HKSAR v. Liu Yo Ming

DCCC294/2009

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 294 OF 2009

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Reasons for Sentence

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1. Defendant, you have pleaded guilty to 11 charges of dealing with property known or believed to represent the proceeds of an indictable offence, contrary to section 25(1)(3) of the Organized and Serious Crimes Ordinance.

2. The offences occurred between 14 December 2008 and 23 December 2008.  The full particulars are set out in the charges. 

3. You are a citizen of Taiwan with no family connections in Hong Kong.  On 14 December 2008 you entered Hong Kong as a visitor.  The following day, on 15 December, you visited five local banks and opened accounts with them using your Taiwanese passport as evidence of your identity.  Over the next few days, sums of money were sent from overseas and were deposited into these five bank accounts which you had opened.  In each case you withdrew or tried to withdraw the money from these accounts, save that on 22 December whilst one of the bank staff became suspicious, you were unable to withdraw money from the Citibank account. 

4. In addition to the sums remitted to the bank accounts opened by you, sums of money were also remitted from overseas to three money exchange companies, naming you as the recipient.  You collected the money from the exchange companies using  your Taiwanese passport as identification. 

5. After your arrest you were interviewed and you admitted that you knew the money remitted to Hong Kong was connected with illegal activities.  The total amount of money remitted to the banks and exchange companies in your name was approximately HK$904,654.  You withdrew a total of $683,846 from those institutions and none of this money has been recovered.

6. Under caution you told the police that you had been out of work in Taiwan and were struggling to support your family.  You answered an advertisement for a loan but instead got recruited to do some illegal activities.  All the arrangements for you to come to Hong Kong were made by others and you received detailed instructions on what to do by telephone whilst you were in Hong Kong.  You were promised 5 per cent of all the money you collected but were only paid $1,500.  You were promised the rest when you returned to Taiwan.  After each withdrawal of the money, you handed over the cash to unknown persons whom you met by arrangement in the street. 

7. Ms Suzanne Sim, counsel, has mitigated fully on your behalf today and I have taken into account all that she has had to say for you. 

8. You are aged 33, from Taiwan, married with four children and do not have a criminal record in Hong Kong or Taiwan; you are of clear record.  You have completed high school education at Taiwan.  And before your arrest, you were working as a construction worker in Taiwan earning approximately HK$5,000 a month. 

9. The reason that you got involved in these offences, Ms Sim informs me, is because you were in financial constraints at the time and you approached people who were advertising in the newspapers for a loan.  However, in view of your job status, they asked you how were you to repay the loan.  And instead of granting you a loan, they suggested you come to Hong Kong to work.  You agreed.  However, you had no idea what work you were to be involved in in Hong Kong.

10. When you came to Hong Kong, you received your instructions, you were given money and a mobile telephone.  When you began work, you then became suspicious that you were involved in illegal activities. This was your first time in Hong Kong and you had no choice but to continue with those activities.

11. You did not know about what illegal activities they were but you were informed by the police officers who had arrested you that these were activities related to a lottery scam, but you had no knowledge of the source.

12. I find it hard to believe that you had come to Hong Kong from Taiwan having no idea of what work you would be doing, particularly if you were given money and mobile phones and your trip was paid for prior to you coming to Hong Kong.  You must have known or had some suspicions prior to leaving Taiwan that this was for some unlawful purpose.  I accept, however, that there is no evidence that you knew that the source of this was from a lottery scam. 

13. Ms Sim and Mr Dunn, counsel on fiat, have referred me to a number of authorities; Mr Dunn, to HKSAR v Javid Kamran CACC400/2004; HKSAR v Fayomi CACC197/2005; and Ms Sim, to various District Court judges’ reasons for sentence which are HKSAR v Wu Chi Chung DCCC1118/2008; HKSAR v Chang Mun Nan DCCC134&511/2009; HKSAR v Li Ya Ping and Lu Hsiao Feng DCCC1087/2008.

14. Within those cases, a cross-section of money-laundering cases were summarized.  Money-laundering is a serious and damaging offence as shown by the maximum sentence of 14 years’ imprisonment.  In HKSAR v Xu Xia Li and Ching Yu Chiu CACC395/2003 Woo JA stated:

“The prohibition of the offence is to strike at those who give assistance to criminals to dispose of or retain their ill-gotten gains as if they were derived from legitimate activities.  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 produce monetary benefits would be enhanced.  Money-laundering is therefore treated as a serious offence.  If money-laundering offences were allowed to be carried out in Hong Kong with impunity or treated lightly with minor penalties, it would mar Hong Kong’s reputation as a world-class financial and banking centre.”

15. There are no tariffs for this offence as there is a very wide range of culpability.  As a matter of general principle, in a money-laundering offence, the amount of money laundered is relevant.  Other features to consider are the length of time the laundering subsisted, the degree of sophistication of the laundering scheme, the number of people involved or affected and whether there was an international element.  However, it is clear from the Court of Appeal that sentences contain an element of deterrence.  Another factor which should be considered is whether the offender has derived any benefit from the offence.

16. I have taken into account all that is said in mitigation.  I accept the defendant did not know of the scheme that was being operated and was therefore not part of the scam operated on the victims.  The defendant did, however, come to Hong Kong and immediately on the following day opened five separate bank accounts to receive the monies.

17. There was an international element in this offence as the monies and the victims appeared to have come from other places in the world such as Singapore, New York, Sweden, Australia, USA, Italy and France.  This was a carefully planned operation as the opening up of the different bank accounts facilitate the moving of funds to make the detection of this crime all the more difficult.  In a matter of eight days, the defendant, you had dealt with $904,654. 

18. I take into account your role played in these offences and all the circumstances of this offence.  I take into account the principle of totality.  I consider for all these offences the total term of imprisonment should be 30 months’ imprisonment after trial.  Giving you full credit for your plea of guilty, I shall reduce that to one of 20 months’ imprisonment. 

19. I am informed by Ms Sim that the money still sitting in your Citibank account, you have agreed to return to the victims themselves which is approximately HK$200,000.  And for that return, I shall make a further reduction of 2 months, and the total sentence, therefore, will be 18 months’ imprisonment.  However, I need to sentence you individually for the charges. 

20. On Charge 1, I will have taken a starting point of 18 months’ imprisonment after trial.  On Charge 5, I will have taken a starting point of 24 months’ imprisonment after trial.  On Charges 2 to 4 and 6 to 12, I would have taken a starting  point of 12 months’ imprisonment.

21. And of course from those starting points, I give you the full one-third deduction and sentence you as follows: Charge 1, 12 months’ imprisonment; Charge 5, 16 months’ imprisonment; Charges 2 to 4 and 6 to 12, 8 months’ imprisonment.

22. To reflect the overall term of imprisonment, out of 2 months of Charge 1 to run consecutive to Charge 5 which makes a total term of 18 months’ imprisonment; remainder of those sentences to run concurrent to each other.