HKSAR v. Chuensri Pattanodom also known as Pemathanapas Chittapon

DCCC 382/2013

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 382 OF 2013

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Reasons for Sentence

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1.The defendant pleaded not guilty to one count of money laundering and was convicted after trial. The sum involved was about HK$5.3 million.

2.I have detailed the case against the defendant in my reasons for verdict delivered just now.

3.In gist, the defendant came to Hong Kong on 29 May 2011 and then went to a secretarial company to complete the formality of opening a company.  Preparation work had been done in early May of the year, and the defendant was received by staff of the secretarial company as scheduled.  At that time, the defendant was using his previous Thai passport in the name of Pemathanapas Chittapon.  The defendant then proceeded to the Hang Seng Bank.  He produced the set of company documents and his own passport and Thai ID card to the bank staff and succeeded to open a business integrated account.  In that account, there were four sub-accounts in different currencies.  Investigation revealed that there were many transactions recorded in the bank account at the material time.  During the material period, a sum of HK$5.3 million-odd was dissipated from the bank account by e-banking.  The defendant was arrested in January 2013 when he entered into Hong Kong on the strength of another passport in the name of Chuensri Pattanodom.

Mitigation

4.The defendant is now 69 years old and got remarried in November 2012.  He has no children.  After retirement, the defendant sold Buddhist statues to make a living.  The defendant intended to settle in Shanghai permanently.  It was submitted there is no sentencing guideline, and the case HKSAR v Hsu Yu Yi CACC 159 of 2009 was cited.  The sum involved in that case was about HK$2.5 million-odd.  The applicant was eventually sentenced to 3 years and 5 months.  The Court of Appeal in that case also listed out five sentencing principles:

(1) the amount of money involved;

(2) the level of participation;

(3) the relevant indictable offence if known;

(4) international element; and

(5) the length of time the offence lasted.

5.It was submitted there was no fraud element in this case.  There is no evidence to show that the defendant benefited from this offence.  This case is not the most serious one, and the commission of the offence was not sophisticated.

Sentence

6.As said by the Court of Appeal in HKSAR v Javid Kamran CACC 400 of 2004:

“Money laundering is a very serious offence as it is an attempt to legitimise proceeds from criminal activities. It is not feasible to lay down guidelines for sentence of a money-laundering offence, as there is a wide range of culpability. Other factors include the nature of the offence that generated the laundered money, the extent to which the offence assisted the crime or hindered its detection, the degree of sophistication of the offence and perhaps the defendant’s participation, including the length of time the offence lasted and the benefit he derived from the offence.”

The court also took the view that successful deterrents against money laundering could be effective measures against crime.

7.In the present case, there is no evidence to identify the nature of the underlying offence.  Nor is there any evidence to suggest that the defendant knew about that.  The present offence was committed between 21 June 2011 and 24 November 2011 with a time span of about five months.  The sum involved was about HK$5.3 million-odd.  Although there is no sentencing guideline for this kind of offence, I have considered the sentencing consideration as mentioned by the Court of Appeal in the abovesaid case Hsu Yu Yi. On the other hand, in HKSAR v Boma [2012] 2 HKLRD 33, the Court of Appeal also promulgated similar principles.

8.In the present case, the defendant was not perpetrating the offence alone.  It is apparent that there existed international elements whereby the plot seemed to be orchestrated in Thailand with a Russian as the instigator.  The activities so recorded in the bank account shows the deposits came from different countries.  The offence was well-planned and premeditated.  The company was arranged to be set up well before the defendant’s arrival in Hong Kong, and the defendant then proceeded to go to open a bank account.  Deposits came from different countries, and 90 per cent of the money was transferred to Thye Hong which then transferred the money to Wo Shing Co which is a remittance company based in Thailand.  The defendant has a main role to play as he was the one to complete the formality of setting up the company and of opening the account. Without his assistance, the money-laundering activities through GIL cannot be executed.

9.As said in HKSAR v Mak Shing CACC 322 of 2001, the Court of Appeal emphasised that:

“when there was an international element to the offences and…… Hong Kong has to take very serious view of such matters as its international reputation is not to be sullied.”

The gravamen of a money-laundering offence is the amount of the money handled, not the amount of profit to the defendant or the loss to the victim.

10.Taking all factors into account, I would adopt a starting point of 3½ years.  No mitigation of substance was put forward by the defendant, and I can see none here.  Accordingly, I sentence the defendant to 3½ years’ imprisonment.