HKSAR v. CHONG WAN CHI (also known as CHONG YEE HONG)

DCCC 475/2018

[2018] HKDC 1604

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 475 OF 2018

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REASONS FOR SENTENCE

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1.  In this case the defendant, Chong Wan Chi (also known as Chong Yee Hong) is convicted upon his plea and admission of facts of two counts of dealing with property known or believed to represent proceeds of an indictable offence, contrary to section 25(1) and (3) of the Organised and Serious Crimes Ordinance, Cap 455.

2.  For reasons to be apparent, I will take the view that the two offences formed pair of an ongoing operation.  I will not deal with individual charges separately but rather take a global approach on the sentencing.

3.  The facts revealed that in about six years between August of 2004 to 4 July 2011, the defendant had opened two accounts consecutively with The Hongkong and Shanghai Banking Corporation Limited.  The first account was closed on the 8 September 2010 whereas on the same day the second account was opened until its closure on the 4 July 2011.

4.  During this period, the total sum of 3.8 million had been deposited and most of which had been taken out of the first account.  And in respect of the second account, during its active period, a total of 1.1 million had been deposited and about the same amount had been taken out.  The fund flow analysis of both accounts revealed that the monies had been deposited either by ATM transfer and withdrawn by the same method in respect of the first account, whereas for the second account, majority of the deposits were made by way of cash deposit whereas the majority of the withdrawals were by way of transfer either by phone banking or ATM machines.  A feature common to both accounts was that all the sums deposited were withdrawn shortly.

5.  Investigation revealed that the defendant lived in a public housing estate and he had not filed any tax return except in year 2005/2006 where he reported to be a cleaning worker making an annual income of $10,120.

6.  The search of the defendant’s home in June 2011 revealed that there were two IOUs relating to loans amounting to $1 million and two notebooks of debt collection records with personal particulars of about 258 debtors and loans amounting over $25 million.

7.  From the evidence admitted, it is clear that the defendant had used his account as a means of collecting debts, and from the evidence available and from the stated laws as they are, such activities amount to money laundering.

8.  The court also noted that he was charged in 2013 but had failed to attend court before he was arrested again in December 2017.  Both the prosecution and the defence agree that it was the delay has caused by the fact that he was serving a term of imprisonment in Macau.  I take the view that the delay by itself in the present case is not any reason for this court to exercise leniency.

9.  As I explained before, although there are two charges, they are considered a continuing of criminal behaviour from August 2004 when the first account was opened to 4 July 2011 when the second account was closed.  The whole amount involved is about $4.9 million.  The last date of the offence was 2011, therefore the court could only look at the sentencing which were decided at about that time, nonetheless the court’s attitude in offences of this kind has been consistent.  Owing to the status of Hong Kong as an international finance centre, the court has taken a very serious view of using our banking system for laundering money.  Offences of this kind have usually been dealt with by way of a term of imprisonment, the length of which is dependent on the quantity of the money laundered.

10.  The present case is slightly different from the normal run-of-the-mill cases in which the accused person was blissfully unaware of what had been going on in his or her account by simply “lending” his or her account to somebody else.  In this case it seems the defendant was involved in the movement of the accounts and he knew the purposes.

11.  My attention has been drawn to the case of HKSAR v Chow Ying Ki, CACC 378/2004 in which the defendant was convicted of one count of money laundering in respect of the four bank accounts she held in Hong Kong.  Between the year 2002 July to 2003 February, around 2.5 million was deposited into her account.  The trial judge found that she did not know the deposits represented the proceeds of an indictable offence.  That case is slightly different from the present one in that, there is evidence in the present case that the defendant was actively involved in the laundering activities and, the amount involved in the present case is to the tune of $5 million.  In the circumstances, I consider that a higher starting point than that adopted by the learned judge in Chow Ying Ki is justified.

12.  Therefore in respect of the two offences, I will adopt a starting point of 54 months.  He pleaded guilty to both counts, he is entitled to the usual one-third discount, so therefore it is now reduced to 36 months.

13.  I next will have to consider the Totality Principle.  Technically, the present offences were committed independent of the sentence he is now serving in respect of the offence he committed in Macau.  From the record, he was sentenced by a Macanese court on 27 May 2016 to 8 years’ imprisonment for a count of trafficking in dangerous drugs.  By virtue of the arrangement between the governments, he returned to Hong Kong on 14 December 2017 to serve the rest of his term.  This arrangement would result in his having to serve one more year in Hong Kong.  It is estimated the earliest he could be released will be year 2021.  So in the circumstances, for humanitarian reasons and in view of the Totality Principle, I am going to order 24 months of the present sentence served consecutively to the existing sentence order. 

14.  For the avoidance of doubt, for each count he is sentenced to 36 months.  They are to be served concurrently.  24 months of the whole sentencing order shall be served consecutive to the existing order.

15.  In making such an order I have already considered the background information as furnished by his lawyer.  At the time of the offence he was a mature man but had already been repeatedly involved in the criminal system. His family circumstances were no different from any other and I do not see any valid reason that I should exercise additional leniency.  Although I am sympathetic to the plight of his family members, caused by his incarceration but he should have thought of them before he committed the offences.

16.  For the reasons already stated, I therefore sentence to the defendant a total of 36 months, 24 months of which to run consecutive to the existing sentence order.