HKSAR v. Chan Siu Mei Judy

DCCC1218/2011

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 1218 OF 2011

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Reasons for Sentence

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Charges

1.The 1st defendant enters a plea of guilty to four charges of dealing with property known or believed to represent proceeds of an indictable offence, namely, Charges 2 to 5, preferred against her under section 25(1) and (3) of the Organised and Serious Crimes Ordinance, Cap.455. 

2.The court makes an order by consent leaving Charge 1, also a charge of money laundering, on the court file marked not to be proceeded with without the leave of the court or that of the Court of Appeal.

Facts

3.The facts to which the 1st defendant agrees are as follows.

4.On 28 January 2011 the police raided the 1st defendant’s premises and found in her possession four ATM cards belonging to others. 

5.The 1st defendant told the police a person by the name of Fai Chai had hired her to withdraw cash daily, using the four ATM cards, and to have the cash deposited into accounts Fai Chai gave her; her reward for doing this was $7,000 a month.

6.Police investigation showed that most of the money deposited into the four accounts to which the cards related was withdrawn the following day, leaving an insignificant balance in the accounts in the offence periods.

7.For the two years between January 2009 and January 2011, the amounts of money laundered via the four accounts were as follows:

Charge	Period	Amount ($)
2	6/2009 – 1/2011	242,240.03
3	8/2009 – 1/2011	703,192.29
4	1/2009 – 1/2011	2,301,690.60
5	1/2009 – 1/2011	2,560,141.05
Total		5,807,263.97

8.There is no evidence that the 1st defendant knew or was aware of the nature of the predicate offences to which the illegal proceeds related.

Conviction

9.The court finds the 1st defendant guilty of Charges 2 to 5. 

10.The 1st defendant has had a clear record prior to her current conviction.

Mitigation

11.In mitigation, the defence puts forward the following matters for the court’s consideration.

12.The 1st defendant has had a clear record and she admitted to the four charges to show remorse.  She committed these offences in foolish circumstances, says counsel for the defence.  What happened was this.  The 1st defendant met a lady at a friendly gathering.  Knowing the 1st defendant was short of money, the lady suggested the scheme to her to make money.  The 1st defendant never knew the amounts she helped to launder.  She did not keep count. 

13.According to her background report, the 1st defendant suffered poor health even as a child.  She left school and got married when she was young, but neither her childhood nor her marriage was very happy.  She did not obtain the reward of $7,000 a month for personal pleasure or expensive items.  She used the money for family purposes. 

14.Counsel says the 1st defendant is a kind person, contributing to various charitable organisations over the years.  The lack of self-esteem coupled with a troubled childhood has resulted in the deterioration of her health.  She has been under stress and pressure for a long time and has suffered from depression.

15.The psychologist who has been treating the 1st defendant’s condition opines that the 1st defendant was easily cheated and influenced by others.

16.Finally, counsel submits that the 1st defendant is not the kind of person who would get herself into the wrong side of the law again and asks for as lenient a sentence for her.

Discussion

17.Money laundering is a serious offence.  The reason is clear and simple.  Many serious crimes would not have been committed but for their potential of financial gains to the offenders.

18.Crimes know and respect no borders, nor does the movement of the ill-gotten gain they generate.  The international community, of which Hong Kong is an active member, has awakened to this phenomenon and has called for a joint effort to tackle money laundering. 

19.There is no sentence guideline in offences of money laundering, so each case depends on its own facts. 

20.The court has considered the case of HKSAR v Javid Kamran CACC400/2004, and in particular, paragraphs 34 to 36, and the case of HKSAR v Hsu Yu Yi [2010] 5 HKLRD 545.  In terms of factors to be taken into account in sentencing, the two cases appear to be very much in line with each other. 

21.In the case of SJ v Wang Kwok Keung [2012] 1 HKLRD 201, the Court of Appeal said in paragraph 15:

“In HKSAR v Hsu Yu Yi [2010] 5 HKLRD 545, Cheung JA set out the amounts of money involved and the sentences passed in a number of ‘money laundering’ cases. The sentencing starting point is 3 years or so where the ‘black money’ involved is between $1 million and $2 million; 4 years or so where it is between $3 million and $6 million; and could be over 5 years where it is above $10 million.”

22.In the recent case of HKSAR v A male known as Boma Amaso CACC335/2010, the Court of Appeal urged the sentencing court to have regard to the statutory maximum of this offence, namely, 14 years.

23.Acknowledging the amount of money laundered to be a significant factor to be considered, the court there refrained from providing a sentence guideline which might result in the amount becoming ‘the be all and end all of a case.’ Instead, the court provided a non-exhaustive list of factors to be taken into account in sentencing. 

24.It seems clear from the list that while knowledge of the predicate offence is an aggravating factor, the lack of it is no mitigation.  Further, when the predicate offence is known, the court can take into account its nature and likely punishment when sentencing the money launderer.

25.In the present case, the 1st defendant played an essential role in the criminal operation.  She had had control of the four accounts during a full two- year period in which she committed the offences – daily.  She derived a regular, monthly income from doing her part in the crime.  In the court’s view, these constitute significant aggravation.  Finally, the amount laundered totalled some $5.8 million.

26.True it is that there is no international element in the offences of which the 1st defendant stands convicted.  But the court is of the view that while the presence of an international element would certainly make the offences more serious, its absence does not make them any less.

27.Using bank accounts to launder proceeds of crime, the 1st defendant’s conduct has tarnished the good reputation of Hong Kong as a world financial centre. 

28.In all the circumstances, the court would adopt a starting point of three and a half years’ imprisonment to reflect the overall gravity of the offences. 

29.The court has given careful consideration to the 1st defendant’s personal and family circumstances and all matters the defence puts forward in mitigation.  The court notes that the 1st defendant is suffering from adjustment disorder, and mental and behavioural disorders due to the use of sedatives, but according to her medical reports, the 1st defendant’s medical condition does not appear to be very serious or difficult to manage. 

30.Apart from the 1st defendant’s clear record and guilty plea, there does not appear to be any viable ground for reduction of sentence.

Conclusion

31.A starting point of 18 months would be appropriate for each of Charges 2 and 3, which is reduced by one-third on account of the 1st defendant’s clear record and guilty plea to one of 12 months’ imprisonment.

32.A starting point of three years’ imprisonment will be adopted for Charges 4 and 5, to be reduced likewise by one-third to one of 24 months’ imprisonment.

33.Having considered the principle of totality, the court orders that the sentences for Charges 2 and 3 should be served concurrently, and those for Charges 4 and 5 should likewise be concurrent sentences.  Four months of the sentence for Charges 2 and 3 should be served consecutively to the 24 months’ imprisonment for Charges 4 and 5, making a total sentence of 28 months’ imprisonment.

Order

34.For the four offences of which she stands convicted, the 1st defendant is sentenced to a term of imprisonment of 28 months.

35.Psychological treatment and counselling are recommended to the 1st defendant while she serves her prison term.