HKSAR v. Mo Riming and Another

DCCC 118/2010

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO.118 OF 2010

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Reasons for Sentence

1.The defendants pleaded guilty to one joint charge of dealing with proceeds from an indictable offence after my decision on the appropriateness of the charge in the circumstances of the case went against them. They then admitted to the re-amended summary of facts and were duly convicted of the charge.

Brief summary of facts

2.D1 and D2 together stole a Diamond Ring with a marked price of HKD2,750,000 from a jewellery store in Busan, South Korea. It was a simple theft where one of the defendants distracted the sales lady who was packing the ring while the other stole it. They paid a deposit of USD1,000 and were supposed to return to the shop the next day to collect the packaged ring and to settle the balance.

3.Shortly after they had left the shop, the sales person became suspicious and upon opening the package found the ring had gone. They checked the closed circuit television recording and found that the ring had been stolen by the defendants. The matter was reported and eventually the defendants were traced to a plane flying to Hong Kong. Upon landing in Hong Kong, the defendants were arrested.

4.I was told that the defendants were first charged with handling stolen goods. The charge was later withdrawn and proceedings were commenced to have them surrendered to South Korea no doubt for trial for the theft of the ring there, under the Fugitive Offenders Ordinance, Cap. 503. Somehow, before the proceedings were completed the defendants were charged with the present offence. I was told that the proceedings under the Fugitive Offenders Ordinance are still pending and there is yet to be an executive decision on the matter.

5.I did not hear any argument on whether the charge would be an abuse of process in those circumstances. The argument on the appropriateness of the charge hinged merely on the proper interpretation of the words “bringing into Hong Kong” and the ambit of the definition of “proceeds” in s.25(1). As this is a reasons for sentence, I will not go into details of the argument here.

Previous convictions:

6.D1 was of clear record. D2 was convicted on 2 occasions back in 1999 for theft and was sentenced to a fine of $2,000 and imprisonment of 2 days plus fine of $2,000 respectively.

Mitigation:

7.The mitigation of D1 and D2 by Mr. Chan and Mr. Iu focused mainly on the circumstances of the offence and not the personal background of the defendants, which can be found in the antecedents prepared by the prosecution. They are uneventful and I shan’t repeat them here.

Sentencing authorities:

8.Mr. Man for the prosecution very helpfully provided me with 5 cases relevant to sentencing in our case.

9.HKSAR v Hashimi Habib Halim, CACC 526/2001 and HKSAR v Chu Shi Keung [2000] 1 HKLRD 495 are 2 cases where the applicant pleaded guilty at a late stage and where the customary discount, in the Halim case, of 1/3 was not given. In the first case, the applicant pleaded guilty on the morning the trial was due to start, but since that case involved 3 main witnesses flying into Hong Kong from Japan and Korea to give evidence, it was too late to stop the witnesses travelling to Hong Kong and thus a major cost of the trial was not avoided. Instead of the full 1/3 discount, a discount of only 20% was given.

10.In the 2^nd case, the prosecution rely on the observation of Stuart-Moore VP that “there are sometimes reasons for not giving a full discount on a plea of guilty, such as a failure to enter a timely plea where, for example, the defendant has unsuccessfully contested a voire dire and has only then pleaded guilty, or in some cases where he has absconded on bail. This is not intended as an exhaustive list of situations where, following a plea of guilty, a failure to accord the full discount or in extremely rare cases, any discount at all, will be applicable.”

11.It must be noted here that, as Mr. Iu repeatedly pointed out and not disputed by Mr. Man for the prosecution, to charge the defendants with s.25(1) dealing with proceeds for bringing in the loot of a simple theft committed overseas to Hong Kong is unprecedented. Under those circumstances, it may be fair to say that the defendant should be entitled to challenge the appropriateness of the charge before deciding to plead guilty or not.

12.I remember that I was told by Mr. Chan before the argument of the preliminary issue had commenced that D1 will be considering his plea should the argument went against him.

13.Mr. Iu for D2 did not make the same submission. It was only when I requested that plea be taken again from D1 when Mr. Iu asked the same to be done for D2 that I was aware that D2 would be pleading guilty as well.

14.In the remaining 3 cases submitted by the prosecution, the first and main principle is that, as propounded in HKSAR v Yam Kong Lai [2008] 5 HKLRD 384, when sentencing on a charge of dealing with proceeds under s.25, “it was that offence for which the defendant should be sentenced. It would be wrong as a general principle to sentence a defendant for an offence with which he was not charged, although where the underlying offence was of a particularly serious nature, his dealing with the profits of such an offence might well be an aggravating factor and require an enhanced sentence as a matter of policy and general deterrence.” This quoting from the holding of the case must be read in conjunction with the ruling in HKSAR v Xu Xia Li [2004] 4 HKC 16 which was cited in Yam Kong Lai. The defendant is required to know that the money was derived from very serious crime, only then would that become an aggravating feature to be taken into account when sentencing for the dealing with proceeds charge.

15.The underlying offence in our present case is not of a particularly serious nature. Therefore although the defendants must have knowledge, in fact, they themselves were the perpetrator of the underlying offence, the principles set out above do not apply and there is no such aggravating factor that would require an enhanced sentence in our present case.

16.The case of HKSAR v Fan Shek Hung [2008] 4 HKLRD 465 sets out some of the factors to consider in sentencing money laundering cases.

17.“The circumstances of the laundering offence varied so widely that no detailed sentencing guidelines had been provided. The relevant sentencing considerations included: (a) where the underlying indictable offence could be identified, some regard would be had to the appropriate sentence for that offence when considering the sentence for the laundering offence. However, the sentencing for the laundering offence must be based on that offence and not the underlying offence; (b) the criminality in laundering was the assistance, support and encouragement it provided to criminal conduct; (c) regard should be had to the defendant’s extent of knowledge of the underlying offence, such knowledge being an aggravating factor and (d) the amount of money laundered was a relevant factor.”

18.Lastly, in the case of HKSAR v Hsu Yu Yi, CACC 159/2009, the Court of Appeal at paragraph 9 set out 5 points for consideration when sentencing s.25 cases:

“(1) amount of money involved is an important factor, not the benefit that the defendant had received; (2) in a conspiracy charge, the criminality of the defendant was in relation to assisting, supporting and encouraging the indictable offence, so the degree that the defendant was involved and the times that he was involved in the money laundering are related factors; (3) if the underlying offence is known, the court can give regard to the possible sentence in relation to the underlying offence; (4) if the case involves international and cross border elements, the court can impose a more severe sentence to prevent Hong Kong's reputation as an international finance and banking centre be tarnished; and (5) the time period involved with the offence.”

19.In that same case, a list of cases were considered with varying length of terms of imprisonment ranging from 2 years 9 months to 5 years 8 months. Most of those cases involve prolonged money laundering activities and involving amount much more than even the list price of the ring of 2.75M in our present case.

Sentence

20.I am sentencing solely on the basis of the dealing in proceeds from the theft. The underlying offence is not a serious one. The dealing was simple and straight forward, it was only a one off incident. The amount being dealt with is between 1-2.75M HKD, not a large figure when looking at the cited cases in any event. There is however an international element in that the defendants themselves being Mainland Chinese residents had received the ring in Korea and then brought the ring into Hong Kong.

21.Having considered all the circumstances of the case and the authorities, I find that a starting point of 2 years and 6 months' imprisonment is appropriate. Although the defendant pleaded guilty, I find that theirs was not a timely plea. Yet, as I had pointed out above, the charge that the prosecution had preferred against the defendants in the circumstances is unusual and it is understandable that the defendants may want to hear from the court before making a decision on their plea.

22.Balancing the 2 factors, I will order that there be a discount of 25% for the defendants' guilty plea, bringing the sentence to that of 22 months and 2 weeks.