HKSAR v. Park Sunil and Another

CACC 334/2010

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 334 OF 2010

(ON APPEAL FROM DCCC NO. 858 of 2010)

____________

Before: Hon Hartmann JA and Wright J.

Date of Hearing and Judgment: 24 March 2011

_______________

JUDGMENT

_______________

Hon Wright, J. (giving the reasons for judgment of the Court):

1.Each applicant seeks leave to appeal the sentence imposed upon him, after a plea of guilty, by Deputy Judge Dufton, of a single joint charge of dealing with the proceeds of an indictable offence contrary to s.25(1) and (3) of the Organized and Serious Crimes Ordinance, Cap.455, being moneys in an aggregate amount of $1,350,000.00. The summary of facts agreed by the applicants showed that a money changer operating in Macau had been lured, by an associate of the applicants, to a meeting carrying a substantial sum of money: when he arrived at that meeting, the applicants and their associate tied him up, covered his eyes and mouth with adhesive tape and stabbed him once in his left thigh before relieving him of the money and various other possessions. The applicants then fled to Hong Kong by ferry and were arrested, the same night, at the ferry terminal when they arrived here.

2.Each applicant was sentenced to undergo imprisonment for a period of 2 years and 8 months, the judge having reduced a starting point of 4 years by one third in recognition of the pleas of guilty.

3.The applicants seek leave to appeal on two grounds: first, that the starting point adopted by the judge is manifestly excessive; second, that the judge erred in sentencing the applicants as if for the underlying offence of robbery.

4.Neither ground has any merit.

5.Counsel for the applicants provided us with references to a large number of cases on appeal where various sentences were imposed on persons convicted of this offence. Unless a decision is designed to prescribe a tariff or guidelines, only limited assistance is to be derived from the recitation of previous matters concerning sentence. This court, differently constituted, has said on any number of occasions that it is not possible to lay down guidelines in these type of cases for the facts vary infinitely.

6.This case is a good example of just how varied they can be. This court has indicated previously that the nature of the indictable offence from which the property derived is one factor which a sentencing court is entitled to take into account (see, e.g., HKSAR v Javid Kamran CACC400/2004) but it is not one of any major significance unless it can be shown that the accused knew the nature of the crime and that the crime was of a serious nature: in those circumstances this would be an aggravating feature (see, e.g., HKSAR v Xu Xia Li and Anor.  [2004] 4 HKC 16; HKSAR v CHOI Sui-hey CACC277/2007; Secretary for JUSTICE v Jerome Yudal Arnold Herzberg [2010] 1 HKLRD 502).  

7.It is particularly significant that, in contradistinction to many money-laundering cases where the convicted person professes a lack of direct personal knowledge of the underlying offence, these applicants not only knew the nature of the offence but, themselves, had participated in its commission. The offence was a serious instance of armed robbery.

8.That is a factor which the judge identified and, correctly, took into account in respect of the sentence for the money-laundering offence and then went on to record, helpfully, that he was alive to the fact that it was for the money laundering offence which he had to sentence, not the underlying offence. None of the matters which the judge took into account in sentencing were matters which applied only to the underlying offence of robbery.

9.The judge correctly took into account the fact that there was an international dimension to the offence. The judge was plainly alive to the fact that it is now well established that the actual quantum of the moneys involved in an offence of this nature does not play a major role in assessing sentence.

10.The sentence, whilst justifiably robust, was appropriate on the facts of this matter. The applications are dismissed.

Ms June Cheung, Senior Public Prosecutor, Department of Justice, for Respondent.

Mr H Y Wong instructed by Messrs. M K To & Co. for the applicants.