HKSAR v. Yau Man Yuen

DCCC949/2013

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 949 OF 2013

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Reasons for Sentence

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1.One charge of dealing with property known or believed to represent proceeds of an indictable offence was laid against the Defendant.[1] The Defendant pleaded guilty and admitted the facts. This offence is commonly known as “money laundering”.

2.It is admitted that between 24 August 2010 and 9 December 2010, the Defendant laundered HKD3,582,180.14 in respect of his bank account at the Hongkong & Shanghai Banking Corporation Limited (hereinafter called “HSBC”).

3.The Defendant is the sole signatory of this HSBC bank account. He opened the account on 24 August 2010. Within a period of about 4 months, HKD3,582,180.14 was deposited into the bank account and the same amount was withdrawn in this period. The bank account was closed on 9 December 2010.

4.An analysis of the account showed that there were a total of 165 deposits and 192 withdrawals. 

5.Between 2005 and 2012, the Defendant was at all material times employed as a kitchen worker and delivery worker. Over this period, his total income was about HKD150,000 and he did not file any tax return. Clearly, the monies deposited into his account far exceeded his income.

6.The Defendant did not own any real property, vehicle or business. At the material times, he lived at a public housing unit. The monthly bank statements were sent to his residence.

7.The Defendant is 26 years old.  He lives with his parents and other siblings. He committed this offence because of his misplaced loyalty on his long-term best friend, Mr. Hsu. He lent this bank account to Mr. Hsu’s usage.  He had no idea how this account was to be used for and he himself did not use this account. I am also informed that Mr. Hsu committed suicide and died last year.

8.I am informed that the Defendant is very remorseful for committing this offence. Mr. Lam asked for leniency as the Defendant gained no benefit from helping his friend. The Court of Appeal in SJ v Wan Kwok Keung [2012] 1 HKLRD 201, 204 (at paragraph 13) said:

“…the sentence for a ‘money laundering’ offence should mainly reflect the amount of ‘black money’ laundered and not the benefit obtained by the defendant or others.”

9.The Defendant has appeared in court on 3 occasions and has 4 criminal convictions. Two of those offences are “Possession of Dangerous Drug”. Other two are criminal damage. None of those is similar to the present offence.

10.The offence is a very serious one as the maximum penalty is one of 14 years’ imprisonment.[2] There is no sentencing guideline but the offence calls for deterrence (see SJ v Wan Kwok Keung, at paragraph 12).

11.Mr Lam, has submitted to me a case of HKSAR v Yu Sing Chung, DCCC592/2010, 21.2.2011, unreported. In it, the amount of money laundered was about $3.1 million and it involved an international element. The offence occurred over a period of 2 months, between May 2009 and July 2009.  In that case, the court held that the defendant had turned a blind eye. The court imposed a starting point of 3 years imprisonment.

12.In HKSAR v Hsu Yu Yi [2010] 5 HKLRD 545, 552 & 555 Cheung JA, having reviewed a number of cases, concluded that where the amount is between HKD3 million and 6 million, the starting point is 4 years (see SJ v Wan Kwok Keung, at paragraph 15), subject to other aggravating and mitigating factors.

13.I accept in this case that it has no international element. There is no evidence to indicate what the predicate offence is. There is no suggestion that the offence was committed by or on behalf of any crime syndicate. There is no evidence that the monies were, in fact, represented the proceeds of an indictable offence. The length of the time the offence last is less than 4 months. Nevertheless, the amount laundered in total was over $3.5 million.

14.The Defendant, however, as Mr. Lam suggested, had reasonable grounds to believe that the monies might be tainted by criminality. Mr. Lam emphasized that the Defendant was turning a blind eye to what was happening in his account. The culpability of someone who turns a blind eye to the source of the money is “barely less culpable than the person who asks or who is told.” (see HKSAR v Boma [2012] 2 HKLRD 33, 43 at paragraph 40(2)(a)).

15.That said, I agree that the Defendant’s level of participation is not high. I accept the mitigation that the Defendant had openly allowed his friend to use this account, but he knew nothing. As per Stock VP in HKSAR v Boma [2012] 2 HKLRD 33,44 at paragraph 40(8) observes:

“In the case of a person down the chain, the Court will wish to have regard to whether a benefit has been received and if so the nature and size of the benefit. But within the category of persons down the chain there will be gradations of culpability. So for example 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 than that it is going to be used for some sort of crime is much less culpable than an offender of a different sort not “used” in that way.”

16.In this case, the strongest mitigating factor is his plea of guilty. I take into account the factors I have said above, had I convicted the Defendant after trial, I would have imposed a sentence of 3 years imprisonment.

17.Giving the Defendant one-third discount for his plea of guilty, the sentence shall be reduced to a term of 2 years imprisonment.

(K.M.Cheung) Deputy District Judge