Read the full judgment text of CACC 000433/2006 on BabelCite. This Court of Appeal judgment was delivered on 2 November 2007 before Stuart-Moore VP, Yeung JA, Barnes J.
Criminal law – money laundering – dealing with property known or believed to represent proceeds of an indictable offence – sentencing – manifestly excessive sentence – sentencing guidelines for money laundering – applicant convicted after trial before Deputy High Court Judge Wright and a jury, together with D4 (Chan Yin-hei), of a single charge of dealing with property known or believed to represent proceeds of an indictable offence – scheme involved over 1,500 remittances of up to HK$73 million from two banks in Sydney, Australia, into 23 Hong Kong accounts controlled by the applicant, with cash then physically carried to the Mainland – remittances structured below the AUD$10,000 reporting threshold – applicant's brother Peter Chen organised the Australian end, applicant organised the Hong Kong end – prosecution unable to identify underlying indictable offence – applicant sentenced to 9 years' imprisonment, D4 to 4 years – whether 9 years was manifestly excessive for money laundering where underlying offence not established – whether sentence for money laundering where underlying offence unidentified should exceed sentence where underlying offence is identified – whether disparity between applicant's and D4's sentences indicated the applicant's sentence was excessive – whether the judge's remark that the case could have been tried in the District Court should have capped the sentence – court reaffirmed that money laundering is a very serious offence attracting a maximum of 14 years and $5 million fine, with no fixed sentencing guidelines because of the wide range of culpability – court held that the gravamen of the offence is the amount of money handled, not profit to defendant or loss to victims – comparing sentences in HKSAR v Oei Hengky Wiryo, HKSAR v Kam Susanto, HKSAR v Cheng Sui Wa, HKSAR v Shing Siu Ming, HKSAR v Wong Ping Shui Adam and HKSAR v Xu Xia Li, the 9-year starting point was considerably out of line and manifestly excessive – applicant was clearly the leader who enlisted the help of others, so the disparity with D4 was justified and the District Court remark had been withdrawn – leave to appeal granted, appeal allowed, sentence reduced from 9 years to 7½ years' imprisonment – court observed that in appropriate cases with aggravating factors and large sums, more robust sentences may be called for, and where underlying offences are drug trafficking, human smuggling and other serious trans-national crime, sentences of 10 years or above may be justified.
Legal issues: Whether the 9-year sentence was manifestly excessive for a money laundering offence where the underlying offence was not established · Whether the disparity between the applicant's and D4's sentences indicated the applicant's sentence was excessive · Whether the judge's remark that the case could have been heard in the District Court should have limited the sentence
Outcome: Leave to appeal against sentence granted; appeal allowed; sentence reduced from 9 years' to 7½ years' imprisonment.
Cited by 14 cases · Cites 7 cases