HKSAR v. Fung Shiu Hei James

CACC 69/2025 [2026] HKCA 1367

On appeal from [2025] HKDC 486

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO 69 OF 2025

(ON APPEAL FROM DCCC NOS 490 AND 1249 OF 2024) (CONSOLIDATED)

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J U D G M E N T

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1.On 18 March 2025, the applicant (D3) was sentenced to 40 months’ imprisonment[1] by District Judge G Lam (the judge), following his plea of guilty to the offence of dealing with property known or believed to represent the proceeds of an indictable offence (Charge 3) [2], contrary to section 25(1) and (3) of the Organized and Serious Crimes Ordinance (Cap 455) (OSCO).  It was alleged that, between 27 March and 18 June 2020, he dealt with a total sum of about US$194,698.57 and HK$2,132,417.58. 

2.On 2 April 2025, the applicant applied for leave to appeal against the confiscation order[3] but later abandoned the application, which was then dismissed.  On 10 November 2025, he applied for leave to appeal against sentence out of time.  He appears in person, having had legal aid refused on 22 December 2025. 

3.Mr Douglas Lau, for the respondent, submits that while the applicant applied for leave to appeal against the confiscation order in time, he did not file his leave application against sentence until over six months after the time limit had expired.  He has provided no acceptable explanation for the delay in the absence of any change of circumstances.[4]

4.The Summary of Facts was that, between 6 and 17 April 2020, an 83-year-old victim (PW1) received telephone calls from three unknown men, two posing as Mainland police officers who falsely told her that she was involved in a financial case, obtained her personal particulars and bank account numbers, and arranged for a third man to collect the U‑Key and password of her account.  On 1 June 2020, PW1 discovered unauthorised transactions in her account and reported them to the police.  The investigation revealed 16 such transactions amounting to a total loss of HK$8,740,900.  Part of the funds was remitted to the personal bank accounts held by the applicant, D1 and D2, including HK$393,600 to the applicant’s account at Standard Chartered Bank (the SCB account) on 6 May 2020.  Between 27 March 2020 (when the applicant opened the SCB account) and 18 June 2020, 30 deposits totalling US$194,698.57 and HK$2,132,417.58, and 62 withdrawals totalling US$159,955.88 and HK$2,132,528.23 were processed through the SCB account, with funds swiftly transferred in and out in mirrored patterns.  The Inland Revenue records for the applicant’s reported income for the period showed that his reported income for the period was HK$132,000 as a sub-contractor.  He was arrested on 20 July 2022, and in a video-recorded interview, he admitted that he was the holder of the SCB account, which he had opened and used.  He said he was unsure whether others had also used it.[5]

5.In mitigation, it was submitted that the applicant was 43 years old at the time of sentence and had worked as a casual worker earning about HK$15,000 per month.  He had five previous convictions which were unrelated to money laundering and had been dealt with in the magistrates’ court.[6]  Defence counsel submitted that he operated the SCB account and used it for depositing his salary.  He lent it to a friend to receive payments but was unaware of their nature and received no remuneration.  The offending period was limited to about one month, as the majority of the proceeds were deposited between 9 April and 8 May 2020, with negligible sums received outside that period.[7]

6.Having considered the circumstances of the offence in accordance with applicable sentencing principles[8], the judge adopted a starting point of 4 years’ imprisonment.  Although there was no evidence that the applicant was involved in or knew of any predicate offence (except the HK$393,600 from PW1), he considered that, as the applicant was the sole owner of the account and retained ultimate control of it, he was under a duty to monitor its regular transactions, which he failed to do.  About HK$2.1 million and US$200,000 (approximately HK$3.65 million in total) passed through the account over a period of about three months.  By giving his account to another and allowing funds of unknown origin to pass through it, the applicant played a pivotal role in helping the masterminds of criminal activities to access illegal funds without revealing their identities.  The judge then reduced the sentence by one-third for his guilty plea to 32 months’ imprisonment.  He observed that, although the applicant and the other defendants claimed ignorance of the telephone deception on PW1, such scams depend on “gullible scapegoats” who provide bank accounts through which illegal funds are channelled.  Having regard to their roles and the sums passed through the accounts, the judge enhanced the applicant’s sentence by 25% under section 27(2) of OSCO, resulting in a sentence of 40 months’ imprisonment.[9]

7.The applicant did not dispute the starting point of 4 years’ imprisonment but submits that an enhancement of 20%, rather than 25%, under OSCO should be applied, and that his sentence should be reduced to 38 months and 2 weeks’ imprisonment.  In support of this contention, he relies on two District Court cases: DCCC 1034/2022, in which the judge enhanced the sentence by 20% under OSCO, and DCCC 665/2024 and 226/2025 (consolidated), in which a 25% enhancement was imposed.  Those decisions turned on their own particular facts and circumstances, and the enhancements applied in them fell within an appropriate sentencing range.

8.As submitted by Mr Lau, the judge gave detailed reasons for sentence, identifying the relevant facts and circumstances in accordance with applicable sentencing principles. The starting point of 4 years’ imprisonment was appropriate, taking into account the applicant’s role and culpability in allowing his personal account to be used to launder illicit funds, which involved approximately HK$3.65 million.

9.It was noted that HK$393,600 that was deposited into the applicant’s account was the proceeds of a telephone deception.  Although there was no evidence that the applicant had any involvement or knowledge of this telephone deception, it involved three unknown scammers and was carried out with planning and deceit on an elderly woman (PW1).  While there was no finding that the money laundering offence was committed by an organised criminal syndicate, the judge found that the applicant and the other two defendants each played an important role in enabling the masterminds to access illegal funds without disclosing their identities.  As agreed in the Summary of Facts, PW1 was scammed in the total sum of HK$8,740,900, of which HK$1,500,000 was transferred to D1’s account, HK$3,000,000 was transferred to D2’s account and HK$393,600 was transferred to the applicant’s account.

10.The judge also properly reviewed the application under OSCO, which was supported by information and data furnished in a statement from the officer-in-charge of money laundering, and the 25% enhancement for the aggravating factor was within the acceptable sentencing range.  As the Court noted in HKSAR v Chau Yu Tung[10], although there have been cases in the past in which a 20% enhancement under OSCO was applied for money laundering offences, more recently, enhancements of 25% or more have been applied.  It was a matter to be determined in the exercise of the trial judge’s discretion, having regard to the particular case and its circumstances.  In the present case, the overall sentence of 40 months’ imprisonment imposed on him cannot be said to be manifestly excessive or wrong in principle.

11.The applicant’s application for leave to appeal against his sentence out of time is without merit and is therefore refused. 

12.The applicant is reminded of his right to renew his application for leave out of time to the Court of Appeal, but he is also informed of the consequences of doing so, which may include a direction for the loss of time spent in custody pending his appeal if the Court were to come to the view that there was no justification for the renewal of his application.

Mr Douglas Lau, SPP (Ag), of Department of Justice, for the respondent

The applicant appeared in person

[1]  The applicant’s estimated discharge date is 20 November 2026.

[2]  The two other defendants, namely Chung Yam-shing (D1) and Choi Kwai-yiu (D2) each pleaded guilty to a money laundering offence (Charges 1 and 2) and were sentenced to 40 months’ imprisonment and 50 months’ imprisonment respectively.

[3]  The confiscation order was in the sum of HK$243,144.68 to be payable on or before 18 May 2025.

[4]  HKSAR v Yim Shek Wo [2021] HKCA 965, at [51]; R v Wong Kai Kong & Anor [1990] 1 HKC 279.

[5]  Appeal Bundle (AB), 5-11.

[6]  AB, 43.  The convictions related to possession of an obscene article; possession of a dangerous drug; criminal intimidation; and possession of an offensive weapon.

[7]  AB, 29-39.

[8]  HKSAR v Boma [2012] 2 HKLRD 33, at [40]; Secretary for Justice v Wan Kwok Keung [2012] 1 HKLRD 201; HKSAR v Hsu Yu Yi [2010] 5 HKLRD 545.

[9]  AB, 22-24 and 27-28, Reasons for Sentence, at [28]-[35] and [42]-[43].

[10]  HKSAR v Chau Yu Tung, unrep., CACC 62/2025, 16 December 2025, at [15].