HKSAR v. HOU SHUN HSIUNG

CACC 472/2009

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 472 OF 2009

(On Appeal From District Court Criminal Case No. 777 of 2009)

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Hon Cheung JA (giving the judgment of the Court) :

Facts

1.  The appellant was charged with five charges of dealing with property known or believed to represent proceeds of an indictable offence, contrary to section 25(1) and (3) of the Organized and Serious Crimes Ordinance(Cap. 455).  The total amount of money involved was HK$4,150,000.  He pleaded guilty and was sentenced to three years’ imprisonment.

2.  The appellant is a Taiwanese.  He came to Hong Kong on 10 August 2008.  On the next day, he opened two bank accounts with the Bank of China (‘BOC’) and Hong Kong and Shanghai Bank (‘HSBC’) respectively.  Between 20 and 28 August 2008 a total of HK$2,996,346.28 was deposited into the BOC account.

3.  The amount deposited forms the subject matter of the 1^st Charge. 

4.  Between 11 August and 4 September 2008, a total of HK$1,033,620.80 was deposited into the HSBC account.

5.  The amount of $1,033,620.80 forms the subject matter of the 2^nd Charge. 

6.  The appellant on 18 August 2008 collected HK$29,568 from a money changer.  This forms the subject matter of the 3^rd Charge.

7.  In respect of the 4^th Charge, the appellant on 21 August 2008 collected HK$50,001 from the same money changer.

8.  In respect of the 5^th Charge, on 21 August 2008 the appellant collected a remittance of HK$41,080.85 from another money changer. 

9.  The appellant left Hong Kong on 2 September 2008.  He was arrested in Hong Kong on 7 March 2009 on suspicion of having committed the present offence.  In the interview with the police, he claimed that he came to Hong Kong for sightseeing and was looking for business opportunities.  He met a Taiwanese acquaintance by the name of ‘Little Black’ at a karaoke bar in Mong Kok.  That person asked him to open bank accounts in Hong Kong and to receive money for him.  He also went to the money changers to collect remittance on the instruction of that person. 

10.  In mitigation it was said that the appellant did not receive any monetary reward in the transaction.  Little Black promised him a job as a manager in a restaurant in Taiwan.  He claimed that the money collected from the accounts and the money changers was paid to Little Black. When he went back to Taiwan he could not locate Little Black.

The sentence

11.  Deputy District Judge Sham sentenced the appellant to three years’ imprisonment.  The Judge adopted three and a half years as the starting point for the 1^st Charge, two years’ imprisonment for the 2^nd Charge, nine months’ imprisonment for the 3^rd Charge, 4^th Charge and 5^th Charge.  A one-third discount was given for the plea, resulting in 28 months’ imprisonment for the 1^st Charge, 16 months’ imprisonment for the 2^nd Charge and 6 months’ imprisonment for each of the remaining three charges.  The Judge ordered eight months of the 2^nd Charge to be served consecutively to the 28 months’ imprisonment of the 1^st Charge.  The rest of the sentences are concurrent. 

12.  Pursuant to leave granted by a single judge of this Court the appellant now appeals against sentence.

Principles

13.  In HKSAR v. Hsu Yu Yi, CACC 159/2009 this Court (Tang VP, Cheung and Yuen JJA) recently reviewed a number of cases on money laundering and discussed the approach on sentencing.  There is no sentencing guideline for this offence because of the wide range of culpability involved but the following are considered to be relevant factors for sentencing :

(1)           The amount involved in the transaction is a very important consideration and not merely the benefit received by the defendant.  

(2)            The gravamen of the offence is the assistance given to the commission of the indictable offence, therefore the extent of the defendant’s participation and the number of transactions in the money laundering are relevant.

(3)           The indictable offence and the money laundering charge may not necessarily have a direct connection but if the indictable offence can be identified then the Court in considering the penalty for the money laundering offence may take into account the sentence related to the indictable offence.

(4)           The Court may adopt a more serious sentence if the case involves an international element in order to ensure that the reputation of Hong Kong as an international financial and banking centre may not be damaged.

(5)           The length of the time of the offence.

14.  The cases reviewed in Hsu Yu Yi show that a four years’ starting point had been applied to amounts of HK$3,000,000, HK$4,000,000, HK$5,000,000, HK$6,500,000 and HK$15,000,000 respectively. 

15.  In Hsu Yu Yi itself the applicant laundered HK$2,585,564.74. The Court considered that a three years and five months’ imprisonment (after trial) was the appropriate sentence by reason of the following factors : the case involved three Taiwanese who came to Hong Kong, set up bank accounts and received money from an overseas fraud.  The case was well organised with an international dimension. 

The present case

16.  In the present case the final sentence of three years’ imprisonment after plea indicates a notional four and a half years’ starting point.  Although the total amount involved in the present case of HK$4,150,000 is lower than some of the amount involved in the previous cases which attracted a starting point of four years, at the same time there are aggravating factors in this case as well.  Despite the appellant’s attempt to lessen the extent of his relationship with ‘Little Black’ and to distance himself from details of the transactions, commonsense indicates that he was obviously entrusted to open two accounts within 24 hours of his arrival in Hong Kong and subsequently handled a large sum of money.  His explanation belies the extent of his participation in the transactions.  The case involves an international element with some detailed planning.  The appellant came to Hong Kong from Taiwan for the purpose of implementing the transfer of money.  Two bank accounts were opened and money was collected from money changers.  There were substantial receipts of money shortly after the accounts were opened and the transactions lasted for about a month.  There was remittance from overseas, namely, France.  In our view the individual starting point for each of the charges and the final sentence imposed by the Judge were correct.  Accordingly the appeal is dismissed.