HKSAR v. Yuan Gui Ying

DCCC260/2010

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 260 OF 2010

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Reasons for Sentence

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1.The defendant has been convicted after trial of the two offences of conspiracy to deal with property known or believed to represent the proceeds of an indictable offence and dealing with property known or believed to represent proceeds of an indictable offence.

2.The details are set out in the earlier judgment.  I do not propose to rehearse them in any shape or form, save to set out the salient factors of sentence.

3.The first salient factor of course is the defendant is of clear record in Hong Kong. 

4.The first offence involved a conspiracy and the second offence involved the dealing with the property in the first offence. The amount totally involved is charged is $104,861.  In the second offence the total amount is $7.5 million.

5.The offences date between February 1999 to December 2009, so over a 10 year period.  They involve 16 bank accounts and a large number of transactions within those accounts by the depositing of money.

6.It is quite settled from perusal of the cases that there is no tariff for sentence in respect of these cases but the amount of money involved is considered to be a significant factor, as is any benefit to the defendant; any international element in the offence; and the reasonable grounds that the defendant may have been in possession of in relation to the moneys; and finally, the extent to which the defendant himself or herself was involved in the offences as they were committed.

7.As far as the moneys are concerned, the charged amount is $104 million.  The amount submitted by the defence has been the actual amount of money that is involved in the two charges is $62 million-odd or just under $63 million in the 1st charge and $7.5 million in the 2nd charge.

8.The defendant would obviously have on the basis of the facts found benefited considerably from those moneys.  They were kept in bank accounts of herself and her family and remitted to bank accounts of herself and her husband in Canada.

9.The offence has some international element in that the moneys were remitted to Canada.

10.The defendant of course had knowledge of all the factors of which I based my conviction upon, namely the vast amounts of cash deposits that were used over a considerable period of time.

11.The defendant has been fully involved in those transactions, herself depositing large amounts of money.  They have occurred over an extensive period, involved large amounts of money, and themselves constitute a serious offence.

12.The defence say there are a number of mitigating factors in relation to this case which I should take into account when determining the starting point for sentence.  They relate to the offences themselves and also to the personal circumstances of the defendant.

13.It is said the defendant was arrested in December 2009 and the case has only concluded now in 2011.  She has been remanded in custody and has been under the pressure of this case for that period of time. 

14.Secondly, it is said that the offences themselves do not show a high degree of sophistication.  The way in which the conspiracy was committed was simple - easily traced transactions with no shell companies or fictitious transactions being used.

15.The defendant herself has said a number of mitigating factors in that she has been treated for depression since 2004 and is a lady who has suffered considerably from the depression.  There is of course the death of her husband in 2007 and the matters referred to in the evidence of the defence witnesses to the infidelity of her husband. 

16.Furthermore, there is the position in relation to her son.  He is now aged 24 years old and is currently residing in Mainland China but he has for many years now suffered from an illness which is of a serious nature. In a report of January 2010, Consulting Doctor Mr Redico(?) says that the son had been a patient of his for a number of years.  He has a congenital vascular malformation on the left side of his brain and has undergone a number of treatments in 2007.  The vascular malformation and the consequences of his treatment has caused neurological symptoms affecting language, ability and calculation.  He has specific difficulty with fluency of speech, names, verbal memory and numerical calculations.  He has also had seizures in the past which are somewhat controlled now.  He describes this young man as diligently working on acquiring English skills and considers his language function will improve. So the position with that is that the son has had a serious illness for a number of years and is making some progress but clearly he is a person who has difficulties with his health.

17.He is currently, I am told, residing in Mainland China and could not at this time come to Hong Kong and the defendant has not in fact seen her son for some two years, but the defence submit that that qualifies in my consideration as a humanitarian ground for consideration in the calculation of sentence, as would the defendant’s own diagnosed depression.

18.The other factor that one could consider is also the position in relation to her daughter who is aged 14 years old, is a schoolgirl in Canada.  Obviously, as the result of a sentence of imprisonment, both the daughter and the mother will be deprived of each other’s society for a period of time and that again is a humanitarian factor that should be taken into consideration.

19.The defendant has no family members in Hong Kong, and none who come on a regular basis to this jurisdiction, so she will find herself isolated here. 

20.That has been in the past said not to be a significant factor in sentencing but it is one that perhaps one cannot ignore when one is dealing with a mother and her daughter and a mother and her son who suffers from a serious illness and disability in the functioning of his brain.

21.I am also asked to consider that there was evidence in the case of some businesses that the defendant and her husband were involved in which may account for some of the money that was found in the accounts.

22.I now have to consider what the appropriate sentence is having regard to the amounts of money involved and the length of time over which the conspiracy took place and the involvement of the defendant.

23.Although the amount of money involved is not the only factor to be considered, it is a considerably important factor.  In a case of Chen Zhen Chu, the amount of money involved in that case was $73 million over 13 months with 1,500 remittances, and led to eventually a starting point for sentence of 7½ years’ imprisonment.  In some other cases amounts of money as low as $4 million have led to starting points for sentence of 4 years’ imprisonment.  On the charge I have a figure of $104 million and the defence say that that should be considered in fact to be a sum of some around about $70-odd million of actual money that was dealt with.

24.Now, however one looks at those figures, it is clear that the starting point for any sentence in this case would be and will lie at the maximum jurisdiction of this court.  The sums are very large, the defendant has benefited herself, there is an international element and the defendant was deeply involved in a majority of these transactions.  It would appear to me that I must adopt a starting point, certainly on the conspiracy, which is at the maximum of my jurisdiction, which is 7 years’ imprisonment.

25.The question is can I in any way reduce that sentence as a result of the mitigating factors that have been put forward by the defendant.

26.I think I can in this case.  The defendant has been subject to some delay that is not attributable to her own actions.  She also is in an unfortunate position.  She has had a difficult time, starting with her own depression, her difficult family situation, the death of her husband, the illness of her son, and the separation from her daughter.  These are all factors that she must live with throughout what may be a considerable period of imprisonment and I think they should in some way be reflected in the sentence.  Also, the defendant of course was no doubt subject to her husband in a number of ways.

27.So I shall, as I say, adopt an overall starting point of sentence of 7 years’ imprisonment in respect of both charges and I shall reduce that as follows. 

28.For the delay that the defendant has been subject to I will reduce the sentence by 2 months’ imprisonment; then I will reduce the sentence by a further 7 months’ imprisonment for the other factors I have set out relating to her son, her daughter and her separation from them and her own illness.  That will lead to a final sentence of 6 years 3 months’ imprisonment, so that is my overall sentence.  What I shall do simply is to impose that sentence on each charge to be served concurrently.

29.So the sentence on each charge will be one of 6 years 3 months’ imprisonment, to be served concurrently, to a total of 6 years 3 months’ imprisonment.

Please refer to CACC427/2011 for the relevant appeal(s) to the Court of Appeal.