HKSAR v. Ho Chi Wai

DCCC 391/2011

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 391 OF 2011

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REASONS FOR SENTENCE

D1 pleaded guilty to a "Money laundering" offence (Charge 1) and a charge of "Failing to surrender to custody without reasonable cause" (Charge 9).

Summary of Facts

Charge 1

2.In September 2004, D1 opened a savings account (No.032-7-103172) with the Hongkong and Shanghai Banking Corporation Limited (HSBC).  He is the sole signatory of that account.

3.On 28 August 2009, D1's HSBC account received a remittance from Taiwan in the sum of HK$751,007.13.  On 29 August 2009, D1 withdrew cash in the sum of HK$750,000 from his account.  On 31 August 2009, the balance of D1's HSBC account was HK$307.29.

4.D1 was arrested by the Police on 8 October 2009.  In a video recorded interview, D1 admitted under caution that a friend named WONG Wai-yip asked him to receive a sum of HK$751,007.13 on 28 August 2009.  He gave WONG the details of his HSBC account.  On the morning of 28 August 2009, as instructed by WONG, D1 withdrew HK$750,000 cash from his HSBC account.  Thereafter, he gave the entire sum to WONG in a restaurant.  WONG told D1 that the money remaining in his bank account was "tea money".

Charge 9

5.On 6 May 2011, D1 appeared in the District Court for the present case.  The case was adjourned to 3 June 2011 for mention and D1 was granted bail.

6.D1 failed to attend court on 3 June 2011.  His bail was revoked and a warrant of arrest was issued against him.

7.D1 was re-arrested by the Police in a public housing unit in Shek Wai Kok Estate on 22 May 2012.  On 23 May 2012, D1 admitted under caution that he failed to attend court on 3 June 2011 due to the illness and hospitalization of a family member.  He also mentioned that his mother passed away on 31 October.

Mitigation & Sentence

8.D1 is now 33 and single. He has 2 conviction records involving 5 offences which are not similar to the present ones.  Defence counsel Mr. TAM informed me that D1 was once employed by a laundry company earning $10,000 per month.  However, at the time of Charge 1, he had been unemployed for 4 months and was in financial difficulty. 

9.Mr. TAM submitted that D1 did not realize the seriousness of Charge 1.  He did not know where the money came from and had no knowledge of any underlying criminal activities.  D1's bank account was opened long before the offence; he did not open a new bank account specifically for committing the offence.  Furthermore, it was a one-off transaction and the money was withdrawn immediately upon receipt.

10.Regarding Charge 9, Mr. TAM submitted that D1's mother became seriously ill since March 2011 and was admitted to hospital frequently.  D1 stayed home to look after his mother each time upon discharge.  D1's mother passed away on 31 October 2011.  Thereafter, he did not have the courage to surrender himself.  A letter written by D1's elder sister was submitted and its contents are duly noted.

11.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]

12.In determining the proper starting point for Charge 1, 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 also borne in mind the amount of money involved, the duration of the offence, D1's role in relation to the movements of funds as well as his personal circumstances. 

13.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 from which the money "laundered" in D1's bank account was originated.  However, an international element is clearly involved.  I agree with Mr. TAM that D1 was only a "foot soldier".  I also note that the D1's reward appears to be about $1,000 only.

14.As held by the Court of Appeal in both HSU Yu Yi and WAN Kwok Keung, when the "black money" involved is between $1 million and $2 million, the starting point is 3 years' imprisonment or so.  Hence, for Charge 1, I adopt a starting point of 2.5 years' imprisonment.  A one-third discount is given for the guilty plea, reducing the sentence to 20 months.  Apart from this, I see no other mitigating factors which warrant any further discount.  The sentence for Charge 1 is therefore 20 months.

15.For Charge 9, I adopt a starting point of 12 days' imprisonment.  A one-third discount is given for the guilty plea, reducing the sentence to 8 days.  Apart from this, I see no other mitigating factors which warrant any further discount.  The sentence for Charge 9 is therefore 8 days.

16.Charges 1 and 9 are separate and distinct; and Charge 9 could have been completely avoided had D1 appeared in court in accordance with his bail terms.  Notwithstanding the totality principle, I order the sentences for Charges 1 and 9 to run consecutively.  Thus, the total prison term for both charges is 20 months and 8 days.