Read the full judgment text of CACC 77/2022 on BabelCite. This Court of Appeal judgment was delivered on 5 November 2024 before Pang JA, Poon JA, Anthea Pang JA.
Criminal law – money laundering – sentencing – layering – cross deposit-and-withdrawal – double-counting – appeal – Criminal Procedure Ordinance section 83V – whether sentencing judge should tick off inter-account transfer amounts and personal loan transactions from aggregate particularised sum – appellant convicted after trial of three counts of money laundering relating to three bank accounts involving total of HK$12,590,000 – accounts showed extensive inter-account transfers (layering) with quick dissipation of funds – trial judge adopted HK$12,590,000 as sentencing basis – whether cross deposit-and-withdrawal aggravates culpability – Court of Appeal held that layering does aggravate culpability, but cross deposit-and-withdrawal amounts should be ticked off from particularised sum before determining starting point, with sentence then adjusted upward for seriousness of layering – approach derived from Chan Kim Chung Nelson and acceptance of approach in Oei Hengky Wiryo and Lee Wai Yi[u] – starting point ranges from Hsu Yu Yi and Wan Kwok Keung: HK$3-6 million attracts 4 years, HK$10 million attracts 5 years – proper approach: (1) tick off cross deposit-and-withdrawal; (2) determine starting point based on actual black money; (3) adjust upward for seriousness of layering – in present case, approximately HK$7,700,000 from unknown sources after deducting cross deposit-and-withdrawal and personal loan transactions – starting point of 4 years 3 months justified given serious layering – but sentence reduced to avoid injustice as D3 received 3 years 6 months for HK$8,130,000 without layering – starting point reduced to 3 years 9 months, with 6 months discretion discount to 3 years 3 months – further one-third remission discount to 26 months – deducting 23 months already served leaves 3 months – 3 months spared by discretion due to appellant's prostate cancer and impact of re-incarceration – appeal allowed – original sentence set aside – substituted with term enabling immediate release.
Legal issues: Whether cross deposit-and-withdrawal (layering) among the defendant's own accounts aggravates culpability in sentencing for money laundering · Whether the trial judge double-counted particularised sums by using the aggregate of HK$12,590,000 as the sentencing basis
Outcome: Appeal against sentence allowed; original sentence set aside and substituted with a term of imprisonment that enables the appellant's immediate release.
Cited by 24 cases · Cites 4 cases