HKSAR v. BISCOCHO MARIJANE LUCBAN AND ANOTHER

DCCC 436/2020

[2022] HKDC 1057

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 436 OF 2020

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REASONS FOR SENTENCE

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1.  The first defendant was convicted after trial of 14 counts of engaging in a commercial practice that constitutes wrongly accepting payment for a product[1] (charges 1-7, 9-10, 12-13 and 15-17), 2 counts of applying a false trade description to a service supplied or offered to be supplied to a consumer[2] (charges 8 and 14), 1 count of breach of condition of stay[3] (charge 18)  and 2 counts of dealing with property known or believed to represent proceeds of an indictable offence[4], commonly known as money laundering offences (charges 19-20). 

2.  The second defendant was convicted after trial of 1 count of money laundering offence (charge 21). 

3.  Both defendants were jointly charged and convicted after trial of 1 count of engaging in a commercial practice that constitutes wrongly accepting payment for a product (charge 11).

Facts

4.  Details of the offences and the facts are set out in my Reasons for Verdict delivered on 16 September 2022.  I will not repeat them.

5.  In summary, at the material times, the second defendant was the person responsible for management of two companies, namely WHT Consultant Company (“WHT”)  and Remy Consultant Company (“Remy”).  WHT and Remy were not licensed employment agencies.  In other words, it is illegal for WHT and Remy to operate the business for obtaining employment for another person.

6.  The first defendant was at all material times a foreign domestic helper working in Hong Kong and was not allowed to work for anyone other than her contractual employer. 

7.  The first defendant was approached by the second defendant and thereafter both of them were involved in a scam in that WHT and Remy were held out to be lawful employment agencies and offered to obtain jobs in Hong Kong or Macau such as waiter, factory worker for Filipinos.  Seven Filipino domestic helpers working in Hong Kong (PW1-PW7, the victims in charges 1-17)  were introduced or came to know WHT or Remy when they were looking for employment opportunities for their relatives or friends.

8.  Jobs such as waiter, factory worker or such like other than jobs for foreign domestic helper were offered to relatives or friends of PW1-PW7.  Apart from the monthly salary and the job title, PW1-PW7 were not told details of the job.  When some of them questioned the lawfulness of WHT or Remy, the first defendant asserted WHT or Remy (as applicable)  was a lawful employment agency (charges 8 and 14).

9.  After PW1-PW7 paid the application fees for their relatives to the first and/or the second defendant(s), inappropriate application forms were sent to the applicants in the Philippines.  No interview with prospective employer was arranged.  There was no progress of these applications after a long period of time. In fact, the jobs offered to the applicants did not fall within the schemes of imported labour implemented by the Immigration Department and the Immigration Department had not received any applications of these applicants through WHT, Remy, the first and/or the second defendant(s).  When PW1-PW7 demanded for refund of the fees paid, no refund was made.  It is apparent that when the first and/or the second defendant(s)  received payments from the victims, they knew WHT and Remy could not and would not provide the employment agency service for obtaining jobs for the applicants (charges 1-7, 9-13 and 15-17).

10.  At the material times, the first defendant was in breach of her conditions of stay while she worked in WHT / Remy as a party to the scam (charge 18).

11.  Charges 19 to 21 are money laundering offences.  Charge 19 relates to the deposits of a total sum of HK$299,745, being monies received from various applicants (including the monies received from PW1-PW7)  less deduction of reward to the first defendant, into the first defendant’s account between 17 July 2018 and 30 September 2019.

12.  Charge 20 relates to cash in the total sum of HK$110,500 deposited by the first defendant into the second defendant’s account representing applicants’ fees paid to the first defendant.

13.  Charge 21 relates to the total sum of HK$331,216 deposited / transferred by the first defendant to the second defendant’s account representing applicants’ fees, which the second defendant admitted that the monies came from illegal source.  It is clear from the evidence that the second defendant lived on those monies as she had no other income during that period.

Mitigation of the first defendant

14.  The first defendant is aged 44, married with 2 sons.  She came to Hong Kong in 1998 and had worked as foreign domestic helper for the same employer over a period of 18 years.  Her monthly salary at the time of her arrest was around HK$4,300.  Before arrest, she supported her family by remitting money back to the Philippines.  As a result of the arrest, the first defendant’s husband has to take up 2 jobs to support the family.  The first defendant had a clear record prior to her arrest and has been in remand for about 18 months before she was granted bail in May 2021.  Mitigation letter from the first defendant’s friend stated the first defendant was friendly and willing to help others while mitigation letter from the first defendant’s former employer stated the first defendant was a responsible, honest and reliable person.

15.  In mitigation, Mr. Chau, SC referred to some authorities[5] relating to money laundering offences and submitted that this court should take into consideration factors such as the amount involved was at the lower end of the spectrum, the nature of the predicate offence was an unsophisticated fraud which was not initiated by the first defendant, no international dimension was involved, the scheme was not sophisticated, no criminal organization or syndicate was involved, the number of transactions were limited, that the offence period was about 14 months, the role of the first defendant and that the first defendant arranged some refunds to some applicants.

16.  Referring to the case of Secretary for Justice v Siu Yun Yee [2017] 3 HKLRD 678, Mr. Chau submitted that the circumstances of the present case were similar to that in Siu Yun Yee in that there was a time gap of almost 3 years from the date of arrest to the date of delivery of verdict.  He urged this court to exercise its discretion to reduce the ultimate sentence to reflect the delay in bringing the matter to a conclusion.

17.  Given the first defendant does not have the financial means to compensate the victims, Mr. Chau submitted a compensation order was not appropriate.  He also urged this court to impose concurrent sentences on all offences.

Mitigation of the second defendant

18.  The second defendant is aged 57 and lived with her partner Mr. Yu prior to being remanded pending mitigation and sentence.  She was in charge of the administrative work of Mr. Yu’s renovation company.  She had to take care of her 90-year-old aunt and would visit her twice a week.  She also distributed food and masks every 2 or 3 months with a non-governmental organization.  She has been suffering from anaemia and upper respiratory infections.  The second defendant has 2 criminal conviction records, including one record of fraud.

19.  Referring to the case of HKSAR v Chow Tung Shan, HCMA 481/2015, Mr. Kelly submitted a short term imprisonment should be imposed in respect of charge 11 given the small amount of money involved.  He also confirmed that the second defendant was willing to compensate PW5 in full for the amount of HK$6,000, being the amount paid by PW5 to the second defendant.   

20.  As far as the money laundering offence is concerned, Mr. Kelly referred to some authorities[6] and submitted the appropriate starting point should be around 18 months given the amount involved, the limited role of the second defendant in laundering of the money, no international element involved and the offence period was slightly over a year.

21.  Mr. Kelly urged this court to put more emphasis on the second defendant’s rehabilitation rather than deterrence and submitted concurrent sentences should be imposed on all offences.

Sentence

22.  The first defendant has a clear record while the second defendant has 2 previous conviction records, with one relating to fraud.  In sentencing, I consider it not necessary to enhance the sentence to be imposed on the second defendant because of her previous conviction records.

Money laundering offences (charges 19-21)

23.  As Mr. Chau has rightly pointed out, the money laundering offences are the more serious offences in the present case. 

24.  There are no sentencing guidelines in respect of money laundering offence.  Nevertheless, it is well recognized that money laundering offence is serious offence which attracts immediate custodial sentence even for a first offender[7]. The Court of Appeal has in HKSAR v Boma^[8] set out some of the factors that the court should take into consideration at the time of sentencing:

(1)  nature of the predicate offence;

(2)  knowledge of the nature of the predicate offence and knowledge of the fact that the funds are the proceeds of an indicatable offence;

(3)  an international dimension will be a significant aggravating feature;

(4)  sophistication of the offence;

(5)  commission of the offence by or on behalf of an organized criminal syndicate is another aggravating feature;

(6)  number of transactions involved and the length of time over which the offence was committed;

(7)  whether the offender continues to launder funds after he has discovered as a fact that the funds are the proceeds of an offence or after he has discovered the nature of an offence which is serious; and

(8)  role of the offender and the acts performed by him.

25.  Charges 19-20 represent the total sum of monies which the first defendant had laundered.  A total amount of HK$410,245 was laundered over a period of about a year.  In the circumstances, the appropriate starting point is 24 months’ imprisonment. 

26.  Apart from that, there are some aggravating features in the money laundering offences committed by the first defendant:

(1)  The predicate offence involved deceiving victims including PW1-PW7 by falsely holding out that jobs could be obtained for their relatives and friends when the same could not and would not be done. PW1-PW7 were deceived and thereby handed over the monies, which on some occasions is more than 2-3 months’ of their hard earned salary. Delaying tactics were used to delay the victims from discovering the scam and thereby prolonging the period over which the scam could be carried out.

(2)  The first defendant knew the nature of the predicate offence as she actually took part in the scam by making false representations and by dealing with these victims. She also knew the monies she received were proceeds of an indictable offence.

(3)  Even though the first defendant knew the money was proceeds of crime when she received the first payment from PW1 (charge 1), she continued to take part in the scam and received monies by practising the scam.

(4)  The first defendant played an active and important role in the scam. She was the one who sold the packages and dealt with the victims. She was tasked to deal with the victims and other applicants as she was also a Filipino and it would be way easier for her to communicate and persuade the victims. Without her, the scam could not be carried out smoothly and over such a long period of time.

27.  Given the above aggravating factors, I consider it appropriate to enhance the starting point of each money laundering offence by 4 months to 28 months’ imprisonment.

28.  The second defendant faced 1 count of money laundering offence (charge 21).  A total sum of HK$331,216 was laundered over a period of about a year. In the circumstances, I consider the appropriate starting point is 24 months’ imprisonment.    

29.  The aggravating features I have just identified in the case of the first defendant are also applicable to the second defendant.  In addition, it was the second defendant who was responsible for the management of WHT and Remy and it was her who approached the first defendant to get her involved in the scam.  It is clear the second defendant played a leading role in the scam and she was the major beneficiary of the scam in terms of the amount of money that was passed to her for her disposal.  I find the culpability of the second defendant is higher than that of the first defendant.  Therefore, I consider the starting point for charge 21 should be enhanced by 6 months to 30 months’ imprisonment.

Offences under the Trade Description Ordinance (charges 1-17)

30.  For the offences of engaging in a commercial practice that constitutes wrongly accepting payment for a product, the amount of money handed over by each victim on each occasion ranged from HK$2,000 to HK$8,000, while their monthly salary at that period was around HK$4,300.  The total amount of loss suffered by PW1-PW7 is HK$12,000, HK$12,000, HK$8,000, HK$11,000, HK$6,000, HK$9,000 and HK$19,000 respectively.  All the victims are Filipino domestic workers working in Hong Kong.  They chose to leave their families in the Philippines and came to Hong Kong in order to earn more money to support their families.  As a result of the scam, the loss suffered by each victim ranges from slightly about 1.5 months’ to almost 5 months’ hard earned salary, which in any sense is a huge sum to each of them.  There is evidence that some victims took out a loan to pay for the fees or was under pressure and tense relationship with their respective relative due to the unsuccessful applications and loss of the monies.  I consider the facts are serious despite on the face of it the amount involved is not huge.

31.  In the circumstances, I consider the appropriate starting point for each count (i.e. charges 1-7, 9-13 and 15-17)  is 12 months’ imprisonment.

32.  For the offences of applying a false trade description to a service supplied or offered to be supplied to a consumer (charges 8 and 14), these offences were committed by assuring the victims that WHT or Remy was a lawful employment agency so that they would in the end hand over the monies for the applications.  I consider the appropriate starting point for each count is 6 months’ imprisonment.

33.  The prosecution applied for compensation order under section 18A of the Trade Descriptions Ordinance against each defendant in respect of the respective offences under section 13I that they have been convicted of.  As the first defendant has no financial means to pay the compensation, I do not consider it appropriate to make compensation order against the first defendant.  Given the second defendant is willing to compensate PW5 in the sum of HK$6,000, which she received from PW5, I order the second defendant to pay compensation of HK$6,000 to PW5 in respect of charge 11.

Offence of breach of condition of stay

34.  While taking part in the scam by working in WHT and Remy, the first defendant had breached her condition of stay.  In light of the authority[9] referred to by Mr. Chau, I consider the appropriate starting point for charge 18 is 3 months’ imprisonment.

Discount in sentence

35.  As both defendants were convicted after trial, they are not entitled to the usual 1/3 discount upon guilty plea.

36.  Mr. Chau referred to the case of Siu Yun Yee and submitted this court should exercise discretion to grant a discount to the first defendant for the delay in bringing the matter to conclusion.  He submitted this case has been delayed on several occasions by reason of the second defendant being late in seeking legal representation or being ill.  He said the matter has been hanging on for 3 years during which the first defendant was under undue stress and also suffered financially.  In my view, the scenario in the case of Siu Yun Yee is different from our case in that there was a delay of about a year in bringing the case to conclusion due to the need to await the outcome of a decision from the Court of Final Appeal.  This is not the situation here.  Further, it is common to have cases adjourned because of co-defendant’s need to seek legal representation or illness.  While the first defendant is no doubt under stress as a result of these proceedings, I do not consider this is a valid ground for exercising my discretion to grant a discount in sentence.

37.  Having considered the mitigation of both defendants, I do not find other valid factor warranting a reduction in sentence.

Totality of sentences

38.  In respect of the first defendant, the charges she has been convicted of comprise 3 categories, namely offences under the Trade Descriptions Ordinance, offence of breach of condition of stay and money laundering offences.

39.  As far as offences under the Trade Descriptions Ordinance are concerned, since different victims were involved, the sentences should be partly concurrent and partly consecutive.  Sentences of offences involving the same victim should run concurrently and 1 month of the total sentence of offences involving each of PW2-PW7 should run consecutively to the total sentence of offences involving PW1.  Therefore,

(1)  sentences of charges 1-3 are to run concurrently, making a total of 12 months’ imprisonment;

(2)  sentences of charges 4-5 are to run concurrently, 1 month of the total 12 months’ imprisonment to run consecutively to the total sentence of charges 1-3;

(3)  sentences of charges 6-7 are to run concurrently, 1 month of the total 12 months’ imprisonment to run consecutively to the total sentence of charges 1-3;

(4)  sentences of charges 8-10 are to run concurrently, 1 month of the total 12 months’ imprisonment to run consecutively to the total sentence of charges 1-3;

(5)  the sentence of charge 11 is 12 months’ imprisonment, 1 month of the sentence to run consecutively to the total sentence of charges 1-3;

(6)  sentences of charges 12-13 are to run concurrently, 1 month of the total 12 months’ imprisonment to run consecutively to the total sentence of charges 1-3;

(7)  sentences of charges 14-17 are to run concurrently, 1 month of the total 12 months’ imprisonment to run consecutively to the total sentence of charges 1-3; and

(8)  the total sentence of charges 1-17 is 18 months’ imprisonment.

40.  As the offence of breach of condition of stay (charge 18)  arose from the same set of facts as the offences under the Trade Descriptions Ordinance, the sentence for this offence should run concurrently with the total sentence of the offences under the Trade Descriptions Ordinance. 

41.  Regarding the 2 counts of money laundering offences for which the first defendant has been convicted of, the sentences of the two offences are to run concurrently, making a total sentence of 28 months’ imprisonment.   

42.  I agree with both counsel that given the money laundering offences and the predicate offences arose out of the same set of facts and cover the predicate offences, their sentences should run concurrently.

43.  As far as the first defendant is concerned, the total sentence of charges 1-17 (i.e. 18 months’ imprisonment)  is to run concurrently with the sentences of charges 18-20, making a total sentence of 28 months’ imprisonment.

44.  Regarding the second defendant, the sentence of charge 11 is to run concurrently with the sentence of charge 21, making a total sentence of 30 months’ imprisonment.  In addition, the second defendant is to pay compensation in the sum of HK$6,000 to PW5 by 4pm today.