HKSAR v. EKEJI ANTHONY CHIBUIKE

DCCC 623/2024

[2025] HKDC 1035

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 623 OF 2024

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REASONS FOR SENTENCE

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Charge

1.  The Defendant (“D”) is charged with 2 counts of “dealing with property known or believed to represent proceeds of an indictable offence”, contrary to section 25(1)&(3) of the Organised and Serious Crimes Ordinance, Cap  455 (more commonly known as money laundering offence).  He pleaded guilty to Charge 1 and agreed to the facts in support.  He is duly convicted of the charge and upon the application of the prosecution, the second charge is ordered to be left on the court’s file and not to proceed with without the leave of the court.

Facts

2.  The subject property involved in Charge 1 was a total sum of HK$5,973,475.22 in a client account of an investment company in Hong Kong known as Sincere Bullion Limited (“Sincere Bullion”).  In its daily operation, Sincere Bullion would keep an individual ledger for each of its clients and the client could invest with the money through the company by depositing funds into the bank accounts of Sincere Bullion.  Mr TSOI Siu Ho (“TSOI”) was a broker of Sincere Bullion.

3.  In March 2013, D and his wife were introduced to TSOI.  D said a friend of his from overseas was interested in investing in Hong Kong but this friend was unable to open an account with Sincere Bullion personally.

4.  Later, upon D’s request, TSOI opened an investment account numbered 205639 with Sincere Bullion (TSOI’s Account) and became its client so that TSOI could invest with the money for D’s friend.

5.  On 16 April 2013, a sum of EUR 56,864.65 (HK$575,712.22) was deposited by Dobond (Shanghai) Electronics Meter into TSOI’s Account.  The money came from outside Hong Kong.

6.  Shortly afterwards, upon D’s instruction, TSOI withdrew the deposited sum (less around HK$10,000 as TSOI’s reward) and gave the money to D in cash.  According to the records of TSOI’s Account, a cheque in the sum $550,000 was issued to TSOI.  It was then deposited into TSOI’s personal account with the Bank of China (Hong Kong) Limited and a cash withdrawal $550,000 was made on the following day.

7.  On 9 May 2013, TSOI’s Account received another sum of US$696,000 (HK$5,397,763) which was deposited by a company known as Demeter Technologies Incorporation from overseas.  D again requested TSOI to withdraw the deposited sum and pay him the money in cash.  TSOI passed the cash to D directly.  The records of TSOI’s Account revealed that after the funds were received, 3 cheques in the sum of $1,950,000, $1,900,000 and $1,100,000 were issued to TSOI within the next few days.  He then deposited the cheques in his 2 other personal bank accounts and made cash withdrawals soon afterwards.

8.  On 4 June 2013, Sincere Bullion was notified that the said Demeter Technologies Incorporation had requested to set aside the deposit of US$696,000 (HK$5,397,763) resulting in Sincere Bullion demanding TSOI to return US$696,000.  Soon afterwards, TSOI could not be reached and Sincere Bullion made a police report and TSOI surrendered himself to the police on the same day.

9.  Upon arrest and under caution D said that he had been a trader since mid-2012 and his business involved sending goods, including clothes and car parts to Nigeria.  In January 2013, he came to know a Nigerian male called Uche Amadi (“Uche”) in a wedding ceremony in Nigeria and later Uche asked him to recommend an investment company to his customers who wanted to invest in Hong Kong. D forwarded details of TSOI’s Account to Uche. Later, Uche told D that about EUR50,000 had been deposited into TSOI’s Account but D said he did not know the source of the money.  He did not receive any reward from Uche.  Shortly thereafter, Uche notified D that he wanted to withdraw money from TSOI’s Account.  Uche told D that his cousin Chidi would be coming Hong Kong to collect the money.  TSOI withdrew the money in cash and passed it to D who then passed the money to Chidi.

10.  D also said under caution that later, Uche told D that a further sum of US$696,000 (ie HK$5,397,763) had been deposited in TSOI’s Account for investment and D would be rewarded.  D said he did not know the source of the money.  A few days later, Uche asked D to withdraw the money and pass it to Chidi.  Although D started to feel suspicious about the money, he and TSOI arranged to make the withdrawal from TSOI’s Account and then passed the cash to Chidi.

Background of D

11.  D is now 50 years old and is of clear criminal record.  He was born in Nigeria and was educated up to Secondary 6 level there.  He came to Hong Kong in 2006 and is now a permanent resident.  He is married with 2 sons aged 16 and 14.

12.  Mr Sherry, counsel representing D, in his detailed written mitigation submissions, submitted that the money-laundering scheme in this case did not appear to be sophisticated.  The offence took place within a period of just over 1 month.  He said D was unaware of any details of the predicate offence and had been used by Uche as a pawn, mainly responsible for delivering the cash withdrawn by TSOI to Chidi and did not receive any reward.  D was cooperative with the police all along.

13.  Mr Sherry submitted authorities in respect of the sentencing principles for the offence of money laundering, including HKSAR v Boma [2012] 2 HKLRD 33, HKSAR v Hsu Yu Yi [2010] 5 HKLRD 545 and SJ v Wan Kwok Keung [2012] 1 HKLRD 201.  He urges the Court to adopt a starting point at the lowest end of the scale upon considering the matters mentioned above.  He also produced mitigation letters written by D, members of his family and leader of the Nigerian Igbo (ebo) Community in Hong Kong.

14.  Mr Sherry submits that there is no international element in this case, thus there is no aggravating feature.  Mr Chan for the prosecution, confirms with the court that the 2 deposits (comprising EUR 56,864.65 and US$696,000) were sent from overseas and this is reflected in the Summary of Facts.  Besides, the Summary of Facts showed that, as far as D was concerned, he knew the monies were sent by Uche, or D’s friend in Nigeria, from overseas who claimed to wish to invest in Hong Kong.  D knew the deposits made by his overseas friend were in foreign currencies (EUR & US dollars).  I take the view that there is no question that the funds deposited into TSOI’s Account came from outside Hong Kong and there is an international element in this case.

Delay

15.  Mr Sherry further submitted that there has been an unreasonable delay in prosecution and this should be taken into account as a mitigating factor.

16.  The offence occurred between April and May 2013 and a police report was made in June 2013.  It was shown in the Case Chronology prepared by the Prosecution for the purpose of these proceedings that D was arrested in October 2013.  He was granted police bail until 10 June 2015 when he was “temporarily released with bail money refunded”.  The bail money was in the sum of $100,000.

17.  D was re-arrested and charged for the offence on 17 October 2023 and was brought to the Eastern Magistrates’ Court on the following day.

18.  Mr Sherry submitted that D was very co-operative after his arrest and in the cautioned interviews, which took place shortly after his arrest in October 2013.  He gave a full account of his role in the case and admitted to feel suspicious about the source of the money when Uche asked him to withdraw the second deposit.  Mr Sherry submitted that there was then sufficient evidence to charge D.

19.  It was further submitted that after D’s release in 2015, he remained in full employment and obtained his status as a permanent resident in Hong Kong. He continued to work as a businessman and raised a family here.  The unexpected revival of the matter in October 2023 caused D a lot of stress and anxiety.

20.  The Case Chronology showed that after the return of bail money to D in June 2015, the case was submitted to the Department of Justice for Legal Advice in March 2017 and the advice was finalized in March 2022.  Mr Chan supplemented today that a lot of time was spent on the investigation of the predicate offence, believed to be e-mail scam, though it did not lead to a fruitful result.  After the legal advice was finalized, the police was unable to locate D and could only arrest him for the second time when he returned to Hong Kong on 17 October 2023.

Sentencing Principles

21.  Money laundering is a serious offence with a maximum fine in the sum of HK$5 million and maximum sentence of 14 years’ imprisonment.  While there are no sentencing guidelines or tariffs and each case depends on its own facts, it is a well-settled principle that a deterrent sentence is warranted.

22.  The Court of Appeal in HKSAR v Hsu Yu Yi and HKSAR v Boma held that the sentence should mainly reflect the money laundered, but not the amount of benefit received by a defendant in the transaction.  Other significant factors that should be taken into account include: the nature of the predicate offence; the offender’s state of knowledge; whether the operation involved an international element; the sophistication of the offence or the degree of planning; whether the offence was committed by or on behalf of an orgainsed criminal syndicate; number of offences involved, the duration of the offence and the defendant’s level of participation (see paragraph 9 of Hsu Yu Yi and paragraph 40 of Boma).

23.  In the present case, it is accepted that it cannot be shown D had any knowledge of the predicate offence.  While the offence took place slightly more than one month and that there were two foreign funds deposits and a few withdrawals, the operation was not unsophisticated, as it involved deposits made into the account of an investment company specifically opened by one of its brokers (ie TSOI) upon D’s request, rather than through the operation of ordinary bank accounts.  The funds received were then transferred out of the investment account to TSOI’s own personal accounts.  He then made cash withdrawals and passed the money to D.

24.  Taking into account the sentencing principles mentioned above and upon considering the features in this case, in particular, the amount of the total funds laundered, the duration of the offence, the level of sophistication and D’s role, I adopt a starting point of 45 months’ imprisonment.

25.  As stated above, there is an international element in this case, thus an aggravating feature.  The Court of Appeal in Hsu Yu Yi said “a more severe sentence is needed to protect Hong Kong’s reputation as an international finance and banking hub from being tarnished”.  I enhance the starting point by 3 months to 48 months to reflect this aggravating feature.

Mitigation

26.  D made a timely plea and thus entitled to a full one-third discount in sentence.  The sentence is, therefore, reduced to 32 months’ imprisonment.

27.  Regarding the issue of delay in prosecution, the Court of Appeal in HKSAR v Chiu Chi Wing CACC 243/2012, endorsed the principles of delay being a mitigating factor as set out in the Australian authority of Scook v the Queen [2008] 185 A Criminal Review 164.  In Scook, Buss JA identified the following factors that are relevant to delay as a mitigating factor for sentence, namely:

“First, delay is not, of itself, a mitigating factor.

Secondly, delay will not ordinarily be a mitigating factor if it has been caused by difficulties in detecting, investigating or proving the offences committed by the offender, and the period of the delay is reasonable in the circumstances.

Thirdly, delay will not ordinarily be a mitigating factor if it is caused by the offender’s obstruction or lack of co-operation with the State, prosecuting authorities or investigatory bodies, but the offender’s reliance on his or her legal rights is not obstruction or lack of co-operation for this purpose.

Fourthly, delay will not ordinarily be a mitigating factor if it results from the normal operation of the criminal justice system, including delay as a result of the offender or a co-offender exercising his or her rights; for example, interlocutory appeals and other interlocutory processes.

Fifthly, delay may be conducive to the emergence of mitigating factors; for example, if, during the period of delay, the offender has made progress towards rehabilitation or other circumstances favourable to him or her have emerged.

Sixthly, delay (not being delay of the kind described in the second, third and fourth guiding principles) will ordinarily be a mitigating factor if:

(a) the delay has resulted in significant stress for the offender or left him or her, to a significant degree, in ‘uncertain suspense’; or

(b) during the period of delay the offender has adopted a reasonable expectation that he or she would not be charged, or a pending prosecution would not proceed, and the offender has ordered his or her affairs on the faith of that expectation.

Seventhly, delay caused by dilatory or neglectful conduct by the State, prosecuting authorities or investigatory bodies may result in a discount of the sentence that would otherwise be imposed on the offender, if the court thinks it an appropriate means of marking its disapproval of the conduct in question.”

28.  In the present case, about 7 years passed between D’s temporary release and the return of the bail money in June 2015 and the final decision to prosecute him in March 2022.  I accept that the Prosecution would have sufficient evidence to proceed with charging D for the present offence after his arrest and conducting the cautioned interview in 2013. There did not appear to be any reasonable justification for this considerable lapse of time nor was it caused by obstruction or lack of co-operation on the part of D.  While it is noted that the authority was unable to locate D between May 2022 and October 2023, D should not be held responsible for this as he would certainly be unaware of the development of the matter.  I also recognize D has been put under the strain of his re-arrest after the long lapse of time since he was informed of his temporary release in 2015.  He has then moved on and continued to settle in Hong Kong.

29.  In the circumstances, I accept that the delay amounts to a mitigating factor and I further reduce the sentence by 6 months.  In exercising my discretion in this regard, I am aware of what the Court of Appeal said in HKSAR v Ho Hon Chung Danel & others CACC 350/2002 (at paragraph 35) “that delay as a mitigating factor would necessarily only warrant a relatively short reduction in sentence, for otherwise, it might give rise to a wrong idea that it would be better for a defendant to unjustifiably drag out a case in which he is eventually convicted rather than to plead guilty or to proceed to trial expeditiously”. However, in the circumstances of this case, I consider that a 6-month reduction is just and appropriate.

30.  There is no further mitigating factor in this case. D is sentenced to a term of 26 months’ imprisonment.