HKSAR v. Gavish Omer

CAC C 211/2013

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO 211 OF 2013

(ON APPEAL FROM DCCC NOS 1033 AND 1036 OF 2012)

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BETWEEN

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REASONS FOR JUDGMENT

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Hon Yeung VP (giving the Reasons for Judgment of the Court):

Introduction

1.The applicant (Gavish Omer), together with Hen Yoav (Hen) and Fadlon Daniel (Fadlon), appeared before Judge A Kwok in the District Court on an indictment consisting of two charges.

2.The 1^st charge alleged that the applicant and Hen had dealt with property known or reasonably believed to represent proceeds of an indictable offence, namely 342 pieces of 1-kg gold bars, between 1^st and 7^th of May 2012.  The 2^nd charge alleged that Faldon, together with the applicant and Hen, had dealt with the same 342 pieces of 1-kg gold bars and 4 diamonds between 3^rd and 7^th of May 2012, knowing or having reasonable grounds to believe that they represented proceeds of an indictable offence.

3.Hen and Fadlon pleaded guilty to the 1^st and 2^nd charges respectively and, based on a 6½-year starting point, was each sentenced to 52 months’ imprisonment.  The applicant pleaded not guilty to charge 1, but was convicted and sentenced to 5½ years’ imprisonment.

4.Represented by Mr John Hemmings, the applicant sought leave to appeal against both conviction and sentence.  At the end of the hearing and without calling upon Mr Ira Lui, Senior Public Prosecutor for the respondent who had provided the court with detailed and helpful written submissions, we dismissed the applications.  We indicated that we would hand down our reasons in due course and this we now do.

Prosecution case and evidence

5.The prosecution case and evidence, largely undisputed, had been succinctly summarized in the judge’s reasons for verdict, which we adopt with slight modification, as follows:

“Metalor Technologies (HK) Ltd (Metalor), a subsidiary of a Swiss gold refining company, buys and sells gold bars in Hong Kong and the gold bars in question were sold to corporate customers including Southern Ace Ltd (Southern Ace) and GX Port Ltd (GX Port) between November 2008 and June 2011. Each of the gold bars had a serial number.

On 2-3 May 2012, Hen, together with a man (holder of a Philippino passport in the name of Gordo) sold 117 pieces of 1-kg gold bars to Metalor and on 4 May 2012, Fadlon and Gordo sold to Metalor another 64 pieces of gold bars. The 181 pieces of gold bars were sold for HK$ 73 million under the name of Cycom Tech Ltd (Cycom) and three receipts were issued by Metalor for such sales. The HK$73 million was paid into Cycom’s account with HSBC and between 4 and 8 May 2012. HK$5.4 million was transferred to the account of East Asia Escrow Ltd (East Asia) and HK$16.7 million to another securities account of Cycom.

The applicant and Fadlon were arrested in a hostel at Chung King Mansions at 2.35 am on 7 May 2012 and in the room they occupied, the police found five bags containing 161 pieces of 1-kg gold bars valued at HK$66 million. In one of the bags, there were also the three receipts issued by Metalor relating to the earlier sales of the 181 pieces of gold bars by Cycom.

The total value of the 342 pieces of gold bars (181 pieces sold by Cycom and 161 pieces seized by the police at the hostel in Chung King Mansions) was about HK$139 million.

Madam Chu Miu Hing (an employee of Southern Ace) was responsible for the buying and collection of gold bars from Metalor by Southern Ace and GX Port until she left her employment in August 2010. Payments for the gold bars came from the accounts of Southern Ace and GX Port, all controlled by Shulman Doron Zvi (Shulman), holder of Israeli and Australian passports.

Shulman was arrested by the police at his Kwun Tong office on 30 April 2012. Prior to his arrest and between January 2010 and April 2012, Shulman had visited Hong Kong on 21 occasions, spending a total of 651 days.

Although described as a student in his personal bank account documentation, Shulman was in control of East Asia, Southern Ace, GX Port, Cycom and other companies as well as their bank accounts. Corporate services to those companies were provided by a number of Hong Kong secretarial companies and Shulman dealt with them in the name of “Justin”.

Funds were regularly transferred between bank accounts of companies controlled by Shulman in significant sums. Between 2 January 2010 and 30 April 2012, 9 of the 10 companies under Shulman’s control received into their bank accounts HK$1.7 billion and about HK$876.5 million was received/transferred when Shulman was actually in Hong Kong.

During the same period, about HK$2.7 million was received into Shulman’s five personal accounts with HSBC and one savings account with Citibank. At the time of his arrest, there was a credit balance of HK$170,000 in his personal accounts.

In August and September 2010, Shulman purchased two village houses , one in Yuen Long (House A) and one in Sheung Shui (House B) for a total of HK$7.7 million in the names of two companies under his control. Title Deeds and keys to both houses were found at Shulman’s office and his residence at Laguna City in Kwun Tong together with bank cards and e-banking tokens used to operate bank accounts of companies under his control.

The prosecution suggested that Houses A and B were purchased for the sole purpose of hiding the gold bars in question.

Of the 10 companies controlled by Shulman, only 7 had filed tax returns and they all stated that no gross profit was received. Cycom stated in its 2010/2011 tax return that it had not yet commenced business.

A number of other persons were arrested by the police in connection with the case, namely:

1. Ivan Vaclavic, holder of both a Slovak and Bulgarian passport, arrested on 2 May 2012, was released on police bail. He absconded and an e-flight ticket in his name for a flight to Rio de Janerio from Hong Kong on 2 May 2012 was found in Shulman’s office when it was searched on 30 April 2012.

2. Cheung Yuen Pui, Lilian, holder of a Netherlands passport, was arrested when she arrived at Hong Kong on 10 May 2012. A search of her person revealed that she was in possession of one remittance slip for the transfer of US$300,000 to Cycom.

3. Santos Jason Perez, a Philippine passport holder and a director of East Asia was intercepted by the police at the airport on 11 May 2012 when he was leaving Hong Kong. A search of his person revealed him to be in possession of 10 telegraphic transfer forms for the remittance of a total of US$7.8 million from Cycom’s bank accounts to a number of other bank accounts. He also jumped bail.

The applicant was interviewed by the police on 7 and 8 May 2012 under caution. He explained how he came to be found together with the gold bars in the hostel in Chung King Mansions and his involvement with Shulman, Hen, Fadlon and other related persons.

The applicant said he came to Hong Kong for the first time on 30 January 2012 for a job that he learned about through a friend named Noam on Facebook. Noam then introduced the applicant to Razi Berger who forwarded Shulman’s email address to him for direct contact after telling the applicant that Shulman worked for a Dutch businessman.

According to the applicant, Shulman orally offered him a job in Hong Kong to live in and to keep watch of a house at the monthly salary of US$3,000. The applicant would also be paid the costs of the airfares.

When the applicant arrived, Shulman met him at the Kowloon Station and took him to House A. The applicant asked Shulman for details of his job and his boss, he was told that it was better for him not to ask for whom he was working. Shulman also instructed the applicant not to open the door of a locked room in House A which the applicant believed to contain valuables.

The applicant admitted that he was the only person living in House A for the initial three months’ period after which he had to fly to the Philippines on 24 April 2012 for a week when his visitor’s visa expired. The applicant said Shulman also paid for his trip to the Philippines and when he returned to House A on 1 May 2012, he saw Hen for the first time. He was told that Hen, also a fellow Israeli, came to replace him temporarily whilst he was away. The applicant said his attempt to contact Shulman to clarify the matter was of no avail.

The applicant admitted that he had helped Hen to remove the safe from the wall in the locked room of House A with a crowbar. They then tried to cut open the safe with metal cutting equipment that they had purchased together. The applicant also admitted that he went to House B and witnessed the safe there being cut opened by another Israeli- Din.

The applicant admitted that he saw the gold bars inside the bags and had handled two of them during his stay in the hostel at Chung King Mansions. There was evidence that the two gold bars bore the fingerprints of the applicant. The applicant was able to say that the gold bars came from the safes in Houses A and B.

Between 1 and 7 May 2012, the gold bars were removed from safes in Houses A and B to three different hostels in Chung King Mansions for storage.  Half of the gold bars were then sold to Metalor and the proceeds of sale were deposited into the bank account of Cycom.  The applicant was with others when they moved to different hostel in Chung King Mansion with the gold bars.”

The Defence Case 

6.The applicant, having adopted his explanations given to the police as part of his testimony, said he decided to accept Shulman’s offer to work in Hong Kong because the job was a sinecure one and did not involve any hard work.  He said he wanted to see more of the world and was assured by his friend that Shulman could be trusted.

7.The applicant said he did not know the presence of the gold bars in House A and that he was not present when the safes in Houses A and B were opened on 2 May 2012.  He said he met Din earlier in Manila when he was there to renew his passport and that he was following the instructions of Hen and Din to remove the safe in House A and to assist in locating the hardware store to purchase the metal-cutting tools.

8.The applicant denied that he had carried any gold bars to Chung King Mansions from Houses A and B or that he was involved in the selling of the gold bars to Metalor.  He said he was only told by Din to remove smaller bags that contained clothing from House B.

9.The applicant’s case was that he was with Hen, Fadlon and others, thinking that they were acting under the instructions of Shulman.  He said he regarded himself as still being employed by Shulman as his contract was for 6 months although he had already lost contact with Shulman and was still owed by him 3^rd month wages.

10.In his evidence, the applicant was adamant that he only saw the gold bars for the first time at about 4 pm on 2 May 2012 inside the hostel where he stayed with others and that he had only touched two of the gold bars out of curiosity in another hostel room on 6 May 2012.

11.The applicant claimed that when he was following others to move from hostel to hostel in Chung King Mansions, he was never told to guard the gold bars and was never left alone in the rooms with the gold bars. The applicant denied that he knew or suspected that the gold bars were proceeds of any indictable offence.

12.The applicant, however, admitted that he, together with others, acting on Din’s instruction, had tried to look for another house in Sai Kung on or about 4 May 2012 for what he believed to be the purpose of storing the gold bars on a more permanent basis.

The Judges’ Findings

13.The judge set out the relevant law on “dealing with the proceeds of an indictable offence” as enunciated in HKSAR v Shing Siu Ming & another [1999] 2 HKC 818 and elaborated more recently in HKSAR v Pang Hung Fai (unreported, CACC34/2012).

14.The judge then referred to the respective argument of the prosecution and the defence.

15.The judge took the view, following the decisions in HKSAR v Lam Hei Kit CACC 84/2003 and HKSAR v LungYun Ngan & another CACC 482/2010 that in a “money laundering” case, it is neither necessary for the prosecution to prove the specific conduct of the underlying offence and for the court to identify such specific conduct nor for the prosecution to prove that the “laundered funds” are the immediate proceeds of an indictable offence.

16.The judge said that the applicant had been engaged in the removal of the contents from the safes in Houses A and B to Chung King Mansions; that he was staying with the others when they moved to three hostels within Chung King Mansions with the gold bars; and that he was with Fadlon in the same room when the five bags of 161 pieces of gold bars were seized by the police in the early hours on 7 May 2012.

17.The judge further pointed out that the applicant had admitted to have:

1.   located a shop in Yuen Long to purchase metal cutting equipment to cut open the safe;

2.   assisted Hen to remove the safe from the wall in House A;

3.   followed the instruction of Hen to proceed to House B where he witnessed another safe being cut opened by Din and that he had removed bags of clothing to Chung King Mansions;

4.   gone with others to try to rent another village house in Yuen Long for the obvious purpose of depositing the gold; and

5.   gone to the secretarial company of Cycom in Central and tried unsuccessfully to collect the company chop of Cycom.

18.The judge took into consideration that the applicant, on his own admission, (1) had looked for a house with the others between 3 to 5 May 2012 clearly in order to conceal the gold bars on a more long term basis; (2) had guarded and watched over the gold bars in Chung King Mansions during the intervening period; and (3) had tried to collect the company chop of Cycom on 5 May 2012 from the service company in order to transfer the funds from Cycom’s bank account to other overseas accounts after the proceeds from the sale of the gold bars between 2 and 4 May 2012 to Metalor were paid into Cycom’s bank account.

19.The judge stated at paragraphs 84 and 85 of his reasons for verdict:

“Based on the cumulative circumstantial evidence, I come to the conclusion that by the time (the applicant) started to engage himself with the others in the process of removing the content of safe in the morning on 2 May 2012, he must already (have known) for a fact that a large number of gold bars were kept inside the safes. This is a kind of case where individual piece of evidence on its own might not be sufficient but when they were combined together, the inference is overwhelming.

In any event, it does not make much difference in terms of the timeline because even on (the applicant’s) own account, he came to know that those were gold bars from the safes of both village houses at about 4 pm on 2 May 2012 inside the first hostel in Chung King Mansions when (Hen) arrived and took the gold bars out from the suitcases.”

20.The judge found that the applicant, together with Hen and Fadlon had been engaged and was still engaging in the process of concealing/disguising and converting the gold bars with others during the period before or after he knew of the existence of the gold bars.  The judge concluded that the applicant was a party to the joint enterprise to “launder” the gold bars in question.  In reaching such a conclusion, the judge commented at paragraph 54 of his reasons for verdict:

“Based on the above, I cannot bring myself to agree with the submission by the defence that there is no evidence of any ‘dealing’ by (the applicant) of the gold. Clearly, if it is the case, I would expect to be called upon to deal with a no case submission relying on this point by Mr Hemmings and not until he raised this for the first time in his final submission. The thrust of this submission was based on the premise that those acts of dealing were performed by (the applicant) without the knowledge of gold before the evening 2 May 2012…”

21.The judge then extensively dealt with the issue of whether there were reasonable grounds to believe that the gold bars represented proceeds of an indictable offence in accordance with the approach suggested in Pang Hung Fai (supra).

22.In the end, the judge found that there were reasonable grounds for the applicant to believe that the gold bars in question represented proceeds of an indictable offence and alternatively, the applicant must be aware of the suspicious circumstances concerning the provenance of the gold bars, but he deliberately turned a blind eye to it.

23.On the aforesaid basis, the judge found the applicant guilty of the 1^st charge.

Grounds of Appeal

24.Mr Hemmings did not suggest that the judge was wrong to find that there was reasonable grounds for the applicant, if he had dealt with the gold bars, to believe that they represented proceeds of an indictable offence.  His sole ground of appeal related to the judge’s finding that the applicant had dealt with the 342 pieces of gold bars.

25.Mr Hemmings complained against the judge’s comments at paragraph 54 of his reasons for verdict, saying that the judge had misunderstood the defence case.

26.Mr Hemmings pointed out that in accordance with the relevant Facebook entry, the applicant was engaged in “the job that you will be asked to do is very simple, you just need to live in someone’s house and maintain it and keep it clean, simply just live there so that the house will not be neglected.”  Mr Hemmings emphasized that according to the applicant’s evidence, he was never asked to “guard’ anything and he could come and go as he wished and that although he was initially somewhat apprehensive as the circumstances were not quite as expected, his apprehension dissipated as nothing unusual happened to suggest that his job involved any more than he had initially been told.

27.Mr Hemmings then detailed the applicant’s evidence and suggested that the applicant was not a party to carry out the activities between 1 to 7 May 2012 with Hen, Fadlon and others.  Mr Hemmings emphasized that the applicant was adamant that he was not aware of the existence of the gold until Hen opened a suitcase in Chung King Mansions to show him the contents and that he had no idea about the contents of the safe when he assisted Hen to look for cutting equipment and then try to break open the safe.

28.Mr Hemmings submitted that (1) there was no evidence to prove that the applicant was aware that the safe in House A contained gold bars prior to his being shown them in Chung King Mansions by Hen; (2) there was no evidence to prove that the applicant was ever involved in guarding, watching over, moving or concealing the gold bars in Chung King Mansions; and (3) there was no evidence to prove that the applicant was aware that the company chop he was asked to collect was in any way connected to the gold bars, nor was that even part of the prosecution case.

29.Mr Hemmings emphasized that there was no evidence to contradict the applicant’s case that when he assisted Hen to remove the safe from the wall, look for cutting equipment and then try to open the safe, he had no idea what the safe contained.  Mr Hemmings pointed out that the CCTV evidence showed that the applicant left House A more than two hours before Hen did so with “heavy bags”.

30.Mr Hemmngs suggested that the judge’s findings against the applicant were speculative when there was no positive evidence to show that the applicant was aware of what was inside the safes and that an adverse inference against the applicant was not the only reasonable inference that could be drawn.

31.Mr Hemmings listed out a number of matters to demonstrate the applicant’s contention that the judge’s disbelief of the applicant’s case was based on a wrong understanding of the evidence.  In particular, Mr Hemmings suggested that there was no evidence to show that the applicant was employed to “safeguard” or “guard and watch over” the gold bars; that the applicant was present when the safes were opened; that he was acting in concert with others to move the gold bars to different locations.  He emphasized that the applicant had not tried to distance himself from the gold bars when he was interviewed by the police, but had volunteered a considerable amount of information.

32.Mr Hemmings further submitted that the applicant’s attempt to search for another house and his attempt to collect the company chop of Cycom had nothing to do with his alleged dealing with the gold bars and that the presence of the applicant’s fingerprints on two gold bars supported his contention and that his explanation was entirely plausible.

33.It was Mr Hemming’s submission that the applicant might well be naïve and foolish, but the prosecution’s evidence was insufficient to establish charge 1 against him.

34.On sentence, Mr Hemmings argued that comparing the applicant’s culpability with that of Hen and Fadlon for whom the judge had adopted the starting point of 6½ years’ imprisonment, the 5½-year starting point adopted for the applicant is manifestly excessive.

35.Mr Hemmings suggested that the applicant had a genuine sense of grievance when his sentence was heavier than that of Shulman who had pleaded guilty to two charges of “money laundering” when he was far more culpable than the applicant.

Discussion

36.Under the definition section of “Organized and Serious Crimes Ordinance”, “dealing”, in relation to property referred to in section 25 includes: 

(a)  receiving or acquiring the property;

(b)  concealing or disguising the property (whether by concealing or disguising its nature, source, location, disposition, movement or ownership or any rights with respect to it or otherwise);

(c)  disposing of or converting the property;

(d)  bringing into or removing from Hong Kong the property; and

(e)  using the property to borrow money, or as security (whether by way of charge, mortgage or pledge or otherwise).

37.There can be no doubt that there had been a joint enterprise to deal with the 342 pieces of gold bars by concealing and/or disposing them.  Mr Hemmings conceded that whoever had dealt with them must have reasonable ground to believe that they were proceeds of an indictable offence.  Thus, the only real issue was whether the applicant was a party to the concerted effort of dealing with the gold bars, whether he was a party to the joint enterprise.

38.It was not perhaps the contention of Mr Hemmings that there was no evidence to support a prima facie case against the applicant.  His suggestion was that the evidence was insufficient to prove the case against the applicant beyond a reasonable doubt.  On that basis, we propose not to say anything more about paragraphs 54 of the judge’s reasons for verdict except to say that it added nothing to this appeal.

39.The applicant came to Hong Kong in January 2012 purportedly to take up a job of looking after House A and he was paid US$3,000 a month together with the costs of airfares.  He said he was told to watch a safe in a locked room in House A and he admitted that he believed there were valuables in the locked room.

40.The applicant arranged in March 2012 for the installation of an iron gate at House A.  He assisted Hen to remove the safe from the wall with a crowbar.  He went with Hen to purchase cutting equipment to cut open the safe and he assisted Hen in trying to open the safe.  The applicant also went to House B to witness Din cutting open the safe there.  Hen, according to the applicant, was only there to replace him on a temporary basis and there was no dispute that the safes in Houses A and B were used to store the gold bars in question.

41.At a search of House A, the police found a number of tools for the breaking open of the safe, a hollow book containing the applicant’s driving licence.  There were also his passport, his MasterCard and his boarding pass.

42.The prosecution evidence clearly established that the gold bars concealed in safes in Houses A and B were removed from them to hostels in Chung King Mansions. 181 pieces of the gold bars were sold by Hen and others between 2 and 4 May 2012 for $73 million, which was paid into Cycom’s account.

43.It was agreed that on 2 May 2012, Hen took bags containing gold bars from House A to a hostel in Chung King Mansions and sold 84 of the gold bars.  Shortly before Hen took bags of gold bars from House A, the applicant was in House A together with him.

44.It was also admitted that when the applicant was arrested in the early hours on 7 May 2012 in a hostel in Chung King Mansions, he was together with Hen and there were five bags containing 161 pieces of gold bars which must have been taken from House A and/or House B to the hostel. 

45.Inside one of the other bags, there were the applicant’s personal items.  The police further seized from the applicant documents or items relating to Cycom and House A.

46.The applicant’s fingerprints appeared on two of the gold bars seized at the Chung King Mansions hostel.  The applicant went with others to Sai Kung between 3 and 5 of May 2012 to look for another house in order to store gold bars on a more permanent basis.

47.On such evidence, largely undisputed, was the judge right to infer that the applicant was a party to the scheme to deal with the 342 pieces of gold bars with the knowledge of its nature and its existence and that he was acting in concert with Hen and Fadlon in dealing with the gold bars?

48.Mr Hemmings emphasized that there was no direct evidence to show that the applicant was aware of what was inside the safes.  He pointed out the applicant’s suggestion that when he assisted Hen to break open the safe in House A, he had no idea what it contained and that the applicant only knew of the existence of the gold bars when Hen opened a suitcase in Chung King Mansions to show him the content.

49.Mr Hemmings also pointed out the applicant’s testimony that he only touched a couple of gold bars on 6 May 2012 when Fadlon was in the process of repacking them and that explained why the applicant’s fingerprints only appeared on two of the gold bars.

50.Mr Hemmings suggested that the applicant was a credible witness and his evidence should be accepted.

51.The judge rejected the applicant’s evidence and it was not difficult to understand why.  In fact, in our view, the applicant’s story was so inherently improbable that the judge was perfectly entitled to reject it even though there was no direct evidence to contradict the applicant’s evidence.

52.It is inconceivable that Shulman would fly the applicant to Hong Kong from aboard and agree to pay him US$3,000 a month just to have him looking after House A with large quantities of gold bars unless the applicant could be trusted.

53.The applicant assisted Hen to remove the safe in House A from the wall.  They then purchased cutting equipment and tried to open the safe with such equipment.  Such evidence was inconsistent with the suggestion that Hen would try to hide from the applicant the presence of the gold bars.  If the applicant had not been a knowing and trusted party, there was no reason for Hen and Fadlon to allow him to have sight of and/or to stay close to the gold bars.

54.In his second record of interview, the applicant appeared to have admitted that he witnessed Hen opening the safe in House A and saw gold inside although he subsequently denied it and suggested that he only saw the gold bars for the first time on 2 May 2012.

55.The applicant admitted that he witnessed Din cutting open the safe in House B.  The fact that the applicant was together with Hen inside a room in the Chung King Mansions hostel room with bags containing 161 pieces of gold bars clearly indicated that Hen trusted the applicant and was prepared to allow him to know about the presence of the gold bars.  The applicant admitted that he was allowed to be with the gold bars on his own albeit for only a short period.

56.There was no reason for Hen or Din to involve the applicant or to allow him to be aware of the existence of the gold bars in Chung King Mansions if the applicant had not been a knowing party to the handling of the gold bars.

57.As pointed out by Mr Ira Lui, Senior Public Prosecutor, in a criminal scheme undertaken by Hen, Fadlon and others, the fewer people that knew about the crime, the safer it would have been.  It would be inconceivable for them to let the applicant to follow them around and to know about the existence of the safes in Houses A and B which were acquired for the obvious purpose of concealing the gold bars if the applicant had not been a party to a concerted effort to deal with the gold bars.

58.The presence of the applicant’s fingerprints on two of the gold bars could certainly reinforce the suggestion that he was aware of the presence of the gold bars and he was a party to deal with them.  The suggestion that the applicant was unaware of the existence of the gold bars until Hen showed them to him inside the Chung King Mansions hostel was not convincing.  The judge’s findings in paragraphs 84 and 85 of his reasons for verdict were justified.

59.On the evidence, it was unrealistic to suggest that Hen, Fadlon and others would have dealt with the gold bars without the assistance and knowledge of the applicant.

60.In our view, the judge was perfectly entitled to find as he did that the applicant was together with Hen and others, as a party to a joint enterprise, to deal with the gold bars in question.

61.We have considered the facts of the case carefully and we were satisfied that the conviction against the applicant on charge 1 was a safe and satisfactory one.  We therefore dismissed his application for leave to appeal against conviction.

Sentence

62.The sole ground put forward by Mr Hemmings was that the sentence of 5½ years’ imprisonment imposed on the applicant was “wholly disproportionate to his degree of involvement”.  Mr Hemmings’s argument was premised on the suggestion that the applicant’s involvement was less than that of Shulman, Hen or Fadlon.

63.Shulman pleaded guilty to two different charges of “money laundering” based on a different set of facts and he received a sentence based on an 8-year starting point.  We did not think Shulman’s sentence was relevant.

64.We were not persuaded that Hen and Fadlon must have necessarily played a more significant role and were thus more culpable than the applicant.  In a criminal enterprise such as the one in question, different participants have different roles to play and it is not always possible for an outsider to know precisely the role of each participant.  The absence of evidence that the applicant had physically taken the gold bars to Chung King Mansions or had sold them to Metalor did not mean that his role was less significant than those of the others.  The applicant certainly appeared in House A earlier than Hen and Fadlon.

65.On the judge’s findings, the applicant was a party to a sophisticated scheme to deal with 342 pieces of 1-kg gold bars with a value of HK$139 million. 

66.The fact that the judge had adopted a lower starting point for the applicant than that adopted for Hen and Fadlon was already, in our view, an approach most favourable to the applicant and he could not have any legitimate complaint.  We did not agree with the suggestion of Mr Hemmings that the sentence imposed on the applicant was ‘wholly disproportionate to his degree of involvement.’

67.As pointed out the by the judge, the case involved a “money laundering” exercise of a sophisticated nature and with a high degree of planning.  Companies were set up and village houses were acquired to conceal a large number of gold bars.  The applicant was in possession of documents which indicated that he was involved in the collection of the company chop of Cycom, a company deeply involved in the “money laundering” business in question.

68.We could not ignore the fact that the case involved an enormous sum of $139 million and the presence of an international element when the participants were all foreign nationals visiting Hong Kong on a temporary basis.

69.The principle adopted by the judge and the factors he took into consideration were correct.  The 5½ year-starting point adopted by the judge, far from being manifestly excessive was, in our view, a lenient one.

70.We therefore also dismissed the application for leave to appeal against sentence. 

Mr Ira Lui, SPP of Department of Justice, for the respondent

Mr John Hemmings instructed by Pang, Wan & Choi, assigned by the Director of Legal Aid, for the applicant (Re: Conviction)

Mr John Hemmings instructed by Pang, Wan & Choi, for the applicant (Re: Sentence)