HKSAR v. Chan Wing Fat

DCCC651/2010

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 651 OF 2010

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Reasons for Sentence

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1.The Defendant was convicted after trial of one charge of dealing with property knowing or having reasonable grounds to believe it represented proceeds of an indictable offence, contrary to section 25(1) and (3) of the Organized and Serious Crimes Ordinance, Cap. 455 (“the Ordinance”).

2.The sum involved was about HK$2.97M and the period during which the offence took place was between 3 November 2005 and 16 November 2009. The account used to launder the money was the one which the Defendant held with the Bank of China (“BOC”) under his sole name.

3.When I gave my verdict this morning, I have set out in full the facts of this case and my findings. I shall not repeat all those matters here. In short, the Defendant, on my findings, deliberately opened a bank account and handed over his bank card and PIN for others to use so that his account could be operated by those concerned to conceal money relating to loan-sharking business. On the Defendant’s own admission, I also find that he knew that his account would be used for the collection and withdrawal of money in relation to loan-sharking at the time when he handed over the control of his account to others. During the 4-year period particularized in the charge, it is also my finding that the Defendant deliberately kept his account in operation without closing it so that those concerned could continue to use his account for laundering the loan-sharking proceeds.

4.The Defendant has one similar previous conviction and he was sentenced to a term of 4 months’ imprisonment in March 2006 for a “conspiracy to deal with property known or believed to represent proceeds of an indictable offence”.

5.The Defendant was educated up to Form 3 level. He is aged 53 and is married. He has one son and one daughter. The family lives in a public housing estate. Between July 2006 and May 2010, the Defendant worked in a casino in Macau, earning about HK$10,000 per month. Previously, he had worked as a jade polisher and security guard.

6.In mitigation, it was said that the Defendant’s previous similar conviction should be disregarded as, judging from the short term of imprisonment imposed, it should not be of the same scale as the one now before this court. Even for the present case, Mr. Chandler acting for the Defendant submitted that it is at the lower end of the scale insofar as culpability is concerned as the court has found that the Defendant was not the one who actually conducted those transactions. On the court’s findings, the Defendant merely gave his bank card and PIN for others to use and that a third party was the one who was involved in the loan-sharking business. Mr. Chandler said it was also clear that as the Defendant was in Macau for the majority part of the period in question, he certainly had not physically handled the money in his account, which was about HK$2.9M. There was also no international element involved in this case.

7.Further, it was said that the Defendant, from the very beginning, admitted that he knew his account was used for collecting and withdrawing loan-sharking money. He only took the point, upon legal advice, which was legitimately opened to him, that is, whether the handing over of the control of his bank account to others constituted the necessary actus reus for the offence. As that was the only reason for his not pleading guilty, the trial was fought on that basis and he went straight into that narrow issue without wasting the court’s time. Finally, it was also said that as the case had been hanging over the Defendant’s head for some 12 months, this, together with the other matters raised, should cause the court to pass a lenient sentence on the Defendant.

8.There is no tariff for this type of offence as the facts in each case vary and the culpability of each defendant would no doubt differ. However, the offence of money-laundering has always been regarded by the court as a serious offence. One of the reasons is that those who engage themselves in money-laundering activities are no doubt providing support and assistance to the criminals to have their proceeds of crime turned into “clean money”, thereby encouraging the criminals to engage in their illegal activities as they would stand a greater chance of keeping their crime proceeds when there are those who would help them deal with such property.

9.In the present case, although I find that the Defendant handed over the control of his bank account to others for use, it is also my finding that he deliberately opened and kept his account for as long a period as 4 years so that those involved in the loan-sharking business could use his account to launder the proceeds involved. Moreover, the Defendant knew full well from the very moment when he handed over his bank account that such would be used for laundering the loan-sharking proceeds. When all these are added together, the Defendant’s culpability could not be described as minimal.

10.I, however, agree that the Defendant fought his trial merely on the basis of whether the necessary actus reus had been established. He, at all the times, admitted that he knew his account was used for loan-sharking transactions and he admitted that he had handed over the control of his account to others. I would therefore take this into account in the Defendant’s favour when fixing the starting point.

11.Insofar as his previous conviction is concerned, I am also prepared not to take that into account as it should be of a different scale and the date of his conviction for that offence was after the period in relation to the present offence had commenced.

12.Considering the facts of this case, and all the matters urged upon me in mitigation, I consider a starting point of 33 months to be appropriate. As the Defendant was convicted after trial, he would not be entitled to the one-third reduction on account of a plea. He is therefore to serve a total term of 33 months’ imprisonment.