HKSAR v. Chan Man Kit

DCCC 1061/2012

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 1061 OF 2012

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REASONS FOR SENTENCE

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1.The defendant pleads guilty to one charge of conspiracy to deal with property knowing or believing the property represented the proceeds of an indictable offence, contrary to section 25(1) and (3) of the Organized and Serious Crimes Ordinance, Chapter 455 and sections 159A and 159C of the Crimes Ordinance, Chapter 200.

2.In summary between March 2010 and January 2011 the police received reports from persons in Australia, New Zealand and Singapore that they had been cheated into believing they had won money and that they needed to remit money to Hong Kong first before receiving the prize.

3.The modus operandi was the same in each case.  An unknown person would make a phone call to the victim claiming the victim had won a cash prize in a lucky draw or had won the lottery.  To collect the prize money the victim was told to first pay either a percentage of the prize money, an administrative fee or tax.  The victims were then given details of a remittance agent in Hong Kong to whom this fee was to be paid.   

4.After receipt of the monies by the remittance agent the defendant, went to collect the money.  The defendant did this by assuming false identities for which he had forged identity cards with his photograph on.  Using the false identity of Fung Yiu-lun, Wong Chi-man, Tang Wing-wah, Chan Wai-lik and Lee Lap-ming the defendant received from various remittance agents a total sum of $1,465,359.58 which had been remitted by sixteen persons from Australia and nine from New Zealand.

5.Similarly an unknown person telephoned a Mr Er in Singapore saying he had won the lottery.  In order to collect the prize Mr Er was persuaded to pay a handling fee, which this time was remitted to the defendant’s bank account with the Bank of China, which account had been opened six days earlier.  Over the next fourteen days Mr Er remitted to this account a total sum of $341,680, which the defendant immediately withdrew from the account. 

6.The defendant was arrested on the 19th April 2011 after his fingerprints were found on some of the remittance forms.  Under caution the defendant admitted ‘Fei B’ provided him with the forged identity cards and instructed him when and how to collect the remittances.  The defendant would then give the money to various persons as directed by “Fei B’.  On each occasion he collected money the defendant would receive a reward of between $300 and $500.  The Bank of China account was opened on the instructions of “Fei B’ and the money withdrawn at “Fei B’s’ request.  The defendant did not know the source of the money but understood the money had been obtained illegally.

7.In passing sentence I take into account everything said on behalf of the defendant by Mr Ng both orally and in a very helpful written submission together with the case law on delay and totality submitted during the adjournment. 

8.Money laundering is a serious offence for which deterrent sentences are required (see HKSAR v Xu Xia Li & another [2004] 4 HKC 16 at paragraph 18).  In HKSAR v Javid KamranCACC 400/2004 the court, stressing the need for deterrent sentences, said that it was not possible to lay down guidelines, as there is a very wide range of culpability.

9.A number of significant factors have been identified as relevant in determining the culpability of a defendant, including the nature of the offence that generated the laundered money and the extent to which the offence assisted the crime or hindered its detection; whether the defendant had knowledge of that underlying offence or has turned a blind eye to the source of the money; whether there was an international element to the commission of the offence; the degree of sophistication of the offence and the level of the defendant's participation, including the length of time the offence lasted and the benefit he derived from the offence; and the amount of money involved (see for example Secretary for Justice v Jerome Yuval Arnold Herzberg [2010] 1 HKLRD 502; HKSAR v Hsu Yu Yi [2010] 5 HKLRD 545; and HKSAR v A male known as Boma Amaso [2012] 2 HKLRD 33).

10.Whether or not the defendant knew the source of the money the courts have emphasised sentence is to be based on the facts of the money laundering charge and not on the facts of the underlying offence(see for example HKSAR v Chen Szu Ming CACC 270/2005 and HKSAR v Yam Kong Lai[2008] 5 HKLRD 384).  Further sentence should mainly reflect the amount of the money laundered and not the benefit obtained by the defendant (see HKSAR v Wu Jianbing [2012] 1 HKLRD 781).

11.I have also carefully considered the cases cited by Mr Ng, in particular HKSAR v Lee Shun Fat CACC 49/2012 where over a period of nearly a year the defendant for a reward of about $500 per transaction allowed his bank accounts to be used for overseas remittances of almost $4 million obtained as a result of fraud. The Court of Appeal said a starting point of 4 years and 6 months was appropriate.

12.I accept there are similarities with the present case in that a bank account was used to receive overseas remittances obtained as a result of deception or fraud.  Whilst the amount involved in Lee Shun Fat is just over double that in the present case the defendant here used five false identities together with forged identity cards bearing his photograph which is, as accepted by Mr Ng, an aggravating factor.

13.Taking into account that over a period of almost 10 months the defendant repeatedly collected monies from remittance agents to the total sum of the $1,465,359.58 and opened a bank account specifically so that $341,680 could be deposited and immediately withdrawn; the monies were all overseas remittances adding an international dimension to the case; and the role of the defendant whilst limited to collecting the money involved the use of false identities with forged identity cards, I am satisfied the proper starting point after trial is 3 years and 6 months imprisonment.  Giving the defendant full credit for his plea of guilty this reduces the sentence to 2 years and 4 months imprisonment.

Delay

14.Where there has been unreasonable delay in bringing an offender to justice this is a mitigating factor which may be taken into account in sentence.  All the circumstances must be looked at including whether the offender has acknowledged guilt; where the delay has given the offender the opportunity to rehabilitate himself; whether restitution has been made; whether there was a legitimate expectation the matter will not be further pursued; the size of the investigation and whether the time taken to bring the case to court was longer than necessary (see for example HKSAR v Cheung Suet Ting CACC 226/2009 which is mentioned in HKSAR v Ho King Nang CACC 445/2010 cited by Mr Ng).

15.The defendant was arrested on the 19th April 2011 but only charged in October 2012.  Mr Siu has provided to court a handwritten chronology.  The longest period appears to have been in obtaining legal advice from the Department of Justice.  Whilst the delay in bringing the defendant to trial is not as long as in HKSAR v Ho King Nang and that by necessity the investigation took time due to a number of international enquiries that needed to be made, the case does not appear complex such that over 9 months was required to complete the legal advice.

16.I am however satisfied there has been no unfairness to the defendant in not bringing the case to court earlier.  Shortly before his arrest on the 1st April 2011 the defendant committed an offence of trafficking in drugs for which he is now serving a sentence of 9 years imprisonment imposed in HCCC 317/2011 on the 18th October 2011.  Whilst in custody pending trial for that offence the defendant was arrested for the present offence.  In all the circumstances I am satisfied no discount should be given on account of the time taken to bring this matter to trial.

Totality

17.I have had the opportunity of reading the reasons for sentence in HCCC 317/2011.  The two offences are separate and distinct both in their nature and time of commission and do not form part of a course of conduct. 

18.In HKSAR v Lam Chi Wa [2009] 1 HKLRD 483 cited by Mr Ng the money laundering charge whilst relating to drug trafficking was not the proceeds subject of the trafficking charges.  The Court of Appeal held that it was therefore entirely proper to order all or part of the sentence for the money laundering charges run consecutively to the drug trafficking charges. 

19.In the present case the money laundering charges have no connection whatsoever to drug trafficking.  Consecutive sentences are therefore clearly appropriate subject to totality of sentence.  Having carefully considered all the circumstances I am satisfied that a total sentence of 10 years and 8 months imprisonment is appropriate.

20.The defendant is convicted and sentenced to 2 years and  4 months imprisonment, 1 year and 8 months consecutive and 8 months concurrent to the sentence he is now serving.