HKSAR v. Chan Kin Wai, William
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DCCC 958/2011 IN THE DISTRICT COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION CRIMINAL CASE NO. 958 OF 2011 ------------------------------
------------------------------ Reasons for Sentence ------------------------------ 1.The defendant is charged with, simply speaking, “money laundering”. The defendant admitted that, in fact, soon after he opened a bank account, in the next three years, the account had about 200 deposits of altogether about $6 million. Over the same period of time, there were about 300 withdrawals, totalling some $5 million. Despite the fact that the defence counsel asked me to consider taking $2.6 million as the benchmark to sentence the defendant instead of $6 million, I still take 6 million. The reasons are these. 2.The counsel on the Bar table suggested to me, in mitigation, that the defendant came to know that some friends were going to deposit money into his bank account, saying that those were the money from London Gold Investment. The defendant doubted if those moneys were rightful money, but still allowed those moneys to come in. The deposits scattered over the three years period. 3.Principally, the defendant is to be sentenced for what he is charged. According to the charge, the defendant had reasonable grounds to believe that those $6 million, in whole or in part, directly or indirectly, represents “dirty money”. So, to start with, he had dealt with those $6 million. That was the charge and he pleaded guilty to it, upon the rightful counsel advice. 4.I appreciate that there is a phrase “in part” there in the charge, but this phrase only came after. Simple English is that it was $6 million that the defendant has dealt with. Even though inside those money, in part, are what the defendant suspected “dirty money”. 5.If you maintain $2.6 million, I believe that there are two ways to go about to achieve to maintain your position. First, you can plead not guilty because there is a major element in the charge you find it hard to agree. This course will be easier because then I have a chance to go through the trial and you, the defence, have a chance to test the prosecution’s evidence to see what exactly the prosecution can prove. However, this was not your choice. 6.Your choice was that you pleaded guilty to this charge and you agreed the full facts of the case. Again the charge starts with $6 million and the facts state $6 million. You could have chosen to request a Newton Inquiry, where you can produce evidence, either documentary or witnesses, to the court to tell the court actually apart from the agreed facts, there were some other facts, to your benefit. 7.I fully understand that it is not for you to prove anything because this is a criminal trial, but since you have pleaded guilty to the $6 million charge and agreed the $6 million in the facts, if you have some mitigation which is against those figures, you really have to do something. I cannot accept any bare assertion. 8.I am sure a very experienced counsel like Mr Yuen has explained the intricacies of this to you already, and upon his right advice, you had adopted the right course. You do not request a Newton Inquiry, you do not produce anything in support of the allegation, and, therefore, I can only adopt $6 million as the benchmark. 9.Your counsel have submitted to me some very relevant Court of Appeal sentencing authorities. Suffice for this present purpose, I will only mention Boma Amaso, CACC335/2010. 10.To start with, the Appeal Court says that there are a number of factors to be taken into account when considering the right level of sentence against money laundering charge. Had the underlying offence been grave, then likewise will be the resulting money laundering charge. And if the defendant knew about it, the defendant will be punished more seriously than if he did not. 11.Here in this case, the prosecution does not or could not prove what kind of underlying offence it was, nor could it prove that you knew about it or since when you knew about it. Because of the operation of the common law, i.e. the traditional inclination for a defence, the benefit goes to you, I can only consider a more favourable version to you, i.e. I can only treat it as it is though an indictable offence, it is not a grave indictable offence and you did not know about it. You just “suspected”, i.e. had reasonable grounds to believe. 12.Those are factors no 1 and 2 in the Appeal case. Factor no 3, I do not see any international dimension here in this case. Factor no 4, the offence is not sophisticated because I do not see any inter-bank accounts transfers, transfers overseas, bills, etc. It is just one single account operation. And factor 5, I do not see any organised syndicate behind it. There is no evidence about it. 13.Factor 6, even though there is only one singular account, there were altogether 500 deposits/withdrawals, on each side about $5 to 6 million. So factor 6 is not very much to your benefit. 14.Factor 7, there was no evidence that you knew what kind of underlying offence it was, and after that you still proceeded with the laundering behaviour. 15.Factor 8, your role in the charge was that you were the bank account holder. You are the boss of your own account but you are not the boss of anybody else. So factor 8 is not too much against you. 16.In gist, the court will have to focus on only two factors, i.e. $6 million to start with; and, secondly, in and out 500 entries, each side, $5 to $6 million. 17.You have three criminal convictions, two of which were trafficking in dangerous drugs last year. You were there sentenced to almost 30 years’ imprisonment. You are 33 years old, locally born, but migrated or went to Canada for some time for college and came back to Hong Kong after. During the period, i.e. the three years you were charged, you then had a clear record. You only have criminal records after. 18.I have considered everything, including the legal opinions, mitigation of your counsel. I adopt a 3 years’ imprisonment starting point on this charge against you. Guilty plea yielded you one-third discount. This makes the sentence to 2 years’ imprisonment. It is the position of the prosecution, and I respect it, that I make the 2 years’ imprisonment totally concurrent with the existing High Court HCCC213/2010 sentence. Yes, I did it very much because of the consensus amongst the parties, including the prosecution. 19.I understand that you are appealing against the High Court verdict and sentence. Now, assuming that you can win the High Court case in the full, you still have to go through these 2 years’ imprisonment.
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