HKSAR V.Nzimbi Kouadeba Soha Pauline

DCCC 356/2012

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 356 OF 2012

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Reasons for Sentence

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Introduction

1.The defendant is convicted on her own plea of:

(i) the 1^st Charge of conspiracy to deal with property known or believed to represent proceeds of an indictable offence, contrary to section 25(1) and (3) of the Organized and Serious Crimes Ordinance, Cap.455 and sections 159A and 159C of the Crimes Ordinance, Cap.200; and

(ii) the 2^nd Charge of using a false instrument, contrary to section 73 of the Crimes Ordinance, Cap.200.

Facts

2.Between 13 August 2009 and 12 September 2011, the defendant had used eight false names and eight false passports purportedly issued by four different countries (namely France, South Africa, Netherlands and Belgium) to open sixteen bank accounts with six banks in Hong Kong. One of those bank accounts was opened by the defendant in the name of Tarachand Maya with the Bank of East Asia (the “BEA Account”). The total amount successfully deposited into those sixteen bank accounts was HK$61,211.58.

3.On 21 August 2010, the defendant deposited into the BEA Account a cheque dated 13 July 2010 issued by a company called Conductor Inc. to a person named Maya Tarachand for the sum of USD82,311.68 which was equivalent to about HK$642,031, to be drawn from a bank account in the USA. The cheque was subsequently found to be a forged cheque with the original date, numerical amount and amount entries removed/erased and replaced by new entries by means of toner printing. The Bank of East Asia did not effect payment of that cheque.

4.On 13 December 2011, the police arrested the defendant at her residence. When she was asked to produce her proof of identity, she produced to Sgt 33388 a passport in her real name purportedly issued by the Democratic Republic of Congo (the “Congo Passport”). The Congo Passport was subsequently confirmed to be a forged passport in that it was tampered with by means of page-substitution. Certain pages were substituted and certain pages were simply removed.

5.During a cautioned video-recorded interview with the defendant, she said inter alia that:

• she had opened various bank accounts by using various false identities;
• she was instructed by a male called Fabrice to open the bank accounts;
• she gave Fabrice’s wife her photographs to make the false passports;
• Fabrice’s wife accompanied her to open the bank accounts;
• she had passed the passports, bank cards and passwords to Fabrice’s wife after having opened the bank accounts; and
• she could earn 15% of the amount she could withdraw from the bank accounts as commission; but she had no chance to withdraw any money yet since all remittances and cheques were stopped by the banks; so far she had only got $3,000 as transportation fee.

The defendant’s previous conviction record and antecedents

6.The defendant has a clear record in Hong Kong. She was born in May 1969 and is now 43. She lives in Hong Kong on a recognizance.

Mitigation

7.Mr Nasir submitted the following materials for the court’s reference:

• HKSAR v To Kit-yan and another DCCC 1267/2010;
• HKSAR v Mokonga Pierrot MBUNGA and another DCCC 618/2011;
• the defendant’s medical record; and
• a letter dated 28 May 2012 from the defendant.

8.Mr Nasir submitted that the defendant was born in Congo and has received education up to Class 6 at the age of 13. She used to be a tailor and a cook in Congo. She then moved to South Africa. She has a son. Her three siblings live in the United Kingdom, Belgium and Canada.

9.According to the defendant’s medical report dated 24 February 2012, the defendant has HIV infection and Kaposi sarcoma, and she requires long term anti-retroviral treatment for control of her diseases. In her letter dated 28 May 2012, the defendant said that she had had a stomach cancer. As she needed money to pay her medical bills, she committed the conspiracy offence. I asked Mr Nasir at what stage the defendant’s stomach cancer had reached but Mr Nasir replied that the defendant had no idea. Nowhere in the medical reports stated that the defendant was suffering from terminal cancer or had a short life expectancy.  

Sentence

10.There are no sentencing guidelines for money laundering offences. In HKSAR v Xu Xia Li and another CACC 395/2003, the Court of Appeal quoted HKSAR v Mak Shing CACC 322/2001in which it was said that:

“There are no guidelines for offences of this nature. The reason for this being that the circumstances of each case may vary almost infinitely.”

11.In HKSAR v Hsu Yu Yi [2010] 5 HKLRD 545, the Court of Appeal said:

“9. There are no sentencing guidelines for the offence of dealing with the proceeds from an indictable offence because the facts vary from case to case. However the following factors are to be taken into account when determining sentence:

(1) It is the amount of money involved that is a major consideration and not the amount of benefit received by a defendant in the transaction.

(2) The culpability of the offence lies in the assistance, support and encouragement offered to the commission of an indictable offence. So a defendant's level of participation and the number of occasions on which he is involved in the ‘money laundering' activities are relevant factors to be considered.

(3) The offence of dealing with the proceeds from an indictable offence does not necessarily have any direct correlation with the indictable offence in question. However if the relevant indictable offence can be identified, the court may take into account the sentence imposed on the indictable offence pre se when determining the sentence of the dealing offence.

(4) If the case has an international element involving activities carried out across different regions, the court may impose a more severe sentence. This is to protect Hong Kong's reputation as an international finance and banking hub from being tarnished.

(5) The length of time the offence lasted.”

12.In HKSAR v Yeung Kin Chai CACC 341/2008, the amount of money laundered was $500,000. The Court of Appeal considered a starting point of 30 months appropriate. In this connection, the Court of Appeal was of the view that the offence was less serious than most: it was a single transaction involving a simple transfer procedure.

13.In the present case, the amount of money conspired to be laundered was about HK$703,000 (being the aggregate of HK$61,211.58 and HK$642,031) and the conspiracy lasted for about 2 years and 2½ months involving sixteen bank accounts, eight false names and eight false passports purportedly issued by four different countries. Mr Nasir also admitted that there was an international element in relation to the deposit of the cheque of USD82,311.68 (which was equivalent to about HK$642,031) to be drawn from a bank account in the USA.

14.Having carefully considered all the circumstances of the case, I will adopt a starting point of 31½ months’ imprisonment for the 1^st Charge. One-third discount is given to the defendant for her guilty plea thus reducing the sentence for the 1^st Charge to 21 months’ imprisonment.

15.I do not consider the defendant’s ill health a valid mitigating factor. As observed by the Court of Appeal in HKSAR v Woo Shun-cheong and another CACC 120/1998, I am sure the defendant’s condition could be “adequately dealt with in prison”. I have also considered other authorities in relation to an offender’s ill-health: HKSAR v Tam Yuen-tong [2007] 1 HKLRD 894, HKSAR v Chan Kau-tai [2008] 3 HKC 78, R v Ho Mei-lin [1996] 4 HKC 491 and R v Lo Chi-keung [1996] 3 HKC 155. In particular, in  R v Chau Kui-sheung [1996] 3 HKC 279, the Court of Appeal said inter alia that the fact that an offender was HIV positive, or had a reduced life expectancy, was not generally a reason which should affect sentence. 

16.There being no other valid mitigating features justifying further reduction in sentence, the sentence for the 1^st Charge is 21 months’ imprisonment.

17.As for the 2^nd Charge, Ms Fung advised me that she could not find any sentencing authorities. Mr Nasir referred me to HKSAR v Mak Kin Ming and Lee Tze Yin CACC 302/1999 (the false instruments were employment letters), HKSAR v Ra Hyun Bin and others CACC 353/2008 (the false instruments were confirmation letters and letters of credit), HKSAR v Li Tsz-chung CACC 312 & 314/2011 (the false instruments were letters purportedly from the International Social Service Hong Kong Branch and the Social Welfare Department), HKSAR v Hung Ping Wah CACC 488/1997 (the false instruments were credit cards, and the charge of using a false identity card was under section 7A(1) of the Registration of Persons Ordinance, Cap.177 which carries a maximum sentence of 10 years’ imprisonment) and HKSAR v Cheung Florence CACC 420/1998 (the false instruments were credit card applications). The cases referred to me by Mr Nasir do not seem to bear any material resemblance with the facts in relation to the 2^nd Charge in this case.

18.I have also considered the Court of Appeal’s decision in HKSAR v Renato Cemine Tandoc CACC 377/2002 in which the Court of Appeal adopted a starting point of 4 years’ imprisonment for the offence of using a false passport (to purchase shelf companies and open bank accounts in furtherance of a criminal enterprise), contrary to section 73 of the Crimes Ordinance. There are no sentencing guidelines for the offence of using a false instrument under section 73 of the Crimes Ordinance. As the facts in relation to the 2^nd Charge in this case are not as serious as those in HKSAR v Renato Cemine Tandoc, I am minded to adopt the starting point of 18 months’ imprisonment for the 2^nd Charge. One-third discount is given to the defendant for her guilty plea thus reducing the sentence for the 2^nd Charge to 12 months’ imprisonment. There being no other valid mitigating features justifying further reduction in sentence, the sentence for the 2^nd Charge is 12 months’ imprisonment.

19.The facts relating to the 1^st Charge are separate and distinct from those in the 2^nd Charge. Indeed, the eight false passports involved in the 1^st Charge were purportedly issued by France, South Africa, Netherlands and Belgium whereas the false passport involved in the 2^nd Charge was purportedly issued by the Democratic Republic of Congo. Having considered the totality principle, I order 6 months’ imprisonment in the 2^nd Charge to run consecutively with the 21 months’ imprisonment in the 1^st Charge, thus making a total of 27 months’ imprisonment.

Please refer to CACC245/2012 for the relevant appeal(s) to the Court of Appeal.