HKSAR v. LIN MENG CHANG

CACC146/2009

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 146 OF 2009

(ON APPEAL FROM DCCC NO. 1229 OF 2008)

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REASONS  FOR  JUDGMENT

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

1. On 3 November 2009 we dismissed the application for leave to appeal against sentence and indicated that in due course we would hand down our reasons for so doing.  This we do now. 

2. The applicant sought leave to appeal against the sentences imposed upon him by Deputy District Judge Tallentire (as he was then) on 6 April 2008, following upon his pleas of guilty to one charge of possession of false travel documents and re-entry permits, contrary to section 42(2)(c)(i) of the Immigration Ordinance, Cap. 115 and four charges of conspiracy to deal with property known or believed to represent proceeds of an indictable offence, contrary to section 25 of the Organized and Serious Crimes Ordinance, Cap. 455 and sections 159A and 159C of the Crimes Ordinance, Cap. 200. 

Sentence

3. The judge sentenced the applicant to one year’s imprisonment on Charge 1 and two years’ imprisonment on each of Charges 2 and 3, which sentences he ordered to run consecutively to each other and to the sentence imposed on Charge 1.  Sentences of two years’ imprisonment were imposed in respect of Charges 4 and 5, which sentences of imprisonment were ordered to run concurrently with each other and with the sentences of imprisonment imposed in respect of the other charges.  Accordingly, the total sentence of imprisonment imposed upon the applicant was five years.  

Charges

4. By Charge 1, it was alleged that on 5 July 2008 the applicant had in his possession in Hong Kong two false PRC entry and exit permits for Taiwanese residents in the name of Shiau Chin Yih and Chang Shih Chen and a false Republic of China-Taiwan passport in the latter name. 

5. By Charges 2 to 4, the applicant was alleged to have conspired, over different periods of time, together with a person described as “Ah Yuen” to deal with monies in stipulated bank accounts, knowing or having reasonable ground to believe that those monies in whole or in part directly or indirectly represented the proceeds of an indictable offence.  The particulars of the periods of the conspiracies and the stipulated bank accounts were :

Charge 2- between 19 February 2008 and 4 July 2008, in respect of four accounts held in four different banks in the name of Shiau Chin Yih;

Charge 3- between and 9 December 2005 and 4 July 2008, in respect of two bank accounts held in different banks in the name of Chang Shih Chen; and

Charge 4-  between 13 October 2005 and 4 July 2008, in respect of five bank accounts held in five different banks in the name of the applicant. 

Charge 5 alleged that the applicant had conspired with his co-accused, Mi Xiao Yan, in a conspiracy of a similar nature between 19 March 2008 and 7 July 2008, in respect of eight bank accounts held in eight different banks in the name of Mi Xiao Yan. 

The facts

6. Having pleaded guilty to the five charges, the applicant accepted as the factual basis for the court accepting those pleas, convicting him and imposing sentence a 14-page document described as “Summary of Facts”.  That closely typed document was not only voluminous but of some complexity, containing some material unrelated to the allegations stipulated in the Particulars of Offence in the various charges.  It was not a succinct summary of the facts that were material to the issues before the trial judge rather, as Mr Lai accepted candidly, its origins lay in a detailed police investigation report. Also, as is noted in paragraphs 34 to 37, although information as to the total amounts of deposits into and withdrawals from the bank accounts and the overall period during which that occurred was provided, absent from the summary was information in respect of their size, number and provenance, in particular as to whether or not the deposits were remittances from overseas.  Obviously, the salient features of that information are relevant to sentencing and ought to be included in a summary of facts.

The arrest of the applicant: property found on him and in his premises

7. The applicant and his co-accused were arrested on the morning of 5 July 2008 at a branch of Standard and Chartered Bank at 68 Nathan Road, as they withdrew over $36,000, the balance of the monies in an account in the name of Ms Mi, which account was stipulated at item (ii) of the Particulars of Offence of Charge 5.  The applicant was found to be in possession of no less than eight different bank cards in respect of accounts held at five banks in the names of various persons, including Shiau Chin Yin [Charge 2, item (i)], Ms Mi [Charge 5, item (i)] and in his own name [Charge 4, item (i)].  Subsequently, the premises at which the applicant and Ms Mi resided, Room 8, 14/F of the Four Seasons Guesthouse Chung King Mansion, were searched.  Amongst the items found was a Republic of China-Taiwan passport and other travel documents in the applicant’s name.  However, the documents the subject of Charge 1, bearing the photograph of the applicant, but in the name of those two other persons, Shiau Chin Yih and Chang Shih Chen, were also found. 

8. Elsewhere in the premises, bankcards and/or bank passbooks related to the bank account stipulated in the Particulars of Offence of Charges 2 to 5 were found :

Charge 2

          for both of the bank accounts in the name of Chang Shih Chen, stipulated in the Particulars of Offence in Charge 2;

Charge 3

          for all of the five bank accounts in the name of Shiau Chin Yih, stipulated in the Particulars of Offence in Charge 3;

Charge 4

          for all of the five of the bank accounts in the name of the applicant stipulated in the Particulars of Offence in Charge 4; and

Charge 5

          for six of the eight bank accounts in the name of Ms Mi stipulated in the Particulars of Offence in Charge 5. 

9. In addition to the discovery of bank passbooks and bank cards for the accounts stipulated in the Particulars of Offence in Charges 2 to 5, such items in respect of other persons were also discovered, namely in the names of Zhang Jin Hua, Liu Hung and Kuo I Ching. 

10. The applicant accepted that following the search of his premises, and after he had been cautioned in respect of the items that had been found by the police, he had admitted that all the bankcards and the forged travel documents had been sent to him by Ah Yuen.  He used the travel documents to open bank accounts, which he “sold” to Ah Yuen for $500.  He received a 1% commission on the amount of the monies deposited in the accounts, which he then transferred on Ah Yuen’s instructions.  He accepted that in a subsequent video record of interview he had explained that he effected the transfers of the monies that he had withdrawn through a bank in Shenzhen.  He had begun to sell such bank accounts to Ah Yuen in 2006 and from the end of 2007 had withdrawn and transferred the monies deposited into those accounts.  The applicant admitted that the eight bank accounts in the name of Ms Mi, stipulated in Charge 5, had been opened and operated by her at his direction. 

The opening and operation of the bank accounts

11. The applicant accepted that, after the various bank accounts stipulated in the Particulars of Offence of Charges 2 to 5 had been opened, he had “laundered” monies for Ah Yuen, that is received the monies in the account, withdrawn and transferred them at the direction of Ah Yuen. 

Charge 2

          The four bank accounts in the name of Shiau Chin Yin, stipulated in Charge 2, had been opened within a few days of each other in February 2008.  After the opening of those accounts he had “laundered” monies in three of the four accounts to a total of over $3.3 million in the period culminating on 4 July 2008. 

Charge 3

          The two bank accounts in the name of Chang Shih Chen, stipulated in Charge 3, were opened on 9 December 2005.  After the accounts had been opened he had “laundered” a total of over $4.9 million in the period culminating on 4 July 2008. 

Charge 4

          Three of the five bank accounts in the applicant’s name, stipulated in Charge 4, were opened with in a few days of each other in October 2005.  The other two bank accounts were opened and 1 December 2007.  After the accounts had been opened he had “laundered” a total of over $8.2 million in a period culminating and 4 July 2008.  Over $7.5 million had been “laundered” through one of the accounts opened in October 2005. 

Charge 5

          The eight bank accounts in the name of Ms Mi, stipulated in Charge 5, were opened in a period of about three weeks in March/April 2008.  Over $4 million had been “laundered” through those accounts in the period culminating on 7 July 2008. 

12. The applicant accepted that in total he had “laundered” $20,695,630 through those accounts in the period culminating with 7 July 2008. 

Victims of fraud as the provenance of some of the monies deposited in some of the bank accounts in 2008

13. Ms Diana Koh Li Eng, a resident of Singapore and Ms Lu Bin, a resident of Japan were victims of fraud perpetrated on them over the telephone as a result of which, as directed, they made payments into stipulated bank accounts.  In April 2008, Ms Diana Koh was told that she was the winner of a lottery but that she had to make an advance payment in respect of tax, refundable upon collection of the prize.  She did so and the fraud was repeated in respect of other supposed winnings in a lottery.  In all, in the period 2 May to 4 July 2008, she made nine payments to a total of the equivalent of HK$1,712,010.  For her part, the fraud practiced on Ms Lu related to a gaming plan said to be operated by the Hong Kong Jockey Club.  On 21 May 2008, she made one payment and caused the second to be made to a stipulated bank account to a total of HK$150,000 to a bank account in the name of Ms Mi with the Bank of China.  A third victim of the frauds, a resident of Canada, made a payment of US$4,500 to a bank account in the name of Ms Mi with the Standard Chartered Bank.  In July 2008, complaints were made by the latter two ladies to the police in Hong Kong. 

14. Two of the remittances made by Ms Diana Koh were made to bank accounts in the name of Ms Mi, one on 12 May 2008 in the sum of Singapore $30,000 into an account in her name with HSBC [Charge 5, item (viii)] and the other on 4 July 2008 in the sum of Singapore $50,000 into an account in her name with the Bank of Communications [Charge 5, item (vi)].  A facsimile copy of the deposit slip in respect of the latter remittance was found in the premises occupied by the applicant at Chung King Mansions.  Four other remittances, to a total of Singapore $178,000, were made by her in the period May and June 2008 to two accounts in the name of Zhang Jin Hua, one with the Bank of China and the other with HSBC in Hong Kong.  However, neither of those bank accounts was stipulated in the Particulars of Offence of any of the charges.  An HSBC bankcard in the name of Zhang for the HSBC account, to which Singapore $78,000 had been remitted on 23 June 2008, was one of the bankcards in the names of others found upon the applicant at the time of his arrest. 

Reasons for sentence

15. In imposing sentence upon the applicant, the judge noted that he was a 56-year-old citizen of Taiwan, who had no criminal conviction in Hong Kong.  He determined that the applicant had played a major role in the commission of the offences and described the schemes that led to the generation of the proceeds from the victims of the frauds as being “extremely sophisticated, well executed and designed to play on the gullibility of the victims.”  Of the significance to the “overall scheme” of the use of the bank accounts set up and operated by the applicant, the judge said :

“The schemes, or scams in common parlance, would not operate without the use of these accounts, therefore substantial and immediate prison sentences are called for.”

The judge stated that he took account the applicant’s clear record and the fact that he had been cooperative and had pleaded guilty at the first available opportunity.  Also, he noted that partial compensation, of just over $288,000, was available for repayment to Ms Diana Koh from the balance of monies in the bank account of Ms Mi with the Bank of Communications, to which bank Ms Diana Koh had made a remittance of Singapore $50,000 on 4 July 2008.  Ms Mi had authorised the withdrawal of those monies from that account for payment to Ms Diana Koh. 

Starting point for sentence

16. The judge indicated that he took a starting point of 18 months’ imprisonment for the first charge.  Of Charges 2 to 5, he noted :

“The amount of laundered money is in the order of HK $20 million the majority of which has been lost to the victims.”

He went on to state that he accepted that neither the applicant nor Ms Mi could be described as “the masterminds”.  However, he determined that the applicant and those directing him had manipulated the youth and naivete of Ms M, who was aged 22 years and who came from a poor rural background in the Mainland.  In the result, having observed that there were no “tariff cases” for sentencing in respect of those offences the judge stated that he took a starting point of three years’ imprisonment in respect of each of the four charges. 

Sentence

17. The judge discounted the starting points he took for sentence by one third, with the result that he imposed sentences of one year’s imprisonment in respect of Charge 1 and two years’ imprisonment in respect of each of Charges 2 to 5.  Without explanation, but presumably to achieve a totality thought appropriate, he ordered the sentences of imprisonment imposed in respect of Charges 2 and 3 to be served consecutively to each other and consecutively to the sentence imposed on Charge 1.  The sentences imposed in respect of Charges 4 and 5 were ordered to be served concurrently with each other and with the other sentences of imprisonment.  Accordingly, the total sentence of imprisonment imposed was five years. 

GROUNDS OF APPEAL AGAINST SENTENCE

18. By Grounds 1 and 2 of the Grounds of Appeal against Sentence it was submitted by Mr Whitehouse, on behalf of the applicant, that the overall sentence of five years’ imprisonment imposed upon the applicant was “too severe” and/or “manifestly excessive” in all the circumstances.  By Ground 3, it was contended that the judge erred in principle :

(a)      in taking a higher starting point for sentence than permitted by the District Court Ordinance; and

(b)     by ordering some of the sentences of imprisonment to be served consecutively and others concurrently.

No objection was taken to the quantum of sentence imposed in respect of each individual charge. 

19. In his Written Argument, Mr Whitehouse submitted that there was no evidence that the false documents the subject of Charge 1 had been used for any purpose other than for opening bank accounts.  In those circumstances, he submitted that the conduct ought to have been regarded as an aggravating feature of the commission of the offences alleged in Charges 2 and 3, in which accounts had been opened in the names of the persons named in the travel documents, namely Shiu Chin Yih and Chang Shih Chen respectively.  Accordingly, he contended that the judge was in error to make the sentences of imprisonment imposed in respect of Charges 2 and 3 consecutive to that imposed in respect of Charge 1. 

20. In support of that contention, Mr Whitehouse drew the court’s attention to the judgment of the court in HKSAR v Jain Nikhil (CACC405/2006, 16 February 2007, unreported).  In that case, the two applicants pleaded guilty to being parties to two separate conspiracies to defraud in which victims were gulled out of monies, which they remitted respectively to two bank accounts.  Earlier, each applicant separately opened one of the bank accounts using a false instrument, namely a passport bearing a false “chop” impression of the Hong Kong Immigration Department.  The victims of the fraud had remitted over HK$6.6 million, of which they lost HK$3.9 million.  The trial judge accepted that the applicants were not connected with the commission of the frauds themselves, but found that they had travelled from India to Hong Kong to commit the offences and had done so for personal gain.  Also, as sole signatories of the bank accounts they had effected the transfer of the monies that had been lost.  Having taken a global starting point of five years’ imprisonment for the two conspiracies to defraud, the judge imposed sentences of three years and four months on each charge.  For the offence of using a false instrument, the judge took a starting point of 18 months’ imprisonment imposed and imposed a sentence of 12 months’ imprisonment.  She ordered all sentences to be served concurrently.  In its judgment the court approved of that approach to sentence in that case. 

Charges 2 to 5

21. Mr Whitehouse submitted that, although the misconduct of the applicant and “Ah Yuen” had been divided into three separate conspiracies, and that of the applicant and Ms Mi one conspiracy, it could and should have been the subject of one overall conspiracy between October 2005 and 5 July 2008.  In those circumstances, he suggested that the appropriate approach to sentence by the trial judge would have been to take a “global” starting point.  In his submission, an appropriate starting point for sentence in respect of the four conspiracies to defraud would have been five years’ imprisonment. 

22. Mr Whitehouse submitted that the judge was in error to assert :

“The amount of the laundered money is in the order of HK$20 million the majority of which has been lost to the victims.”

Whilst he accepts that the total amount of money “laundered” through the accounts was over $20 million, he takes issue with the latter assertion, namely that the majority of that amount of money had been “lost to the victims”.  He pointed out that the prosecution identified only two named and one anonymous victim.  The monies that Ms Diana Koh remitted to the account of Zhang Jin Hua were monies remitted to an account not stipulated in any of the Particulars of Offence of the four conspiracies.  He accepts that she did remit monies on two occasions to an account in the name of Ms Mi, which was one of the accounts stipulated in the Particulars of Offence in Charge 5.  However, he invites the court to note that a compensation order was made in the Ms Diana Koh’s favour in respect of the balance of monies found in that account, namely over $288,000.  In the result, he submits that the judge “took a more serious view of the financial aspects of these charges then he should have done.”

Aggravating features in the commission of Charges 2 to 5

23. Mr Whitehouse submitted that, other than the use of the false passport and travel documents, there were no aggravating features in the commission of the offences other than the amount of money involved and the length of time that the scheme was in operation.  

Ground 3

24. In his Written Argument, Mr Whitehouse contended that in imposing total sentences of five years’ imprisonment in respect of Charges 1 to 3 the judge is to be taken as having determined that an overall starting point for those charges was 7½ years’ imprisonment.  He submitted that in so doing the judge erred in that the sentence of 7½ years’ imprisonment was “beyond the maximum sentence permitted in the District Court.”  However, several days prior to the hearing itself Mr Whitehouse provided the court with authorities that addressed the issue of the jurisdictional limit to sentencing in the District Court.  In HKSAR v Li Yan [1998] 4 HKC 12 the principles to be elicited from earlier decisions were identified in the judgment of Mortimer VP as being :

“(1)    On any one occasion the District Court may not impose a greater sentence than seven years’ imprisonment.

(2)    

(3)     In order to assess the correct sentence, it is permissible for the judge to adopt as a starting point, a total sentence of more than seven years if the offence or offences warrant such a sentence, but he may not impose a sentence of more than seven years.

(4)     If the sentences are imposed after plea, the starting point may be more than seven years, but if the sentence after discount is seven years or more, the full seven years should not be imposed as this deprives the accused of any benefit for his plea of guilty.”

Mortimer VP went on to observe that (page 15A) :

“Justice requires a further meaningful discount should be given from a maximum of seven years after plea in those cases which would attract seven years or more as a proper sentence which the court ought to impose.  This is to give the accused some benefit for his plea of guilty.”

The submissions of the Respondent

Charge 1

25. On behalf of the respondent, Mr Lai accepted in his Written Submissions that there was no evidence that the false travel documents had been used for any purpose other than opening bank accounts in the name of Shiau Chin Yih (Charge 2) and Chang Shih Chen (Charge 3).  In those circumstances, he submitted that the proper approach to sentencing was to regard the use of the travel documents as an aggravating factor in the commission of the offences the subject of Charges 2 and 3. 

Charges 2 to 5

26. It was accepted by the respondent that there was no evidence that the applicant had directly participated in the frauds perpetrated on the victims.  Nevertheless, it was contended that he had facilitated the successful commission of those offences by his conduct.  This court was invited to note the observations made in the judgment of Woo VP in a differently constituted division of this court in HKSAR v Xu Xia Li & another [2004] 4 HKC 16 at page 23, paragraph 18 :

“Without the assistance of money launderers, it would be more difficult for criminals to clothe their illegal proceeds with the same respect as lawful gains and the chances of law enforcement detection of illegal activities that produce monetary benefits would be enhanced.  Money laundering is therefore treated as a serious offence.”

Aggravating factors

27. Mr Lai submitted that the applicant’s conduct in the commission of these offences has the following aggravating factors :

(i)      the total amount of monies laundered was huge, $20 million;

(ii)      the duration of the criminality was protracted, two years and seven months from 8 October 2005 to 7 July 2008;

(iii)     the scheme involves careful planning, execution and sophistication, in particular the use of multiple bank accounts opened with false travel documents;

(iv)     the applicant had recruited his girlfriend, his co-accused, to open multiple bank accounts in her name;

(v)     there was an international dimension in that the monies were remitted from Singapore, Japan and Canada and transferred to the Mainland;

(vi)     the applicant, not a resident of Hong Kong, had come here in order to commit the crimes; and

(vii)    the applicant derived financial benefit in that he received $500 for each of the bank accounts that he had opened and a 1% commission on the monies dealt with in the accounts. 

28. Of the issue taken on behalf of the applicant, that the judge had erred in stating that “the amount of laundered money is in the order of HK$20 million the majority of which has been lost to the victims”, it was contended that the judge was there referring to the three identified victims only.  Further, that the amount of the remittances that were recovered was a small percentage of their losses.  In the result, it was submitted that the judge had not taken a more serious view of the financial aspects of the charges than he should have done. 

The sentencing jurisdiction of the District Court

29. Of the issue taken as to the sentencing jurisdiction of the District Court, Mr Lai drew the court’s attention to the judgment of this court in HKSAR v Tsang Man Wai (unreported CACC 124/2008) in which the court’s judgment in Xu Xia Li & another was cited with approval and it was observed that a sentence of five years’ imprisonment was well within the limit of seven years’ imprisonment and afforded the applicant a meaningful discount from the starting point following upon his pleas of guilty. 

A CONSIDERATION OF THE SUBMISSIONS

Ground 3 : the jurisdiction of the District Court for sentence

30. There is no merit in Mr Whitehouse’s submission that in imposing a total sentence of five years’ imprisonment upon the applicant, following his pleas of guilty, the judge had erred in taking what was to be inferred was a starting point of 7½ years’ imprisonment, which was “beyond the maximum sentence permitted in the District Court.”  As has been stated repeatedly in the judgments of this court, a judge in the District Court is permitted to take a starting point greater than seven years’ imprisonment, but in face of pleas of guilty he must give a meaningful discount from that starting point to give the defendant some benefit from his plea of guilty.  Here, the effective total sentence imposed was one of five years’ imprisonment. 

The gravity of the offences

Charge 1

31. It is to be noted that although the applicant had been convicted on Charge 1, namely of “possession” of three false travel documents, he readily accepted that he “used” those documents to open bank accounts in the names of the two persons there stipulated.  In all, six bank accounts were opened in their names. 

Charges 2 to 5

32. Clearly, the three conspiracies, the subject of Charges 2 to 4, in which the applicant was named as having conspired with Ah Yuen alone, could have been the subject of a single charge of conspiracy.  The effect of charging three separate conspiracies was merely to separate out into three charges the three names that were used in the bank accounts that were opened and used by the applicant for “laundering” the money.  By contrast, it was appropriate that the allegations the subject of Charge 5 be separate, given that the conspiracy was alleged to be one between the applicant and Ms Mi and no one else.  Obviously, for purposes of sentence an overview is to be taken of all the conduct. 

33. We accept as valid Mr Lai’s helpful summary of the aggravating factors in the commission of Charges 2 to 5.  The applicant’s misconduct, as reflected in these charges, began in October 2005 when he opened three bank accounts in his own name with three different banks (Charge 4).  Later, he opened two more bank accounts in his own name with different banks.  In December 2005, he opened two bank accounts in the name of Chang Shih Shen with two different banks (Charge 3).  He admitted that he did so using the false travel documents with which he was provided by “Ah Yuen”.  Over the period culminating in early July 2008, the applicant had “laundered” no less than $4.9 million in the accounts opened in the name of Chang and $8.2 million in accounts opened in his own name. 

34. At the request of this court in advance of the hearing, Mr Lai provided more detail of the use of those accounts, two in the name of Mr Chang and three in the applicant’s name, in the four calendar years 2005 to 2008.  It was immediately obvious from that information that very little money was deposited or withdrawn in any of the three accounts opened in the name of the applicant up until 2008.  In 2008, one of the accounts in the applicant’s name received over $7.5 million dollars whilst the second of those accounts received over $250,000, which monies were withdrawn or transferred.  By contrast, the accounts opened in the name of Mr Chang, whilst inactive in the calendar years 2005 and 2006, became active in 2007.  Firstly, in 2007 and secondly, in the period up to July 2008, a total of just under $800,000 and almost $4.2 million respectively was received into those two accounts, almost all of which was withdrawn or transferred. 

35. In a few days in February 2008, the applicant opened bank accounts with four different banks in the name of Shiau Chin Yih.  Again, he admitted that he had done so using a false travel document in that name.  In a few weeks in March and April 2008, he caused his girlfriend, and co-accused, to open no less than eight bank accounts with eight different banks.  Over $3.3 million and $4 million were “laundered” through those respective accounts in the few months culminating in early July 2008. 

36. Accordingly, although the applicant was engaged upon his misconduct for over 2½ years before his arrest, no monies were “laundered” until 2007, when just under $800,000 was received and  “laundered”.  Since the total amount of the monies “laundered” was over $20 million, it follows that over $19 million were laundered in 2008.  Altogether, nineteen different bank accounts were opened in the names of four persons for that purpose. 

37. There is no doubt that there was an international dimension to the overall scheme.  The applicant accepted that he had come to Hong Kong to open and operate the accounts and that he effected transfers of the monies through a bank in Shenzhen.  There was evidence that a small proportion of the remittances, those of the three identified “victims”, came from outside Hong Kong.  There was no evidence that the applicant participated in the frauds.  Other than those remittances the judge was not informed of the provenance, size or number of the deposits into the bank accounts.  Indeed, in answer to our enquiry as to those matters Mr Lai was unable to assist.  The applicant’s role was to provide and operate bank accounts for the receipt and transfer of monies.  He did so for reward, $500 for opening an account and a commission of 1% of the monies received into the accounts. 

The judge’s approach to sentence

38. It is clear from the language of the judge’s statement that, “the amount of laundered money is in the order of HK$20 million the majority of which has been lost to the victims” related to the whole $20 million.  In so far as that is to be understood as stating that the $20 million had come by way of remittances from “victims” of fraud and that those monies were now lost, there was no such all embracing evidence.  Only a small proportion fell into that category.  Of course, there was no need for the prosecution to prove the specific nature of the misconduct that had generated the monies.  The fact is that, whatever its provenance, the monies had come and gone through the bank accounts and was not available for compensation or to be forfeited. 

39. In taking the same starting point of three years’ imprisonment for each of Charges 2 to 5, it is readily apparent that the judge did not differentiate in that exercise between the use of false documentation to open accounts in the names of Chang Shih Chen (Charge 3) and Shiau Chin Yih (Charge 2), as opposed to the accounts opened and operated in his own name (Charge 4) and that of his co-accused (Charge 5).  It follows, that factor of aggravation was not taken into account in determining the quantum of sentence to be imposed in respect of Charges 2 and 3.  Similarly, it appears that the judge did not differentiate between the starting point to be taken for sentence having regard to the amount of money that was “laundered” through accounts in a particular name or the period over which they were used to launder monies. 

40. It is a fundamental principle that in imposing sentence, a judge must impose the sentence appropriate to each of the various charges in respect of which sentences are imposed.  Of course, that duty is not discharged merely by arriving at the correct totality of sentence to be imposed upon a defendant in relation to a series of offences.  Clearly, in this case the facts relevant to sentencing in respect of each of the conspiracy to “launder” charges differed, in some instances significantly.  As observed earlier two of the charges (Charges 2 and 3) were concerned with accounts which were opened with false documentation.  Whilst that aggravating feature was absent in Charges 4 and 5, it is to be noted that over $8.25 million was “laundered” through the five bank accounts opened in the name of the applicant (Charge 4), whereas only just over $4 million was “laundered” in less than four months in the eight bank accounts opened in the name of Ms Mi (Charge 5). Furthermore, we take the view that the individual sentences that each of the money "laundering" offences was too low.

41. In determining not to use the powers of this court, to quash the sentences of imprisonment imposed on some of the conspiracy to “launder” charges and substitute appropriate sentences of imprisonment, we have had regard to the fact of the artificiality of the division of the misconduct alleged against the applicant into the three separate charges represented by Charges 2 to 4, which misconduct more easily fell into a single charge of conspiracy.  That conduct embraced the period from the opening of the two bank accounts in the name of Mr Chang, on 9 December 2005, to the time of the arrest of the applicant in July 2008 in which over $16 million was “laundered”.  It follows, in light of what we set out later in this judgment, that this court is not to be taken as approving  the individual sentences imposed in respect of Charges 2 to 5. 

42. Although the judge did not differentiate in the quantum of sentence to be imposed in respect of each of Charges 2 to 5, we do not overlook the fact that he went on to order that the sentences imposed in respect of each of the charges in which false documents had been used by the applicant to open accounts, namely Charges 2 and 3, be served consecutively with each other.  By contrast, he ordered the sentences of imprisonment imposed in respect of Charges 4 and 5 to be served concurrently with the other sentences. 

43. It is to be observed that in Jain Nikhi, in taking a “global” starting point of sentence in respect of two conspiracies to defraud of five years’ imprisonment, the trial judge was dealing with two conspiracies over a period of about six months in which the total amount of monies “laundered” in two bank accounts was over $6.6 million.  By contrast, the applicant laundered monies of a value three times as great in nineteen bank accounts.  Although he had taken the first steps to setting up the mechanics for the “laundering” operation in 2005, by opening an account in the name of Mr Chang, it was not until 2007 that the receipt and transfer of monies began in earnest, albeit in limited amounts compared to 2008.  The fact that the applicant opened four more accounts with false documentation in the name of Shiau Chin Yih, in February 2008, and caused Ms Mi to open no less than eight accounts in her name in March and April 2008 marked a significant escalation in the applicant’s money “laundering” activities.  In the few months in which the newly opened accounts were operated, just over $7 million was “laundered” through them.  

44. In HKSAR v Javid Kamran ( CACC400/2004, 12 April 2005, unreported) this court noted that the maximum sentence for a conviction for money “laundering” on indictment was 14 years’ imprisonment and a fine of $5 million.  Of the nature of the offence, in the judgment of the court, Yeung JA said :

“30.   Money laundering is a very serious offence as it is an attempt to legitimize proceeds from criminal activities.

31.     Serious criminal offences are very often motivated by financial gains and those who assist criminals in laundering money, indirectly encourage them in their criminal activities.”

45. In HKSAR v Chen Zhen Chu [2007] 5 HKC 505 the court was concerned with an application for leave to appeal a sentence of nine years’ imprisonment imposed following a trial before a judge and jury on a single count of dealing with property known or believed to represent premises of an indictable offence.  In a period of 13 months, in 2003 and 2004, over 1,500 remittances to a total of HK$73 million were made from Australia and deposited in 23 bank accounts in Hong Kong controlled by the applicant.  The monies were withdrawn by the applicant in cash and taken by him and others to the Mainland.  The prosecution was unable to establish the underlying offence from which the money was generated.  Notwithstanding the fact that the court granted the application, determining that the sentence was manifestly excessive, and substituted a sentence of 7½ years’ imprisonment, Yeung JA observed (page 514I; paragraph 64) :

“We wish to add, however, that the seriousness and prevalence of money laundering offences are such that it may be necessary for the courts to take a more robust view about them.  In appropriate cases where the aggravating factors are such as those identified above and the sums involved are large, more robust sentences may well be called for than in some of the cases cited to us where relatively modest terms of imprisonment appear to have been imposed.”

46. In HKSAR v Leong Wai Keong (CACC476/2007, 8 December 2008, unreported ) this court dismissed an application for leave to appeal against a total sentence of 3 years and 11 months imposed upon the applicant following his pleas of guilty in the District Court to three charges of “money-laundering” and two charges of conspiracy to “launder” money.  In the period September 2001 to December 2002, the applicant set up three BVI companies in whose names he opened bank accounts with the Hong Kong Bank.  Thereafter, large deposits to a total of just under $30 million were made before the accounts were closed after almost all the monies had been withdrawn.  The judge accepted that the applicant had played his part in the scheme in return for the cancellation of a debt of $60,000 and payment of $15,000 and that he had travelled to and opened bank accounts in both South Korea and Taiwan.  He took a starting point of five years’ imprisonment for the three charges of “money-laundering” and three years’ imprisonment for the two conspiracy charges.  Then, he identified six years’ imprisonment as the appropriate “total starting point”, which was discounted by one third for the pleas of guilty and a further month for delay.  In the result, he ordered that the sentences of imprisonment of three years and four months imposed in respect of the three charges of “money-laundering” be served concurrently with one another, but that seven months of the two-year sentences imposed in respect of the two charges of conspiracy to “launder money” be served consecutively to those terms of imprisonment. 

47. In dismissing the application for leave to appeal McMahon J observed :

“28.   The circumstances to be taken to into account in cases of money-laundering will often vary widely and, given that the setting of sentencing guidelines is, at least at present, thought undesirable (see Javid Kamran (supra) and Chen Zhen Chu (supra)), the sentence appropriate to each offence must be determined with reference to the particular facts of the case.”

Of the sentences imposed in different cases, McMahon J went on to caution :

“34. … Mr Fung was able to point to a number of other cases involving larger sums which attracted lower sentences.  Mr Tam for the respondent, on the other hand, was able to point to various cases involving smaller sums than the present case where proportionally heavier sentences were imposed.  Such comparisons are of limited assistance, and on the present state of the authorities all that can be said is that what is required of a sentencing court is an appreciation of the relevant sentencing factors in the case before it and the application of a level of sentence appropriate to those factors.”

48. In all the specific circumstances of this case we are satisfied that the judge was correct in taking a starting point of 18 months’ imprisonment in respect of the possession of false travel documents (Charge 1).  As we indicated in paragraph 40, in our view the starting point taken for sentence in the money "laundering" charges and the individual sentences imposed was too low.  However, we are satisfied that the total sentence of four years imprisonment that the judge imposed in respect of those money "laundering" charges was appropriate.  Similarly, we are satisfied that in order to achieve the appropriate overall level of sentence the judge was entitled to order that the sentences of imprisonment imposed in respect of two of the charges of conspiracy to “launder” (Charges 2 and 3) be ordered to be served consecutively with one another and with the sentence of imprisonment imposed in respect of Charge 1. 

CONCLUSION

49. In the result, we were satisfied that the total sentence of imprisonment imposed upon the applicant, five years’ imprisonment, was neither wrong in principle nor manifestly excessive.  Accordingly, we dismissed the application for leave to appeal against sentence.