HKSAR v Suen Kin Wing
Read the full judgment text of CACC 147/2024 on BabelCite. This Court of Appeal judgment was delivered on 22 July 2026.
1. With leave of this Court, the appellant appeals against his sentence of 10 years’ imprisonment on two grounds, (1) that the trial judge sentenced him in respect of two offences of money laundering by reference to an amount greater than that alleged against him, and (2) that the trial judge erred in adopting high starting points and ordering the sentences for each offence to run partially consecutively.
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CACC 147/2024 [2026] HKCA 1178 On appeal from [2024] HKCFI 1805 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF APPEAL CRIMINAL APPEAL NO 147 OF 2024 (ON APPEAL FROM HCCC NO 77 OF 2021) _______________
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________________ J U D G M E N T ________________ Hon Zervos JA (giving the Judgment of the Court): 1.With leave of this Court, the appellant appeals against his sentence of 10 years’ imprisonment on two grounds, (1) that the trial judge sentenced him in respect of two offences of money laundering by reference to an amount greater than that alleged against him, and (2) that the trial judge erred in adopting high starting points and ordering the sentences for each offence to run partially consecutively. 2.On 15 March 2021, the appellant was committed to the High Court for trial, having earlier indicated in the magistrates’ court his intention to plead not guilty to one count of fraud and two counts of dealing with the proceeds of an indictable offence. 3.On 14 September 2022, the indictment was amended to include an additional count of theft, as an alternative to the fraud count. The brief particulars of the four counts were as follows:
4.On 8 November 2022, the case was set down for trial on 22 September 2023, but was subsequently rescheduled to 4 March 2024, with 25 days reserved. There were seven case management conferences, the first taking place on 23 June 2022 and the last on 13 April 2023. At each conference, the appellant indicated his intention to contest the four counts on the indictment. 5.After lengthy discussions between the parties in the latter part of 2023, a plea agreement was reached under which the appellant would plead guilty to Counts 3 and 4, and the prosecution would not proceed with Counts 1 and 2, which were to remain on the court file, not to be proceeded with without the leave of the court. 6.On 30 January 2024, the appellant pleaded guilty to Counts 3 and 4 and was convicted of those offences by Johnny Chan J (the judge). Counts 1 and 2, to which the appellant pleaded not guilty, were ordered to be left on the court file and not to be proceeded with without the leave of the court. 7.On 21 June 2024, the judge sentenced the appellant to a total term of 10 years’ imprisonment in respect of Counts 3 and 4. 8.On 10 July 2024, the appellant applied for leave to appeal against his sentence. On 9 May 2025, he filed perfected grounds of appeal, namely: (1) the judge erred in principle by sentencing the appellant on an erroneous factual basis as to his knowledge of the predicate offence (Ground 1); (2) the judge erred in principle by sentencing the appellant on an erroneous factual basis as to the quantum representing the proceeds of an indictable offence (Ground 2); and (3) the overall sentence of 10 years’ imprisonment was manifestly excessive (Ground 3). 9.The appellant also sought to admit fresh evidence under section 83V of the Criminal Procedure Ordinance (Cap 221), namely: (i) correspondence between prosecuting counsel and defence counsel in the form of three letters exchanged during the plea negotiations relating to the Summary of Facts[1], in support of Ground 1; and (ii) a forensic accountant’s report (Exhibit P244), together with the Notice of Additional Evidence signed by prosecuting counsel, the Additional Evidence Bundle List identifying the report, and correspondence between the appellant’s solicitors and the authorities in relation to the balances of the relevant bank accounts[2], in support of Ground 2. 10.After a hearing on 9 January 2026, the Single Judge, by a written judgment dated 15 January 2026, refused leave on Ground 1 but granted leave on Grounds 2 and 3. The Single Judge found that Ground 1 was not reasonably arguable and that it was open to the judge to find that the appellant knew, or had reasonable grounds to believe, that the funds involved in the money laundering offences represented the proceeds of a fraud or theft committed by the appellant on Yu. 11.On 12 March 2026, the appellant filed amended perfected grounds of appeal, removing Ground 1 and pursuing only Grounds 2 and 3, in respect of which leave had been granted. The grounds of appeal are as follows:
The Summary of Facts 12.In pleading guilty to Counts 3 and 4, the appellant admitted a Summary of Facts, which set out the following background and evidence.[3] On 9 December 2013, the appellant joined the Hong Kong office of UBS as an associate director. On 25 March 2014, Yu and his wife, Lou, who conducted business in Nanjing and had moved to Hong Kong around August 2013, opened a joint account with UBS (the UBS joint account), for which the appellant acted as their client advisor. Between 2014 and October 2016, deposits into and withdrawals from the UBS joint account were made through the appellant “without any impropriety”.[4] 13.In October 2016, Yu and the appellant discussed the applicable remittance regulations. Yu remarked that it was troublesome to remit RMB from the Mainland to Hong Kong, as the RMB had to be converted into USD and HKD before the funds could be deposited into the UBS joint account. To simplify the process, Yu agreed to transfer RMB from his Mainland accounts to various other Mainland accounts designated by the appellant, who would then arrange for the money to be remitted to Hong Kong and deposited into a bank account in the name of the appellant’s cousin, Chi Xingxin (Chi), with HSBC (Chi’s account), before subsequently transferring the funds into the UBS joint account.[5] 14.Between 22 November 2016 and 2 February 2018, acting on account information provided by the appellant, Yu instructed his staff to make 37 transfers totalling RMB132,400,000 to 29 Mainland accounts designated by the appellant, on 14 different days, including a transfer of RMB5,000,000 into the appellant’s account with China Merchants Bank on 12 May 2017. After these transfers, the appellant provided Yu with fabricated photographic images of an “Application for Transfer” and bank statements of the UBS joint account, showing that equivalent amounts had been transferred from Chi’s account to the UBS joint account, although no such transfers had been made.[6] 15.On 8 June 2018, the appellant resigned from UBS. Yu and Lou thereafter compared the updated statements for the UBS joint account provided by the new client advisor with those previously supplied by the appellant, and discovered a shortfall of approximately HK$124.9 million, together with discrepancies in the deposit records.[7] 16.On 11 June 2018, Yu repeatedly called the appellant and eventually confronted him about the shortfall and the discrepancies. The appellant initially blamed handover issues with the new client advisor for the shortfall, but later claimed that there was a separate UBS account in the name of “Empire Seals Limited” holding the HK$124.9 million for Yu. However, UBS confirmed that no such account existed.[8] 17.On 12 June 2018, Lou confronted the appellant at his home regarding the shortfall in the funds. Yu spoke to him on the telephone and demanded an explanation. The appellant claimed that the money had probably been withheld by HSBC and had yet to be deposited into the UBS joint account. Yu and Lou were not satisfied with this explanation, and arrangements were made for further enquiries to be made with the bank. As a result, bank staff reported the matter to the police.[9] Later that evening, the appellant was arrested and remained silent under caution. He was found in possession of two bank cards, one for Chi’s account and one for a China Merchants Bank account, numerous car keys, and conveyancing documents for three properties in the United Kingdom and two in the Mainland, together valued at about HK$29 million in total. 18.A forensic accountant’s report concluded that the significant deposits into and withdrawals from the appellant’s two bank accounts, namely HSBC account (A/C-1) and HSB account (A/C-2), were disproportionate to his income from UBS[10]. During the period particularised in Counts 3 and 4, deposits totalling HK$134,992,204.98 (including HK$63,264,192.74 transferred from Chi’s account, which was A/C-3) were made into the appellant’s HSBC and HSB accounts, of which he was the sole holder and authorised signatory. Withdrawals from these accounts were made to various counterparties for credit card repayments, securities trading, and overseas property purchases. At the material time, the appellant, together with two companies of which he was the sole shareholder and director, owned six luxury vehicles, and he had also acquired 27 properties in the United Kingdom.[11] The mitigation 19.The appellant was 36 years old, single, and university-educated, with a clear record at the time of the offences. On 20 December 2023, he was sentenced to six months’ imprisonment for two counts of contempt of court in civil proceedings related to this case. He had previously been registered to deal in securities, but lost his licence as a result of that conviction. 20.In mitigation, defence counsel suggested that the predicate offence consisted of prostitution-related offences committed by Yu in the Mainland, and that there was no evidence that the appellant knew of this matter until Yu and his staff member, Zhu Lijuan (Zhu), were convicted and sentenced for running a prostitution ring in Nanjing in 2020, two years after the charged period. He further submitted that the appellant did not know about the illegal prostitution operation, and that “he was tasked by Mr Yu to purchase the overseas properties as his trustee so that his wife, Lou, would not know”[12]. He contended that Yu and Zhu were unable to testify in these proceedings due to their convictions. However, Lou had made a statement to the authorities and was available to give evidence for the prosecution. 21.As for the amount of the proceeds, defence counsel submitted that both Counts 3 and 4 arose from the initial transfer of RMB132,400,000 from Yu. He argued that there would be double counting between the two charges, as the same funds were deposited and withdrawn by the appellant, noting that the total deposits into his two accounts, amounting to HK$134,992,204.98, were roughly equivalent to the initial transfer of RMB132,400,000. He also noted that there might be double counting within the account that was the subject of Count 4, where foreign currencies were exchanged and then redeposited into the same account.[13] 22.While accepting that the case involved an international element, a breach of trust towards UBS and its clients, and that it spanned more than two years, defence counsel argued that the scheme lacked sophistication or advance planning, and was carried out between October and November 2016. He submitted that the appellant acted alone, as evidenced by his sole control of Chi’s bank card, and that there was no evidence of his involvement in an organised criminal syndicate. He further submitted that the appellant should receive a 20% to 25% discount for the timing of his guilty pleas. He urged the judge to treat the HK$134,992,204.98 deposited into the appellant’s two accounts as a single sum, and to impose fully concurrent sentences on the two counts, to reflect the fact that both accounts were maintained as vehicles to receive and dispose of Yu’s RMB132,400,000 under the same scheme. The reasons for sentence 23.As for the quantum of the proceeds, the judge found that the total amounts particularised in Counts 3 and 4 were HK$107,036,587.30 and HK$27,955,617.68 (in Hong Kong dollar equivalent) respectively, making a total of HK$134,992,204.98, which he treated as having been laundered during the charged period.[14] He rejected the defence claim of double counting, noting that each count reflected only the net deposits into the accounts in different currencies, with all interbank transfers and foreign currency exchanges excluded.[15] 24.As for the appellant’s knowledge of the predicate offence, the judge concluded that the appellant “knew” the funds were the proceeds of the predicate offence of fraud or theft that he had committed against Yu. He stated:[16]
25.The judge also found that the appellant benefited financially from the proceeds of both counts. He noted that the appellant had these funds entirely at his disposal and maintained a lavish lifestyle incommensurate with his income, as evidenced by the number of expensive cars he owned and properties he purchased overseas and in the Mainland. While accepting that the scheme lacked sophistication, the judge noted that the offences involved cross-border and international elements. Accordingly, he adopted a starting point of 10 years’ imprisonment for Count 3 and 6 years’ imprisonment for Count 4. 26.Given that the appellant indicated his intention to plead guilty only after the prosecution had fully prepared its case for trial, the judge granted a discount of 25% for his guilty pleas, reducing the sentences to 7 years and 6 months’ imprisonment on Count 3 and to 4 years and 6 months’ imprisonment on Count 4. He rejected the claim of double counting between the two counts, regarding them as distinct and separate acts. Applying the totality principle, he concluded that a total sentence of 10 years’ imprisonment, representing a notional starting point of 15 years’ imprisonment (albeit incorrectly calculated by reference to a one-third discount), properly reflected the appellant’s overall culpability. He reached this total by ordering that 2 years and 6 months of the sentence on Count 4 be served consecutively to the sentence on Count 3. Ground 2: The quantum of proceeds laundered 27.Mr Young notes that Counts 3 and 4 concern funds deposited in accounts A/C-1 and A/C-2 respectively, while A/C-3 was Chi’s account. He points out that the judge determined the total amount of the proceeds to be HK$134,992,204.98, being the sum of the Hong Kong dollar equivalents of all funds deposited in A/C-1 (HK$107,036,587.30) and A/C-2 (HK$27,955,617.68). He contends that the judge erred in treating this total sum as the value of the property representing the proceeds of an indictable offence and therefore sentenced the appellant on an erroneous basis. He submits that the appellant’s position is that only HK$63,264,192.74 can be traced to the transfers made by Yu and that this represents the actual proceeds of crime. He claims the judge “overlooked” evidential findings in the forensic accountant’s report. He submits that the forensic accountant made the following important findings: first, that there was a close correlation in the timing of the 37 transfers by Yu and corresponding deposits in A/C-3; secondly, that HK$34,800,000 had been transferred from A/C-3 to the UBS joint account[17]; and thirdly, that a total of HK$63,264,192.74 had been withdrawn from A/C-3 and paid into A/C-1 and A/C-2. He contends that the sum transferred from A/C-3 to the two accounts is the correct total amount “laundered”, and that the judge therefore sentenced the appellant on the basis of an amount more than double that figure, which was a significant factor in producing a manifestly excessive sentence. 28.Mr Young also disagrees with the suggestion that other deposits in the two accounts may have come from A/C-3 indirectly through other counterparties. He points out that there was no such finding in the forensic accountant’s report. He submits that none of the counterparties withdrawing funds from A/C-3 appeared to correspond to the counterparties depositing funds in the two accounts. 29.In light of the foregoing, Mr Young argues that the judge was mistaken in treating the entirety of the funds in the two accounts as the proceeds of crime and that the particulars of the counts and the Summary of Facts referred to properties that “in whole or in part” represented the proceeds of an indictable offence. He submits that the appellant should therefore have been sentenced on the basis that only HK$63,264,192.74 represented the proceeds of crime. Discussion 30.The central theme of the Summary of Facts was that the appellant laundered Yu’s RMB funds by a series of transactions through various bank accounts in mainland China and Hong Kong, which were ultimately deposited into his two bank accounts and then misappropriated by him for his own benefit. This was part of the plea negotiations that formed the factual background to the appellant’s pleas of guilty to money laundering. Mr Young now seeks to recast the narrative by focusing on an aspect of the forensic accountant’s report in order to argue that the amount of funds laundered was less than alleged, but this was not part of the agreed facts, nor was this point raised by the defence in submissions before the judge. Moreover, the Summary of Facts made no distinction limiting the laundered funds to the amount traced directly through A/C-3. 31.In our view, the Summary of Facts made it plain that the total funds deposited in the two accounts, amounting to HK$134,992,204.98, were the funds that the appellant laundered, and that those funds originated from the RMB132,400,000 that Yu had entrusted to the appellant to be ultimately deposited in the UBS joint account. The Summary of Facts stated:
32.This paragraph, read in the context of the Summary of Facts as a whole, left no room for the contention that only funds traced through A/C-3 were in issue. 33.The appellant accepted and admitted, when he pleaded guilty, that between 22 November 2016 and 2 February 2018, Yu transferred a total of RMB132,400,000 to 29 PRC bank accounts designated by the appellant. The appellant provided Yu with fabricated photographic images of applications for the transfer of equivalent amounts in USD or HKD from Chi’s account to the UBS joint account. The appellant also provided Yu and Lou with fabricated bank statements of their UBS joint account, showing that the funds had been deposited into that account. After the appellant left UBS on 8 June 2018, an updated bank statement of the UBS joint account revealed a shortfall of about HK$124,900,000. It was admitted that the deposits shown in the previous bank statements provided by the appellant to Yu and Lou had not been made. In other words, of the original RMB funds that Yu transferred to the companies arranged by the appellant, the equivalent of HK$124,900,000 had not been transferred into the UBS joint account as falsely represented by the appellant. It was also admitted that the appellant initially claimed that the shortfall was due to a handover problem with the new client advisor and that the funds had been deposited into another bank account, and later claimed that the money was probably withheld by HSBC and had yet to be deposited into the UBS joint account. 34.The Summary of Facts set out specific findings by the forensic accountant, namely that the total deposits into A/C-1 and A/C-2 during the relevant period were HK$134,992,204.98, noting that HK$63,264,192.74 had been transferred from Chi’s account, but also emphasising that the photographic images showing transfers from Chi’s account to the UBS joint account were false and that no such transfers had been made. These agreed facts therefore distinguish between (i) the total deposits into the appellant’s two accounts and (ii) the separate, fictitious transfers to the UBS joint account. 35.It appears to us that Mr Young is attempting to re-litigate the appellant’s guilty plea and to go behind, if not positively to resile from, the admitted facts as set out in the Summary of Facts. It is clear that the parties negotiated a plea agreement and agreed on the factual basis on which the guilty pleas to Counts 3 and 4 would be acceptable. It did not include an admission, nor even a submission from the defence, that the actual proceeds of crime were represented only by the funds transferred from Chi’s account. It would appear that the scheme proposed by the appellant to Yu was that the original RMB funds would be transferred to PRC bank accounts designated by the appellant, who would arrange for the money to be remitted to Hong Kong and deposited into Chi’s account, and that the funds would then be transferred to the UBS joint account. However, the appellant’s scheme involved a complex maze of bank accounts and transactions, and the agreed position was that the original funds from Yu were roughly equivalent to the funds standing in the appellant’s two accounts. In HKSAR v Ha But Yee[18], this Court, in a similar case, deprecated the attempt by counsel to go behind the plain terms of the Summary of Facts agreed at trial. 36.It is therefore necessary for us to examine what took place before the sentencing judge, because Mr Young’s point that the actual proceeds of crime were only the amount transferred from Chi’s account was not part of the factual basis on which the guilty pleas were entered. 37.The appellant was represented by Mr David Boyton, who submitted a written plea in mitigation. In his overview of the Summary of Facts, he stated:[19]
38.Page 00193 was the last page of the forensic accountant’s report, listing 37 transfers, amounting to RMB132,400,000, made over a period of nearly two years. 39.Mr Boyton went on to note, in paragraph 21 of his submissions, that police enquiries had revealed that the appellant had been found with properties and cash deposits, including the equivalent of HK$134,992,204.98, which had been deposited in his two accounts (Counts 3 and 4), referring to paragraph 20 of the Summary of Facts. In the next paragraph of his submissions, he stated:[20]
40.There was no submission by Mr Boyton to the effect that the sum transferred from Chi’s account was the actual proceeds of crime. On the contrary, his submissions proceeded on the basis that the total deposits into the appellant’s two accounts were to be treated as deriving from Yu’s remittances. 41.In his initial correspondence with prosecuting counsel on the agreed facts, Mr Boyton stated that his instructions were that none of the money from mainland China went directly into the appellant’s two bank accounts. He explained that all the laundered deposits were made into the appellant’s accounts via his cousin’s bank account. He stated that the total amount of the three different currencies deposited into the two bank accounts equated to roughly HK$62.4 million, which had been transferred from Chi’s account and which the appellant accepted he had laundered. He stated that he understood that Chi’s account still held HK$63 million, thereby explaining Yu’s loss of roughly HK$130 million. He then proposed to prosecuting counsel that, if it was accepted that there were no direct deposits from Yu or Lou into the appellant’s two accounts, the two counts be amended to reflect those figures. 42.We note from the further correspondence and what transpired that Mr Boyton did not pursue the contention that the laundered funds were represented only by the funds transferred from Chi’s account. In fact, he accepted that the proceeds of the money laundering offences were derived from the initial transfer of RMB132,400,000. He specifically stated in his submissions:
43.Paragraph 47 explicitly stated that the funds laundered were those that Yu transferred to the appellant as set out on page 00193. The defence did not take issue with the amount of the laundered funds but rather with the purpose for which they were put by Yu. Mr Boyton submitted that Yu had tasked the appellant, as his trustee, with purchasing properties overseas so that Yu could move money out of the country without his wife knowing. He further submitted that the appellant asserted that this constituted his understanding of the predicate offence, rather than fraud or theft. The judge rightly rejected this submission as being contrary to the agreed facts, and found, for the purpose of sentencing the appellant for the money laundering offences, that the predicate offence was the fraud or theft perpetrated by the appellant on Yu. On the agreed facts, it was plainly open to the judge to find that the predicate offence was the fraud or theft perpetrated by the appellant on Yu. 44.We can only assume that Mr Boyton did not pursue the point that the transfers from Chi’s account were the only laundered funds in the appellant’s two accounts because of his instructions and understanding of the case. It is not clear why only HK$63,264,192.74 was transferred from Chi’s account to the UBS joint account, but the agreed facts acknowledged that the total funds in the appellant’s two accounts were roughly the same as the funds transferred by Yu to the companies under the control of the appellant, which he had misappropriated. 45.In our view, it had therefore been accepted that all the funds received by the appellant came from Yu and Lou, and that, by pleading guilty to the two counts and agreeing to the Summary of Facts, he admitted laundering HK$134,992,204.98 through the two accounts. 46.A plea of guilty admits those matters which are the elements of the offence. This is usually supported by an agreed statement of facts negotiated between the prosecution and the defence. The agreed statement of facts should not be perfunctory but should represent the factual basis for a guilty plea. Unless the contrary is proved, it will be presumed that the agreed statement of facts has been agreed in accordance with instructions and carefully checked and considered by the parties and their legal representatives. Prosecutors and defence lawyers cannot distort facts or invent an artificial scenario to justify a lighter sentence. The agreed statement of facts must accurately reflect the provable reality of the crime. If the parties cannot agree on certain details, the judge should hold a Newton hearing to examine the evidence and resolve the disagreement before sentencing. 47.It is a fundamental principle that no one should be punished for an offence of which he or she has not been convicted. The judge acknowledged this principle during defence counsel’s submissions in mitigation.[21] However, given the elements of the offence of money laundering, it will be relevant whether the accused knew or had reasonable grounds to believe that he or she was dealing in the proceeds of crime. In other words, whether the accused was aware of the nature and scope of the predicate offence. This is a relevant consideration when sentencing a convicted person for money laundering. In this case, it was open to the judge, on the agreed statement of facts, to find that the predicate offence was a fraud or theft committed by the appellant, and therefore that he “knew” the nature and scope of that predicate offence. 48.In this context, the agreed statement of facts clearly represented that the total funds in the two accounts were the laundered proceeds of crime, and did not specifically state that the transfers from Chi’s account were “in part” the proceeds of crime. The pleas to Counts 3 and 4 followed negotiations between the parties under which Counts 1 and 2 were not proceeded with, and a statement of facts was agreed. Had the appellant continued to assert that only the funds transferred from Chi’s account were the actual proceeds of crime, the resolution of the case may have been very different, or at least a Newton hearing would likely have been held to resolve the issue. 49.There is a fundamental obligation on legal practitioners appearing in sentence proceedings to assist the sentencing judge, and, in sentence appeals, to assist the appellate court. This is an important aspect of a legal practitioner’s duty to the court. That obligation includes ensuring that any challenge to the factual basis for sentence is raised at the appropriate time and, where necessary, by seeking a Newton hearing. 50.In support of this ground of appeal, Mr Young seeks to admit into evidence the forensic accountant’s report, which was available to the parties at the time of sentencing and was mentioned in the agreed statement of facts in respect of specific and limited matters. Given the overall text of the agreed statement of facts and that it was the result of a plea negotiation, it would appear that a deliberate decision was made either not to mention or not to rely on extraneous material in relation to the matter that Mr Young has now raised in this ground of appeal. 51.The appellant must establish a proper basis for the admission of fresh evidence on appeal, where relevant factors include the circumstances of, and any explanation for, the non-production of the evidence, particularly when it is based on a deliberate decision made on the part of the appellant or his legal representatives. Mr Young applies to admit into evidence Exhibits KMJ-4 (notice of additional evidence) and KMJ-5 (the forensic accountant’s report) in support of this ground. He contends that these exhibits were already “adduced” in the proceedings below, as they were filed with the court and formed part of the record of those proceedings. He referred to section 83V(2)(b) of the Criminal Procedure Ordinance (Cap 221), which reads:
52.It would appear that Mr Young has not provided a reasonable explanation for the failure to adduce the forensic accountant’s report, or at least the passages upon which he is relying, beyond asserting that this evidence was “adduced” in the proceedings. This is also the position in the affirmation of Mr Kim Min Ju[22], in which he stated that he believed these two exhibits formed part of the record of the proceedings, and that he did not believe there was a failure to adduce them in the court below. This conveniently means that there is no explanation why the full report, or the passages upon which Mr Young now relies, were not part of the agreed statement of facts. 53.There are very important principles that apply when seeking to admit fresh evidence on appeal. As stated by this Court in HKSAR v Kwan Hau-chi, Vanessa[23], save in exceptional or truly rare circumstances, an appellant will not be permitted to advance on appeal an expert case which could and should have been pursued at trial, or to rerun the same expert case with a different or additional expert, since that would subvert the trial process and convert the appeal into a second “bite of the cherry” by way of a new presentation of expert opinion. 54.There was a protracted procedural history in this case of over three years, and it was only at a late stage that negotiations were entered into to resolve this case by way of a plea bargain and an agreed statement of facts. The prosecution, in preparing its case for trial, filed a set of admitted facts dated 29 December 2023, which were signed by the prosecuting and defence counsel. The admitted facts addressed a number of matters and included the production of the forensic accountant’s report. However, as already pointed out, the forensic accountant’s report was not before the court when the appellant pleaded guilty to Counts 3 and 4, as the factual basis of the pleas was the agreed statement of facts. The filing of the report in the proposed admitted facts was not a sufficient justification for the appellant to now seek to reopen the factual basis on which he chose to plead guilty. 55.This Court has repeatedly stated that, when a new team of lawyers takes over a case and wishes to raise a ground of appeal which concerns the conduct of the defence in the proceedings below, full and proper enquiries should be made with the previous legal representatives, particularly to understand why certain tactical decisions were made: HKSAR v Ahmed Shahnwaz[24]; HKSAR v Apelete (No 1)[25]; HKSAR v Apelete (No 2)[26]. The terms and basis of the plea agreement and the agreed set of facts must be accurately and comprehensively reflected in any argument that seeks to challenge the factual foundation of the sentence on appeal. We consider that we have not been adequately apprised of matters relevant to the argument advanced in this appeal and have several concerns about how this ground has been presented before us. The forensic accountant’s report and the way it has been relied upon raises more questions than it answers. 56.The forensic accountant explained that the scope of her work was limited to a funds flow analysis of the appellant’s two accounts and Chi’s account (based on the bank documents provided) and that any other bank accounts were outside the scope of her report. She was also instructed to trace the transactions between A/C-3 and the UBS joint account and determine the similarities between the 37 remittances according to Lou’s witness statement. She listed the assumptions she had made, and the documents that were available and those that were not available. She also explained that certain matters were not known to her and that she had referred to other information, particularly Lou’s witness statement. It is therefore of limited utility to examine the report in isolation. There was a body of evidence and information comprising the prosecution’s materials, which would obviously have been considered by the parties during the plea negotiations. These materials are not before us, nor should they be, where an applicant or appellant is effectively seeking to retry their case. There is also the important factor that, in negotiating a guilty plea, a defendant may acknowledge or admit matters when accepting his or her criminal wrongdoing. 57.Mr Young disagrees with the proposition that the other deposits in the appellant’s two accounts were indirectly routed, via other counterparties, from Chi’s account. He compares the major counterparties that were paid funds from Chi’s account with those that deposited funds into the appellant’s two accounts, noting that they were not the same. However, given the numerous transactions conducted by the appellant, there may have been other dealings before the funds ultimately found their way into the appellant’s two accounts. As already noted, the forensic accountant’s financial analysis was limited to the target bank accounts. The appellant would have known the true situation, and if he thought that some of the funds in the two accounts did not represent the proceeds of crime, he would have ensured that this was properly reflected in the Summary of Facts. 58.Mr Young accepted that his argument that only the funds transferred from Chi’s account, amounting to approximately HK$63 million, constituted the proceeds of crime was not made to the judge and is therefore a new point on appeal.[27] If this were truly an obvious and important point, it is difficult to see why it was not raised before the judge or made the subject of a Newton hearing. 59.Upon a guilty plea, a Summary of Facts is a distillation of the facts agreed between the parties and forms the factual basis for sentencing. The defendant and his or her legal representatives bear a strict duty to carefully scrutinize the Summary of Facts and address any factual matters relevant to sentencing, including, where appropriate, resolving any disputes by a Newton hearing. Consequently, an appellate court will permit a subsequent challenge to these agreed facts only in highly exceptional circumstances. Any such challenge requires compelling justification, which must be subjected to rigorous inquiry by the appellant’s legal representatives and supported by comprehensive explanations from all relevant parties involved at the trial level. 60.In light of the foregoing, we did not find this ground of appeal sustainable. Ground 3: Manifestly excessive 61.Mr Young notes that the judge ordered that 2 years and 6 months of the sentence on Count 4 be served consecutively to the sentence of 7 years and 6 months on Count 3, on the basis that “the two counts involve distinct and separate acts”. He submits that the judge erred in ordering consecutive sentences for the two offences, which he says arose from a single scheme to receive and dispose of funds from Yu. Notwithstanding that the two counts concerned two separate bank accounts, he contends that there is no material differentiation between the two offences and that the judge should have approached the case as involving a single offence of money laundering and ordered wholly concurrent sentences. 62.Mr Young further submits that the judge was correct to consider a single starting point for the overall criminality of the two offences, but erred by adopting one that was manifestly excessive. He notes that the judge stated in his reasons that the total sentence of 10 years’ imprisonment represented a notional starting point of 15 years’ imprisonment after trial, which would adequately reflect the overall criminality of the two offences. We note that the figure of 15 years was clearly a mistake, as the judge had indicated that the appellant should receive a discount of 25% for his guilty plea. Based on a 25% discount, the starting point would instead have been 13 years and 4 months’ imprisonment, although the judge’s error does not, of itself, determine whether the sentence was manifestly excessive. 63.Mr Young argues that the notional starting point is excessive, given that the statutory maximum for money laundering is 14 years’ imprisonment. He submits that this case did not fall within the worst category of such cases that come before the courts, relying in particular on the judge’s finding that the money laundering scheme “was not sophisticated in nature”, albeit that it involved some cross-border and international elements and that the appellant had benefited financially from it. He also argues that the individual starting points for Counts 3 and 4 were manifestly excessive and refers to a number of cases by way of comparison. He finally argues that the principle of totality did not require consecutive sentences in the circumstances of this case, and that this resulted in a manifestly excessive final sentence. On this point, he emphasises that this was a single scheme to receive and deposit the funds from Yu; there were two counts only because the scheme happened to use two of the appellant’s bank accounts, and there was no differentiation between the two accounts in terms of the offence period, the criminal conduct, or the victim. 64.Mr Young refers to the sentencing guidelines and principles in respect of money laundering offences set out by Stock VP (as Stock NPJ then was) in HKSAR v Boma[28]. However, instead of engaging with those guidelines in a structured way, Mr Young principally focuses on the amount of funds laundered in this case and refers to a number of cases by way of comparison. We do not find that comparative exercise particularly helpful, given the facts and circumstances of the present case, and the important observation by Stock VP that the amount of money laundered “is not the be-all and the end-all of the case”, although it is a significant feature. While not providing an exhaustive list of significant features to which a court should have regard, Stock VP referred to the following: (1) the nature of the predicate offence, if known, and the penalty available for the predicate offence; (2) the state of the offender’s knowledge; (3) whether the operation involved an international dimension, which would be a significant aggravating feature; (4) the sophistication of the offence, including the degree of planning; (5) whether the offence was committed by or on behalf of an organised criminal syndicate, which would be an aggravating feature; (6) whether there was one transaction or many and the length of time over which the offence was committed; (7) whether the offender continued to launder funds after he had discovered that the funds were proceeds of an offence or that a serious offence was involved; and (8) the role of the offender and the acts performed by him. 65.Mr Young also argues that individual starting points for Counts 3 and 4 of 10 years’ and 6 years’ imprisonment, respectively, were manifestly excessive. He refers to a number of cases where the offender knew he was dealing with the proceeds of an indictable offence and where the amount of the proceeds was similar to the amount in the present case, to suggest that the appropriate starting point ranges from 5 years and 6 months’ imprisonment to 7 years’ imprisonment. We again do not find this exercise to be particularly helpful, as it focuses on a very narrow consideration of the other cases, namely the quantum of funds and headline sentences, without proper regard to the factual and aggravating features identified in Boma. Mr Young also refers to the personal background of the appellant and contends that the appellant’s culpability was solely based on self-laundering. He relies on the fact that Yu was using the appellant to launder his own proceeds of crime and that Yu (and his wife) had obtained a civil judgment of HK$119,000,000 plus interest against the appellant. He contends that an overall starting point of 7 years’ imprisonment would be just and appropriate in resentencing the appellant and that, applying the same discount for his plea, the final overall sentence would be 5 years and 3 months’ imprisonment. 66.We will now address the features in Boma, together with other matters we consider relevant, in evaluating the appropriateness of the sentence imposed on the appellant. Discussion 67.As stated by this Court in HKSAR v Tsang Yiu Kong[29], the offence of money laundering is committed when the proceeds of crime are dealt with to create distance between the crime and the profits it generates, rendering detection of the crime and the recovery of its proceeds more difficult. This may involve multiple dealings designed to create a number of layers of separation between the crime and the profits it has generated, which will aggravate culpability and result in a greater sentence. 68.We do not agree with the judge’s characterisation of the scheme as unsophisticated. In our view, the contrary is true: this was an elaborate and extensive scheme devised by the appellant, involving the movement of funds from mainland China through a circuitous and layered route, in various amounts and through various accounts in different jurisdictions, before they were deposited into the appellant’s two accounts in Hong Kong. Consistently with the factors identified in Boma, the operation had an international dimension and a significant degree of planning and sophistication. As part of the factual matrix of the case, the appellant also transacted with and used the funds for his own benefit. 69.We also do not agree with the judge’s discount of 25% for the appellant’s guilty pleas. In HKSAR v Ngo Van Nam[30], it is suggested that if a plea of guilty is tendered on the first day of trial, the appropriate discount for sentence is 20% of that taken as the starting point. It is also suggested that a plea of guilty after the fixing of trial dates but before the first day of trial, a discount between 20% and 25% may be appropriate, having regard to the time at which the indication was given and to all the other relevant circumstances, while the discount for a plea of guilty tendered during the trial would usually be less than 20%. These suggestions are subject to the “overriding discretion of the judge in sentencing”. We note, in the present case, there was a protracted procedural history, during which the appellant maintained he would contest the case against him and the prosecution accordingly prepared its case for trial, including preparing and agreeing admitted facts. He clearly did not display genuine remorse because, in his mitigation submissions, he advanced an argument contrary to the agreed facts that the predicate offence concerned Yu appointing him as trustee to purchase properties overseas so Yu’s wife would not know. In these circumstances, and applying Ngo Van Nam, there would be justification to discount the starting point by no more than 20%. 70.This was a serious case of money laundering involving substantial funds spanning a period of nearly two years. There was a range of aggravating factors that heightened the criminality involved. The scheme was sophisticated, traversing two jurisdictions and involving multiple transactions and bank accounts. The funds were eventually transferred into two different bank accounts under the control of the appellant. The funds were the proceeds of offences of a serious nature, namely a fraud or theft perpetrated by the appellant against Yu. He therefore knew the illicit nature of the laundered funds, which he used for his financial benefit. It appears the funds have dissipated, and it is doubtful whether they are recoverable, notwithstanding that a judgment debt has been obtained against the appellant. Furthermore, the appellant committed the money laundering offences as an officer of a banking institution and abused the fiduciary, regulatory and professional duties owed by him in that capacity. Taken together, these features place the case in the high range of seriousness contemplated by the statutory maximum. 71.As stated in the joint judgment of Gageler, Nettle and Gordon JJ in the High Court of Australia in Nguyen v The Queen [31]:
72.We would adopt that approach in considering whether the total effective sentence imposed on the appellant properly reflects the totality of his criminality. 73.It is relevant that the two counts reflect the appellant laundering funds through two separate bank accounts, after a series of transactions that were difficult to detect and trace. Whilst the laundered funds arose from one scheme, they were transferred in 37 transactions over a period of two years through numerous transactions before they were eventually deposited in the appellant’s two accounts. In our view, the laundering of the proceeds of crime through two bank accounts with different banks and over a prolonged period concerns two distinct and separate offences designed to frustrate or prevent detection and recovery of the laundered funds. Accordingly, some degree of accumulation between the sentences on Counts 3 and 4 was justified in order to reflect the total criminality involved. 74.In sentencing the appellant in respect of each offence, we would have adopted a starting point of 10 years’ imprisonment on Count 3, which after a 20% discount for the appellant’s guilty pleas, would have resulted in a sentence of 8 years’ imprisonment; and a starting point of 6 years’ imprisonment on Count 4, which after a 20% discount for the appellant’s guilty pleas, would have produced in a sentence of 4 years and 10 months’ imprisonment. It would then be appropriate to order that 2 years of the sentence on Count 4 run consecutively to the sentence on Count 3, resulting in a total sentence of 10 years’ imprisonment. In our judgment, this structure properly reflects the seriousness of each offence and, applying the principle in Nguyen, the overall totality of the appellant’s criminality. 75.Alternatively, applying a global approach to reflect the same overall criminality, one might adopt a starting point of 12 years and 6 months’ imprisonment, which, after a 20% discount for the appellant’s guilty pleas, would result in a sentence of 10 years’ imprisonment, there being no other mitigating factors warranting a reduction in sentence. Conclusion 76.Accordingly, it cannot be said the sentence was manifestly excessive and/or wrong in principle and the appeal is dismissed.
Mr Jason Lau, SPP, of Department of Justice, for the respondent Mr Simon Young, instructed by Lee Law Firm, for the appellant [1] Affirmation of Kim Min Ju, Exhibits “KMJ-1” to “KMJ-3”. [2] Affirmation of Kim Min Ju, Exhibits “KMJ-4” to “KMJ-6”. [3] Appeal Bundle (AB), 22-28. [4] AB, 22, at [4]. [5] AB, 22-23, at [5]. [6] AB, 23, at [6]-[7], and 27, at [24]. [7] AB, 23, at [8]. [8] AB, 23, at [9]. [9] AB, 23-24, at [10]. [10] The appellant’s total reported income from UBS in the relevant period was HK$4,066,275. [11] AB, 25-27, at [16]-[23]. [12] AB, 57-58, at [36]-[41]. [13] AB, 58-59, at [43]-[45]. [14] AB, 37I-N. [15] AB, 38J-P. See also AB, 25-26, at [19]-[20]. [16] AB, 37O-38F. [17] The point was not elaborated upon in argument before us, but we note that, according to the forensic accountant’s report, a total of approximately HK$175 million was deposited into the A/C-3 savings account, and HK$55 million was transferred from that account to the A/C-3 current account, from which HK$34,800,000 was then transferred to Yu. There was also a transfer from the current account to the savings account of approximately HK$11 million. This resulted in a total of approximately HK$131 million in the A/C-3 savings account. This roughly corresponds to the equivalent value of Yu’s original RMB funds that had been transferred to the appellant. It is to be noted that no issue was taken in relation to these funds when the appellant pleaded guilty, and they were not mentioned in the Summary of Facts. [18] HKSAR v Ha But Yee [2025] 2 HKLRD 468, at [25]-[29]. [19] AB, 50. [20] AB, 51. [21] AB, 42T-43K. [22] Affirmation of Mr Kim Min Ju, at [11]. [23] HKSAR v Kwan Hau-chi, Vanessa, unrep., CACC 244/2021, 23 June 2026, at [6]-[7]. [24] HKSAR v Ahmed Shahnwaz, unrep., CACC 56/2021, 14 August 2024, at [27]-[29]. [25] HKSAR v Apelete (No 1) [2019] 5 HKLRD 574, at [65]. [26] HKSAR v Apelete (No 2) [2019] 5 HKLRD 602, at [80]. [27] Darts recording, 22 May 2026, at 10.06.06 – 10.06.14 hours. [28] HKSAR v Boma [2012] 2 HKLRD 33, at [38]-[40]. [29] HKSAR v Tsang Yiu Kong [2026] 1 HKLRD 503, at [21]-[22]. [30] HKSAR v Ngo Van Nam [2016] 5 HKLRD 1, at [232]-[235]. [31] Nguyen v The Queen [2016] 256 CLR 656, at [64]. | ||||||||||||||||||||
Cases cited in this judgment
Further hearings and rulings under CACC 147/2024