HKSAR v. SURYATI

DCCC 969/2014

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 969 OF 2014

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REASONS FOR SENTENCE

1.  The defendant faces 4 charges of "Conspiracy to deal with property known or believed to represent proceeds of an indictable offence ".

2.  She pleaded guilty to Charges 1, 2 and 4.  Upon application by the prosecution, I ordered Charge 3 be left in the court file; not to be proceeded against her without leave of court.

Summary of Facts

The Underlying "Loan-sharking" Offence

3.  On 11 October 2012, Mr. CHAN (PW1) obtained a loan in the sum of $2,000 from a person surnamed LAI.  After deducting $500 as administration fees, PW1 received $1,500 from LAI.  PW1 was required to pay $300 as interest every 10 days.  Upon LAI's instruction, PW1 deposited $300 into an HSBC account (No.634-220057-292; "HSBC Account") on 22 October.  The annual interest rate of this loan was 1,142.14%.[1]

4.  Police investigation revealed that the defendant was the account holder and sole signatory of the HSBC Account.  She also held 2 other bank accounts, namely Hang Seng Bank (Account No.346-7-048132; "Hang Seng Account") and Chiyu Banking Corporation Limited (Account No.039-748-101851-3; "Chiyu Account").

Charge 1 (Hang Seng Account)

5.  The defendant opened the Hang Seng Account on 18 August 2009, of which she was the sole signatory.  The account was closed on 3 November 2012.

6.  During its operative period, not counting the salary and interest deposits, the Hang Seng Account received 604 deposits which amounted to a total sum of $1,115,124.60. The number of "cash deposit at counter" transactions was 403.  During the same period, all monies held in the account were withdrawn by way of 347 withdrawals, most of which were ATM withdrawals.

Charge 2 (HSBC Account)

7.  The defendant was the registered holder and sole signatory of the HSBC Account. The account was closed on 27 March 2013.

8.  Between 27 August 2010 and 9 November 2012, the HSBC Account received 1,530 deposits which amounted to a total sum of $1,234,933.01.  At the same time, 248 withdrawals which amounted to a total sum of $1,231,946.41 were made.

Charge 4 (Chiyu Account)

9.  The defendant was the registered holder and sole signatory of the Chiyu Account. The account was closed on 22 August 2012.

10.  Between 14 February and 22 August 2012, not counting the interest deposits, the Chiyu Account received 899 deposits which amounted to a total sum of $655,200.  The number of "ATM cash deposit" transactions was 451.  At the same time, all monies held in the account were withdrawn by way of 191 withdrawals, most of which were ATM withdrawals.

Admissions

11.  The defendant was arrested for Charge 2 on 14 January 2013; and Charges 1 and 4 on 24 September 2014.  Under caution, she admitted that she came to Hong Kong as a domestic helper in 2005.  Her monthly salary was $3,840.  She has been unemployed since January 2013.

12.  Regarding Charge 1, the defendant opened the Hang Seng Account in 2009 for receiving her salaries.  In 2012, she met a male surnamed WONG in a park and agreed to lend the Hang Seng Account to him for a reward of $2,000.  She gave WONG her ATM card and passcode and allowed him to operate the Hang Seng Account not knowing how he would use it.  She had also cleared the balance in her account and had not deposited any money in the account since.  In 2013, the defendant learned that her bank account was involved in money laundering; she, therefore, cancelled the Hang Seng Account and reported loss of her ATM card.

13.  Regarding Charge 2, in 2010, a male named Louis WONG asked the defendant to open a bank account so that a friend of his could receive payments from the Government (since Louis WONG's friend claimed that he could not deposit money into his own account). The defendant met Louis WONG in a park and had known him for 2 years.  She claimed that both Louis WONG and his friend are Hong Kong people.  The defendant opened the HSBC Account and passed the ATM card and passcode to Louis WONG's friend. In return, she received $2,000.  In June 2012, the defendant cancelled the HSBC Account.

14.  Regarding Charge 4, in February 2012, WONG asked the defendant if she had other bank accounts which could be sold to him.  He offered her $2,000 as a reward.  In order to receive the reward, the defendant opened the Chiyu Account and gave the ATM card and passcode to WONG.  She did not know how WONG operated the account.

15.  The defendant claimed that she does not know the personal particulars of WONG, Louis WONG or Louis WONG's friend.

16.  The defendant now admits that she had reasonable grounds to believe that her bank accounts would be used for money laundering.

Mitigation & Sentence

19. The Court of Appeal in SJ v WAN Kwok Keung [2012] 1 HKLRD 201 held:

"Money laundering" is a serious offence for not only does it encourage criminal activities indirectly, but also attempt to legitimize the proceeds of crime. In order to crack down on serious crimes, to prevent offenders from getting financial gains, it is necessary to deter the commission of the "money laundering" offences.

Generally, the sentence for "money laundering" offences should mainly reflect the amount of "black money" laundered and not the benefit obtained by the defendant or others. The reason being that it is very difficult to prove the benefit concerned, and in most "money laundering" cases, there may not be evidence to show from what indictable offence the "black money" are in fact derived. Of course, if there is information to prove that the "black money" is originated from serious crimes, including drug trafficking, kidnap and blackmail, illegal human trafficking, other organized crimes, etc. or the defendant's benefit is huge, then the sentence should be adjusted upward.[2]

20. In determining the proper starting point, I have reminded myself of the sentencing principles laid down in HKSAR v HSU Yu Yi [2010] 5 HKLRD 545 and HKSAR v Boma Amaso [2012] 2 HKLRD 33. I have also borne in mind the amount of money involved, the duration of the offence, the defendant's role in relation to the movements of funds as well as her personal circumstances.

21. In SJ v NGAI Fung Sin Apple [2013] 5 HKLRD 104, Yeung V-P held :-

Generally speaking, the sentence passed in a "money laundering" case is primarily to reflect the amount of the "illicit/black money" involved. Neither the fact that the "illicit/black money"was actually not derived from an indictable offence nor the defendant's ignorance of the actual source of the "illicit/black money" is necessarily a valid mitigating factor…[3]

22. I accept that in the present case, there is no evidence showing that the defendant was involved in or had any knowledge of the underlying "loan-sharking" activities. Mr. MA submitted that the defendant had simply "turned a blind eye" to what happened. I also accept that the defendant did no more than "selling" her bank accounts to someone and that she probably had no dealing of the funds which went through the accounts after she had "sold" them.

23. On the other hand, I cannot overlook the fact that roughly $3 million went through her bank accounts in a period of 28 months.

24. In the circumstances, I adopt a starting point of 2.5 years' imprisonment each for Charges 1 and 2; and 2 years' imprisonment for Charge 4. With the guilty pleas, the sentence is reduced to 20 months, 20 months and 16 months respectively. Apart from this, I see no other mitigating factors which warrant any further reduction.

25. Bearing in mind the totality principle, I consider a global starting point of 3 years' imprisonment to be appropriate. A one-third discount is given for the guilty pleas, reducing the overall sentence to 2 years. To achieve this result, I order: (i) the sentences for Charges 1 and 4 to run concurrently; and (ii) 4 months in Charge 2 to run consecutive to Charges 1 and 4; thus arriving at a total prison term of 2 years.