HKSAR v. Au Sau Wah
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DCCC 835/2011 IN THE DISTRICT COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION CRIMINAL CASE NO.835 OF 2011 --------------------------
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Reasons for Sentence 1.The defendant pleaded guilty to 2 charges of dealing with property known or reasonably believed to represent proceeds of an indictable offence, contrary to s.25(1) and (3) of the Organized and Serious Crimes Ordinance, Cap.455.
2.Between 27th April 2007 and 1st March 2010 (charge 1); and 27th April 2007 and 12th February 2009 (charge 2), the defendant allowed 2 bank accounts of his to be used by another person, Ah Ming, for deposits and withdrawals. When money was deposited into the accounts, Ah Ming would telephone the defendant and ask him to withdraw the money for him. The defendant would receive a reward of $2,000 to $3,000 each time. The defendant did not know the source of the deposits nor where the withdrawals were going to . 3.In relation to some of the check deposits into one of the 2 accounts, Ah Ming had informed the defendant beforehand that some of those checks will be dishonored, but that the defendant did not need to know why. 4.In relation to the charge 1 account, a total amount of deposits $1,040,753.54 had been made during the charge period. The total amount of cash deposits was $1,040,720, comprising 36 transactions ranging from $200 to $273,300. Almost all the cash deposits were in round up figures and the sources are unknown. 5.The total amount of withdrawals from the charge 1 account was the same as the total amount deposited. 74.44% of the money was taken out by way of cash withdrawals, 7 of which were made by the defendant as recorded in bank vouchers. The whereabouts of the withdrawn money is unknown. The remaining 26.56% of money were withdrawn by way of 76 ATM withdrawals. Each of the withdrawals was made shortly after each deposit. 6.During the charge period, there were 9 bounced checks deposited into the charge 1 account involving a nominal value of $52.5 million. All the checks were bounced either because of differing signature, account being closed or refer to drawer. 7.In relation to the charge 2 account, the total amount of deposits was $2,142,803.35. The total amount of cash deposits was $671,450, comprising of 43 cash deposits ranging from $100 to $250,000, being 31.34% of the total deposits. Almost all the cash deposits were in rounded up figures and the sources unknown. The remaining deposits were check or transfer deposits, also from unknown sources. 8.98.28% of the deposited amount were withdrawn by way of 99 cash withdrawals, 8 of which were by the defendant himself. All 99 cash withdrawals were in rounded up figures ranging from $100 to $830,000.
9.The defendant has 4 previous convictions, none of them are similar to the present charges and they all dated back to 1997.
10.The defendant is 52, divorced, living alone in Hong Kong. He was working in a snooker room in Shenzhen earning about RMB 4,000-5,000 per month. He has a daughter who is 29 and married. 11.Mr. Cheung for the defendant pointed out that the main factors to consider in sentencing money laundering cases are the amount of the money involved, the number of transactions, the degree of involvement of the defendant, whether he knew the source of the money and whether there is an international element to aggravate the situation. 12.I was told that all together the defendant had received about $10,000 odd from Ah Ming. The defendant did not know the source of the deposits, even though he did ask, he was not told. 13.Mr. Cheung pointed out that the amount of the dishonored checks should not be taken into consideration when sentencing. Ms. Tai for the prosecution did not submit otherwise. 14.In relation to the laundering period of charge 1, it was submitted by Mr. Cheung that bank statements show that movement of the funds were mainly up to November 2008. In between November 2008 and September 2009, there were neither deposits nor withdrawals in the account. In October 2009, 7 dishonored checks with the total amount of $35 million were deposited. If these 7 checks were disregarded, then the main period of laundering was only up to November 2008, lasting around one and a half year.
15.Under s.25 of the Organized and Serious Crimes Ordinance, the offence is punishable on indictment with a fine of $5,000,000 and imprisonment for 14 years. 16.There are no sentencing guidelines for this type of offence, each case will have to be decided on its own facts. There are however relevant factors that the court should consider, including the amount of money laundered, length of time the laundering subsisted, the degree of sophistication involved, number of people involved and whether there is an international element: HKSAR v Yeung Kin-chai [2009] 3 HKC 35. 17.I was very helpfully referred to the case of HKSAR v Hsu Yau-yi, CACC 159/2009 by Mr. Cheung. Specifically, Mr. Cheung wanted me to take note of 2 cases referred to by the Court of Appeal at paragraph 10 of the judgment. They are the cases of HKSAR v Chow Ying Ki, CACC 378/2004 and HKSAR v Zhan Jian-Fu, CACC 258/2007. In these 2 cases, effective starting points of 4 years’ imprisonment were adopted in similar but perhaps slightly more serious circumstances. 18.In our present case, there is no evidence of any international element; the amounts of money involved in the 2 charges are not very large (around $1 million and $2.1 million respectively) and the laundering is not sophisticated. There is no evidence that the defendant knew of the underlying crime nor do we know what the underlying crime was. The one aggravating factor that we have is that the laundering effectively took place over a period of around 1 year and 9 months, after taking into account the lack of activities in the account in charge 1 in the final months as mentioned above. 19.I find that given the length of time that the laundering had gone on, and given the amount of money involved, an appropriate starting point is that of 3 years and 9 months’ imprisonment for each of the 2 charges. I will grant the defendant the full one third discount and reduce the sentence to that of 30 months’ imprisonment.
20.Bearing in mind the principle of totality, the fact that the defendant had managed to stay out of trouble since 1997, I will order that the sentences to be served wholly concurrently. The defendant is therefore to serve a total of 30 months’ imprisonment for the 2 charges.
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