HKSAR v. LAM CHI CHUEN AND OTHERS

DCCC273/2011

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 273 OF 2011

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Reasons for Sentence

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1.  All three defendants have pleaded guilty to the respective charges that they face today. The 1st defendant has pleaded guilty to three charges of dealing with property known or reasonably believed to represent proceeds of an indictable offence. His charges involved three bank accounts, namely accounts that belonged to the 3rd, the 4th defendant and another surname Lau.

2.  The 1st defendant’s involvement with these three bank accounts took place over a period of well over one year between June 2008 and October 2009.  The 1st defendant was caught on CCTV camera image at certain ATM machines withdrawing cash from these accounts.

3.  The prosecution’s evidence is that there were debtors who borrowed money from loansharks charging excessive interest rates. As is usual, they were told to repay moneys via bank accounts provided.  The prosecution can show that the 2nd, 3rd, 4th defendants and a Mr Lau’s accounts were used for the collection of the principal amounts and excessive interest rates.          

4.  The 2nd defendant has pleaded guilty to one charge of aiding and abetting to deal with property known or reasonably believed to represent proceeds of an indictable offence, namely moneys in three bank accounts, two in his own name, one in that of his girlfriend.  These accounts were opened between October and November 2009.  The particulars of the offence show him to be aiding and abetting to deal with such property between November 2009 and 25 February 2010.  He admits reasonably believing these moneys in whole or in part; directly or indirectly represented the proceeds of an indictable offence.

5.  The 3rd defendant has pleaded guilty to one charge of likewise aiding and abetting to deal with property known or reasonably believed to represent proceeds of an indictable offence.  The particulars of the offence involve one bank account only in his name. 

6.  All three defendants cooperated with the police.  Under caution, the 1st defendant admitted that he assisted someone called Ah Kuen to withdraw money from ATMs with the bank account cards of the 3rd, the 4th defendant and Lau for a reward of $3,000 per month.  In mitigation, it was explained that there was a debt involved and this $3,000 was considered repayment.

7.  The 2nd defendant under caution admitted that he had sold his two accounts as well as one belonging to his cohabitee to an Ah Chiu for $3,000 reward.  In mitigation it was explained that he was in some financial difficulty as well as owing a debt.  

8.  The 3rd defendant admitted under caution that he had sold his account to an unknown male for $500.  I have since heard that that was in 2006.  I note that his account was opened in 2003.  

9.  In paragraph 8 of the Summary of Facts the prosecution sets out the moneys that went through each and every account during certain periods of time. 

10.  These three defendants are not connected in any material way, although the 2nd defendant does mitigate that the debt he owed was to the 1st defendant and hence his involvement and the sale of his accounts and that of his girlfriend was part repayment. 

11.  Counsel for the 1st defendant has pointed out that in the 2nd defendant’s record of interview he says that he did not know the 1st defendant.  I do not put any weight on this mitigation.  It neither assists the 2nd defendant nor prejudices the 1st defendant.  The material factor is that he sold his accounts for a reward. 

12.  Where the facts relate to the 2nd and 3rd defendants, similar facts are often seen in the Magistracy.  Often drug addicts or those in financial difficulty will be offered money for their bank accounts or identity cards and even so far as being taken to a bank to open an account to be used by others.  These are quite common scenarios.       

13.  In this case, the 2nd and 3rd defendants’ accounts had been used in illegal moneylending activities and the amounts that had gone through individuals accounts are not insignificant.  There was no evidences that the 2nd and 3rd defendants knew where the money came from.  There is no evidence that they knew how much money would go in and out of the accounts that they have sold, and there is no evidence that they had any dealings with their accounts once sold.  Both agree that at least they had reasonable belief that the money that would go in and out of their accounts would be and could be proceeds of an indictable offence.

14.  For an offence of this nature, their roles, and I am referring to the 2nd and 3rd defendants, can be categorised as the least serious.  As Mr Yuen counsel for the 3rd defendant puts it, he, the 3rd defendant, plays a very passive role in this offence.  I can accept that once their accounts were sold they played no further part or role. 

15.  The 1st defendant on the other hand is in a very different category, in my view, a more serious category.  He dealt with these three bank accounts on a long-term basis.  He was paid to deal directly with the moneys in three accounts that did not belong to him.

16.  In essence, he was paid to take the risk of withdrawing the money from these accounts by ATM machines.  He risked arrest, he risked being identified and was directly exposed.

17.  I take into account that over a period of time (June 2008 to October 2009) he dealt with proceeds of three separate accounts.  The amount involved in these three charges was a total of $68,400. 

18.  I have been referred to the authority of CACC159/2009, HKSAR v Hsu Yu Yi, this is a decision of the Court of Appeal of May 2010.  Very helpfully there are many references to previous money laundering cases and appropriate sentences.  None actually refer to the scenario where bank accounts have been sold and that is the end of the role of that defendant.  

19.  There are no guidelines or customary sentences where this offence is concerned but the Court of Appeal give a very clear indication of relevant factors to apply to sentencing.

For example, the amount of money involved in laundering activities; the level of participation and the number of occasions in which a defendant is involved in money laundering activities; it is relevant to consider whether or not there is any international element or dimension to the money laundering activities, but there clearly is none here; and lastly, the length of time the offence lasts is relevant.

20.  I have heard full mitigation for each defendant and an explanation as to why they committed the offences they have pleaded to today. I have also taken into account the fact that the 1st and 2nd defendants have poor criminal records.  However, none are similar to the present offences.  The 3rd defendant on the other hand has a clear record, which is unusual where a defendant sells his bank account.  

21.  In mitigation for the 1st defendant, I have heard details of his family background and I have been provided with a  letter from the St Stephen’s Society confirming that he has been in a residential program in their society from July 2010 to March 2011 when he was remanded due to this case, and clearly the residential rehabilitation program is open to the defendant after he has served the sentence in this case. 

22.  I have also been provided with a certificate issued by the Hospital Authority that shows the defendant underwent a period of training and passed it, completed it, that would enable him to assist in the care of elderly people under the Hospital Authority umbrella.  He undertook this training and asked St Stephen’s for help because he wants to turn over a new leaf. 

23.  The 2nd defendant’s mitigation is fairly simple. I have heard that he is a family man with young children which led to financial difficulties.  This was not helped by the fact he had a drug addiction problem, evidenced by his criminal record.  It has been put forward that because he has been in custody since March, he no longer has a drug addiction.                 

24.  The 3rd defendant is a young man of 25 years old, and as I said, previously of clear record.  When he sold his account he was 20 years old.  He is not likely to re-offend.  In support of his previous good background and character, I have 9 letters of mitigation from present and previous employers and colleagues.  I have also letters from family members that set out not only does he help the family financially, he is a good son and brother.  He was naive and foolish when 20 and sold his account for $500 reward.  I have a letter from the 3rd defendant himself expressing his remorse.  He has had good employment, worked hard from a waiter’s position to a captain’s position and obviously impressed his present employer who is keeping his job open for him.

25.  For the purpose of sentence, I have taken into account all mitigation I have heard for all defendants.  I have considered the facts of the case, I have considered each defendant’s individual roles, how many accounts they sold or were involved with and the amount of moneys that have passed through these accounts or are set out in the charges. 

26.  As I have said, I distinguish the 1st defendant’s role from the 2nd and 3rd defendants’ roles.  I find his level of participation in these activities can be said to be higher. 

27.  In turn, I distinguish the 2nd defendant’s role to the 3rd defendant’s.  The 2nd defendant sold three accounts versus the 3rd defendant’s one, and it was for a significantly higher amount than that received by the 3rd defendant, and the fact the 3rd defendant had a previous clear record makes me believe that there was an element of naivety and foolishness and ignorance where he is concerned.  I do not put the 2nd defendant in that category. 

28.  The 1st defendant I find, as I have said, his role more serious.  He was involved with three accounts over a long period of time, and his role was to withdraw moneys put into these accounts.  The amount of these three charges is not a particularly large amount, but I do note that the money that went through the 3rd and 4th defendants’ accounts as set out in paragraph 8 of the Summary of Facts, the 1st defendant had access to these bank accounts’ cards for these two accounts over a period of time.  Because of his ongoing role over this period of time, I am going to take a global approach in sentencing the 1st defendant.

29.  Defendants please stand up.

30.  For the 1st defendant, I will take a starting point of 3 years and 6 months - sorry is it convenient for the 1st defendant to stand?  You can sit if you wish - have a seat.  I will take for the 1st defendant a starting point of 3 years and 6 months for each Charge 1, 2 and 3, and as he has pleaded guilty, he is entitled to a discount of 14 months on each charge. 

31.  I am going to give the 1st defendant a further discount of 2 months for his clear attempts to change his ways and turn over a new leaf, evidenced by the letter from St Stephen’s Society and the training certificate issued by the Hospital Authority.  For Charges 1, 2 and 3, the 1st defendant is sentenced to 2 years and 2 months’ imprisonment. 

Do you understand this sentence, 1st defendant?

1ST DEFENDANT: Yes.

32.  All three will be served concurrently, that is a total of 2 year and 2 months.

33.  The 2nd defendant, I have gone through the facts relevant to the 2nd defendant, in particular there were three accounts sold for what would have been a reward of $3,000. 

34.  For Charge 4, I take a starting point of 21 months term of imprisonment.  I will give the 2nd defendant a discount of 7 months for his plea of guilty.  For Charge 4, the 2nd defendant sentencing to 1 year and 2 months’ imprisonment.

Do you understand?

2ND DEFENDANT: Yes.

Have a seat please.

35.  3rd defendant, you were only 20 years old at the time of selling your account.  You sold one account for $500; you have a clear record; your mitigation is good.  That account you sold was opened in 2003 and not sold or misused until 2006.  Clearly it was not opened for the purpose of resale, and having considered your mitigation and background, I accept there was an element of nativity and foolishness.  It leads me to believe you will not re-offend.  I will treat you with certain leniency  despite a custodial sentence being appropriate. 

36.  For Charge 6, I am going to take a starting point of 9 months’ imprisonment.  I am going to reduce this by 3 months for your plea today.  For Charge 6, you are sentenced to a total of 6 months’ imprisonment.

Have a seat please, do you understand that?

3RD DEFENDANT: Yes.