admitted facts of guilty plea – court found 3.5 year baseline manifestly inadequate or wrong in principle given amount exceeding HK$100 million, three currencies, 8-month duration, and cross-border elements – deterrence must be primary consideration per Boma, 許有益, 雲國強, and 倪鳳仙 – sentencing range in 雲國強 (3 years for HK$1–2 million, 4 years for HK$3–6 million, 5+ years for HK$10 million or above) is a rough guide not mathematical formula – court found international element significant and not 'limited' as sentencing judge held – respondent specifically travelled from mainland China to use Hong Kong's financial system to process overseas criminal proceeds – endangerment of Hong Kong's reputation as international financial centre – despite finding sentence manifestly inadequate, Court of Appeal refused application on fairness grounds – respondent was about to be released and had endured prolonged proceedings and stress from court's concerns about mitigation – applying AG's Reference No. 4 of 1989, allowing application would cause unfairness – Court of Appeal refused Secretary for Justice's application.
Legal issues: Adequacy of 3.5 year sentencing baseline for money laundering · Characterisation of international element in money laundering · Exercise of discretion on AG's reference application
Outcome: The Secretary for Justice's application for review of sentence was refused, even though the Court of Appeal found the original 3.5 year sentencing baseline to be manifestly inadequate or wrong in principle.
Cited by 49 cases · Cites 13 cases