HKSAR v. Siao Guo Fan

DCCC1293/2010

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 1293 OF 2010

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Before: H H Judge Browne

Date: 3 January 2011 at 2.59 pm

Offence:  (1) to (13) Dealing with property known or believed to represent proceeds of an indictable offence (處理已知道或相信為代表從可公訴罪行的得益的財產)

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Reasons for Sentence

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1.The defendant has pleaded guilty to 13 charges of dealing with property known or believed to represent the proceeds of an indictable offence, contrary to section 25(1) and (3) of the Organised and Serious Crimes Ordinance, Cap.455.

2.The total amount involved in these charges is $1.3 million, and the moneys were laundered through two bank accounts, one with the Standard Chartered Bank, which was opened on 31 July 2010, and another through the HSBC Bank, which was opened on 2 August 2010.

3.The facts admitted by the defendant disclose that he is a Taiwanese national.  He arrived in Hong Kong at the Hong Kong International Airport on 30 July 2010 on visitor status.  He opened the respective accounts - the Standard Chartered Bank account on 31 July and the Hong Kong and Shanghai Banking Corporation account on 2 August 2010.

4.Between the 3rd and 11 August 2010 a total sum of $403,840.39 was paid into the HSBC Savings account and $66,866.29 was paid into the Current account of the HSBC account.

5.Between 31 July and 12 August, a total of $619,434.13 was deposited into the Standard Chartered Bank account. 

6.Looking at the deposits, details of which were supplied in the Summary of Facts, the deposits were received mainly from Singapore, although there were some from Australia and a couple from Japan.

7.Once the individual amounts were deposited into the accounts, the defendant withdrew the amount of cash on the same day or the day after or shortly thereafter.

8.The defendant collected on 10 occasions overseas remittances made to his name during his stay in Hong Kong.  A total of $228,544.10 was received by the defendant through various Western Union Financial Services.

9.The moneys sent to Standard Chartered Bank and to HSBC accounts came from persons overseas who were told to pay advance fees for claiming lottery scams.  This of course was a scam, the persons never received any lottery prize.

10.The defendant was arrested when he tried to leave Hong Kong on 12 August 2010.

11.Under caution, he told the police that he was introduced to a job by a friend he met in a pub in Taiwan in June and was told he would be paid TWD50,000 in 10 days.  Compared to his previous jobs, this was a lucrative offer.

12.It was then arranged for the defendant to travel to Hong Kong with tickets and a mobile phone.  On arriving in Hong Kong he received a call on the mobile and was told to take a taxi to Nathan Road and Cameron Road where he would meet up with somebody he referred to as “Big Brother”.  He was taken to a nearby guest house where rent was paid for him.

13.The following day he was led by the “Big Brother” to open a bank account at the Standard Chartered Bank and he was also later taken to HSBC.  The defendant told his “Big Brother” all the passwords to the e-banking codes and phone banking facilities.  According to the defendant, he said he was told by his “Big Brother” that his own bank account was frozen and therefore he needs these accounts for investment funds coming in to be deposited.

14.I do not accept that he was told that and that he could possibly have given such an explanation any credence.

15.The defendant withdrew the money on the instructions of the “Big Brother” who waited outside the bank.  He said he believed he had made withdrawals of about one million dollars.  He would withdraw cash in the sum of 10-odd thousand from the accounts on the day or the day after the deposits came in.

16.He told the police that on 12 August he failed to withdraw money from the account and he was told by the “Big Brother” that his job was completed and he could return to Taiwan.

17.The defendant has a clear record.  I am told in mitigation that he is 28 years of age, he was born in Taiwan and is single.  He was educated up to Form 3.  His parents divorced when he was 12 and he started working at the age of 15 at various jobs:  a kitchen apprentice; electrical worker; waiter; construction casual worker, earning about $6,000 a month.  He lived with his 56-year-old mother who was suffering from high blood pressure and diabetes, and he paid $1,000 a month to his mother’s upkeep.  He claims that he was desperate to find a job at the time and this is the first time he has ever left Taiwan.

18.A letter was submitted to the court on the defendant’s behalf where he says that he is remorseful for this offence and says that he was in a desperate financial situation.

19.Recent cases before the court have emphasised that money laundering is a major problem.  This clearly has international dimensions and it is obviously part of a large syndicated operation.

20.In the case of HKSAR v Siew Yu Yi CACC 159/2009, the Court of Appeal reviewed a number of earlier decisions.  They indicated in that case that for offences of this a severe sentence should be imposed.  The case involved cross-border criminal activities.  In that case, as in this, the appellant was a Taiwanese resident who came to Hong Kong to set up local bank accounts with a view to receive overseas deposits from fraud cases. Such offenders tarnish the reputation of Hong Kong as an international finance and banking hub.  In that case, as was this, the case was well-organised, illegal activities with elaborate planning. 

21.I do not believe the defendant’s assertions that he was not aware of what he was getting in to given the circumstances that were known to him.

22.In that particular case, the defendant, who was appealing, it was the 2nd defendant in that case, dealt with approximately $2,500,000, and the court took the view that the appropriate starting point should be one of 3 years and 6 months and reduced that by one month because of the defendant’s admission.  In fact, he was convicted after trial, so the final sentence in that case was one of 3 years and 5 months’ imprisonment.

23.The court also reviewed, as I said, earlier decisions to where various amounts were involved and varying sentences were imposed.

24.It seems to me that the amount that is actually laundered, to some extent, is not that relevant since it depends at the particular time how the scam is operating.  A laundered could come for the same period of time and a lot more money might be laundered.  His culpability, it would seem to me, would be exactly the same, so although the amount is something the court should consider, given the prevalence of this kind of offence is that deterrent sentences must be imposed.

25.What I have decided to do, taking into account what the Court of Appeal has said previously, is take a starting point of 3 years for these offences, all to run concurrently, however, with the exception of Charge 3, where I order that 6 months of that sentence should run consecutive to the other charges.  The total starting point will be therefore 3 years and 6 months.

26.The defendant is entitled to a discount for his guilty plea, that is the only mitigation in this case, so the sentence imposed will be one of 2 years and 4 months, that is 28 months.