HKSAR v. Hou Shun Hsiung
Read the full judgment text of CACC 472/2009 on BabelCite. This Court of Appeal judgment was delivered on 22 October 2010 before Cheung JA, McMahon J, Macrae J.
Criminal law – money laundering – dealing with property known or believed to represent proceeds of an indictable offence – section 25(1) and (3) of the Organized and Serious Crimes Ordinance (Cap 455) – sentencing – appeal against sentence – total amount laundered HK$4,150,000 – appellant a Taiwanese who came to Hong Kong and opened two bank accounts within 24 hours – transactions lasted about a month – international element with remittances from France – whether the sentence of three years' imprisonment was manifestly excessive – sentencing principles applicable to money laundering offences reviewed in HKSAR v Hsu Yu Yi, CACC 159/2009 – relevant factors include amount involved, extent of defendant's participation, number of transactions, international element, and length of time of the offence – previous cases applied four years' starting point to amounts between HK$3 million and HK$15 million – appellant entrusted to handle large sums shortly after arrival indicating significant participation – appeal dismissed – sentence of three years' imprisonment upheld – starting point 3.5 years for 1st Charge, 2 years for 2nd Charge, 9 months each for 3rd, 4th, 5th Charges – one-third discount for guilty plea – 8 months of 2nd Charge consecutive to 28 months of 1st Charge – rest concurrent.
Legal issues: Appropriateness of sentence for money laundering offences under s.25 of the Organized and Serious Crimes Ordinance
Outcome: Appeal against sentence dismissed; the sentence of three years' imprisonment was upheld.
Cited by 18 cases · Cites 1 case
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CACC 472/2009 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF APPEAL CRIMINAL APPEAL NO. 472 OF 2009 (On Appeal From District Court Criminal Case No. 777 of 2009) ________________________ BETWEEN
________________________ Before : Hon Cheung JA, Hon McMahon and Macrae JJ in Court Date of Hearing : 22 October 2010 Date of Judgment : 22 October 2010 ________________________
________________________ Hon Cheung JA (giving the judgment of the Court) : Facts 1.The appellant was charged with five charges of dealing with property known or believed to represent proceeds of an indictable offence, contrary to section 25(1) and (3) of the Organized and Serious Crimes Ordinance(Cap. 455). The total amount of money involved was HK$4,150,000. He pleaded guilty and was sentenced to three years’ imprisonment. 2.The appellant is a Taiwanese. He came to Hong Kong on 10 August 2008. On the next day, he opened two bank accounts with the Bank of China (‘BOC’) and Hong Kong and Shanghai Bank (‘HSBC’) respectively. Between 20 and 28 August 2008 a total of HK$2,996,346.28 was deposited into the BOC account.
3.The amount deposited forms the subject matter of the 1st Charge. 4.Between 11 August and 4 September 2008, a total of HK$1,033,620.80 was deposited into the HSBC account.
5.The amount of $1,033,620.80 forms the subject matter of the 2nd Charge. 6.The appellant on 18 August 2008 collected HK$29,568 from a money changer. This forms the subject matter of the 3rd Charge. 7.In respect of the 4th Charge, the appellant on 21 August 2008 collected HK$50,001 from the same money changer. 8.In respect of the 5th Charge, on 21 August 2008 the appellant collected a remittance of HK$41,080.85 from another money changer. 9.The appellant left Hong Kong on 2 September 2008. He was arrested in Hong Kong on 7 March 2009 on suspicion of having committed the present offence. In the interview with the police, he claimed that he came to Hong Kong for sightseeing and was looking for business opportunities. He met a Taiwanese acquaintance by the name of ‘Little Black’ at a karaoke bar in Mong Kok. That person asked him to open bank accounts in Hong Kong and to receive money for him. He also went to the money changers to collect remittance on the instruction of that person. 10.In mitigation it was said that the appellant did not receive any monetary reward in the transaction. Little Black promised him a job as a manager in a restaurant in Taiwan. He claimed that the money collected from the accounts and the money changers was paid to Little Black. When he went back to Taiwan he could not locate Little Black. The sentence 11.Deputy District Judge Sham sentenced the appellant to three years’ imprisonment. The Judge adopted three and a half years as the starting point for the 1st Charge, two years’ imprisonment for the 2nd Charge, nine months’ imprisonment for the 3rd Charge, 4th Charge and 5th Charge. A one-third discount was given for the plea, resulting in 28 months’ imprisonment for the 1st Charge, 16 months’ imprisonment for the 2nd Charge and 6 months’ imprisonment for each of the remaining three charges. The Judge ordered eight months of the 2nd Charge to be served consecutively to the 28 months’ imprisonment of the 1st Charge. The rest of the sentences are concurrent. 12.Pursuant to leave granted by a single judge of this Court the appellant now appeals against sentence. Principles 13.In HKSAR v. Hsu Yu Yi, CACC 159/2009 this Court (Tang VP, Cheung and Yuen JJA) recently reviewed a number of cases on money laundering and discussed the approach on sentencing. There is no sentencing guideline for this offence because of the wide range of culpability involved but the following are considered to be relevant factors for sentencing :
14.The cases reviewed in Hsu Yu Yi show that a four years’ starting point had been applied to amounts of HK$3,000,000, HK$4,000,000, HK$5,000,000, HK$6,500,000 and HK$15,000,000 respectively. 15.In Hsu Yu Yi itself the applicant laundered HK$2,585,564.74. The Court considered that a three years and five months’ imprisonment (after trial) was the appropriate sentence by reason of the following factors : the case involved three Taiwanese who came to Hong Kong, set up bank accounts and received money from an overseas fraud. The case was well organised with an international dimension. The present case 16.In the present case the final sentence of three years’ imprisonment after plea indicates a notional four and a half years’ starting point. Although the total amount involved in the present case of HK$4,150,000 is lower than some of the amount involved in the previous cases which attracted a starting point of four years, at the same time there are aggravating factors in this case as well. Despite the appellant’s attempt to lessen the extent of his relationship with ‘Little Black’ and to distance himself from details of the transactions, commonsense indicates that he was obviously entrusted to open two accounts within 24 hours of his arrival in Hong Kong and subsequently handled a large sum of money. His explanation belies the extent of his participation in the transactions. The case involves an international element with some detailed planning. The appellant came to Hong Kong from Taiwan for the purpose of implementing the transfer of money. Two bank accounts were opened and money was collected from money changers. There were substantial receipts of money shortly after the accounts were opened and the transactions lasted for about a month. There was remittance from overseas, namely, France. In our view the individual starting point for each of the charges and the final sentence imposed by the Judge were correct. Accordingly the appeal is dismissed.
Miss Agnes Chan, SPP of Department of Justice, for the Respondent Appellant, in person, present |
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