HKSAR v. Wu Qiaomei

DCCC363 & 647/2009 (CONS)

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NOS. 363 AND 647 OF 2009 (CONS)

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Reasons for Sentence

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1.Defendant, you appeared in the trial as D2, when you were convicted of one offence of dealing with property known or believed to represent the proceeds of an indictable offence, contrary to sections 25(1) and (3) of the Organised and Serious Crimes Ordinance, Cap. 455, which was Charge 2, and a further offence involving an attempt to do likewise, contrary to the same section of the same chapter in addition to section 159G of the Crimes Ordinance, Cap. 200.

2.The facts were dealt with exhaustively in my verdict delivered on 16 December last. I therefore do not intend to repeat them. Suffice it to say that Charge 2 involved a chose in action, being the sum of $955,700, and Charge 3, which was the attempt at $100,000.

3.You are a lady of hitherto clear record. On your behalf, Mr Stirling had strong and persuasive mitigation. I was told that you are 37 years of age; divorced with two children. As we know, you are well educated and a lady of substance. In the mainland, I am told that you have been involved in charitable work for the elderly and underprivileged children. In your various businesses and factories, you are responsible for several thousand employees in the mainland. You are well respect by the mainland government and you have international connections to trade.

4.Mr Stirling invited me to take the view that offences resulted from you being naïve and careless and he pointed out that you made absolutely no gains from the crimes. On your part, there was no level of sophistication and you used your own bank account and left your own paper trail.

5.Mr Stirling submitted that these offences were at the lowest end of the scale. He asked me to sentence you under the second limb, that is, believing rather than knowing. Quite rightly, he stressed your co‑operation with the police both in the giving of statements and in returning to Hong Kong when so required. He pointed out that the total loss to the Hongkong and Shanghai Banking Corporation was about $250,000, which you were very willing to repay by way of compensation.

6.He pointed out that there was no tariff in this type of offence, although immediate imprisonment was the usual sentence, but it was not inevitable and he asked me to consider the imposition of a prison sentence, but suspended, coupled with a fine measured in millions of dollars.

7.I did adjourn the case, as you know, for compensation to be paid into your solicitors. That has been done and I note the undertaking to pay it over to the court and thereafter to the Hongkong and Shanghai Bank. The actual and total loss to the bank was some $252,458.50. That sum now reposes with you solicitors and is ready for payment. That will be taken fully into account when setting your sentence.

8.In sentencing you, I took into account the nature of the offences and mitigation that has been advanced on your behalf. I do accept that you have been extremely co-operative with the police, assisting both in interviews and in returning from the mainland whenever so required. I note that your defence did not involve impugning any of the prosecution witnesses and not really challenging any of the facts of the prosecution case.

9.On the whole, you have gained nothing from the laundering exercise. You have compensated the bank for the losses your actions have caused even though the money found its way into the pockets of D1. Whilst I am conscious that D1 has not had the opportunity to put forward his own case, nor challenge the prosecution, on what is before me and I put it no higher than that, it does seem to me that he was the prime mover.

The view that I take of the case is that you were the one that was used by D1. In fairness, I do note that you allowed yourself to be used. I do confirm that I sentence you on the grounds of belief, rather than knowledge. The evidence that the funds were tainted was totally absolute and overwhelming, such as to cause the most naïve of people to stand and pause. You were extremely stupid to be so led by the nose and I am satisfied that you had decided by that point to steadfastly close your eyes to the obvious. The warning signs were manifest and there for all to see. You ignored them all by choice. In reality, the only real loser in financial terms is now yourself, having voluntarily repaid the compensation to the bank.

10.

11.Whilst there is no tariff for this offence, there is guidance if not guidelines from the Court of Appeal to the extent, and I echo the words of Wright J in Secretary for Justice v Choi Sui Hey [2008] 6 HKC 166, when his Lordship said this: “It is now well recognised that offences of this nature attract immediate custodial sentences, even for a first offender.”

12.In this case, there is much that amounts to strong and persuasive mitigation and I do tend to agree with Mr Stirling that in terms of seriousness it does rank towards the lower end of the scale. I also have to say that I am not without sympathy for your predicament.

13.I do not agree that the provisions of the chapter are draconian. For sure they are tough, because they address a serious and growing cancer in society, a cancer that eats away at Hong Kong’s reputation as a clean financial centre. I do note that the amounts involved are not large and no one has lost financially, except for you. The major culprit remains at large and you have been entirely co‑operative with the police.

14.But still, these are serious offences. Whatever D1 did, if anything, he did with your connivance. Given all the facts of the case and the sentencing guidance from the Court of Appeal, I cannot agree that there are any grounds to suspend the inevitable period of imprisonment, even if a substantial fine was imposed alongside a suspension.

15.In all the circumstances on Charge 2, you will go to prison for 15 months and on Charge 3 you will go to prison for 12 months. These will be served concurrently. That is for a total of 15 months’ imprisonment. In addition, you will pay by your solicitor the sum of $252,458.50 by way of compensation to the Hongkong and Shanghai Bank, by the Shroff of the District Court. This will be paid in accordance with the undertaking on or before 8 January 2010.

16.Finally, if I have not done so before, I record my thanks to Mr Fitzpatrick for the prosecution and Mr Stirling for the defence.