HKSAR v. Lee Sin Man

CACC 504/2012

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 504 OF 2012

(ON APPEAL FROM DCCC 619 OF 2012)

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BETWEEN

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REASONS FOR JUDGMENT

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Hon Lunn JA (giving the reasons for judgment of the court):

1.The applicant seeks leave to appeal against her conviction by District Court Judge Johnny Chan after trial on 28 November 2012 of two charges 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 and against the sentence of 32 months’ imprisonment imposed on her in consequence of those convictions on 12 December 2012. The applicant appeared in person in respect of the application for leave to appeal against conviction, but was represented by Mr John Hemmings in respect of her application for leave to appeal against sentence.

2.At the hearing of the applications we dismissed the application for leave to appeal against conviction and allowed the application to appeal against sentence, quashed the sentences of 32 months’ imprisonment imposed in respect of each of Charges 1 and 2 and, in their place, imposed sentences of 30 months’ imprisonment.  We said that we would give our reasons in due course.  This we do now.

THE CHARGES

Charge 1

3.By Charge1, it was alleged that between 1 January 2008 and 30 April 2009 the applicant dealt with $3,073,200 in a Hong Kong Jockey Club betting account, number 2059245, held in her name knowing or having reasonable grounds to believe that the monies in whole or in part directly or indirectly represented the proceeds of an indictable offence.

Charge 2

4.By Charge 2, it was alleged that in the same time period the applicant dealt with $3,116,832 in an account, 359-0-017392, held in her name in the Hang Seng Bank knowing or having reasonable grounds to believe that the monies in whole or in part directly or indirectly represented the proceeds of an indictable offence.

THE TRIAL

5.There was no dispute at trial that the applicant was the account holder of the two accounts specified in the Particulars of Offence of the two charges together with other accounts held in her name. Although the alleged offences concerned the period of 16 months culminating on 30 April 2009, the applicant was not arrested by the police until 14 October 2011.

The prosecution case

6.The prosecution case was not only that the applicant was the owner of the two accounts stipulated in the Particulars of Offence of the respective charges, namely accounts in her name with the Hong Kong Jockey Club and Hang Seng Bank respectively, but also that she was the person who operated those accounts.  There was no evidence that the monies that passed through the two accounts the subject of the two charges were the proceeds of an indictable offence.  Only one witness, DPC 3694, was called by the prosecution in the trial.  He spoke to the flow of funds into, out of and between the accounts.  The other evidence relied upon by the prosecution was adduced by Admitted Facts.  It included banking documentation and a video recorded interview of the applicant.

Hong Kong Jockey Club Betting account

(i) Deposits

7.Of the monies deposited into the Hong Kong Jockey Club Betting account of the applicant, $3,073,200 was deposited in 449 transactions by cash.  That comprised 97.7% of the total deposits in the account.  Winnings from betting comprised only $70,792.50 of the deposits to the account.

(ii) Withdrawals

8.Only $88,505 was withdrawn in order to place bets, whilst $3,116,382 was withdrawn in 63 transactions and transferred to the applicant’s Hang Seng Bank account.  The latter transfers represented 97.24% of the withdrawals from the account.

Heng Sang Bank account

(i)  Deposits

9.$3,116,832 of the monies deposited into the Hang Seng Bank account in the name of the applicant was transferred from the Jockey Club Betting account.  Those transfers constituted 79.5% of the total deposits in that account.

(ii)  Withdrawals

10.Of the $3,844,238 withdrawn from the Hang Seng Bank account, $1,451,500 was withdrawn in cash in a total of 109 transactions.  Two of those withdrawals were made by use of the bank passbook and the remaining 107 transactions by use of ATM machines.  $2,392,738 was transferred to other accounts in 230 transactions.  $1,005,825 was transferred to 3 other accounts in the name of the applicant.  $471,067 was transferred to the bank accounts of 8 individuals.

The defence case

11.The applicant testified in the defence case at trial.  She said that she had allowed her boyfriend, Mr Yung, to make use of her Betting account with the Hong Kong Jockey Club and her Hang Seng Bank account.  She did so to permit him to deposit monies that had been generated on a daily basis by the operation of the roasted meats shop at which he worked.  The arrangement allowed him to deposit those monies after he finished work at night.  Then, he was able to transfer them to her Hang Seng Bank account, from which he made withdrawals in order to hand over the takings from the business to his employer.

12.It was the applicant’s case that she did not have copies of statements of her Hang Seng Bank account mailed to her.  Rather, she updated her bank passport from time to time.

REASONS FOR VERDICT

13.Having noted that the applicant was a schoolteacher and was of good character, and having stated that he gave himself the standard character direction in respect of propensity and credibility, nevertheless the judge rejected the applicant’s testimony that she had allowed Mr Yung to operate the Hong Kong Jockey Club Betting account and the Hang Seng Bank account held in her name.  Of the Hang Seng Bank account, which he referred to as ‘Account 2’, the judge said:

“ Account 2 was the most important one: D’s salary of about $30,000 was paid into Account 2 and D would spend about $10,000 on daily expenditures. Payments for school fees, rent and utilities were by auto pay through Account 2. It is inconceivable that D would give P7 to Yung and allow Yung to operate Account 1 and 2 with the bank card P7. It would cause great inconvenience to D as D could only access Account 2 with her passbook. She could not use any ATM machines; she could not use the counter services of the bank and the passbook updating machine provided. Whenever D wanted to use her savings in Account 2, Yung would either have to give the money to D in cash or transfer the money to Account 3 for D to withdraw it from Account 3. Inconveniences apart, it also defies common sense that D would allow Yung to operate Account 1 and Account 2 in this manner. As pointed out by Mr. Wong, after the cash deposits into Account 1 and the subsequent transfers to Account 2, the monies would be mixed up with the money of D.”

14.Of the fact that the arrangement of which the applicant testified that she had reached with Mr Yung involved the use of two accounts, rather than monies being deposited directly to the Hang Seng Bank account, the judge noted that the applicant accepted in cross-examination that direct deposit of the monies to the Hang Seng Bank account would have been more convenient. The judge went on to find [1] the applicant’s account to be “most unconvincing”.

15.Noting that the applicant testified that she did not have copies of the bank statements for the Hang Seng bank account mailed to her home address, rather they were sent to her mother’s address, so that she updated the bank passport (exhibit P6) from time to time, the judge went on to observe [2]:

“ A closer look of P6, the passbook, shows that the pattern of its use is wholly inconsistent with Yung’s claim that he needed to deposit the business takings of the roasted meat shop into Account 1 after he knocked off duty at night and he needed to keep custody of the money overnight, hence deposits into Account 1 and subsequent transfers into Account 2 and withdrawals from Account 2.

If one looks at P6, the passbook, one can readily see that the “business takings” often stayed in Account 2 for much longer than necessary, often for days, hence inconsistent with the Defence case that reasonably viewed, they were business takings of a roasted meat shop.”

16.In the result, the judge determined that the applicant was aware of the pattern of movement of monies in the Hang Seng Bank account [3]:

“ In my findings, D could not have failed to notice the aforesaid pattern of use when she had her passbook updated from time to time. She must be aware that the pattern of use as revealed by P6 was inconsistent with the reasons given by Yung. D’s evidence that she saw nothing suspicious when she had her passbook updated from time to time is, in my judgment wholly implausible.

The aforesaid pattern of use as revealed by the passbook entries does not support the claim that Account 1 and Account 2 were used for the purpose of safe keeping of business takings of a roasted meat shop.”

17.By way of explanation of his rejection of the applicant’s evidence and in making findings in respect of how the accounts were operated, the judge went on to say [4]:

“ As said, I reject D’s evidence that she would allow Yung to use Account 1 and 2 and have D’s own money mixed up with the business takings of a roasted meat shop. During the relevant period, Account 2 was used by D for receiving her salary and payment for her daughter’s school fees, rental and utilities; D had made two cash withdrawals of $120,000 and $200,000 from Account 2 on 18^th September 2008 and 6^th January 2009 with her passbook; there were transfers of money from Account 2 to other bank accounts of D and D’s brother; all the transfer of monies from Account 1 to Account 2 were done through Multi-Betting Terminals with the use of P7; the passbooks and bank card of Account 2, i.e., P5 to P7, were recovered from D’s residence during the house search on 14^th October 2011. The only irresistible inference I can draw from the evidence is that D was the person who operated Account 1 and Account 2 between 1^st January 2008 and 30^thApril 2009.” [Italics added.]

18.Then, the judge went on to reject the applicant’s testimony that she had lent the bank card to Mr Yung and that her evidence in that respect was supported by the fact that she updated the bank passport from time to time: [5]

“ The fact that D had been updating her passbook of Account 2 does not support D’s claim that she had lent the bank card to Yung during the relevant period, in fact, the passbook entries show that D had already been updating her passbook from time to time before July 2007, i.e., before Yung became her boyfriend.”

19.In the context of the admitted facts as to the applicant’s annual income as a schoolteacher, namely $301,965 in 2007/2008; $389,055 in 2008/2009 and $406,965 in 2009/2010, in relation to the monies deposited into the Hong Kong Jockey Club Betting account in her name, the judge noted [6] that it “far exceeded her income” as a schoolteacher.  The judge went on to find:

“ Over a long period of time, i.e., between 1^st January 2008 and 30^th April 2009, substantial sums of monies were regularly deposited into Account 1 and then transferred to Account 2, both held by D. Transfers were made to seven bank accounts owned by people who were strangers to D. In my findings, D must be aware of the cash deposits into Account 1 and transfers of funds into Account 2 from Account 1.”

20.Of the nature of the transactions in the two accounts the judge said [7]:

“ The cash deposits into Account 1 and the transfer deposits into Account 2 from Account 1, were most unusual both in terms of the sums involved and the number of transactions. The monies deposited into Account 1 were not for the purpose of placing bets. The total sums of cash deposits into Account 1 and transfer deposits into Account 2, far exceeded the income of the account holder. Obviously Account 1 had been used as a conduit to channel cash into Account 2 through transfer deposits.”

21.In the result, the judge concluded that a commonsense, right-thinking member of the community, looking at the matters, would consider that evidence as sufficient to think that the property dealt with in the two accounts represented, in whole or in part, the proceeds of an indictable offence.

22.Turning to the applicant herself, the judge determined that those “unusual circumstances” [8]:

“ …must be known to D during the relevant period of time. There is no credible explanation for these regular and substantial cash deposits and transfers.”

23.In the result, the judge found [9] that the applicant had reasonable grounds to believe that the monies deposited into her account with the Hong Kong Jockey Club where the proceeds of an indictable offence.

24.Similarly, in respect of the transfer of $3,116,832.00 from the account in the name of the applicant with the Hong Kong Jockey Club to the account in her name with the Hang Seng Bank, the judge found that the applicant [10]:

“ ..... had reasonable grounds to believe the cash deposits into Account 1 might be tainted by criminality, when D transferred the funds from Account 1 to Account 2, D also had reasonable grounds to believe that the monies when received represented…. the proceeds of an indictable offence.”

GROUNDS OF APPEAL AGAINST CONVICTION

25.In her home-made grounds of appeal against conviction the applicant drew the court’s attention to the determination by the judge that one of the two “main issues” at trial identified by the judge in his reasons for verdict [11] was the issue of who it was that operated the two accounts.

26.The applicant complained that in determining that she operated those accounts the judge had failed to have regard to the fact that she worked full-time as a schoolteacher, from 7:45 a.m. to 5:00 p.m., for five days a week and that she attended a Master’s degree course at City University twice a week, from 6:30 p.m. to 9:30 p.m.  The applicant submitted that an examination of the documentation relevant to the operation of the Hong Kong Jockey Club account in her name demonstrated that all the deposits to that account were made at times when she was at work or studying at the University.  In that context, the applicant pointed to the judge’s determination [12] that there was no direct evidence of who operated either of the accounts.  She submitted that the weight of the circumstantial evidence supported her testimony that she did not operate the two accounts herself, rather she allowed Mr Yung to operate the accounts and had lent him a bank card in order to do so.

27.The applicant submitted that the judge was in error to rely upon his finding, that it would have caused “great inconvenience” to the applicant to have allowed Mr Yung to operate the Hang Seng Bank account, given its importance to her, in particular that it was the account in which she received her salary and from which she paid daily expenses, and to reject the applicant’s evidence that she did allow Mr Yung to operate the account.

28.Next, the applicant submitted that the judge was in error to have stated [13] that copies of bank statements relating to the applicant’s Hang Seng Bank account were sent to the applicant’s mother’s address.  Since the account was a savings account, no copies of bank statements were sent out by the bank.  The only way to check the balance in the account was by updating the passbook, using a bank card or by computer access.

29.Finally, the applicant submitted that the judge was in error to have determined that she had reasonable grounds to believe that the monies represented the proceeds of an indictable offence given that:

(i)  the applicant had entrusted use of the account to her former boyfriend;

(ii)  there was nothing to point to the fact that the monies represented the proceeds of an indictable offence;

(iii)  the Hong Kong Jockey Club did not issue any monthly statements to its customers and the applicant only became aware of the detailed transactions conducted in the account in her name following her arrest;

(iv)  although the applicant was aware, from the information contained in her passbook, that monies were transferred from the Hong Kong Jockey Club account to the Hang Seng Bank account it was the applicant’s evidence that she believed that the money represented the business takings from the business in which Mr Yung was employed.

A CONSIDERATION OF THE SUBMISSIONS

Deposits and withdrawals to and from the Jockey Club account

30.Such evidence as there was as to the mechanics of making a deposit in cash into the Hong Kong Jockey Club account of the applicant came from the applicant herself.  She said that a deposit could be made by the presentation of cash at the counter of a Hong Kong Jockey Club Betting Centre together with a deposit slip bearing the details of the account number. [14]

31.The certificate verifying the computer records of the Hong Kong Jockey Club in respect of the applicant’s account set out the method by which monies could be withdrawn from that account and transferred to a nominated bank account, namely through a Multi-ticket Betting terminal found in Off-Course Betting Branches of the Hong Kong Jockey Club.  Such transfers were effected by the use of a bank card of the nominated bank account and were reflected in the account records as, “WITHDRAWAL (SELF-VENDING TERMINAL)”. [15]  In her evidence, the applicant confirmed that was the method of transferring money from her Hong Kong Jockey Club account to her Hang Seng Bank Savings account. [16]

32.Of course, as counsel for the respondent pointed out, the mechanics of making a deposit in cash into the Hong Kong Jockey Club account of the applicant permitted anyone with the account details to make the deposit at any Hong Kong Jockey Club Betting Centre, so long as the person had the details of the account in order to complete the deposit slip.

33.Transfers of monies from the applicant’s account in the Hong Kong Jockey Club to her Hang Seng Bank account required the use of the ATM card only at a Multi-ticket Betting terminal inside a Jockey Club Off-course Betting Centre.

34.Of the 63 transfers from the applicant’s account with the Hong Kong Jockey Club to her account with the Hang Seng Bank, described as being WITHDRAWAL (SELF-VENDING TERMINAL) in the Hong Kong Jockey Club records, only 10 were made before 5 p.m. on any given day.  Of those 10, one was made on a Sunday and three others were made in the usual lunch hour.

35.In her evidence, the applicant had testified that her working hours as a schoolteacher were from 7:45 to 4:30. [17]  In response to the suggestion made in cross-examination, that she was responsible for the transfers from her Jockey Club account to her Hang Seng Bank account, the applicant disagreed, asserting “I would have to work most of the time, and in year 2008 I was still doing my Masters course….”  However, there was no evidence of what hours or on what days the applicant attended any such course in 2008.

Hang Seng Bank statements

36.The judge’s statement [18] that the bank statements in respect of the applicant’s Hang Seng Bank account were sent to her mother’s address, and not to her own home in Sai Kung, on its face appeared to reflect the applicant’s own testimony in cross-examination [19]:

“ Q. You also received bank statements from Hang Seng Bank in relation to the transactions of that Hang Seng Bank account in a regular manner?

A.  Yes, they were there.  However, I would like to raise this.  Because all along since I have been with Mr Chau, I have been living in Sai Kung.  However, in relation to all of the bank statements even up to now, they were all mailed to my mother’s place in Ap Lei Chau, and that’s the case even up to now.  I feel that, well, it’s possible maybe I have missed reading some of them…”

37.However, on closer examination [20] it is clear that the applicant was being questioned about another and different account with the Hang Seng Bank, which she had opened in August 2008 and into which some of the monies from the Hang Seng Bank Savings passbook account were transferred.  It is apparent from the account opening documents of the former account that arrangements were made for monthly statements to be sent to the applicant.  It seems that no such statements were sent to the applicant in respect of the Hang Seng Bank Savings passbook account.

38.Although the judge was in error in stating that statements of the Hang Seng Bank Savings passbook account were sent to the applicant’s mother’s address, [21] it is clear that the error was of no consequence because, as the judge stated, the only relevance was that in consequence the applicant updated her passbook on a regular basis and had available the information contained in the passbook. [22]

39.As the judge observed, the information contained in the updates of the passport revealed a pattern of use which was obviously inconsistent with what the applicant claimed Mr Yung had told her. [23] As was readily apparent from the Hang Seng Bank Savings passbook account, the transfers of money from the Jockey Club account were not matched, as was to be expected on what the applicant said was the arrangement that she had reached with Mr Yung, by complete withdrawals made soon after from that account.  Some of the monies remained for several week.  Also, obviously relatively large sums of money were being transferred from one account to the other.  For example, in the period 15 March to 8 April 2008, $300,000 was deposited into the account in six tranches of transfers of exactly $50,000.

40.In all the circumstances, in particular having regard to the importance of the Hang Seng Bank account to the applicant given that it was used, as the judge noted [24], by the applicant not only to receive her salary but also payment for her daughter’s school fees, rental and utilities, the judge was entitled to reject the applicant’s account that she allowed Mr Yung to use the Hong Kong Jockey Club account and her Hang Seng Bank account and to find that she was the person who operated those accounts in the material period.  As the judge observed [25] the pattern of use of the two accounts as reflected in even the Hang Seng Bank passbook of deposits received from the applicant’s Hong Kong Jockey Club Betting account gave the lie to the applicant’s account of Mr Yung use of her accounts to secure his employer’s business takings overnight and that must have been known to the applicant. [26]

41.In the context of the judge’s findings that the applicant knew of the cash deposits into her Hong Kong Jockey Club Betting account and the transfer of monies from that account to her Hang Seng Bank account, the judge was entitled to determine that, objectively, that gave rise to reasonable grounds to believe that the monies were the proceeds of an indictable offence. [27]

Conclusion

42.We were satisfied that there are no merits in the applicant’s grounds of appeal against conviction.  Accordingly, the application for leave to appeal against conviction was dismissed.

REASONS FOR SENTENCE

43.In his reasons for sentence, the judge stated that he had convicted the applicant of the two charges on the basis that she dealt with the monies in the two accounts because [28]:

“ she had reasonable grounds to believe, not that she had knowledge…the monies…might be tainted by criminality.”

He went on to state that there was no evidence that the monies were in fact the proceeds of an indictable offence.

44.The judge noted that Stock VP, in the judgment of this court in HKSAR v Boma Amaso [29], cited with approval the judgment of the Court of Appeal of England and Wales in R v Basra [30] identifying the criminality involved in the offence of ‘money laundering’ as involving the “encouragement and nourishment of crime in general”.

45.The judge said [31] that, in sentencing the applicant, he bore in mind the following factors:

“ i. the maximum penalty for the offence is a fine of $5 million and imprisonment for 14 years;

ii. deterrence is the paramount sentencing consideration for this category of offence;

iii. Charge 1 and 2 each involved over $3 million, a significant feature that should be considered;

iv. the nature of the predicated offence is not known;

v. the defendant was convicted on the basis that there were grounds to believe that the property was tainted with criminality and the defendant knew of the grounds. In my judgment, the defendant is at the very least within the category of reckless launderer identified in paragraph 40, subparagraph (2)(b) of Boma Amaso;

vi. there is no international dimension in this case. All the laundering activities were embraced in a domestic setting;

vii. the offences involved the use of a betting account and a bank account held in the name of the defendant, no deceit was practised and the offences were committed in (a) relatively unsophisticated manner;

viii. there is no suggestion that the offences were committed by or on behalf of an organized criminal syndicate;

ix. the money laundering activities stopped before the defendant was discovered;

x. the offences involved many transactions over an extended period of 16 months……..the defendant was arrested 2½ years after the money laundering activities were over and there was nothing untoward on the part of the defendant during that 2½ years;

xi. the role of the defendant and the acts performed by her. The defendant was the person who operated the two accounts during the relevant period. Though, there is no evidence that the defendant had received any monetary benefit, the defendant’s role is much more culpable than “the drug addict or petty crook who is paid a small sum to open an account and hand over its operation to another with no more participation and no more knowledge.” ”

Starting point

46.The judge stipulated that he took a starting point of 3 years’ imprisonment for each of the two charges.

Discount

47.Noting that the applicant had been convicted after trial, the judge said that the only mitigating factor was her “positive good character”.  It appears that there was a reference to the fact that the applicant had been helping orphans on the Mainland for several years.  In respect of that factor, the judge afforded the applicant a discount of 4 months’ imprisonment in respect of each of the two charges.

Sentence

48.Accordingly, the judge imposed a sentence of 32 months’ imprisonment on each of the two charges, which sentences he ordered to be served concurrently.

GROUNDS OF APPEAL AGAINST SENTENCE

49.In the grounds of appeal against sentence, Mr John Hemmings submitted on behalf of the applicant that the starting point taken for sentence by the judge, namely 36 months’ imprisonment, was manifestly excessive.  He submitted that the only aggravating feature in commission of the offence was that it had been committed over a period of 16 months.  Mr Hemmings sought support for his submissions in the judgment in a Magistracy Appeal of Deputy Judge Chu, as she was then, in HKSAR v Hui Kam [32].  There, the appellant had pleaded guilty to one charge of ‘money laundering’ arising out of the fact that she permitted her elder brother to use the account to deposit and withdraw about $6.5 million over a period of 16 months, which monies she was aware were the proceeds of bookmaking activities.  The judge determined that, having regard to the fact that the applicant was made use of by her brother and gained no personal benefit from the offence, the starting point taken for sentence by the magistrate of 18 months was too high.  Taking a starting point of 15 months’ imprisonment, the judge afforded the applicant a discount of one third for her plea guilty and a further discount for her good character and other mitigating factors, quashed the sentence of 10 months’ imprisonment imposed by the magistrate and in its place imposed a sentence 6 months’ imprisonment.

50.Mr Hemmings also relied on the judgment of this Court in HKSAR v Chan Wai Yan [33] in support of that submission.  An English translation of the judgment, which was delivered in Chinese, has been provided to the court.  In that case the appellant had been convicted after trial of two charges of ‘money laundering’ in respect of monies that had been deposited and then withdrawn from two bank accounts held in her name, namely approximately $2.7 million in total in a period of about half a month, in respect of one account, and about a month in the other account. [34] The judge took a starting point of 3 years’ imprisonment for each of the charges and, having reduced the sentence by 3 months for the appellant’s good character, imposed sentences of 2 years and 9 months’ imprisonment in respect of each charge, which sentences she ordered to be served concurrently.  This court allowed the appeal, quashed those sentences and imposed sentences of 21 months’ imprisonment in respect of each of the charges.

51.Mr Hemmings suggested that, as the judge acknowledged, it was relevant to sentence that the conduct had ceased some 2½ years prior to the arrest of the applicant during which time no further misconduct had ensued.  Also, he submitted that the offences were both isolated offences that were completely out of character.  Furthermore, he said that although the judge had not referred to it, evidence was adduced at the trial that the applicant had offered to make a non-prejudicial statement in respect of the source of the monies, which offer the prosecution had refused.

A CONSIDERATION OF THE SUBMISSIONS

52.As counsel for the respondent pointed out in his written submissions, the judgment in Chan Wai Yan is readily distinguishable from the instant case.  There, Chu JA in the judgment of this court said that: [35]

“ The starting point of three years adopted by the trial judge for each charge could not be regarded as manifestly excessive. However, there were special circumstances which distinguish the present case from other cases of the same type.”

53.The court went on to identify the special circumstances as being the fact that the appellant was the co-habitee of the man, Mr Chan, whom she permitted to use her two bank accounts, for which he received no benefit.  Mr Chen was the father of their two daughters and supported her son, born in a previous relationship.  He gave evidence at her trial and accepted that, in March 2009, he had been convicted in the Court of First instance of unlawfully trafficking in dangerous drugs.  The court accepted as having a “credible ring” the appellant’s evidence that she had assisted Mr Chan, “for the sake of their relationship and with a view to maintaining such relationships so that their children would be taken care of.” [36] Having regard to those factors the court determined that the appropriate starting point for sentence for each charge was two years’ imprisonment which, like the judge, it discounted by three months to reflect the applicant’s previous good character.  It is to be observed that no mention was made in the judgment of Hui Kam a decade earlier. The latter case is to be regarded as arising from wholly exceptional facts and overtaken by the passage of time in respect of the court’s approach to the commission of this offence.

54.As noted earlier, the judge rejected the appellant’s evidence that in large part she had handed over operation of the two accounts to her then co-habitee Mr Yung, who was not called to give evidence in her trial.  Rather, he determined that the two accounts were operated by the appellant.  Although the appellant was a single mother at the time of the commission of the offences, she did not suggest in any way that she was a vulnerable mother charged with looking after a child who had given way to pressure of her co-habitee to use her bank accounts.  On the contrary, she was relatively well paid as a schoolteacher and provided for her own needs and that of her daughter.

55.Although the judge did not advert in his reasons for sentence to the fact that the applicant had offered to make a non-prejudicial statement to the police, he did so in his reasons for verdict.  There, he found that it did not advance the applicant’s case. [37]  In circumstances where the applicant went on to contest unsuccessfully the allegations made against her trial, an unrequited offer to make a non-prejudicial statement to the police is of no relevance to the issue of sentence.

Conclusion

56.We are satisfied that there is no merit in the grounds of appeal against sentence.  The judge was correct in stipulating a starting point of 3 years’ imprisonment as appropriate to the circumstances of the commission of the two charges of which the applicant was convicted.  However, in February 2013, whilst the applicant was detained in custody Mr Chau, her co-habitee and father of her daughter, died.  Although the judge had been informed in the Probation Officer’s Background Report that he was ill and unable to work, his death soon thereafter appears to have been unexpected.  In the result, the applicant’s daughter, who is now 7 years of age, has been deprived of the company of both her parents.  Acknowledging that in those circumstances the applicant has been and is subject to considerable emotional stress, purely on a misericordiam basis, we allowed the application for leave to appeal against sentence and, treating the hearing of the applications as the hearing of the appeal, we quashed the sentences of 2 years and 8 months’ imprisonment imposed in respect of Charge 1 and Charge 2 and in their place imposed sentences of 2 years and 6 months’ imprisonment in respect of each charge.  The order that those sentences be served concurrently was undisturbed, so that the total sentence of imprisonment imposed on the applicant is 2 years and 6 months’ imprisonment.

Mr Simon Tam, SC, SADPP and Mr. Nicholas Wong, SPP, of the Department of Justice, for the respondent

Mr. John Hemmings, instructed by WT Law Offices, assigned by Director of Legal Aid, for the respondent (for sentence only)

Applicant appeared in person(for conviction)

[1] Reasons for Verdict, paragraph 34.

[2] Reasons for Verdict, paragraphs 35-6.

[3] Reasons for Verdict, paragraphs 41-2.

[4] Reasons for Verdict, paragraph 47.

[5] Reasons for Verdict, paragraph 44.

[6] Reasons for Verdict, paragraph 50.

[7] Reasons for Verdict, paragraph 51.

[8] Reasons for Verdict paragraph 52.

[9] Reasons for Verdict, paragraph 53.

[10] Reasons for Verdict, paragraph 54.

[11] Reasons for Verdict, paragraph 9.

[12] Reasons for Verdict, paragraph 8.

[13] Reasons for Verdict, paragraph 44.

[14] Appeal Bundle, page 325A-D

[15] Appeal Bundle; page 617, paragraph 7.

[16] Appeal Bundle, page 325 E-F.

[17] Appeal Bundle, page 335 L-N.

[18] Appeal Bundle; page 25 S - 26 D, paragraph 44.

[19] Appeal Bundle, page 340 B-F.

[20] Appeal Bundle, page 339.

[21] Reasons for Verdict, paragraph 44.

[22] Reasons for Verdict, paragraph 35.

[23] Reasons for Verdict, paragraph 35.

[24] Reasons for Verdict, paragraph 47.

[25] Reasons for Verdict, paragraph 21.

[26] Reasons for Verdict, paragraph 43.

[27]  Reasons for Verdict, paragraphs 52-54.

[28] Reasons for Sentence, paragraph 5 P-S.

[29] HKSAR v Boma Amaso [2012] 2 HKLRD 33 at 42, paragraph 36.

[30] R v Basra 2 Cr App R (S) 469.

[31] Reasons for Sentence, paragraph 11.

[32]  HKSAR v Hui Kam (HCMA 778/2000; unreported, 27 September 2000.)

[33] HKSAR v Chan Wai Yan (CACC 45/2011; unreported, 14 February 2012.)

[34] HKSAR v Chan Wai Yan, paragraph 20.

[35] HKSAR v Chan Wai Yan, paragraph 21.

[36] HKSAR v Chan Wai Yan, paragraph 23.

[37] Reasons for Verdict, paragraph 45.