HKSAR v. SUM SIU NGO

DCCC 782/2022

[2025] HKDC 137

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 782 OF 2022

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REASONS FOR SENTENCE

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1.  The D2 (“Defendant”)  is convicted of a charge of money laundering.

2.  The particular of the charge:-

“on 8 November 2016, in Hong Kong, D2 together with Ng Pan, knowing or having reasonable grounds to believe that property, namely, the sum of US$206,190.00, in whole or in part directly or indirectly represented any person’s proceeds of an indictable offence, dealt with the said property.”

The Prosecution case

3.  Madam Zhou and Sampson Wong are both account holders in the HSBC.  However, they did not know each other.

4.  PW1 worked in his parents’ money changing shop.

5.  In 2014, the Defendant came to know a person called Ng Pan.  He was told that Ng Pan worked in the HSBC (located in Central)  and was the owner of a pub. The Defendant frequent the pub at the time when he dropped out from school due to issue of dyslexia and hence, poor school performance.

6.  On 7 November 2016, Ng Pan called PW1 to change HK$1.6 million into RMB currency, since the shop did not have enough stock; Ng Pan accepted USD currency instead.

7.  Ng Pan informed PW1 that he had a relative needed USD cash to pay an insurance premium.

8.  PW1 told Ng Pan that there was a need to produce certain documents:-

(a)  ID card;

(b)  Address proof.

9.  At the meantime, PW2 who was also in the same trade had a customer (Sampson Wong)  needed to convert RMB money into Hong Kong dollars.  PW2 informed PW1 of Sampson Wong’s account number for the deposit of HK$1.6 million.

10.  Exhibit P10 which was a deposit slip showed a deposit of HK1.6 million from Madam Zhou to Samson Wong’s account.

11.  While the Defendant on the other hand, received a phone call from Ng Pan asking him if he was interested in “migration investment”, his role was to withdraw money by producing his ID card and address proof.  His remuneration was 2%.

12.  On 8^th November, when the Defendant and Ng Pan arrived at the counter of the shop, PW1 treated them as customer (the Defendant)  and insurance agent (Ng Pan).

13.  Having confirmed with :-

(a)  PW2 that Sampson Wong received the deposit of HK1.6 million;

(b)  with Ng and the Defendant that the USD cash was for the purpose for payment of an insurance premium;

(c)  that the Defendant produced the ID card and address proof to the shop, a lump sum of USD cash as stated in the charge were then released to them; and

(d)  Ng Pan put the cash into a brown envelop and left the shop with the Defendant.

14.  The Defendant was convicted on the ground that he had reasonable ground to believe that the cash was “tainted money.”

Mitigation/background of the Defendant

15.  He has a clear record.

16.  The Defendant is now 28 years old.  At the time of the offence, he was 20.  The Defendant has suffered a great deal of anxiety during this period of time.

17.  He works in Zenlayer since 2018 and has been promoted as an engineer with a monthly salary of about HK$25,200 plus bonus in February 2022.  The Defence also produced an employment letter to support his current employment status.  On last occasion, the Defence said that there was a verbal undertaking from Zenlayer that the company will re-employ the Defendant upon his released from prison.  Today, I am told that the company is willing to re-employ him if there is any opening available at the time of his release.

Sentence

18.  The present offence carries a maximum penalty of a fine of HKD5 million and an imprisonment term of 14 years on indictment.

19.  In reliance of the case of HKSAR v Lam Ka Sin[1], the Defence said that there are a number of mitigating factors with the accumulative effective, which were exceptional in the present case to warrant a special treatment in sentencing the Defendant.  Such as the young age of the Defendant (20)  at the time of the offence, he had known Ng Pan for a long time and he worked in a Bank, Ng Pan was with the Defendant at the counter of the money changing shop, the part played by the Defendant was short ( just to provide ID card and document )  .

20.  In the case of Lam Ka Sin:-

(a)  the Defendant pleaded guilty, she was entitled to ¹/₃ discount;

(b)  the cheque (HK$1.1 million)  presented to the bank could not be banked in due to irregularity. She refused to take part any further;

(c)  she reformed herself to look after her newborn son.

21.  The Defence has consistently asked for CSO report before sentencing.  I disagree, as I do not consider that there is any exceptional circumstances in the present case.

22.  I am not prepare to call for such a report, as I have no intention to pass a CSO order.  I also consider this as wrong in principle.  In addition, it will send a wrong message to the public that for such a serious offence, the Defendant only receive a CSO order as sentence.  For those behind the scheme, will then prey on the young ones to commit similar offences.

23.  In the case of Secretary of Justice v Siu Yun Yee[2] that immediate custodial sentence for offences of money laundering are required even for a first time offender.

24.  The Defence accepted that there was no sentencing guideline for this offence, but quoted the judgment of HKSAR v Hsu Yu Yi[3] that there are a number of factors to be considered for sentencing.

25.  Same as in the case of HKSAR v Boma[4], the Court pointed out that given the highly variable circumstances in which the offence might be committed, it was difficult and undesirable to offer guidelines.  However, the Court of Appeal provided a non-exhaustive list of relevant sentencing factors for consideration.

26.  In the judgement of Hsu Yu Yi, the Court stressed that it was fact-specific nature of the offence regarding sentence.  However, it also pointed out that:-

(a)  It was the amount of the money involved, rather than the amount of benefit received by a Defendant, is the major sentencing consideration.

(b)  The culpability of the offence lies in the assistance, support and encouragement offered to the commission of an indictable offence. So a Defendant’s level of participation and the number of occasions on which he is involved in the “money laundering” activities are relevant factors to be considered.

27.  With this information in mind, I now proceed to consider the sentencing factors in the present case:-

(a)  The Defendant was told to assist Ng Pan in the “migration investment.” The Defendant did not make any further enquiry as to the detail of the investment. As such, on the face of a label of “migration investment”, it certainly involves at least two countries and the migrant himself/themselves. However, as stated in HKSAR v Cen Huakuo CACC 21/2014 that “ignorance of the indicatable offence could not be treated as mitigating factor.”

(b)  The role of the Defendant was to assist Ng Pan in withdrawing the USD cash.

(c)  According to the Defendant’s knowledge, there were at least himself and Ng Pan involved.

(d)  He produced ID card and address proof to the money changing shop. By doing this, the Defendant provided support and assistance to Ng Pan to withdraw the US currency. His role was therefore regarded as significant in this scheme.

(e)  The Defendant was a willing party to assist Ng Pan. He was not forced to go along with Ng Pan.

(f)  He was promised by Ng Pan a 2% reward. The Defendant claimed that he did not receive the 2%. However, as stated in the case of Secretary of Justice v Ngai Fung Sin Apple[5] that “the fact that the Defendant of a “money laundering” case has not obtained any financial benefit is not a mitigating factor”.

(g)  It involved one transaction on one occasion with a sum of HKD1.6 million.

(h)  Zhou is a Mainlander and she was the account holder to transfer the 1.6 million from the Hong Kong HSBC account in Hong Kong as shown in P10, the deposit slip.

(i)  There is no evidence in the present case to suggest international element.

28.  The Defence emphasized that:-

(a)  At the time of the commission of the offence, the Defendant was 20 years old. Now he is 28 years old.

(b)  In this period, the Defendant has worked hard to improve himself bearing in mind that he is a school dropout. From a go down worker in 2016, earning HK$18,000/month to become a computer engineer in Zenlayer earning HK$25,200/month with bonus in February 2022.

(c)  A period of 8 years of waiting has caused him a great deal of mental stress:-

2016 - The Defendant was arrested. He was aged 20 then.

2023 - The case was expected to be heard, but witnesses were not available as one was in Mainland China expecting a newborn baby while the second one has migrated to Australia.

2024 - The case was refixed to December 2024 to be heard.

2025 - Now is January 2025 for sentence. The Defendant is 28 years old.

29.  Having considered all the relevant factors before me, I adopt a starting point of 2 years and 3months’ imprisonment.  Since the Defendant was convicted after trial, he is not entitled to ¹/₃ discount.  However, I accept that:-

(a)  The Defendant has reformed himself and it is likely that he will not reoffend again;

(b)  The 8 years period of waiting time is stressful to him.

30.  As such, I reduce the sentence by 6 months (3 months each for the above two reasons).  The final sentence is 21 months’ imprisonment.

31.  The Defendant is order to serve a period of 21 months’ imprisonment.