HKSAR v. Lam Ching Hei

DCCC 817/2010

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 817 OF 2010

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Reasons for Sentence

The Defendant has admitted one count of dealing with property known or reasonably believed to be the proceeds of an indictable offence, namely an aggregate sum of HK$2,601,292.33, contrary to Section 25(1) and (3) of the Organized and Serious Crimes Ordinance, Cap. 455.

2.Facts admitted by the Defendant disclose that police investigations revealed suspected money laundering transactions through a Hong Kong & Shanghai Banking Corporation account held in the name of the Defendant. The bank account was opened on 11/5/2007. Between 18/5/2007 and 10/3/2008, an aggregate sum of $2,601,292.33 had been transacted through that bank account. Only HK$21.90 was left in the bank account on 10/3/2008. Analysis of the transactions revealed that 35.48% of all deposits and 48.32% of all withdrawals were made on Mondays, and Mondays were the busiest day of the week. According to the gambling expert Sgt 51111, bets on overseas soccer matches are usually settled on Mondays because notable overseas soccer matches are usually held on Saturdays and Sundays. The Defendant was subsequently arrested and cautioned. In the cautioned interview, the Defendant admitted that in January, 2007, whilst in Shenzhen, he was introduced by his friend to a male called ‘Jackey’ who asked the Defendant to help him to open a bank account in Hong Kong for his use. The Defendant agreed to do so for a fee of $3,000 as he was unemployed at the time. ‘Jackey’ gave the Defendant $3,500, $500 being the money to be used to deposit into the said bank account. ‘Jackey’ told the Defendant that the account would be used for handling betting monies related to overseas soccer matches. In May, 2007, the Defendant opened the bank account, and went to Shenzhen where he met ‘Jackey’ and gave him the passbook and the bank card and its pin. The Defendant had once received a letter from the bank to the effect that the account was frozen. ‘Jackey’ contacted him and asked his help to withdraw money from the bank. The Defendant went to Shenzhen, collected the passbook and bank card and returned to Hong Kong, withdrew the money and returned to Shenzhen and handed the passbook and cash he had withdrawn to ‘Jackey’ but kept the bank card, which was subsequently seized by the police. The Defendant had not filed any tax returns in the relevant period.

3.The Defendant is aged 20. He has one previous conviction in 2009 for an offence of assault occasioning actual bodily harm for which he was placed on probation for 12 months.  The present offence precedes this conviction, and I shall disregard it for the purpose of sentence.

4.At the request of Counsel on behalf of the Defendant and in view of his age, and bearing in mind Section 109A of the Criminal Procedure Ordinance, Cap. 221, I adjourned the matter until today, calling for the full range of reports – Probation and Community Service Order Reports, Rehabilitation, Detention and Training Centre Reports, remanding the Defendant in custody.  I did warn him of the likelihood of a custodial one in view of the serious nature of the offence.

5.In sentencing the Defendant, I have borne in mind all that had been urged upon me by Counsel on behalf of the Defendant.  I have borne in mind too the contents of the reports before me, as well as the contents of the 3 letters handed up by Counsel, written by the Defendant, his mother and Mr. Leung Chi-kin, the Discipline Master from his secondary school.

6.Section 25(3) of the Organized and Serious Crimes Ordinance, Cap. 455, provides that a person convicted on indictment is liable to a fine of $5 million and 14 years’ imprisonment.  As the circumstances of each case may vary infinitely, there are no sentencing guidelines for these offences.  The offence of dealing with proceeds is a very serious offence.  It legitimises proceeds of criminal activities and enables criminals to enjoy the fruits of their criminal activities with relative ease.  Deterrent sentences are required not only to punish the defendants but also to deter others from behaving in this way.  It is not wrong in principle to impose an immediate custodial sentence on a first offender (see HKSAR v. Hui Kam [2000] 3 HKLRD 211).

7.In delivering the judgment of the Court of Appeal in HKSAR v. Hsu Yu Yi, CACC 159/2009, Cheung JA said:

“Sentencing Principles

9. There are no sentencing guidelines for the offence of dealing with the proceeds from an indictable offence because the facts vary from case to case. However the following factors are to be taken into account when determining sentence:

(1) It is the amount of money involved that is a major consideration and not the amount of benefit received by a defendant in the transaction.

(2) The culpability of the offence lies in the assistance, support and encouragement offered to the commission of an indictable offence. So a defendant’s level of participation and the number of occasions on which he is involved in the ‘money laundering’ activities are relevant factors to be considered.

(3) The offence of dealing with the proceeds from an indictable offence does not necessarily have any direct correlation with the indictable offence in question. However if the relevant indictable offence can be identified, the court may take into account the sentence imposed on the indictable offence per se when determining the sentence of the dealing offence.

(4) If the case has an international element involving activities carried our across different regions, the court may impose a more severe sentence. This is to protect Hong Kong’s reputation as an international finance and banking hub from being tarnished.

(5) The length of time the offence lasted.”

8.Here the amount of money involved was HK$2,601,292.33, the period of time involved was almost 10 months.  By opening the bank account, the Defendant facilitated the handling of betting monies related to betting on overseas soccer matches.  To that extent, there was an international dimension.  Although the offence took place over a period of time, it does not appear to have involved elements of particular sophistication.

9.The background of the Defendant is set out at length in the reports before me.  He is the eldest of 3 children growing up in a family where his parents had to work and there was inadequate supervision at home.  He got involved in the triad culture in the area where he lived.  Lacking motivation to study, he dropped out of school without completing Form 3 in 2005, and indulged in ‘merriment at disco, karaoke, bar in Tsuen Wan or Jordan, Hong Kong or over the border till late hours’ – he only took up delivery or decoration jobs on a casual basis after idling for a year.  The present offence was as a result of a desire to earn easy money under the ill peer influence in Shenzhen in 2007.  He was placed on probation in 2009 for 12 months for an offence of assault occasioning actual bodily harm, and his supervising probation officer was satisfied with his performance – he had complied with a curfew order and behaved himself and worked part-time at a restaurant steadily.  After finishing his probation, he has been working full-time as a waiter in the same restaurant and his employer has praised his motivation in his work.  The discipline master of his former school has also said that he has severed his dubious peer affiliation to lead a regulated life now.  His mother too says he now makes regular contributions of $4,000 each month to her.  Both his family and his girlfriend are supportive of him.  The recommendation by the probation officer is that further probation supervision may not be necessary at present in view of his positive change and a community service order of 180 to 240 hours would be a suitable means to deal with him. In the report from the Commissioner of Correctional Services, it was said that he left school in November 2004, and remained at home and led a hedonistic lifestyle.  In June 2006, he worked as a delivery worker in a logistics company, but quit after 6 months because of laziness.  Thereafter, he took up part-time jobs.  In mid-2009, he worked as a part-time waiter in a restaurant in Tsuen Wan, and from September 2010, he started working there full-time, earning $9,000 a month.  His work was viewed as satisfactory, and his employer has indicated she will continue to employ him after his discharge.  He was described as co-operative and polite throughout the interview, and showing a great sense of remorse for his misdeeds.  He blamed himself for his greed in earning fast money and ignorance of legal consequences.  He stressed he had learnt a lesson and begged for leniency.  He was examined by a medical officer and found to be unfit for detention in the Detention Centre because of asthma. He was found to be mentally and physically fit for detention in a Rehabilitation Centre or Training Centre and after a general assessment of his behaviour and attitude while on remand, the recommendation is that he is more suitable for detention in a Rehabilitation Centre.

10.I do bear in mind the classical principles of sentencing and balance amongst the need for rehabilitation, retribution, deterrence and prevention.  Whilst rehabilitation for a young offender is always an important consideration, and it also serves the interest of the community, the need for punishment of the offender and deterrence of others must be given due regard, and in most circumstances, for offences of this nature, they best serve the interests of the community as a whole.  It is clear from the authorities that the norm for this kind of offence is an immediate custodial sentence.  I have considered carefully the circumstances of the offence and the circumstances of the Defendant.  In my view, a community service order would not be appropriate in all the circumstances of the offence and of the Defendant.  The only appropriate sentence should be an immediate custodial one.  Although the recommendation is one of Rehabilitation Centre, I did consider whether a Training Centre order might not be more appropriate in view of the seriousness of the offence bearing in mind the length of time the Defendant would have to serve if a Training Centre order is made.  Training Centres provide correctional training for young offender for period ranging from a minimum of 6 months to a maximum of 3 years.  The Rehabilitation Centre programme consists of 2 phases.  In the first phase, the young offender is sent to a Rehabilitation Centre between two to five months.  In the second phase, the young offender will be placed in a hostel or halfway house and this phase lasts between one to four months.

11.In ‘Sentencing in Hong Kong’, 5^th edition, by I. Grenville Cross S.C. and Patrick W.S. Cheung, the authors wrote, at page 550,

“The task of the court is to select the penalty which is most appropriate to the offender and the offence. In that exercise, the period of time to be spent in detention cannot be treated as the predominant sentencing consideration.”

12.What is clear from all the reports before me is the change in the Defendant since he was put on probation last year – he has completed the Probation order to the satisfaction of his Probation Officer – there have been positive comments made by his employer as well as his former Discipline Master in school and his mother – he has obviously got his act together and has made progress.  The Defendant opened the bank account in question in May, 2007, some 3½ years ago.  The bank account was closed in March, 2008.  He was arrested in February, 2009, but was only charged on 22/7/2010, and then brought to appear in Tsuen Wan Magistracy.  By that time he had already completed his probation for the assault offence.  He has turned his life around and credit should be given to him for that. 

13.In my view, having considered all these relevant matters, the appropriate sentence is a Rehabilitation Centre Order – the Defendant is sentenced to the Rehabilitation Centre.