HKSAR v. BOMA AMASO

DCCC407/2010

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 407 OF 2010

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Reasons for Sentence

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THE CHARGES AND PLEA

1.  The defendant, who is known as Boma Amaso, appeared before me facing four counts of dealing with property known or believed to represent proceeds of an indictable offence, Charges 1 to 4, and one of remaining in Hong Kong without the authority of the Director of Immigration after having landed unlawfully in Hong Kong, Charge 5.

2.  The defendant pleaded guilty Charge 2, 4 and 5 and admitted the facts pertaining to those charges.  I convicted the defendant of Charge 2, 4 and 5 on his own pleas and admission.  At the request of the prosecution, I ordered that Charge 1 and Charge 3 be left in the court file and not to be proceeded with without leave from this court or the Court of Appeal.

THE FACTS

Background

3.  The money laundering charges concern four bank accounts.  One of them was held in the name of Amegashie Emmanuel Kofi (Kofi) while the remaining three were held in the name of Le Meritz Investment Company (Le Meritz).  Signs of money laundering activities, i.e., inward remittances followed by immediate outward transfers of cash withdrawals in a similar amount are detected in the aforesaid four accounts.  The defendant was responsible for operating those accounts and conducting those activities.  When the defendant was arrested on 8 April 2009, no identity document of any kind was found on him.  He at the time had in his possession two mobile phones with pre-paid SIM cards.  The defendant, when he appeared in the magistracy court, in answering a question from the Bench as to his name, claimed himself to be Boma Amaso.

Charge 2

4.  Charge 2 concerns a bank account account number 3570115376 with Dah Sing Bank.  This bank account was opened by a person in the name of Kofi on 21 April 2006.  A Ghana passport under the name of Kofi was produced when the account was opened.  The account holder also provided a telephone number and a residential address in Yuen Long.  He stated that he was self-employed by an E.K.A. Trading Company.  Subsequent investigation revealed that this entity has no registration at the Business Registration Office or the Companies Registry.

5.  The account activities of the aforesaid Dah Sing account took place within 13 October 2007 and 3 January 2008.  This bank account was opened and operated by the defendant whose fingerprints were found on five withdrawal slips:

- one for HK$125,603.24 dated 13 December 2007;

- one for HK$125,000 dated 13 December 2007;

- one for HK$739,884.90 dated 15 December 2007;

- one for HK$740,000 dated 15 December 2007;

- one for HK$405,217.85 dated 20 December 2007.

6.  The total deposits received during the material period by the Dah Sing Bank account consisted of HK$200, US$298,177.01 and £7,902.  There were altogether eight deposits.  Remittances from the USA and Britain were involved.

Charge 4

7.  Charge 4 concerns three bank accounts held in the name of Le Meritz with Public Bank (Hong Kong) Limited, Citic Ka Wah Bank Limited and the Bank of China (Hong Kong) Limited.

8.  The Companies Registry does not have any record of Le Meritz.  However, Le Meritz has a business registration registered on 22 December 2007 bearing Mahamida Augustine Maahmoa (MAM) as its sole proprietor and its business address at 2nd Floor, 94 Wing Ning Lei, Wang Toi Shan, Yuen Long, New Territories.

9.  Between 19 February and 12 March 2008, the defendant opened the three company bank accounts as particularised in Charge 4 by using the Business Registration of Le Meritz.  The bank account with Public Bank (Hong Kong) was opened on 7 March, the account with Citic Ka Wah Bank Limited was opened on 12 March and the account with the Bank of China (Hong Kong) Limited was opened on 19 February.  MAM was the sole signatory for all three accounts.  When opening the three accounts, the defendant produced a false passport of the Kingdom of Lesotho in the name of MAM.

10.  The defendant’s fingerprints were found on some bank documents, i.e., the account opening form for the account with Public Bank (Hong Kong) Limited and some of the withdrawal slips for the accounts with Citic Ka Wah Bank Limited and the Bank of China (Hong Kong) Limited.  In the Opening Mandates for the three accounts, the business address of Le Meritz at Wang Toi Shan, Yuen Long and a telephone number 6899 0524 were provided.  The telephone number was recorded as “My num” in one of the mobile phones seized from the defendant.

11.  An SMS containing information needed for others to transfer funds into the account with the Bank of China (Hong Kong) Limited was found to have been sent from one of the defendant’s mobile phones to a telephone line number.

12.  The three accounts were operated by the defendant until he was arrested by the police on 8 April 2009.

13.  For the account held with the Public Bank (Hong Kong) Limited, during the period between 3 March 2008 and 25 March 2009, it received 13 deposits from Algeria and the total amount of deposits was HK$1,769,295.98.

14.  For the account held with Citic Ka Wah Bank Limited, during the period between 12 March 2008 and 9 October 2008, it received eight deposits from USA and Britain and the total amount of deposits was HK$5,631,438.44.

15.  The Bank of China (Hong Kong) Limited account, during the period between 26 February 2008 and 10 March 2009, received 10 deposits totalling HK$392,334.45.

Charge 5

16.  The defendant was intercepted by the police on 8 April 2009 in Chow Tai Fook Jewellery Shop in Causeway Bay.  The police demanded the defendant to produce an identity card or other proof of identity relating to himself.  The defendant failed to do so.  The police found no identity document of any kind on the defendant and were unable to ascertain where the defendant was staying in Hong Kong.

17.  The defendant remained silent under caution.

18.  According to the records of the Immigration Department, there was no record of entry into Hong Kong of a person in the name of Boma Amaso.

19.  The defendant, having entered Hong Kong unlawfully, remained in Hong Kong without the authority of the Director of Immigration on 8 April 2009.

CRIMINAL RECORD

20.  On 11 March 2010, the defendant appeared before H H Judge Remedios in DCCC1125/2009.  He pleaded guilty to one count of ‘Attempt to obtain property by deception’ and one of ‘Obtaining property by deception’.  He received a total term of 16 months’ imprisonment.  The defendant had served his sentence in DCCC1125/2009 on 10 April 2010.

21.  Counsel informed me the offences in DCCC1125/2009 concerned the use of false instrument, i.e., a credit card of another person.  The defendant was arrested when he tried to use the card on 8 April 2009 in Chow Tai Fook Jewellery Shop.  Inquiries disclosed that he had used the card on another occasion.

MITIGATION

22.  I am grateful to Mr Richmond, who has kindly prepared a written mitigation, which sets out all the matters that the defendant seeks to pray in aid.  Attached to the written mitigation is a mitigation letter written by the defendant and seven authorities.  All the authorities submitted concern Section 25(1) offences.

23.  In Mr Richmond’s plea in mitigation, he draws my attention to the defendant’s background.

24.  For the matters raised in paragraph 1.3 and 1.4 of the written mitigation, Mr Richmond tells me that the defendant made his Torture Claim on 13 March 2010, shortly before he finished serving his sentence in DCCC1125/2009.  I am told prior to the making of the Torture Claim Application, the defendant had on 29 August 2006 applied for asylum status to the UNHCR in Hong Kong.  The defendant’s case was closed by the UNHCR on 28 July 2008.

25.  Mr Richmond submits that the fact that the defendant pleaded guilty to Charges 2, 4 and 5 demonstrates his remorse.  The defendant wrote to the court by a letter dated 19 August indicating the defendant’s election.  By doing so, the defendant has saved time, costs and inconvenience to witnesses.

26.  Mr Richmond draws my attention to the contents of the mitigation letter written by the defendant.

27.  Mr Richmond submits that since the defendant’s arrival in Hong Kong, he relied on the charity of friends, one of whom, after much persuasion, influenced the defendant to commit the offences in DCCC1125/2009, and the defendant received little or no reward.  In the same way the defendant was persuaded to take out the bank accounts and conduct the various transactions.  Given the defendant’s undercover status, the defendant was a vulnerable man, easily influenced and one who was desperate to survive, by illegal means, if necessary, in Hong Kong.

28.  Mr Richmond then reviews the sentencing authorities in part 3 of the written mitigation.  After reviewing the seven authorities cited, Mr Richmond suggests that the appropriate starting point for the money laundering charges should be one of 3 to 4 years’ imprisonment.

29.  In part 4 of the written mitigation, Mr Richmond seeks to argue that there was delay in prosecuting the defendant for the money laundering charges.  By the time the defendant was charged with the money laundering offences on 14 April 2010, the defendant had already served his sentence in DCCC1125/2009.  As a result of the delay, the defendant was deprived of the benefit of having the totality for the offences in both cases considered by the same sentencing judge.

30.  In part 5 of the written mitigation, Mr Richmond submits that the sentences in respect of Charges 2 and 4 should be concurrent with each other whilst the sentence for Charge 5 should be ordered to run either concurrently or only partially consecutive to the sentence in respect of Charges 2 and 4.

THE PROSECUTION’S POSITION

31.  Mr Wong, for the prosecution, submits a chronology of events.  Mr Wong submits that the defendant first appeared in the District Court on 30 October 2009 in respect of DCCC1125/2009.  The defendant pleaded not guilty to the charges on that occasion and his trial was fixed to be heard in March 2010.

32.  Mr Wong submits that there has been no delay in prosecuting the defendant for the money laundering charges in question and the defendant does not suffer any prejudice as a result.

33.  For the case of Mak Shing (Tab No. 2), Mr Wong draws my attention to paragraph 7 of the judgment and points out that the total amount of money laundered was $1.5 million, not RMB$14.5 million, as stated in 3.4 of the written mitigation.

34.  For the submission made that there is no loss to victims, Mr Wong draws my attention to the case of HKSAR v Chen Zhen Chu [2007] 5 HKC 505.  The Court of Appeals says at paragraph 48 of the judgment:

“48. However, the gravamen of a money laundering offence is the amount of money handled, not the amount of profit to the defendants or the loss to the victims. In most money laundering cases, it is simply not possible to determine the question of profit to the defendants or the loss to the victims even if those victims could be identified.”

DISCUSSION

Part 1 and 2 of the Written Mitigation

35.  The fact that the defendant had an ‘undercover’ existence at the time of the offences cannot avail the defendant.  Just as it does not lie on the mouth of an illegal immigrant from China or Vietnam that because of his undercover status, “he was a vulnerable man, easily influenced and one who was desperate to survive, by illegal means if necessary, in Hong Kong”, and is therefore entitled to reduction in sentences for the other crimes he committed during his stay in Hong Kong, the defendant is not entitled to any discount for the reason that he had an ‘undercover’ existence, being an illegal immigrant cum asylum seeker or torture claimant.

36.  For the role played by the defendant, he was the front man in the sense that he was the person who opened and operated the bank accounts.  The defendant, in one sense, did not expose himself as he used the passports of Kofi and MAM when he opened the bank accounts in question. Although fingerprints were found on some withdrawal slips, the defendant’s identity did not surface and the police could not link the defendant to the money laundering activities until after the defendant had been arrested for the deception case and fingerprints lifted from him in April 2009.  The facts show that the defendant played an important role in the money laundering activities.

37.  For the guilty pleas entered by the defendant, he is entitled to a one-third reduction of sentence.

Review of Cases

38.  In HKSAR v Hui Kam [2000] 3 HKLRD 211 (Tab B1), Deputy Judge Chu, as she then was, observed that the money laundering offence under section 25(1):

“...is one which justifiably calls for a deterrent sentence, both in the sense of deterring the individual offender and of deterring the community as a whole.

It is not too difficult to appreciate that the handling and disposal of proceeds is very often an integral and important part of a criminal plan. The incentive to offend will clearly be curtailed if criminals cannot dispose of the fruits of the crime. It is therefore important to impress on the members of the public the serious consequences of dealing in and disposing of proceeds of crime even when one is helping his family member.”

39.  In HKSAR v Mak Shing, CACC322/2001 (Tab B2), the Court of Appeal held that a starting point of 4 years’ imprisonment was sufficient to reflect the seriousness of three section 25(1) offences involving HK$1.5 million.  Whilst there was a cross-border element in Mak, there was clearly an international element to Charges 2 and 4 in the present case.  As observed by the Court of Appeal in Mak, “Hong Kong has to take a very serious view of such matters if its international reputation is not to be sullied.”

40.  HKSAR v Xu Xia Li & Anor [2004] 4 HKC 16 (Tab B3) concerns a conspiracy to launder HK$11 million of the proceeds of an indictable offence for which the defendants were sentenced to 3 years’ imprisonment.

41.  Mr Richmond cites Xu for three propositions:

1. For money laundering offences, the nature of the indictable offence from which the money was derived is of no particular significance in sentencing, save that if the accused knew that the money was derived from very serious crimes, this will be an aggravating factor.

2. The starting point of 3 year’s imprisonment after trial was not out of line with similar cases.

3. The relationship between the money launderer and the person who directed him to launder should not normally feature as a mitigating factor in sentencing, unless the defendant was subjected to undue influence or influence close to that. Rather, the commission of a laundering offence for personal gain or in a commercial operation should be considered as an aggravating feature in sentencing.

42.  Mr Richmond submits in 3.9 of the written mitigation that there is no evidence that the defendant knew the money involved in these transactions derived from serious crimes, hence there is no aggravating feature in that sense.  He also submits that the defendant was unduly influenced, as a fugitive, to undertake these offences.

43.  I accept in the present case there is no evidence that the defendant knew that the money to be laundered was derived from very serious crimes.

44.  I do not accept the defendant is entitled to a reduction in sentence because he was ‘unduly influenced’ by a friend, on whom the defendant had relied on during his illegal stay in Hong Kong.

45.  For the reason given earlier, I do not accept the fact that the defendant was an asylum seeker or potential torture claimant would afford the defendant a mitigating factor for the other crimes he committed in Hong Kong.  The position of the defendant was no different from an illegal immigrant from China or Vietnam or an over-stayer, who would be equally vulnerable, easily influenced and desperate to survive, by illegal means, if necessary, in Hong Kong, to use Mr Richmond’s words.

46.  Moreover, the person who Mr Richmond submits had been unduly influencing the defendant was a friend of the defendant whose charity the defendant had relied upon during his stay in Hong Kong.  The relationship between the defendant and his friend is very different from cases where a husband was influencing his wife to launder proceeds of crimes or a father who was influencing his son to help the former to launder money.

47.  I do not think the defendant is entitled to any reduction for his claim that he committed the offences under undue influence by his friend.

48.  In HKSAR v Javid Kamran, CACC400/2004 (Tab B4), the appellant received 32 months’ imprisonment for a section 25(1) money laundering offence, which involved dealing in HK$1.9 million of the proceeds of drugs trafficking.

49.  The Court of Appeal states that money laundering is a very serious offence as it is an attempt to legitimise proceeds from criminal activities.  Successful deterrents against money laundering could be effective measures against crimes.  The Court of Appeal observed that it is not feasible to lay down guidelines for sentence of money laundering offences, as there is a very wide range of culpability.

50.  Apart from the deterrent factor, the Court of Appeal observes in paragraph 35:

“Other factors include the nature of the offence that generated the laundered money, the extent to which the offence assisted the crime or hindered its detection, the degree of sophistication of the offence and perhaps the defendant’s participation, including the length of time the offence lasted and the benefit he derived from the offence.

51.  It seems to me in the passage quoted, the Court of Appeal considered that the deterrent factor is the first matter that a sentencing judge should bear in mind in dealing with money laundering offences.

52.  I agree with Mr Richmond that in the present case the nature of the offence that generated the laundered money is not known.  The way that Charges 2 and 4 were committed by the defendant, for example, the use of the passport of Kofi and the false passport in the name of MAM, would have the effect of hindering the detection of the crimes, the law enforcement agencies would not be able to link the offences to any culpable person.  Had the defendant not been arrested in April 2009 for the deception case, the defendant’s identity would not surface as the police would not be able to conduct any fingerprint comparison.

53.  In the present case, even if the banks were required to automatically monitor the accounts, the identities of the culpable parties were concealed given the way the accounts were opened and operated by the defendant.  For Charge 2, the bank account in question was opened by the defendant on 21 April 2006 and the defendant operated the money laundering activities of the account within 13 October 2007 and 3 January 2008.  For Charge 4, the three accounts were opened by the defendant between 19 February and 12 March 2008.  The three accounts were operated by the defendant until he was arrested on 8 April 2009.  For the submission that the defendant derived little tangible benefit, although there is no evidence that the defendant received any benefit from the laundering activities, the explanation offered by the defence shows that the person who persuaded the defendant to help laundering the money had been offering financial support to the defendant during the defendant’s fugitive stay in Hong Kong.

54.  In HKSAR v Abayomi, CACC197/2005 (Tab B5), the Court of Appeal reiterates that:

“...there are no guidelines for this kind of offence and it is difficult to see that there could be because of the infinite variety of circumstances that may exist which lead to offences of this kind.”

55.  The Court of Appeal confirmed a sentence of 3 years and 3 months’ imprisonment imposed after trial for three money laundering offences which involved actual loss to the victim of HK$1.24 million, being money transferred from the USA and was proceeds of an ‘inheritance’ or ‘Nigerian money transfer fraud’.

56.  The appellants in HKSAR v Jain Nikhill & Anor, CACC405/2006, pleaded guilty to two charges of conspiracy to commit a section 25(1) offence and one of using a false passport.  The Court of Appeal upheld sentences of 3 years and 4 months’ imprisonment.  The sentencing judge took a starting point of 5 years’ imprisonment for the section 25(1) offences.  The Court of Appeal, in dismissing the appeal, held that a factor relevant to sentence was the amount of money laundered.  In Nikhill, the money laundered was over HK$6.6 million with the actual loss of some HK$3.9 million to the victim.

57.  Mr Richmond points out that although the amount of transactions among the bank accounts in the present case is in excess of HK$10 million, there is no evidence of any underlying fraud, nor any loss by the victims of such offences.  Paragraph 48 of the judgment of Chen Zhen Chu, cited by Mr Wong, provides a short answer to Mr Richmond’s submission.

58.  The Court of Appeal in Secretary for Justice v Herzberg [2001] 1 HKLRD 502 (Tab B7) points out that the seriousness of the offence of dealing in property known or reasonably believed to represent the proceeds of an indictable offence contrary to section 25(1) of OSCO is reflected in the available penalties, namely a fine of HK$5 million and imprisonment for 14 years.  The Court of Appeal observed that the court has said on previous occasions there is a very wide range of culpability in the commission of the offence.  Some of the factors relevant to a determination of culpability in the commission of a particular offence were identified in the judgment delivered by Yeung JA in Javid Kamran, the passage cited above.  In Herzberg, the Court of Appeal goes on to point out:

“Other factors that are relevant to the issue are the amount of money involved, the degree of sophistication of the operation, the defendant’s knowledge of the nature of the underlying offence and whether or not there was an international element in the commission of the offence.”

59.  I have already considered and applied the factors identified by the Court of Appeal in Javid Kamran in the earlier part of the reasons for sentence.  Applying the ‘other factors’ further identified by the Court of Appeal in Herzberg to the facts of the present case, I make the following findings:

1. A substantial amount of money was laundered by the defendant for Charge 2 and 4, totalling over HK$10 million. The total amount of money laundered is roughly comparable to the amount involved in the case of Xu.

2. There is the presence of an international element, as in the case of Mak. The following observation made by Yeung JA in HKSAR v Leong Wai Keong (page 5 paragraph 15 of the judgment) is also applicable to the conduct of the defendant in the present case;

“...the judge was right to emphasise the international element involved as what the applicant did seriously undermined Hong Kong’s status as a financial and banking centre.”

3. In the present case, there is no evidence to suggest that the defendant knew the source of the funds to be derived from serious crime.

4. There is no evidence that the defendant derived direct financial benefit from his participation in the money laundering activities, but from what Mr Richmond told me, the defendant had been receiving financial support from the person who persuaded the defendant to open and operate the bank accounts. It is also true that there is no evidence as to any loss was caused to the victims. The Court of Appeal in paragraph 48 of its judgment in Chen Zhen Chu observes that the gravamen of a money laundering offence lies with the amount of money handled, not the amount of profit to the defendants or the loss of the victims.

5. I reject the submission that the defendant is entitled to any reduction because he was vulnerable.

6. The defendant played an active and important role in the money laundering activities involved in Charges 2 and 4. He was the person who opened and operated the bank accounts in question during the relevant periods.

7. There was sophistication in the way the offences were committed in that a passport of another person, i.e., Kofi and a passport in the name of MAM were used to cover up the real identity of the defendant, the person who opened and operated the bank accounts.

Delay

60.  On the issue of delay, I accept the contents of the chronology of events submitted by Mr Wong to be true and correct.  I do not think it can fairly be said against the prosecution that there was delay in prosecuting the defendant for the money laundering offences, given the fact that the last fingerprint report was only ready on 18 January 2010.

61.  The fact remains, however, that the present proceedings were brought against the defendant after the defendant had served his sentence for DCCC1125/2009.  The defendant did not have the opportunity of having both cases sentenced by the same judge and hence he could not have enjoyed any possible benefit of totality being assessed by the same sentencing judge.  I use the word ‘possible’ because the offences that the defendant committed in DCCC1125/2009 were distinct and separate offences and were of wholly different nature.  Even if the defendant could have both of his cases handled by the same judge, the sentencing judge, after considering the totality principle, might still have imposed wholly consecutive terms for the false instrument charges and the money laundering charges.

62.  In the present case, I take the view that although the prosecution was not at fault in the way the defendant was prosecuted for the money laundering charges, given that the defendant might have gained some benefit in his overall sentence had both cases been sentenced by the same sentencing judge.  I would make some adjustment in the overall sentence that the defendant is to serve when I come to assess the totality for Charges 2, 4 and 5.

Starting points for Charges 2 and 4

63.  The total amount of the money laundered for Charge 2 was around HK$2.4 million.  Taking all the matters into consideration, in my judgment, a starting point of 3 years’ imprisonment is appropriate.

64.  The total amount of money laundered for Charge 4 was around HK$7.79 million.  All matters considered, a starting point of 3 years and 6 months’ imprisonment is appropriate.

65.  The defendant is entitled to one-third reduction for his guilty pleas to Charge 2 and Charge 4.

Charge 5

66.  For the offence of unlawful remaining, it is well-settled since the case of So Man King that 15 months’ imprisonment is appropriate for a first offender on a guilty plea.

Sentences

67.  On Charge 2, I sentence the defendant to 2 years’ imprisonment.

68.  On Charge 4, I sentence the defendant to 2 years and 4 months’ imprisonment.

69.  On Charge 5, I sentence the defendant to 15 months’ imprisonment.

Totality

70.  In my judgment, Charge 2 and Charge 4 call for partially consecutive terms of imprisonment, and a total sentence of 32 months’ imprisonment would sufficiently reflect the criminality for the two money laundering charges, representing a notional starting point of 4 years’ imprisonment.

71.  I order 4 months of the sentence for Charge 2 to run consecutively to the sentence for Charge 4.

72.  Had it not been the fact that the defendant has now served his sentence for DCCC1125/2009, I would have ordered 10 months of the sentence for Charge 5 to run consecutively to the sentences for Charges 2 and 4, making a total sentence of 42 months, i.e., 3½ years’ imprisonment, which in my judgment, would sufficiently reflect the overall criminality of Charges 2, 4 and 5, but now that the defendant cannot benefit from having the totality in both cases assessed by the same sentencing judge, and for the reasons given in the earlier part of the reasons for sentence, I would exercise my discretion and give greater allowance to the defendant by ordering only 6 months of the sentence for Charge 5 to run consecutively to the sentences for Charges 2 and 4.

73.  The total sentence that the defendant has to serve is one of 38 months' imprisonment.