HKSAR v. Ho Yun Keung

DCCC 705/2014

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 705 OF 2014

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Reasons for Sentence

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1.The defendant pleaded guilty to one offence of dealing with property known or believed to represent proceeds of an indictable offence.

2.The particulars of the offence allege that the offence occurred between 8 April 2009 and 23 July 2009.  The defendant dealt with a total of $3,289,708.60.

3.The facts are agreed by the defendant, which showed originally suspicious remittances of that sum of money from Taiwan into an HSBC bank account.  The remittances actually occurred between 27 April 2009 and 7 May 2009.  The remittances were dissipated through cash withdrawals over the bank counters or ATMs or transfers into other bank accounts.

4.The defendant is the holder and sole signatory of the account, which was opened on 8 April and closed on 23 July. That is the indictment period.  In the relevant period, which is 27 April to 7 May 2009, there were five separate sums of money remitted from Taiwan into the account, and the defendant has agreed the details of both the remittances and also the way the money was dissipated.

5.The defendant has given an account in his cautioned statements of how he came to be involved in this, and the prosecution rely on the bare facts of the deposits of the money and the dissipation of the money.  The only existing explanation is that provided by the defendant.  He knew a man called Cheng who worked at a bar, and in 2009 this Cheng called him up and wanted to borrow his account to receive money from his friend.  The defendant passed the ATM card, password and security token of the account to Cheng in April 2009.

6.The defendant admitted on each of the five remittance occasions he met up with Cheng and withdrew the money from his account, and the money was transferred by various means to Cheng.  He would receive a few thousand dollars cash reward on each occasion.  He did not know where the money came from or where it was going to.

7.The defendant, on the facts, has maintained modest‑paying jobs, and the defendant admits that when he dealt with those sums of money, 3.2‑odd million, he knew, or had reasonable grounds to believe, that it directly or indirectly represented the proceeds of an indictable offence.

8.The defendant has admitted his antecedents. There is also a background report on him.  He had one spent conviction in 2003.  He is married.  He has a son aged 8.  The defendant himself is 29 years old, brought up in a working-class family.  After committing the offence at the age of 16, he has behaved himself since then.  He committed the offence at a time of unemployment.  He said he did not consider properly the legal consequences.  I think it can be said that the offence is out of character for him.  He has expressed deep regret, and I accept that he is remorseful for his violation of the law.  He certainly appears to have learnt a serious lesson from the offence.  I consider it is unlikely that a person such as him, based on the report I have read, it is unlikely that he would reoffend.

9.Nevertheless, offences of this nature carry with them a sentence of imprisonment, and lengthy sentences of immediate imprisonment have been given in other cases.  I have been referred to the case of Hsu Yu Yi CACC 159/2009, which sets out some of the sentencing principles, and a resume of a number of sentencing cases over a number of years.  The principles are as follows.  There is no sentencing guideline for the offence of dealing with the proceeds from an indictable offence.  That is because the facts vary from case to case.

10.The factors to be taken into account are as follows.  The amount of money involved is a major consideration, not the amount of benefit received by the defendant in the transaction.  The culpability of the offence lies in the assistance, support and encouragement offered to the commission of an indictable offence.  So the defendant’s level of participation, the number of occasions on which he was involved in money-laundering activities are relevant factors to be considered.  The offence of dealing with the proceeds of an indictable offence does not necessarily have any direct correlation to the indictable offence in question.  If the relevant indictable offence can be identified, the court may take into account the sentence imposed on the indictable offence per se when determining the sentence of the dealing offence.  If the case has an international element involving activities carried out across different regions, the court may impose a more severe sentence.  This is to protect Hong Kong’s reputation as an international finance and banking hub from being tarnished.  Then the length of time of the offence is the last factor.

11.In a more recent case of Hou Shun Hsiung, the court reviewed the cases reviewed in Hsu Yu Yi and said as follows:

“A 4-year starting point has been applied to amounts of 3 million, 4 million, 5 million, 6½ million, and 15 million Hong Kong dollars respectively.”

In Hsu Yu Yi the sentence, where the case involved $2½ million, 3 year and 5 month imprisonment after trial was the appropriate sentence. However, in that case, the defendant received in his bank account money from an overseas fraud, and the case was well organised, with international dimensions.

12.Looking at the factors in this case, the amount of money is clear:  $3.2 million-odd.  The defendant’s assistance involves five occasions; of lending the bank account on five occasions of assisting in the dissipation of money.

13.It seems to me no conclusion can be reached about what we will call the relevant indictable offence other than that one could infer there must have been one.

14.The case does have an international element in that the money came from Taiwan.  The offence was actually committed over a short period from 27 April to 7 May.  The other factor, of course, is the factor peculiar to the defendant:  whilst an adult, he has not committed or been involved in any criminal offence.  The offence is out of character for him.  He is still a young man, with a young child, and any sentence of imprisonment of a parent infringes, to a certain extent, the right to family life of a child, and it is a factor that can be taken into account in sentencing.

15.There is also the way in which the defendant became involved in the offence, which to a certain extent shows his naiveté and gullibility, allowing himself to be used for what was a small reward.

16.A sentence of imprisonment has to be imposed. The sentence of imprisonment must reflect the seriousness of the offence. There is clearly an international dimension.  But as the courts have noted, the cases turn on their own facts, and the range of sentences imposed has varied widely.

17.I consider the appropriate starting point for this defendant on these facts is one of 3 years’ imprisonment.  I shall reduce that by one-third to take account of his plea of guilty.

18.That leaves a sentence of 2 years’ imprisonment; 24 months.