HKSAR v. Chiu Chi Wing

DCCC1140/2011

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 1140 OF 2011

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Reasons for Sentence

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1.Defendant, I convicted you after trial of three offences of dealing with property known or believed to represent the proceeds of an indictable offence, contrary to section 25(1) and (3) of the Organized and Serious Crimes Ordinance, Cap. 455. These offences are otherwise commonly known as money laundering.

2.The three charges together set out that you, the defendant, dealt in about HK$12 million in a period of about 2½ years between December 2008 to 15 June 2010.  The first two charges relate to funds in bank accounts held in your name.  The 1st charge being a HSBC bank account into which a sum of $6,884,899.19 was deposited between 31 December 2008 to 15 June 2010.  The 2nd charge deals with your Hang Seng Bank account and a sum of $4,991,855.65 was deposited therein between 8 July 2009 and 30 June 2010.  Charge 3 sets out that on 12 June 2010 you dealt with a sum of cash in the sum of $275,600, this cash was found in your house on the day of your arrest. 

3.In a police operation you were arrested at your home on 12 June 2010 for an alleged offence of bookmaking.  Many items related to gambling and bookmaking were found including the two bank passbooks of Charges 1 and 2.  After inspection of your two bank books and the cash found at your house, it was seen that you had dealt with $12 million during the time as set out in the charges.

4.On 18 April 2011, 10 months after you were arrested for bookmaking, you were released from that holding charge of bookmaking unconditionally and were re-arrested on the same day for money laundering, these present charges.  About five months after that, in September 2011, you were then charged with these present money laundering offences. 

5.I found on the facts before me and on all the evidence there was compelling evidence to show that the proceeds that you dealt with in your bank accounts and the cash were proceeds from bookmaking.  I found that on the day when you were arrested at your home, on 12 June, that your home was set up as an off-course home betting centre.

6.On 12 June 2010 it was a horseracing day in Hong Kong.  The police had raided your home at about 2.30 pm.  On a table at your home were found various items which I found belonged to you and that you were at the material time using a computer which was logged onto an illegal gambling website of Hong Kong’s horseracing day on 12 June 2010.  The computer screen at that time was showing Race 4 and that was the exact time when the police raided your home and the race was about to start.  There were horseracing pages of the day’s races together with colour coded races on the paper.  There were coloured fluorescent pens on the table.  There were three mobile phones on the table and there were at least two notebooks with entries related to settlement of accounts used by bookmakers with bookmaking jargon.

7.I was satisfied on the evidence of the gambling expert in this case that the mobile phones, coloured fluorescent pens and the whole setup was the setup of an off-course home betting centre, all of which has been fully set out in my verdict.

8.There were large frequent and numerous deposits and withdrawals involving cash and transfers into your two accounts over the charge period.  The accounts were used as temporary repository account for funds.  There was frequent activity and regularity of transactions and almost all the amounts that were deposited were withdrawn in a very short time.  Many of the transactions took place on Mondays and Thursdays which the gambling expert said was when punters usually settled their accounts in bookmaking as horseracing in Hong Kong was held mostly on Wednesday, Saturdays and Sundays, and Mondays and Thursdays were the subsequent first banking day of the race day.

9.I found that all those facts, coupled with the circumstances that you were a relief taxi driver earning a meagre income of $5,500 living in a public housing estate, and were a person who filed no tax returns compounded my finding that you were engaged in bookmaking and the proceeds in your bank account and cash at home were proceeds of bookmaking.  .

10.Your counsel Mr Donald has made full and thorough mitigation on your behalf.  I have taken all that he has had to say into account when deciding what is the most appropriate sentence to pass.

11.You are 57 years of age, married and have a stepson aged 33.  You have 13 recorded items of convictions but 14 previous convictions mostly related to gambling in a gambling establishment and 2 related to engaging in bookmaking in November 2008 to which you were given 4 months’ imprisonment suspended for 2 years and fined $8,000.

12.There are no sentencing guidelines for the offence of money laundering.  Guidance for the appropriate sentence can be adduced from reviewing sentences passed in previous cases and also by the most recent case of HKSAR v Boma Amaso CACC335/2010.

13.Mr Donald has informed me that in this police operation that took place on your date of arrest, other suspects were arrested and they had been tried and convicted after trial and have received terms of imprisonment.  The two cases are DCC316 and 1002 of 2011.  They, and Mr Donald accepts, have no connection at all with your case, and the findings made by the judges in those two cases after trial were not similar to the findings that I made of you dealing in these proceeds knowingly that it was bookmaking.  So in those circumstances they are not similar to this case before me and no guidance can be sought from those sentences passed.  

14.I take into account the relevant sentencing considerations as follows, the maximum penalty is one of 14 years’ imprisonment; the nature of the predicate offence is one of bookmaking; the maximum penalty for bookmaking is one of 7 years’ imprisonment; that you had full knowledge that the nature of the predicate offence was bookmaking see Boma Amaso.

15.The total amount involved in this case was about HK$12 million.  There were many transactions over a period of some 2½ years.  I accept there was no international dimension or any sophistication in this offence and there was no evidence that the offence was committed by you on behalf of an organized criminal syndicate.  You in fact were the sole operator of this money laundering offence. 

16.Mr Donald has asked me to take into account the factor of delay as a mitigating factor referring me to a number of cases, to suggest that any delay of 2 years or more is an unreasonable delay and if it is not caused by the defendant’s fault, consideration should be given for the delay.  For this case, it will be 2 years from the date of arrest in approximately 4 days’ time, 12 June 2012. 

17.It is not in all cases where delay in bringing a prosecution entitles an accused to a discount in sentence.  That was stated in HKSAR v Ma Kim Hung CACC33/2002 at paragraph 21.  In Scook v R [2008] 185 A Criminal Review 164 at 176, Buss JA, sought to identify the guiding principles in relation to delay and he identified seven matters as being relevant see Sentencing in Hong Kong Cross & Cheung, 6th edition at page 383.  I found there are no factors here which constitute a mitigating factor of which delay should be taken into account. 

18.Taking into account all the relevant factors and taking into account the principle of totality, I consider a sentence of 4½ years to be appropriate for the above three charges.

19.In light of the above sentence, the breakdown of the sentence for the separate charges are as follows.  You are sentenced to 4 years’ imprisonment on Charges 1 and 2, 1 year imprisonment on Charge 3.  All sentences are to run concurrent to each other save that 6 months of Charge 2 is to run consecutive to Charge 1, and therefore making a total term of 4½ years’ imprisonment.

Please refer to CACC243/2012 for the relevant appeal(s) to the Court of Appeal.