HKSAR v. Leung Tsan Hung

DCCC491/2010

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 491 OF 2010

----------------------

--------------------------------

Reasons for Sentence

--------------------------------

1.The defendant was convicted upon his guilty pleas of one charge of dealing with property known or believed to represent proceeds of an indictable offence, that is Charge 1, and one charge of bookmaking, Charge 2.

2.In sentencing, I have taken into account the whole circumstances of the case, including its nature and facts, the background of the defendant and mitigation put forward on his behalf.  The facts which the defendant admitted are simple and may be summarised as follows.

3.Following his arrest the defendant led police officers to his private car where a portable computer was found.  With the log-in and password provided by the defendant, a website and related betting records were found stored in the computer. 

4.The defendant admitted using the administrator account of the website to receive bets from others.  For the period between 7 and 14 September, bets were placed on 270 occasions and the total amount of bets placed amounted to some $330,000. 

5.Subsequent financial investigation revealed that the defendant had used his bank account with HSBC to deal with money which he believed to represent proceeds of an indictable offence.  Between 4 May 2006 and 15 September 2009, the total sum of money which the defendant had so dealt with was in the region of $5.51 million.

6.The defendant is 31 years of age.  He is single.  At the time of his arrest he was living with his family.  He received education up to Form 5 level.  He had worked as a driver and a delivery worker.  With a monthly salary of about $10,000, he was the main breadwinner of the family.

7.The court was told that the defendant committed the offence of dealing with proceeds at a time when he was heavily in debt as a result of his gambling habit.  In such circumstances, he was tempted by an acquaintance to earn quick money by offering his bank account for the use of others.

8.Learned counsel for the defence stressed that the defendant had been cooperative with the police and this had very much facilitated the investigation into the bookmaking offence.   

9.Though the defendant does not have a clear record for the purpose of sentencing in this case, I am prepared to ignore them since he had only been fined in April 2004 for an offence of driving a motor vehicle with alcohol concentration above the prescribed limit and one charge of using a motor vehicle on the road without an insurance against third-party risks.

10.For the offence of dealing with proceeds, the law provides for a maximum sentence of 14 years’ imprisonment and a fine of $5 million.  For the offence of bookmaking, the maximum sentence is a fine of $5 million and 7 years’ imprisonment.

11.As the circumstances of each case may vary infinitely, there are no sentencing guidelines of offences of these kinds.  I have had regard to the cases which counsel helpfully submitted for my reference. 

12.The offence of dealing with proceeds is a very serious one.  It legitimises proceeds of criminal activities and enables criminals to enjoy the fruits of their criminal activities with relative ease.

13.As said by the Court of Appeal in HKSAR v Xu Xia Li, [2004] HKC 16:

“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.It was said in HKSAR v Javid Kamran, CACC400 of 2004, that successful deterrence against money laundering could be effective measures against crime.

15.When Beeson J mentioned in HKSAR v Yeung Kin Chai, CACC 341 of 2008, the factors relevant to sentence for this nature of offence, her Ladyship said that:

“As a matter of general principle in a money laundering offence, the amount of money laundered is highly relevant on sentence.”

She also stressed the need for general deterrence.

16.Learned counsel for the defence said that whilst the defendant knew the account he was to open would be handled by others, he did not know what exactly was the source of the money involved.

17.Counsel also stressed that there is no evidence as to what was the underlying offence of the proceeds.  The basis of the conviction is that when the defendant dealt with the money he had reasonable belief that the money represented proceeds of an indictable offence.

18.It was affirmed in HKSAR v Chen Szu Ming, CACC270 of 2005, that the nature of the indictable offence from which the money was derived should be of no particular significance in sentencing, save that if a defendant knew that the money was derived from very serious crimes, it would be an aggravating feature.

19.The offence lasted for a duration of about 40 months.  The total amount involved was approximately $5.5 million.  There is no evidence of any international dimension.  There is no evidence or information in relation to the underlying offence or offences.  Though the benefit which the defendant received was only a monthly payment of $3,000, he played a key role in the exercise and was aware of its scale, which by any standard was not unsubstantial.

20.Having considered the whole circumstances very carefully, I am of the view that a custodial sentence is appropriate and a starting point of 3 years is appropriate for this offence of dealing with proceeds.  As regards the bookmaking charge, the Court of Appeal said in R v Yip Kam Fai & Another, [1993] 2HKC 196, that a substantial bookmaking operation would attract sentences of between 2 and 3 years’ imprisonment after trial.

21.Learned counsel for the defence submitted that the operation in the present case was a relatively small one.  It lasted for a short period.  It involved only four membership accounts, solely for soccer betting and the activity had resulted in a total turnover of about $330,000.

22.Counsel pointed out that according to the gambling expert, of this total turnover the defendant acted as an agent and the bets accepted by the defendant as the banker were in the region of $100,000 only.

23.In all the circumstances, taking into consideration the nature and scale of the bookmaking operation and the role the defendant played in it, a substantial imprisonment term is called for and I consider a starting point of 18 months appropriate for the offence.  The defendant pleaded guilty to both offences.  He is entitled to a one-third discount for each charge.

24.Having considered the whole circumstances, as well as mitigation put forward on his behalf, I am of the view that this is the extent of discount the defendant is entitled to in the present case. Accordingly, I sentence the defendant to 2 years’ imprisonment for Charge 1 and 12 months’ imprisonment for Charge 2.

25.The two offences are of a completely different nature and as a matter of principle wholly concurrent sentences are not appropriate.  Taking into account totality, I order six months of Charge 2 to run consecutively to the sentence imposed on Charge 1, making a total sentence of 2½ years’ imprisonment, to be served immediately.