HKSAR v. Lai Kam Yee, Teresa

DCCC655/2008

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 655 OF 2008

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 HKSAR

v.

Lai Kam-yee, Teresa

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Reasons for Sentence

1. The defendant is convicted after trial of one charge of dealing with property known or believed to represent proceeds of an indictable offence.  In sentencing, I take into account the whole circumstances of the case, including its nature and facts, background of the defendant, mitigation put forward on her behalf as well as information and recommendation contained in the report.

2. In this case, the prosecution has proved beyond reasonable doubt that on numerous occasions during the period between 1 January 2005 to 19 April 2007, some significant amounts of money were deposited into the accounts held by the Defendant.  Those moneys were withdrawn or transferred within a few days, if not on the same day.  According to the defendant, she had given most of these moneys to Fok, her divorced husband.  She had also transferred money to accounts specified by him or remitted money to people specified by him.

3. In April 2007, Fok told her that money would be deposited into her account.  On the 16th, $2.5 million were deposited into one of the defendant’s accounts.  On the 17th, the defendant withdrew HK$300,000 and US$120,000 pursuant to Fok’s instruction.  Then upon his instruction, the defendant gave the HK$300,000 to a man whom she did not know.  As regards the US$120,000, she said Fok had told her someone else would be collecting the money at the airport to bring it to Canada.

4. On the 18th, the defendant withdrew $20,000 and took the money to Shenzhen and handed it over to Fok.  Later, also upon Fok’s instruction, she handed $800,000 to Fok’s mother and she said for convenience and safety’s sake, she also gave her the US$120,000.

5. I held that the defendant had dealt with the money deposited in her accounts during the relevant period, having reasonable grounds to believe that the property in whole or in part, directly or indirectly, representing proceeds of an indictable offence.

6. Defendant is now 39 years of age.  She is a primary school teacher.  When she was studying in Canada, she came to know Fok.  They got married in 1989 when they finished studies in the high school.  The defendant continued her studies while Fok began his career in business.  In 1993, they divorced.  The defendant returned to Hong Kong in 1994 and started her teaching career.  In 1996, she resigned and went to Canada to help Fok to operate his restaurant.  In 1997, she gave birth to their son.  They have never remarried.  In 1998, the defendant returned and resumed her teaching career.  She has taught in different schools and has been teaching in the present school for five years.  She is a first offender.

7. In the present case, there is no evidence that the money which the defendant had dealt with was in fact proceeds of an indictable offence.  According to the defendant, most of the money was from Fok.  At least, this was her belief.  She said that she had given Fok most of the money and had dealt with some in accordance with his instruction. 

8. There is no evidence that Fok had been convicted of any offence.  The basis of the defendant’s conviction is that in dealing with the property, she had reasonable grounds to believe, and not that she knew, that the money represented proceeds of an indictable offence.  There is no evidence to prove that the defendant knew that the money she dealt with was such proceeds, let alone proceeds of what particular offence.

9. However, in view of the amount involved, she must have the belief that the offence was a serious one.  The last deposit into her account was a sum of $2.5 million.  Prior to that, the total amount of money she had dealt with exceeded $1 million.  As to who exactly made the deposits, evidence only revealed some and not all of them.  The defendant said that she did not know any of these people.

10. Unlike many other cases of this sort, there is no evidence that the defendant did what she had done for a reward as such.  Learned leading counsel for the defence said the main reason for her out-of-character behaviour was to maintain the relationship with Fok for the benefit and welfare of their son.  There is evidence to bear out what learned leading counsel said.

11. In all the circumstances of the case, I accept that monetary reward was not the main concern of the defendant in committing the offence.  Evidence shows that the defendant did keep part of the deposited money, though a very small proportion of it, for her own use and for the purchase of the flat.  Though in a sense it may be regarded as benefit, I do not feel it as having the character of a reward in the particular circumstances of this case, in particular bearing in mind the relationship between Fok and the defendant, and the money which he still owed her and her family.

12. In the dealing of the money, the defendant had used three bank accounts of hers.  However, the evidence does not reveal a sophisticated operation or a measure to conceal.  The fact that three accounts were used seems to be more for the reason of practicable convenience than anything else.  From the evidence, it does not appear that careful and sophisticated planning were involved at least as far as the defendant is concerned.  On her part, she acted alone.

13. The offence is a serious one.  It legitimises proceeds of criminal activities and enables criminals to enjoy the fruit of their criminal activities with relative ease.  As said by the Court of Appeal in the case of Xu Xia Li [2004] HKC 16 at page 23, without the assistance of money-launderers, it would be more difficult for criminals to clothe their illegal proceeds with the same respect as lawful gains, and the chances of law enforcement detection of illegal activities that produced monetary benefits would be enhanced.

14. The law provides for a maximum sentence of 14 years’ imprisonment and a fine of $5 million.  Learned defence counsel who appeared for the defendant on the last occasion asked the court to consider imposing Community Service Order on the defendant.  I acceded to the request to ask for a report but before adjourning, I had clearly advised the defendant that a custodial sentence was appropriate for this type of offence, and the court was under no obligation to follow the recommendation in the report.  The court was under a duty to impose the most appropriate sentence for the case.

15. Today, learned leading counsel for the defence urged me to consider a suspended sentence or imposing a community service order.  I have given very careful consideration, having regard to the whole circumstances of the case.  I take into account the seriousness of the matter as well as the background both of the case and the defendant herself.  I bear in mind the basis of the defendant’s conviction. 

16. The defendant is a first offender.  From what I have been given, I accept that she is a responsible, caring and brilliant teacher.  She gained the respect of colleagues, students and parents alike.  In her employment, she has contributed much to the community.  I accept that the defendant committed the offence totally out of character. 

17. Her parents are aged.  She has a son now 12 years of age.  He is going to start his secondary education.  He has been doing well both academically and in extracurricular activities.  Material provided to me shows that he has a good and healthy personality, and this must be the result of good care and guidance of the defendant being a single parent.  The boy is an obvious victim of the matter. 

18. On the other hand, the nature and facts of the case are serious.  It lasted for over a year.  The defendant had dealt with money with the required belief on numerous occasions.  It cannot be said to be a momentary lapse of judgement.  The total amount of money involved is substantial.  It involved transactions between a number of people.  It involved transactions sometimes across the border. 

19. The defendant did not plead guilty.  The report does not contain recommendation in express term for a community service order.  The defendant has all along been leading a decent and respectable life and contributing to community as a good teacher.  However, she let herself, perhaps foolishly or out of concern for her son, being exploited by her ex-husband.  Her career and future are bound to be severely damaged.

20. There is no tariff for this type of offence.  Having considered the whole circumstances of the case very carefully, I am of the view that a custodial sentence is appropriate. 

21. I do not consider there exist sufficient special circumstances to justify ordering the sentence to be suspended. 

22. I have considered whether a community service order is an appropriate sentence as alternative, taking into consideration everything said on the defendant’s behalf.  I accept that the chance of the defendant’s re-offending is low.  I bear in mind the possible consequence to the young boy if the defendant is imprisoned.  I bear in mind that the defendant did not plead guilty and had assessed her degree of remorse.  Despite her personal attributes qualify her as a suitable candidate, in all the circumstances, I am of the view that a community service order is inappropriate for an offence so serious in nature and in fact.

23. I am of the view that the appropriate starting point for the offence in this case is 3 years.  Having regard to mitigation, the background of the defendant, the fact that she is a first offender, the circumstances leading to and surrounding the offence, and the matter has been affecting the defendant for two years, I will give her a 9 months’ discount. 

24. Based on the matters aforesaid, I sentence the defendant to 2 years and 3 months’ imprisonment.