HKSAR v. Lin Ya Ping and Another

DCCC 1087/2008

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 1087 OF 2008

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Before: Deputy District Judge Francis Cheng

Date: 25^th March 2009

REASONS FOR SENTENCE

1.The 1^st Defendant pleaded guilty to Charges (1) to (8) in this case whilst the 2^nd Defendant pleaded guilty to Charges (9) to (12). They are all charges of dealing with property known or believed to represent proceeds of an indictable offence, contrary to section 25(1) of the Organized and Serious Crimes Ordinance, Cap. 455, Laws of Hong Kong, commonly known as “money laundering charges”.

2.The particulars of offence of these charges reveal that during the period from the 16^th to the 27^th day of May 2008, the 1^st and the 2^nd Defendant, individually and separately, dealt with the following sums on 12 different occasions, knowing or having reasonable grounds to believe that the same, in whole or in part, directly or indirectly represented the proceeds of an indictable offence, namely fraud:

Date	Amount (HK$)	Defendant	Charge(s)
19th May 2008	288,545.00	1st	1
19th May 2008	289,500.00	1st	2
27th May 2008	1,032,193.00	1st	3
27th May 2008	400,000.00	1st	4
27th May 2008	200,000.00	1st	5
27th May 2008	43,200.00	1st	6
27th May 2008	360,000.00	1st	7
26th May 2008	46,947.08	1st	8
16th May 2008	42,107.10	2nd	9
22nd May 2008	34,967.61	2nd	10
23rd May 2008	460,018.84	2nd	11
23rd May 2008	460,000.00	2nd	12

3.The summary of facts agreed by both defendants reveal that they were involved in the same lottery scam. There were three victims, namely PW1, PW2 and PW3 . They are all Chinese who are residing overseas. Telephone calls were made to these victims - by the people from the scam-telling them that they were the winners of certain lucky draws and hence entitled to huge sums of cash prizes. These victims would subsequently be asked to transfer sums of monies into various designated accounts so as to substantiate their entitlement of these cash prizes.

4.Obviously there was no lucky draw and no cash prize was ever awarded to any of them.

5.The parts played by the defendants are as follows:

5.1 The 1^st defendant came to Hong Kong on the 10^th day of May 2008. She opened a bank account with the Standard Chartered Bank three days later.

5.2 During the period from the 19^th to the 27^th day of May 2008, PW1 transferred a total of HK$1,320,738 into the said Standard Chartered Bank account. The 1^st defendant withdrew a total of HK$1,292,700 shortly after the corresponding deposits were made.

[Subject matter of Charges (1) to (7).]

5.3 On the 26^th day of May 2008, PW3 remitted a sum of HK$46,947.08 in Australia through Western Union to the 1^st defendant in Hong Kong and on the same day, the 1^st defendant withdrew the same amount in cash at Western Union.

[Subject matter of Charge (8).]

5.4 The 2^nd defendant arrived in Hong Kong on the 24^th day of April 2008 and opened a bank account with the DBS Bank the following day.

5.5 On the 15^th day of May 2008, PW1 remitted a sum of HK$42,107.10 in Australia through Western Union to the 2^nd defendant in Hong Kong and the latter withdrew the same amount in cash at Western Union the following day.

[Subject matter of Charge (9).]

5.6 On the 22^nd day of May 2008, PW2 remitted a sum of HK$34,976.61 in New Zealand through Western Union to the 2^nd defendant in Hong Kong and the latter withdrew the same in cash at Western Union on the same day.

[Subject matter of Charge (10).]

5.7 On the 23^rd day of May 2008, PW1 transferred a sum of HK$460,018.84 to the 2^nd defendant’s DBS Bank account. The 2^nd defendant withdrew HK$460,000.00 in cash from the said account on the same day.  

[Subject matter of Charges (11) and (12).]

6.The defendants were arrested by the police, separately, when they were trying to leave Hong Kong on the 22^nd day of July 2008.

7.The 1^st defendant admitted to the police under caution that she was recruited by an unknown male in Taiwan to come to Hong Kong to open the said Standard Chartered Bank account. She was instructed to withdraw money in cash from the said account and hand over the money to a male called “Ah Bing” who was accompanying her. She was told by this male that the monies transferred to her account were his winnings from gambling.

8.The 2^nd defendant admitted to the police that she was recruited by a “Mr. Chan” in Taiwan to come to Hong Kong and was promised a monthly salary of TW$100,000. She was arranged by a Chinese male named “Siu Ko” to come to Hong Kong to open an account in DBS Bank. Siu Ko told her that monies including proceeds of illegal gambling activities, would be transferred to her account in Hong Kong. She was arranged by Siu Ko to come to Hong Kong to withdraw monies from her account in DBS Bank and withdraw monies remitted to her through Western Union.

9.Mr. Nelson Lam, appearing for both defendants, made a very sincere and succinct submission on their behalf on the last occasion. According to Mr. Lam, the childhood of the 1st defendant was not what one would describe as ideal. Her mother passed away when she was very young. Her father re-married shortly afterwards and she was brought up by her grandparents. She received very little education and started her working life when she was only 15-years-old.

10.The 2^nd defendant also came from a broken family. She was very much neglected as most of the attention was given to her elder brother who, I am being told, is now serving in the army as a doctor.

11.Both defendants have a clear record. I have also perused mitigation letters written by their friends and relatives who all made passionate and positive comments about them.

12.As far as sentences are concerned, what the two of you must understand is that the offences committed by both of you are very serious indeed. There exist an international element in the scheme. That, in itself, is an aggravating factor. Furthermore, the amount of monies laundered by the two of you are, to say the least, substantial. Taking into account of double counting, some HK$1.3 million went into and then out of the 1^st defendant’s bank account during the material period. For the 2^nd defendant, the amount was slightly over HK$0.5 million.

13.Having said that, however, I am persuaded by your counsel and prepared to accept that the two of you were merely foot soldiers in this scam. I am also prepared to accept that the two of you were originally very simpleminded ladies and you were not aware of the details of the scam. Mr. Lam also urged me to consider the fact that the money-laundering period only lasted less than 10 days in each of your respective situations; and there is no concrete evidence to suggest that any of you were involved in activities other than the opening of bank accounts and the withdrawal of monies.  I accept that line of submissions.  I will also take into account of the remorse shown by the two of you in pleading guilty as well as the fact that both of you were very co-operative with the police from the very moment when you were arrested. 

14.The Court of Appeal in Hong Kong emphasised time and again that there are no guidelines for this kind of offence as the circumstances giving rise to the offences can vary widely. In assessing your respective sentences, I have considered the following authorities:

HKSAR v. Xu Xia Li (CACC395/2003);

HKSAR v. Abayomi Bamidele Fayomi (CACC197/2005)     

HKSAR v. Leong Wai Keong (CACC476/2007); and

HKSAR v. Zhan Jian Fu (CACC258/2007).

15.In the said case of Abayomi Bamidele Fayomi, the defendant faced 3 charges of money-laundering, amounted to HK$1.2 million transferred from the United States of America to his Hong Kong’s account. The involvement of the defendant in that case is very similar to that of ours. On appeal, the starting point of 3 years and 3 months adopted by the learned trial judge was not interfered with by the Court of Appeal.

16.In the case of Zhan Jian Fu, the defendant, a Mainlander, laundered some HK$2 million during a 2-months period whilst he was in Hong Kong. He was sentenced to a total term of 32 months after pleading guilty for the two money-laundering charges faced by him.

17.Having considered the facts of the present case, the submissions made by both the prosecution and the defence, the clear records of both of you, the principle of totality and all the relevant authorities, I am going to take a global approach in respect of all the charges pleaded guilty by the two of you respectively.

18.For the 1^st defendant, I am going to take 2 years and 9 months as the starting point for Charges (1) to (8). That will be reduced to 22 months after reduction of your guilty plea. Your sentence for Charges (1) to (8) will therefore be 22 months of imprisonment each. They are all going to run concurrently to each other, thus making the total sentence you are going to receive to be 22 months of imprisonment.

19.For the 2^nd defendant, your situation is identical to that of the 1^st defendant bar one aspect, namely the amount of money laundered by you. Although it is not supposed to be a mathematical progression when it comes to sentencing, the amount of money laundered is something that this court must take into account. In view of that, I am going to take 2 years and 6 months as the starting point for Charges (9) to (12). That will be reduced to 20 months after reduction of your guilty plea. Your sentence for Charges (9) to (12) will therefore be 20 months of imprisonment each. They are all going to run concurrently to each other, thus making the total sentence you are going to receive to be 20 months of imprisonment.