HKSAR v. Tam Lap-shek and Another

DCCC 1212/2008

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 1212 OF 2008

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REASONS FOR SENTENCE

D1 was convicted of 6 charges of "Dealing with property known or reasonably believed to represent proceeds of an indictable offence" (Charges 1 to 6); whereas D2 was convicted of 4 similar charges (Charges 7 to 10). Both of them were convicted of the respective charges after trial.

2.In summary, for Charges 1 to 6, D1 has received a total of some $68.2 million over a period of 6 years.  For Charges 7 to 10, D2 has received a total of some $43.8 million over a period of 6 years.  I have outlined the breakdown for each charge (in table format) in my Reasons for Verdict.  I need not repeat the details here.

Mitigation

3.D1 is now 57 and has a clear record.  I have called for a Background Report and 2 psychiatrist's reports.  D1 has also submitted his own neurosurgeon's report and clinical neuropsychologist's report.

4.According to D1's Background Report, he came to Hong Kong from the mainland in 1973.  In the early 1980s, he went to New Zealand.  In the mid-1980s, he moved to Australia.  He returned to Hong Kong in the early 1990s and operated a restaurant until 1998.  He disclosed to the Probation Officer that he had invested in a mahjong house and a Thai restaurant, but withdrew his investment in 2007 and 2011 respectively.  He claimed that in the past 10 years, he earned his income by gaining commission through introducing customers to the VIP rooms of casinos in Macau.  He was able to make $200,000 to $300,000 a month.

5.D1 sustained a serious head injury in Shenzhen in 2004.  As a result, a considerable portion of his brain was lost. As revealed in the report of Dr. Joseph LAM dated 30 April 2012, the most significant disabilities of D1 are (i) lack of insight on his own disability; (ii) impaired memory; and (iii) when confronted with difficult questions or subjects that he cannot remember, he has the tendency to confabulate without his own recognition.  Dr. LAM takes the view that D1's cognitive functions are likely to deteriorate over time.  D1 needs constant support, supervision and reminder of his errors by family members and friends.

6.Prof. Agnes CHAN in her report dated 20 April 2012 commented that D1's level of functioning in fluency of speech, spontaneous naming, visual construction, verbal reasoning and planning ability, and cognitive flexibility remained to be intact as compared to previous assessment.  The current evaluation revealed that D1 demonstrated continuous impairment in some frontal lobe functions, including confabulation, perseveration, severely impaired frontal-related behavioural problems, moderately impaired visual sustained attention and slow information processing speed, as well as fine motor coordination, as compared to his condition in 2010.

7.Government psychiatrist Dr. CHOI stated in his report dated 25 April 2012 that he found D1 calm, composed and attentive. No abnormal gesture was observed.  His mood was normal and reactive, and he spoke coherently and relevantly.  Signs of frontal lobe impairments like impairment of abstract thinking and perseveration were noticed.  Both Dr. CHOI and another government psychiatrist Dr. CHAN confirmed that no in-patient psychiatric treatment is required for D1.

8.D2 is now 53 and has a clear record.  I have called for a Background Report.  D2 has also submitted her own Psychiatrist's Report and Physician's Report.

9.Psychiatrist Dr. LAI takes the view that D2 is suffering from dysthymia, a form of milder but chronic depression. Physician Dr. NG states that D2 has chronic right middle-ear infection for many years causing perforation of the right ear-drum.  This impaired her hearing and caused her to be withdrawn from people.  Coupled with a low level of education, unfortunate life events and poor self-esteem, D2 was reluctant in communicating with people.

10.In the course of mitigation, Mr. Oderberg submitted that due to no fault of the Prosecution, this case has troubled D1 and D2 for over 3 to 4 years.  Meanwhile, D1's conditions continue to deteriorate. Since D1's trauma in 2004, D2 took good care of D1.  D1 would feel lost in prison without a partner.  Although not legally married, D1 and D2 have lived like husband and wife in the past 20 odd years.  Owing to a miscarriage in the early 1990s, D2 is unable to have any children with D1.

11.Regarding D2, Mr. Oderberg submitted that after 2004, D2 could not have forced D1 to explain to her where the money was coming from.  D1 was showing signs of deterioration and D2 felt unable to have questioned him about his abnormal behaviour.  D2 did not think she could pressure D1 to explain things which she did not perceive to be suspicious. Since this case began, D2 has devoted her time to Buddhism and voluntary work. A bundle of certificates was submitted.

Sentence

12.The Court of Appeal in SJ v WAN Kwok Keung [2012] 1 HKLRD 201 held:

"Money laundering" is a serious offence for not only does it encourage criminal activities indirectly, but also attempt to legitimize the proceeds of crime. In order to crack down on serious crimes, to prevent offenders from getting financial gains, it is necessary to deter the commission of the "money laundering" offences.

Generally, the sentence for "money laundering" offences should mainly reflect the amount of "black money" laundered and not the benefit obtained by the defendant or others. The reason being that it is very difficult to prove the benefit concerned, and in most "money laundering" cases, there may not be evidence to show from what indictable offence the "black money" are in fact derived. Of course, if there is information to prove that the "black money" is originated from serious crimes, including drug trafficking, kidnap and blackmail, illegal human trafficking, other organized crimes, etc. or the defendant's benefit is huge, then the sentence should be adjusted upward.[1]

13.In HKSAR v HUI Kam [2000] 3 HKLRD 211, Deputy High Court Judge Chu (as she then was) held:

"The offence in question [i.e. money laundering] is one which justifiably calls for a deterrent sentence, both in the sense of deterring the individual offender and of deterring the community as a whole. It is not too difficult to appreciate that the handling and disposal of proceeds of crime is very often an integral and important part of a criminal plan. The incentive to offend will clearly be curtailed if criminals cannot dispose of the fruits of the crime. It is therefore important to impress upon members of the public the serious consequences of dealing in and disposing of proceeds of crime even when one is helping his family member. Where a deterrent sentence is called for, then it is not wrong in principle to impose an immediate custodial sentence on a first offender."[2]

14.I accept that in the present case, there is no evidence of any underlying criminal activities from which the funds "laundered" in the defendants' accounts were originated.

15.In deciding on the proper starting point, I have reminded myself of the sentencing principles laid down in HKSAR v HSU Yu Yi [2010] 5 HKLRD 545 and HKSAR v Boma Amaso [2012] 2 HKLRD 33.  I have considered the decisions in WAN Kwok Keung and SJ v Jerome Y.A. Herzberg [2010] 1 HKLRD 502. I have borne in mind the amounts of money involved, the duration of the offences, the roles of both defendants in relation to the movements of funds as well as the personal circumstances of each defendant.

16.For the purpose of sentencing, I accept that this case is distinguishable from most typical cases of "money laundering" since there is no evidence of any underlying criminal activities.  I am unable to see an international element involved either.  Hence, I will adopt a slightly lower starting point for all charges.  I also accept that D2 played a comparatively passive role, which will be reflected in her sentence.

D1

17.For Charge 1, I adopt a starting point of 5.5 years' imprisonment; for Charge 2, 2.5 years; for Charges 3 and 4, 2 years each; for Charge 5, 3 years; and for Charge 6, 3.5 years.  Due to D1's health conditions, I reduce the sentence of each charge by 6 months as an act of mercy.  In other words, the sentences for Charges 1 to 6 are 5 years, 2 years, 1.5 years, 1.5 years, 2.5 years and 3 years respectively.  Having considered the totality principle, I order all sentences to run concurrently.  Thus, arriving at a total prison term of 5 years.

D2

18.For Charge 7, I adopt a starting point of 4 years; for Charge 8, 3 years; for Charge 9, 3.5 years; and for Charge 10, 2 years.  Due to D2's passive role and her dependency on D1, I reduce the sentence of each charge by 6 months.  In other words, the sentences for Charges 7 to 10 are 3.5 years, 2.5 years, 3 years and 1.5 years respectively.  Having considered the totality principle, I order all sentences to run concurrently.  Thus, arriving at a total prison term of 3.5years.