HKSAR v. CHOI SUI HEY

CACC 277/2007

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 277 OF 2007

(ON APPEAL FROM DCCC NO. 1117 OF 2006)

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REASONS FOR JUDGMENT

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Hon Wright  J (giving the judgment of the Court):

1.  The appellant in CACC277/2007, to whom, for the sake of clarity, we shall refer throughout as "the defendant", was convicted after trial in the District Court before Deputy District Judge Rickie Chan on a single charge of conspiring to deal with property knowing or having reasonable grounds to believe it to represent proceeds of drug trafficking, contrary to s. 25(1) and (3) of the Drug Trafficking (Recovery of Proceeds) Ordinance, Cap 405 and ss. 159A and 159C of the Crimes Ordinance, Cap 200 (Charge 1).  The judge returned no verdict on an alternative charge of dealing with property knowing or having reasonable grounds to believe it to represent proceeds of an indictable offence, contrary to s. 25(1) and (3) of the Organised and Serious Crimes Ordinance, Cap 455 (Charge 2). The defendant applied for leave to appeal the conviction. 

2.  We granted the application, treated the hearing as the appeal and allowed the appeal to the extent that we set aside the conviction on Charge 1 and substituted therefor a conviction on Charge 2. 

3.  The defendant had been sentenced to serve a period of 18 months imprisonment which then had been suspended for a period of three years. The Secretary for Justice was granted leave by the Chief Judge, on 10 August 2007, to apply to review the sentence.  In response to the Application for Review, CAAR10/2007, the defendant applied for leave to adduce fresh evidence pursuant to the provisions of s. 81B(3) and 83V of the Criminal Procedure Ordinance, Cap 221.

4.  We granted the application to adduce fresh evidence.  We then granted the application of the Secretary for Justice, set aside the period of imprisonment and the order suspending its operation and imposed, in its stead, a period of two years imprisonment.

5.  We indicated that we would give reasons for our decisions.  These are they.

THE APPEAL AGAINST CONVICTION : CACC277/2007

6.  The charges which appeared on the charge sheet were:

1st Charge

Statement of Offence

Conspiracy to deal with property knowing or having reasonable grounds to believe it to represent proceeds of drug trafficking, contrary to section 25(1) and (3) of the Drug Trafficking (Recovery of Proceeds) Ordinance, Cap 405 and sections 159A and 159C of the Crimes Ordinance, Cap 200.

Particulars of Offence

CHOI Sui-hey, between the 6th day of January 2004 and the 9th day of June 2004, both dates inclusive, in Hong Kong, conspired with YUEN Yei-ha (also known as Diane ZHONG and also known as Diane YUEN) and other persons unknown, knowing or having reasonable grounds to believe that property, namely the total sum of $1,850,000 Hong Kong currency, in whole or in part directly or indirectly represented the proceeds of drug trafficking, dealt with the said property.

2nd charge (alternative to 1st Charge)

Statement of Offence

Dealing with property knowing or having reasonable grounds to believe it to represent proceeds of an indictable offence, contrary to section 25(1) and (3) of the Organised and Serious Crimes Ordinance, Cap 455.

Particulars of Offence

CHOI Sui-hey, between the 6^th day of January 2004 and the 9th day of June 2004, both dates inclusive, in Hong Kong, knowing or having reasonable grounds to believe that property, namely the total sum of $1,850,000 Hong Kong currency, in whole or in part directly or indirectly represented the proceeds of an indictable offence, dealt with the said property.

7.  It was unnecessary for the prosecution to lead oral evidence as the defendant agreed its entire case.  It comprised facts admitted pursuant to the provisions of s. 65C of the Criminal Procedure Ordinance, six affirmations from Fiji, two bankers’ affirmations from Hong Kong and two records of interviews with the defendant.  An appreciation of the prosecution case is as important for the proper understanding of the application for review as it is for the appeal against conviction.  We reproduce the agreed facts in full:

“1.  On 9^th June 2004 six persons were arrested in Fiji in connection with a methylamphetamine hydrochloride (or "ice") manufacturing centre at Suva, Fiji. Amongst the 6 persons were YUEN Yei-ha - also known as Diane Zhong, also known as Diane Yuen - ("YUEN"), and her husband Jason ZHONG (also known as Zhong Qiang Zhong). All six were jointly charged with one count of "unauthorized manufacture of a drug, namely methylamphetamine", between 22^nd October 2003 and 9^th June 2004, contrary to regulation 3 of the Dangerous Drugs Regulations and section 41(1) and (2) of the Dangerous Drugs Act, Cap. 114, Laws of Fiji. They pleaded guilty in the High Court of Fiji and were sentenced to terms of imprisonment ranging from 3 years 3 months to 4 years 7 months on 27^th  July 2005.

2.  The drugs manufacturing centre was located at a warehouse situated at Lot 3 Bulei Road, Laucala Beach Estate, Suva, Fiji. At the time of the police raid (on 9^th June 2004) a total of 2.8 kilograms of methylamphetamine hydrochloride, in a ready or saleable form, and chemicals which on a conservative estimate could generate 800 kilograms of methylamphetamine were found and seized inside the warehouse.

3.  The warehouse was rented by Wah Tai Trading Co. Ltd. ("Wah Tai") from Supreme Fuel Limited. Wah Tai was set up on 22^nd October 2003. YUEN and a male Liang Zhi-xiang were its two directors, each holding 50% shares of the company. On behalf of Wah Tai, YUEN opened a bank account No. 7415963 with ANZ Bank Limited in Fiji on 7 November 2003. YUEN was the sole signatory of the ANZ account. On behalf of Wah Tai, YUEN signed the lease agreement for the warehouse for a term of two years from 15^th January 2004.

4.  The defendant was arrested in Hong Kong on 9^th June 2004. During the search of the defendant's home, in the presence of the defendant, the police found from inside the top compartment of a wardrobe in the master bedroom a blue colour polyester bag inside which were two white plastic bags; HK$500,000 cash was found inside one of the white bags and HK$250,000 cash was found inside the other.

5.  The defendant has two bank accounts at Hang Seng Bank and one at Hong Kong Shanghai Banking Corporation (a "Powervantage" account, under which are a savings and a current account). Between 1^st January 2003 and 9^th June 2004, the total amount of deposits and withdrawals were roughly the same, namely about HK$4.7 million.

6.  Between 6^th January 2004 and 31^st May 2004, the defendant had made six remittances totalling US$140,000 from his Hang Seng Bank account No.21 0­057006-888 ("the Hang Seng account") to the ANZ account: four remittances each in the sum of US$30,000 on 6.1.04, 11.2.04, 17.3.04 and 20.4.04; and two remittances each in sum of US$ 10,000 on 13.5.04 and 31.5.04. The defendant has not made any other overseas remittances.

7.  Between 7^th November 2003 and 30^th June 2004, the total deposits into the ANZ account were as follows: (i) cash deposits totalling FJD 24,800; (ii) the defendant's remittances totalling FJD 238,039. Various expenses of Wah Tai, including rental payments of the warehouse were paid out of the ANZ account.  As at the 30^th June 2004, the balance in the ANZ account was FJD285.08

8.  The defendant has not filed any tax return or made any tax payment between the 1^st January 2000 and 19^th October 2005.

9.  On 9^th June 2004 and 29^th July 2004, the defendant was interviewed by the police, by way of video recorded interviews. These interviews were given voluntarily by the defendant, in the presence of his legal representatives on each occasion. During these interviews the defendant was shown various documents, copies of which were marked from "CSH-l" to "CSH-I5".

10.  The defendant was unconditionally released by the police on 7 July 2005.  He was re-arrested on 14 September 2006 and charged on the same day.

11.  The defendant has only one spent conviction in 1981 for gambling in a gambling establishment in which he was fined $500.”

8.  The defendant elected not to give or call any evidence.  The defendant relied upon what he had said during the course of his interviews, the salient aspects of which the judge summarised thus:

“4. …In essence, what the defendant said during the second interview is as follows:­

He had been shown two pieces of notes of City Garden Hotel with characters and figures and a copy of paper with other names and figures. According to the defendant, the two pieces of City Garden Hotel notepaper contained gambling winnings and losses recorded during a gambling occasion held in one of the rooms of the City Garden Hotel. He said it was probably held in the year 1997 or 1998 when a group of friends gathered together to gamble in the hotel room. They played card games or in Chinese 'sap sam cheung'. The defendant said he knew some of the people. Some of the people he knew were no longer in Hong Kong, some had returned to the mainland and some were then in Macau. He maintained that the figures and the names written on the two pieces of City Garden Hotel paper were records of people's winnings and losses as a result of the card game. Then he said he had no means of contacting these people and he did not know their full names either.

5.  In relation to another paper, a larger paper with figures and names on it, defendant said the handwriting was not his. He said it was a record of mahjong winnings and losses. He remembered that on one occasion when his native clansmen gathered together in a flat in North Point City Garden, they gambled by playing mahjong. He said he could remember it was one of the blocks in City Garden in North Point but he could not remember which block. He knew some of the players. He said since the mahjong game he had been asked to collect mahjong winnings from other people and he had also been asked to pay mahjong debts to those who won. The defendant said that there was still a lot of people who had not paid him but he kept no record the mahjong game. He said there was no need to keep any record because they thought their relationship was built on trust.

6.  He was asked about a document with Chinese characters "Wan Yan Shan Yan". According to the defendant, it was the name of a master, probably a Fung Shui Master. He said one of his friends wanted to set up a business in Macau and his friend asked this master to think of a good name to bring him fortune. However, he had no means of contacting this friend and in fact this friend with other friends were from Beijing.

7.  He was asked about the remittances that he had made.  According to the defendant, he remitted the money to Fiji or a company in Fiji on instructions by Ah Chong.  He did not know the name of that company because the name of the recipient company was given in English and the defendant did not understand English.  The defendant gave a reason why he made the remittances requested by Ah Chong.  He remembered way back in 1996 or round about that time, he had borrowed about $1 million from a person called Ah Lo on a gambling vessel. Ah Chong was his friend and introduced him to this Ah Lo. Ah Chong even acted as a guarantor in the alleged loan. The agreement was that the defendant would have to pay $50,000 by way of interest for every million dollars per month but the defendant failed to make payment at some stage.

8.  The defendant later bumped into Ah Lo and Ah Chong and Ah Chong told him to remit money to a company with an English name. It was an occasion in Malaysia when the defendant bumped into Ah Chong. Ah Lo was present as well. It was Ah Lo who said that if the defendant agreed to remit money and if he could repay money as soon as possible, Ah Lo would not charge him any interest, so the defendant's understanding was that if he made remittances on behalf of Ah Lo, those remittances would count towards payment of the previous loan and if he did that Ah Lo would not charge him interest for the outstanding loan. The defendant remembered that he had remitted about five times.

9.  Up to the time of interview, the defendant had not actually worked out the total amount that he had remitted. He guessed the total amount that he had remitted was roughly the same as the amount of the outstanding loan. The defendant said he did not know why Ah Lo had to ask him to make the remittances. The defendant said the money remitted was in fact his own money. He was able to raise the money because he worked as a “dap ma" or customer representative at Macau casinos. He said when customers have won money they would pay him commission and sometimes he could earn a good amount of commission. Further, there was also money repaid to him by his other debtors and as a result the defendant said he was able to raise money to make remittances.

10.  The defendant said he had no means of contacting Ah Lo, it was Ah Chong who did the contact and the defendant used to have Ah Chong's telephone number. A few months prior to the interview, Ah Chong passed away. There was no agreement signed and no IOU signed for the loan that he had raised from Ah Lo. In fact, prior to borrowing money from Ah Lo, the defendant did not know Ah Lo, it was Ah Chong who knew him and eventually Ah Chong acted as a guarantor for the loan. When asked about his average income by working as a "dap ma", the defendant said it would be hard for him to make an accurate estimate because sometimes he could earn as much as several hundred thousand and sometimes there was no income.

11.  He was asked about a Dao Heng Bank cheque in the sum of $1.5 million dated 17 January 2002. The defendant said it was a friend he knew in mainland who asked him to provide an account for his friend to bank a cheque. This friend, according to the defendant, was in the fashion business. On one occasion this friend told him that as he was not a Hong Kong resident he had no means of opening a bank account in Hong Kong. As his friend was expecting a cheque, he asked the defendant to arrange an account in Hong Kong for him to make the cheque deposit. He said this friend was surnamed Ng but at the time of the interview the defendant had already lost contact with him. The defendant said when he was asked by this Mr Ng to help find an account, he had to open an account with Dao Heng Bank specifically for this purpose. After withdrawing the money, he gave all the money back to his friend. The defendant thought that this friend may want the money for investment or to buy property.

12.  The defendant was also asked about certain cash deposits with his Hang Seng Bank account. There were significant deposits in the sum of $90,000 and $300,000 but the defendant said that some of these deposits were repayment by his debtor and some represented the profit he earned at the casino. The defendant stated that there were still a lot of people who owed him money but the number was too great to remember.

13.  He said in relation to the gambling occasion, he had been instructed by his friend who were not in Hong Kong to collect debts from other participants in the gambling.  He was also asked to pay gambling debts to other people on behalf of the friends not in Hong Kong.  The defendant admitted that these debts were not settled yet.

14.  In relation to the remittances made to Fiji, the defendant admitted that he personally made all deposits in Hong Kong by way of cash remittance or bank transfer. He was asked about the remittances made on 6 January 2004, 11 February 2004, 17 March 2004 and 4 February 2004. The defendant said these four remittances were all made on the instructions of Ah Chong.

15.  In relation to a US$10,000 remittance made on 13 May 2004, the defendant said it was Ah Chong's friend, Ah Ming, who told him to make the remittance. The defendant said he had not met this Ah Ming before but this Ah Ming called him and identified himself to be Ah Ming. Ah Ming said Chong instructed him to instruct the defendant to make another UD$10,000 remittance.  The defendant said having been told to make the remittance, he did so accordingly. The defendant said he made the remittance because he trusted this Ah Ming, as Ah Ming could describe to him circumstances surrounding his relationship with Ah Chong and that there was remittances made in the past already. Further, he did not consider US$10,000 to be a very substantial amount, therefore he did not seek to verify the identity of this Ah Ming.

16.  At the time of the interview, the defendant said he was unable to find this Ah Ming but if this Ah Ming called him again and asked him to make remittances again, the defendant would decline to do so because according to the defendant he had repaid the full sum out to Ah Lo, despite the fact that he had not done any actual calculation and he had not kept any remittance receipts.”

9.  Unsurprisingly, the judge rejected the defendant’s explanation as to the circumstances in which he came to make the remittances to Fiji.  He gave cogent reasons as to why he did so. 

10. In the first ground of appeal the judge was criticised by the defendant for observing that, in regard to the defendant’s means, "... other than his bare assertions that he is earning a good income from a Macau casino, there is nothing to support what he says. "  This formed the cornerstone of the ground which was that the judge had erred in finding that the defendant was not a person of wealth and that the moneys remitted to Fiji by him and the $750,000 in cash found in his home did not belong to him: the submission was that the judge had reversed the onus of proof.

11. This submission ignored the context in which the judge’s observation was passed and the circumstances in which the defendant came to participate in the second interview.  The judge said:

“The second interview was conducted more than one and a half months after the first interview and the second interview was arranged as a result of the defendant’s request in order for the defendant to clarify certain matters.  It would be reasonable to expect that one of the tasks that the defendant has to achieve is to explain how he is able to raise that amount of money when he made the remittance.  It would be, again, a reasonable to expect that he would come up with some hard to proof in order to support that he is a person of means.”

12. The judge was not reversing the burden of proof but simply expressing an entirely commonsense view.  We note, too, that the judge had expressly directed himself correctly earlier in his Reasons for Verdict as to the standard and burden of proof.  There is nothing in this ground.

13. The third ground was interwoven with the first ground in the sense that it complained that the judge had erred in finding that the $750,000 in cash seized in the defendant’s bedroom was retained by him with a view to making further remittances to Fiji.  The submission was that there was no evidence regarding either the provenance or retention of the sum of money, just the mere fact that it had been seized in the applicant's bedroom.

14. Viewed in isolation, that may be so but when considered in the light of the rejection of the defendant’s explanation and of all the evidence before the judge, in particular the pattern demonstrated by the applicant’s bank account of cash deposits preceding the transfers to Fiji, the inference which the judge drew was entirely justified.  There is nothing in this ground.

15. The second ground of appeal asserted that the judge had erred in finding that a reasonable person would have realised that the moneys had "... something to do with proceeds of crime, crime such as drug trafficking" [emphasis added] in that there was no evidence to support a finding that there existed reasonable grounds to believe that the moneys were the proceeds of the drug trafficking.  Mr Zervos SC who appeared for the respondent in the appeal against conviction faintly suggested that the judge had been justified in arriving at his conclusion but pointed out, with considerably more vigour, that, even if there were insufficient evidence to support the first charge, there was an abundance of evidence that properly would have led to conviction on the alternative, second, charge.

16. There was, in our view, insufficient evidence for the judge to have made a finding that the defendant knew or had reasonable grounds to believe that the moneys with which he dealt directly or indirectly represented the proceeds of drug trafficking.  It may be that upon reading the summary of facts the conclusion would be reached that the funds remitted by the defendant were directly connected with the manufacture/trafficking of drugs in Fiji but there was simply no evidence before the judge that the defendant was cognizant of those facts: the only evidence before the judge as to the extent of the defendant’s knowledge was the fact of his remittances to the Fiji account.

17. An aspect which the judge did not address in his Reasons for Verdict was the fact that the moneys, which were remitted on a monthly basis, were being sent to the very place where drugs were being manufactured rather than being received from that location.  This obviously raised the real question of whether the funds were being used for the purposes of facilitating drug manufacture/trafficking rather than being the proceeds of such trafficking.

18. It is well settled that the concept of  having  "reasonable grounds to believe" involves both objective and subjective elements: the objective element necessitates proof of the existence of grounds which a commonsense, right-thinking member of the community would regard as sufficient to lead a person to believe that property in whole or in part represented proceeds of an indictable offence; the subjective element requires proof that those grounds were known to the particular accused. See, for example, HKSAR v SHING Siu-ming & Others [1999] 2 HKC 818 at 825H-I; HKSAR v WONG Ping-sing & Anor. (2001) 4 HKCFAR 29 at 31I-32C; HKSAR v MA Zhujiang & Anor. [2007] 4 HKLRD 285 §32-64.

19. Although there was insufficient evidence on the question of drug trafficking upon which the judge could properly draw the necessary inference in respect of the first charge, there was overwhelming evidence that justified a finding that there existed reasonable grounds for the defendant to believe that the moneys with which he was dealing were the proceeds of an indictable offence.

20. If a person either allows another to use his bank account for the transmission of funds or accepts substantial funds from others which he then remits, without enquiry by him or explanation by the others, to third parties unknown to him then, in the absence of evidence to the contrary, the inevitable inference will arise that the holder of the bank account has reasonable grounds to believe that the funds passing through the account or the funds with which he has dealt represent proceeds of an indictable offence.

21. The evidence before the judge showed that: between 1 January 2003 and 9 June 2004 the aggregate amount of deposits into and withdrawals from the defendant's bank accounts were approximately equal; in each of January, February, March and April 2004 the defendant remitted US$30,000 to Fiji; in May 2004 the defendant remitted two further amounts each of UD$10,000 to Fiji; in January, February and May 2004 those remittances were made on the same day as substantial cash deposits had been made to his account; during the period January to May 2004 total deposits amounting to $1,120,000.00 were made to the defendant’s bank account, all in cash; during that same period the defendant’s account was debited with $1,092,200.00 in respect of the remittances to Fiji – all but $27,800.00 of the cash deposits; the defendant rendered no return and paid no income-tax between January 2000 and October 2005; the defendant was in possession of $750,00.00 in cash.

22. Those facts, if known to a commonsense, right-thinking member of the community would be regarded as sufficient to lead a person to believe that property in whole or in part represented proceeds of an indictable offence. Those facts were known to the defendant. The judge correctly rejected the defendant’s explanation concerning them. The irresistible inference was that the defendant had grounds to believe that the moneys with which he was dealing were the proceeds of an indictable offence.

THE APPLICATION FOR REVIEW OF SENTENCE :  CAAR10/2007

23. We turn now to the Application for Review by the Secretary for Justice in regard to the sentence imposed on the defendant and the order suspending that sentence.  We are able to deal with this shortly as, in view of the substitution of a conviction on the alternative charge, it is necessary, in any event, to revisit the question of sentence.

24. We are satisfied that in approaching the question of sentence the judge erred in three respects: first, the starting point which he adopted was manifestly inadequate; secondly, the reduction of six months from the starting point for a lack of previous convictions and "good character" was wrong in principle; thirdly, the finding that there had been delay and that that delay constituted an exceptional circumstance justifying the suspension of the sentence was wrong in principle.  We deal with each in turn.

25. In addressing the starting point the judge said:

"The offence of which the defendant is convicted is no doubt a serious one.  Other than imprisonment, I cannot find any other appropriate sentence.  I take 24 months as the appropriate starting point.  I have considered the defendant's personal circumstances.”

26. The judge was correct to recognize that the offence is a serious one, albeit that at that time he was thinking of the offence of conspiracy to launder the proceeds of drug trafficking.  In our view, a conviction on the first charge should have attracted a starting point in the region of 5 years imprisonment.

27. In regard to the reduction of six months from the starting point, the judge said:

“For the defendant’s good record in the past and the contribution that he had made to the community, I have decided to give the defendant a discount of 6 months imprisonment.  Sentence is therefore reduced to one of 18 months imprisonment.”

28. There was nothing before the judge which properly could be considered as evidence of "positive good character" on the part of the defendant such as would justify any discount from an otherwise appropriate starting point.  In particular, the letter from a Legislative Councillor was of no value at all, given that it did not even suggest that the defendant was known to the author.

29. The judge then turned to the question of whether the sentence should be suspended, saying:

“I then have to consider if there are any exceptional circumstances in this case which can justify a suspension of that prison sentence.  The most obvious matter which is related to the question of whether or not there are exceptional circumstances is the question of delay.  It is not in dispute that the defendant was arrested in June 2004.  He was unconditionally released from his bail about a year later.  He was not charged until September 2006 and not tried until May 2007.”

30. Such unexplained delay as there may have been in this matter was comparatively short, once it was appreciated that the prosecution needed to obtain evidence from overseas.  Indeed, the judge recognized this saying:

"While I can understand why the prosecution had to wait for two/three years to lay charges against the defendant, this delay was not the result of the defendant's own behaviour."

31. If, as he expressed himself, the judge understood the necessity for the prosecution to wait before laying charges, it is difficult to appreciate how he then came to the conclusion that that understandable delay amounted to a circumstance so exceptional that it justified suspending the sentence.

32. Before considering the sentence to be imposed, we allowed the defendant 's application in terms of ss. 81B(3) and 83V of the Criminal Procedure Ordinance to lead additional evidence.  This was initially expected to be confined to the tendering of three letters, one of which was written by his present employer, and a letter from a psychiatrist.  Because there was some suggestion that the employment letter might not be genuine, we heard evidence from a witness. We then proceeded on the assumption that the defendant indeed was employed.

33. It is now well recognised that offences of this nature attract immediate custodial sentences even for a first offender.  We regard it as  unnecessary to repeat the reasoning for this approach which has been expressed repeatedly by this court: see, for example, HKSAR v WONG Ping Shui, Adam & Anor. [2001] 1 HKC 600; HKSAR v Mak Shing CACC322/2001; HKSAR v Javid Kamran CACC400/2004 (unreported, dd. 12 April 2005); HKSAR v Xu Xia Li & Anor. [2004] 4 HKC 16;  HKSAR v CHEN Zhen Chu [2007] 5 HKC 505.

34. We would observe only that where a court is dealing with an offence under section 25 of the Organised and Serious Crimes Ordinance and the nature of the indictable offence which generated the funds dealt with by the convicted person is not proven before the court, that should not be regarded as a matter for the mitigation of sentence: rather, if that indictable offence is identified to the court then, depending upon its nature, that may be an aggravating feature.

35. There are, of course, no guidelines for this offence.

36. The defendant willingly transmitted $1.1 million, a substantial although not huge, sum of money to Fiji on six separate occasions over a six-month period.  He pursued a settled, ongoing course of conduct.  He had in his possession $750,000, a further substantial amount of money which, the judge found, similarly would have been remitted.  In our view an appropriate starting point in the circumstances of this case involving these sums of money, after trial, was one of 3 years imprisonment.

37. There was, as we have indicated, no substantial delay in bringing the defendant to court.  Frequently, where a defendant seeks to rely on delay as a mitigating feature, the prosecution provides either to the sentencing court or to this court a chronology detailing the steps which were taken during the period criticized: there was none in this case although both counsel on fiat at trial and Mr Zervos suggested that, given the necessity of gathering evidence overseas, the prosecution had acted as expeditiously as possible. 

38. The defendant had been arrested on 9 June 2004 and then released on bail.  On 7 July 2005, 13 months later, the defendant was released unconditionally.  This is a peculiar feature particularly in view of the fact that the persons who had been arrested in Fiji also on the 9 June 2004 were to be sentenced less than three weeks later, a fact which, we apprehend, would have been known to the prosecution.  Nothing happened for another 13 months, until 31 August 2006, when the defendant caused a request to be made to the police to return the cash seized in his flat.  By this time it would not be unreasonable for the defendant to have come to believe that no further action was taken against him and to make this request.  That hope would have been dashed when, two weeks later, on 14 September 2006, he was rearrested and charged with the present offences.  The trial commenced on 30 May 2007.

39. Although the period from 9 June 2004 to 14 September 2006 is on the long side absent any detailed explanation it is to be remembered that the case had an international dimension and that there was no cooperation from the defendant in the investigation that had to be pursued.  There was not justification in such delay for suspending the sentence although when the unconditional release of the defendant and the dashing of his subsequent expectations are factored in, we are of the view that a discount of six months is appropriate.

40. This being an application for review, we are able to reduce the sentence further.  Some 15 months has elapsed since the imposition of the suspended sentence on the defendant.  In effect, his hopes, this time of not being imprisoned, are dashed for a second time.  A further discount of six months is appropriate.

41. We have closely examined the reports and do not agree with the finding of the judge that, since the commission of the offence, the defendant "…has reformed himself.", a factor upon which he appears to have relied in order to find special circumstances to justify suspending the sentence.  In particular, the assertion that the defendant is a “non-gambler” sits uneasily with the defendant’s case that the very reason he remitted the moneys was to discharge a debt of $1,000,000.00 which had incurred through gambling.  There are, in our view, no other mitigating factors.

42. As a consequence we imposed the sentence of 2 years imprisonment.