Case Document

100%

CACC 334/2014

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO 334 OF 2014

(ON APPEAL FROM DCCC 456/2014)

------------------------

BETWEEN
	HKSAR	Respondent
and
	CHEN YISHAN (陳奕山)	Applicant

------------------------

Before: Hon McWalters JA in Court

Date of Hearing: 12 February 2015

Date of Judgment: 12 February 2015

------------------------

J U D G M E N T

------------------------

Introduction

1.The applicant faced trial in the District Court on a Charge Sheet containing one charge of Dealing with Property Known or Believed to Represent Proceeds of an Indictable Offence, contrary to section 25(1) and (3) of the Organised and Serious Crimes Ordinance, Cap 455. The applicant pleaded guilty to this charge and was sentenced by Judge Woodcock (“the judge”) to 2 years’ imprisonment. He now applies for leave to appeal this sentence.

Background to the offence

2.In the Summary of Facts which the applicant admitted for the purpose of his sentencing hearing, the applicant admitted to laundering the proceeds of an email hacking fraud. The Summary of Facts revealed that an Indian diamond trading company had been supplying diamonds to a French company for 20 years. The French company would settle payment for the diamonds it purchased by depositing money into the bank account of the Indian company at the Union Bank of India.

3.On 23 and 27 February 2013 the Indian company issued two invoices to the French company in the sums of USD333,038.95 and USD32,214 for the payment of diamonds it had sold to the French company.

4.On 25 March 2013 the email account of the French company was hacked and a person purporting to be the Indian company instructed the French company to deposit the monies referred to in these two invoices into a bank account held with The Bank of East Asia in Hong Kong. In compliance with this instruction the French company remitted USD167,038.95, in part payment of the first invoice, and USD32,214 into this account on 27 March 2013 and 9 April 2013 respectively.

5.Once the monies were received into this account they were converted into Hong Kong dollars and subsequently withdrawn over two days on 2 and 3 April 2013. On 10 April 2013 an overseas remittance of USD32,166.26 was received into this account and withdrawn by cash on 22 April 2013. The account was closed on 16 May 2013.

6.Subsequently the Indian diamond trader and its French customer discovered that their email accounts had been hacked and a report was made to the Hong Kong police.

7.Investigations revealed that the applicant and one other were the account holders of the account into which the monies were deposited and the applicant was the sole signatory to the account. On 15 January 2014, the applicant was arrested when he entered Hong Kong via the Lok Ma Chau Border Crossing Point.

8.In a record of interview the applicant claimed that the monies were deposited into the account by a Nigerian male known to him as “Sam” and that he withdrew the money by cash and handed it over to Sam. The applicant claimed that he received 2.5% of each withdrawal as his reward. He claimed that he did not know the source of any of the remittances and did not know any details of Sam.

Reasons for sentence

9.After referring to the facts of this case and the mitigation advanced on behalf of the applicant the judge noted that the prosecution were not alleging that the applicant had knowledge of the predicate offence but only that he had reasonable grounds to believe the property was the proceeds of an indictable offence. She further noted that the applicant had no record in Hong Kong and that he appeared to be a person of good character. The judge referred to a mitigation letter written by the applicant’s employer and two letters from his family, who described the applicant as a good son, father and husband and as his conduct on this occasion being out of character.

10.The judge also referred to relevant Court of Appeal authority that provide guidance to judicial officers who are required to sentence offenders for money laundering offences. The judge said that she accepted that the amount of money laundered is relevant as is the number of money laundering transactions and the period of time over which the offence took place. She said that she suspected the applicant acted out of greed and a desire to make quick and easy money. She took into account the fact that the applicant had cooperated with the police and also the family’s characterization of the applicant as a good man who acted foolishly and greedily.

11.She then took as her starting point a sentence of 3 years’ imprisonment which she discounted by one-third to allow for the applicant’s plea of guilty. By this route she arrived at the final sentence of 2 years’ imprisonment.

The grounds of appeal

12.The applicant is unrepresented and so there are no perfected grounds of appeal. In his Form XI he simply said:

“I reckon that the sentence was excessive. Although the mitigation was accepted, the sentence was not reduced accordingly.”

13.Before me today the applicant has supplemented what he said in his Form XI by submitting that his sentence is excessive when compared to other sentences imposed in other money laundering cases. He also claimed that he had provided assistance to the police in their investigation of this offence.

Discussion

14.After carefully examining the judge’s reasons for sentence I cannot detect any error in them. The judge directed herself on the correct legal principles and was conscious of the fact that the dominant sentencing principle for this offence is one of deterrence. The amount of money involved in this case is just over HK$1.55 million. There is Court of Appeal authority in which it is said that sentences in the range of 3 years’ imprisonment and above are appropriate where the funds laundered are in the region of HK$1,000,000 to HK$2,000,000. Contrary to the complaint of the applicant there is nothing excessive in the starting point adopted by the judge.

15.In respect of the final sentence, I am of the view that all the matters advanced by the applicant in his plea of mitigation and before me today are subsumed in the one-third discount given for his plea of guilty. No further discount is warranted.

16.In respect of the assistance the applicant maintains he provided to the police I am informed by the respondent that the applicant provided the name and address of a person who acted as an interpreter between himself and the Nigerian male “Sam”. However this information did not lead to the prosecution of any individual. I am satisfied that this level of assistance by the applicant does not entitle him to any further discount of his sentence.

17.There being no excessiveness in the starting point adopted by the judge and the applicant having been given the full discount to which he is entitled for his plea of guilty, I find no merit in any of the complaints. For these reasons I refuse the application for leave to appeal sentence.