HKSAR v. JAVID KAMRAN

CACC 400/2004

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

criminal APPEAL NO. 400 OF 2004

(ON APPEAL FROM HCCC 331 of 2003)

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J U D G M E N T

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Hon Yeung JA (giving judgment of the Court):

The Background

1.  The appellant – Javid Kamran was charged with three counts of trafficking in dangerous drugs (1^st to 3^rd charges), one count of possession of dangerous drugs (4^th charge) and two counts of dealing with property known or believed to represent the proceeds of an indictable offence (money laundering) (5^th and 6^th charges).

2.  The appellant pleaded guilty before Deputy Judge Wright in the High Court (the judge) to the 1^st and 3^rd charges of trafficking in dangerous drugs, and the 5^th charge of money laundering.

3.  The prosecution did not proceed with the remaining charges.

4.  The judge sentenced the appellant to the following terms of sentence: 1^st charge – 12 months, 3^rd charge – 5 years, and 5^th charge – 32 months. The judge further ordered the 5 years, the 32 months and 4 of the 12 months’ imprisonment to run consecutively. The total sentence was one of 8 years’ imprisonment.

5.  Having been granted leave by Stock JA on 6 January 2005, the appellant appealed against sentence.

The Facts

6.  The appellant was arrested in an under-cover police anti-narcotics operation.

7.  On 26 April 2003, the appellant supplied 55 tablets of “Ecstasy” to two under-cover police officers for $5,500 (the 1^st charge). Two days later, on 28 April 2003, the appellant again supplied 23.62 grammes of crystalline solid containing 23.61 grammes of “ice” to an under-cover police officer for $5,000.

8.  The appellant said he committed the offences because he was out of work.

9.  Subsequently, the police found that there were deposits of large sums of money into the appellant’s bank accounts. In one of the accounts, cash deposits totaling $999,764 were made between 29 October 2001 and 20 May 2003, and in another, cash deposits totaling $190,500 were made between 2 April 2002 and 15 April 2003.

10.  The appellant admitted that he dealt with the total sum of $1,190,264 knowing or having reasonable grounds to believe that it was the proceeds of drug trafficking.

11.  The appellant claimed that he did not profit substantially from the money that went through his accounts. He only allowed his accounts to be used for drug trafficking transactions and received $100 or $150 per transaction.

12.  The appellant has previous convictions, including offences of trafficking in dangerous drugs. At the time of sentence, he was serving a 2-year sentence for drug trafficking and a consecutive 1-year sentence for breach of deportation order imposed in the District Court in DCCC 972 of 2003. Those offences were committed on 21 April 2003. The drug trafficking offence involved the same under-cover police officer and the drugs were mainly cannabis together with a very small quantity of “Ecstasy” and “Ice”.

The Judge’s Approach

13.  The judge adopted the respective starting points of 18 months, 7 ½ years, and 4 years’ imprisonment for the 1^st, 3^rd, and 5^th charges. The judge then reduced those sentences by one-third on account of the guilty pleas to 12 months, 5 years, and 32 months.

14.  The judge took the view that if the sentences on the three drug trafficking charges, including the one dealt with in the District Court, were to run consecutively, the total sentences of 8 years’ imprisonment would be excessive.

15.  The judge appeared to have taken the view that an additional sentence of 3 months’ imprisonment would be adequate for the drug trafficking offence in DCCC 972 of 2003

16.  However, the judge held that the 12-month sentence for breach of deportation order in DCCC 972 of 2003 should be wholly consecutive.

17.  The judge therefore ordered the 8 years’ imprisonment to commence after the appellant had served 15 months of the 3-year sentence imposed in DCCC 972 of 2003.

18.  The net effect was that for the two cases, the total sentence imposed was one of 9 years and 3 months’ imprisonments representing a starting point of about 14 years’ imprisonment.

Grounds of Appeal

19.  Ms Moosdeen, on behalf of the appellant, accepted the individual sentences on the drug trafficking charges but argued that the total sentence was excessive. She suggested that the sentence on the 5^th charge is excessive. She also suggested that the sentences on the 3^rd and 5^th charges should not be wholly consecutive.

The Respondent’s Position

20.  When the matter went before Stock JA, Mr Cheung Wai-sun –  Deputy Principle Government Counsel, on behalf of the respondent, conceded that the case was not a very bad case of the type.

21.  Mr Cheung pointed out that the amount involved in the 5^th charge was not particularly large and there was no international element. The fact that the appellant had allowed money to be deposited into his own bank accounts would also make it easy for his crime to be detected.

22.  Mr Cheung then took the view that the sentence on the money laundering charge as well as the totality of sentences were on the high side.

23.  Ms June Cheung – Government Counsel, who had replaced Mr Cheung, took a different approach. She suggested that the total sentence, though on the high side, was not manifestly excessive.

24.  In the course of counsel’s submissions, we have been referred to a number of money laundering cases.

25.  In HKSAR v Shing Siu-ming and others [1999] 2 HKC 818, 7 years’ imprisonment was considered appropriate. However, that was a major drug trafficking conspiracy case over a lengthy period with an international element. The defendants rendered considerable assistance to the drug trafficker and took an active part in sharing the proceeds.

26.  In R v Lo Chak-man and Others, CACC 744 of 1995, a starting point of 9 years’ imprisonment was adopted. The case was described as the “worst case situation”, involving drug money of US$84.3 million plus HK$16 million. One of the applicants was the brother of the drug trafficker and he assisted his brother and laundered over US$5 million. The other applicant laundered HK$15 million.

27.  In HKSAR v Mak Shing CACC 322 of 2001, a starting point of 4 years was considered to be sufficient to reflect the seriousness of the offences in which there was again an international element. The Court commented, “Hong Kong has to take a very serious view of such matters if its international reputation is not be sullied”. The amount involved was almost RMB 15 million out of which about $2.5 million was dealt with by the defendant.

28.  In HKSAR v Lor Kar Win & Others [2000] HKLRD 733, the defendants were professional footballers. They were involved in a match-fixing scheme when they were representing Hong Kong in an international soccer match. They took part in a plan whereby Hong Kong would lose the match and in return each of them received $30,000. On a summary conviction of a money laundering charge, a starting point of 15 months’ imprisonment was considered appropriate.

29.  In HKSAR v Hui Kam [2000] 3 HKLRD 211, the defendant dealt with $6.5 million – proceeds of illegal bookmaking activities, over a period of 17 months. Chu J considered an appropriate starting point should be 15 months’ imprisonment.

Discussion

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. This is even more so when the laundered money is the proceeds from drug trafficking activities as it is often commented: “Those who launder money from drugs are nearly as bad as those who actually deal in them. It is merely one step along the line.”

32.  Successful deterrents against money laundering could be effective measures against crime.

33.  The maximum sentence for a money laundering conviction on indictment is a fine of $5 million and 14 years’ imprisonment, which is perhaps a reflection of how such an offence is viewed.

34.  On the other hand, it is not feasible to lay down guidelines for sentence of money laundering offence, as there is a very wide range of culpability.

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.

36.  The appellant himself was a drug trafficker and he allowed his bank accounts to be used for the laundering of drug money for a total period of about 18 months. The amount involved was just over $1 million and there was no suggestion of any international element. As Mr Cheung had fairly suggested before Stock JA, “the sentence on the 5^th charge is on the high side”.

37.  Having considered the starting point adopted in other money laundering cases, we are persuaded that the four-year starting point adopted by the judge for the 5^th charge is manifestly excessive. We are of the view that a more appropriate starting point is 3 years.

38.  We have to consider the further question of whether the sentence on the money laundering offence should be wholly consecutive to the drug trafficking offences.

39.  Though separate and distinct, the offences of drug trafficking and money laundering committed by the appellant are related. The appellant was a drug trafficker and he used his accounts to launder proceeds from drug trafficking activities.

40.  Had it not been for the potential monetary gain, very few people, if any would be prepared to engage in drug trafficking activities. By necessary implication, practically all drug traffickers would be involved in money laundering activities.

41.  In the circumstances of the present case, the sentence on the money laundering charge should not be wholly consecutive to the sentences on the drug trafficking charges.

42.  For the two drug trafficking charges, the total sentence of 5 years and 4 months represents a starting point of 8 years’ imprisonment. We are persuaded that a further consecutive term of 12 months on the money laundering charge would be adequate to reflect the appellant’s culpability.

Conclusion

43.  We allow the appeal. The sentence of 32 months’ imprisonment on the 5^th charge is reduced to 24 months of which 12 months will run consecutively to the sentence of 5 years and 4 months imposed on the 1^st and 3^rd charges. The total sentence on the three charges is therefore reduced from 8 years to 6 years and 4 months’ imprisonment.

44.  We see no reason to interfere with the judge’s order that the sentence should only commence after the appellant had served 15 months of the 3-year sentence imposed in DCCC 972 of 2003 and that part of the order remains.