HKSAR v. SHAHAB TANWEER DANASH-S AND OTHERS

DCCC 486/2023

[2024] HKDC1712

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 486 OF 2023

________________________

________________________

________________________

REASONS FOR SENTENCE

________________________

1.  D2 and D3 plead guilty to Conspiracy to falsely imprison (Charge 1). D3 also pleads guilty to Conspiracy to deal with property known or reasonably believed to represent proceeds of an indictable offence (Charge 2). D5, D6 and D9 plead guilty to Conspiracy to deal with property known or reasonably believed to represent proceeds of an indictable offence (Charge 3).

Facts of the case

Recruitment of the victims

2.  Miss Leung (“PW1”)  came to know a male nicknamed ‘Smoke’, who later became her boyfriend, through a dating app in January 2022.  ‘Smoke’ introduced to PW1 a way of earning quick cash by surrendering her bank and cryptocurrency accounts.  Pursuant to the instructions of ‘Smoke’, PW1 opened a Binance account but failed to open a Nanyang Commercial Bank account.  Nonetheless, she was told that it would be alright so long as she had a Bank of China account. PW1 agreed to take the job and surrendered the account details as well as PINs of her Bank of China account and Binance account via Telegram to a chat group which consisted of members, including a person in the name of ‘2Hzp2’.

3.  Mr Wong (“PW4”)  was contacted by his former colleague Mr Fong (“Fong”)  in March 2022 and was asked if he would be interested in earning quick cash by surrendering his bank accounts and staying at a hotel.  As instructed by Fong, PW4 opened accounts with Bank of China, HSBC and Standard Chartered Bank and surrendered the aforesaid account details as well as PINs, together with details of his own Binance account, via Telegram to a chat group with a name which started with the number ‘039’ (“the 039 group”).

4.  Mr Lai (“PW5”)  responded to a Facebook post in February 2022 and came to know one ‘Ah J’.  PW5 was told that he could secure a job in Bitcoin trading by staying at a hotel, but he needed accounts with Bank of China, Nanyang Commercial Bank and Binance.  PW5 duly opened one Bank of China account and one Binance account in March 2022 and surrendered the account details as well as PINs to ‘Ah J’ via Telegram.

Detention of the victims between 23 and 26 March 2022

5.  On 23 March 2022, PW1 was told by ‘2Hzp2’ that she could start working that day.  PW1 was also told that, in performing her job, she had to stay in hotels for a few days and had to bring along her Bank of China bankcard.  In the afternoon, PW1 was arranged to go to Hung Hom MTR Station.  At around 1:00 pm, Chu Yim-mei (“D10”)  and an unknown male person approached PW1 and told her to surrender her mobile phone as well as Bank of China bankcard and PIN.  PW1 complied.

6.  PW1 was first taken to Kowloon Harbourfront Hotel in Hung Hom, where she was joined by others, including D3, and later to Regal Riverside Hotel in Shatin.  PW1 was taken to a room on 7^th Floor and guarded by D3 and D10.  PW1 was asked to book a room in her name, which she complied. Thereafter, PW1 was taken to a room on 9^th Floor where she stayed with D10 and another female person.  D3 also came into the room occasionally to guard PW1.

7.  On 24 March 2022, PW1 was taken by D10 to extend the booking for the hotel room.  Taken back to the room, PW1 was guarded by D10 and in her absence, D3.  That evening, PW1 asked D10 for permission to leave but D10 refused and said that she could not leave without approval of her superior.

8.  In the meantime, PW4 was told by Fong to start working and was instructed by a male member of the 039 group nicknamed ‘Ying Ying’ to wait at Shatin MTR Station.  He was greeted by D3 and taken to Regal Riverside Hotel at around 11:05 pm on 24 March 2022.  PW4 surrendered his mobile phone and bankcard for his Bank of China account along with the PINs to D3 upon request, and was told by D3 that he could not leave the hotel room before the investment was over.  He was taken to a room on 9^th Floor where he was guarded by D3 and another male named ‘Tyson’.

9.  On 25 March 2022, PW5 was instructed to go to To Kwa Wan at 2:00 am.  He was picked up by ‘Ah J’ and taken to Regal Riverside Hotel.  ‘Ah J’ did not explain the job details but told PW5 that he would be paid at least HK$ 2,000 a day.

10.  Upon arrival at Regal Riverside Hotel, PW5 was taken by ‘Ah J’ and D3 to a room on 9^th Floor.  Inside the room, D3 made PW5 surrender his mobile phone and Bank of China bankcard along with the PINs.  D3 even searched PW5’s body. When PW5 asked whether he would be allowed to use his mobile phone and to deal with his bankruptcy matters later that day, D3 replied that he would be allowed to use a phone later and be accompanied to the law firm.  D3, however, expressly warned PW5 that he could not leave the room.

11.  At around 7 am on 25 March 2022, D10 entered PW5’s room and told PW5 to furnish the PIN for his Bank of China account again.  When PW5 complied, D10 left and PW5 continued to be guarded by D3 and ‘Tyson’.

12.  At around 11.00 am on 25 March 2022, PW1 expressed her wish to get back her mobile phone and leave.  Again, D10 refused and said that she could not leave without the approval of her superior.  PW1 renewed her request at around 9:00 pm, but was threatened fiercely by D10 that she knew where PW1 lived and would send her ‘friends’ in Shatin (where PW1 resided)  to look for her.  Out of fear for her family’s safety, PW1 stayed inside the room.

13.  On the other hand, at around noontime on 25 March 2022, D3 accompanied PW5 to a law firm in Sheung Wan for his bankruptcy matters.  They then returned to Regal Riverside Hotel together.  Thereafter, PW4 and PW5 stayed inside the room and were guarded by a male of South Asian ethnicity (‘Male X’), D3, a Chinese male (‘Male A’)  and ‘Tyson’.  That afternoon, PW4 asked for permission to use his mobile phone.  D3 refused on the basis that it was being used for investment purpose and said that PW4 could not leave the room.  During that day, D10 entered the room on various occasions to talk to ‘Male X’, D3 and ‘Tyson’, and to arrange for meals.

14.  On 26 March 2022, ‘Male X’ and another male (who was of Indian/Pakistani ethnicity)  guarded PW1 in her room. During the course of which, D10 entered the room and told another female victim to leave.  PW1 also asked to leave but D10 refused for the same reason.  At noontime, D10 told PW1 that they would be moving to another hotel.  D3 also told PW4 and PW5 the same.  At that time, they were still being guarded by ‘Male X’ and D3.  D2 also took part in the guarding of PW4 and PW5.

15.  On that afternoon, PW1 was taken by D10 and D2 to Royal Plaza Hotel in Mongkok.  PW4 and PW5 were taken to the same hotel by D3.  PW1 and PW4 each registered a room in their names, namely Room 978 and Room 983.  PW1 was taken to Room 983, whereas PW4 and PW5 were taken to Room 978.

16.  Having settled down in the aforesaid rooms, PW1, PW4, PW5 were taken to purchase lunch at a KFC nearby, together with persons including ‘Male X’, D2, D3 and D10, and returned to Room 978 after the purchase.  PW1 returned to Room 983 after the meal and was guarded by D10.  Meanwhile, PW4 and PW5 stayed in Room 978 and were guarded by ‘Male X’, D2 and D3.

17.  At round 5:00 pm on 26 March 2022, D10 entered Room 978 and told PW4 that she needed PW4’s HSBC account for receipt of funds.  PW4 surrendered the HSBC bankcard and PINs.

18.  Still on that afternoon, D10 told PW1 that her mother (“PW3”)  was constantly calling PW1 on her phone.  D10 instructed PW1 to call with a mobile phone supplied by D3 to tell her mother that she was staying at her boyfriend’s place.  When PW3 said she had made a report to the police, PW1 hung up immediately.

19.  Following a series of calls between PW1 and PW3, PW1 was finally allowed to leave Royal Plaza Hotel at around 5:56 pm on 26 March 2022.  When PW1 headed for Golden Era Plaza to meet her mother, D3 followed her.  When PW1 finally joined her mother and the police at Golden Era Plaza, D3 disappeared.

Arrest and Caution

20.  Upon receiving the missing person report of PW1, the police tracked the whereabouts of her mobile phone.  Enquiries led to the recovery of the mobile phone of PW1, alongside those of PW4, PW5 and others, at a furniture shop and warehouse at an industrial building in San Po Kong on 26 March 2022.

‘Male X’, D2 and D3

21.  At around 9:00 pm on 26 March 2022, the police raided Rooms 978 and 983 of Royal Plaza Hotel.  Inside Room 978, the police officers found the victims PW4, PW5 and Mr Lama Jihet and the guards ‘Male X’, D2 and D3.  No one was found in Room 983.  ‘Male X’, D2 and D3 were arrested at the scene.

D5

22.  Following the release of PW4 on 26 March 2022, he had been receiving demands from various persons asking him to return the remaining funds in his Binance account.  Ultimately, a controlled meeting was arranged on 6 April 2022.  At a restaurant at Tseung Kwan O Plaza, D5 showed up to meet with PW4. During the meeting, D5 told PW4 to transfer the remaining funds in his Binance account back to its owner.

23.  At that stage, the operation turned overt and the police arrested D5. Under caution, D5 claimed that it was ‘Ah Tung’ who asked him to collect HK$100,000 from PW4.  He asked PW4 to meet with him at Tamjai Yunnan Mixian at Tseung Kwan O Plaza that day, and he asked his friend to accompany him to request PW4 to transfer the funds out of his Binance account to ‘Ah Tung’.

D6

24.  On 7 April 2022, D6 was arrested for various offences.  Under caution, D6 claimed that it was his friend ‘Ah Fei’ who asked him to look for someone willing to surrender their bank accounts to others, 10% of the money laundered in the account would be the commission, and D6, ‘Ah Fei’, ‘Ho Jai’ and the ‘pig’ would split the commission equally.

D9

25.  On 5 May 2022, D9 was arrested for various offences.  Under caution, D9 claimed that the ‘pig’ (namely, PW4)  was sent to D9 by his friends ‘Ko Chun’ and ‘Fei Chung’.  D9 later onward-passed the same to another male (‘Male B’)  for him to use the account of the ‘pig’ to commit money laundering.

Cautioned VRIs

26.  D2, D5 and D6 had made further admissions in video-recorded interviews subsequent to their arrest.

D2

27.  In the cautioned VRI conducted with D2 on 27 March 2022, D2 stated, inter alia, the following:

(1)  On 26 March 2022, D2 was brought to a room at Regal Riverside Hotel by ‘Ami’;

(2)  There he saw four male persons and hence moved to another room;

(3)  In the other room, he fell asleep;

(4)  D2 admitted being in possession of two hotel room access cards; one for Regal Riverside Hotel and one for Room 978 of Royal Plaza Hotel;

(5)  Later that day, D2 checked out with ‘Ami’ and moved together to another hotel in Mongkok; and

(6)  After fetching lunch at KFC, they went to Room 978 of Royal Plaza Hotel and he slept therein.

D5

28.  In the cautioned VRI conducted with D5 on 6 April 2022, D5 stated, inter alia, the following:

(1)  ‘Ah Tung had, in March 2022, asked him to identify ‘pigs’ who would be willing to surrender their HKID and bankcards;

(2)  He was offered a reward of several thousand dollars;

(3)  He therefore approached other friends to act as intermediaries and that included ‘Ah Ho’ and ‘Ah Ko’ and they found PW4 as a ‘pig’;

(4)  After receiving PW4’s personal details, HKID, bankcard details and address proof, D5 forwarded the same to ‘Ah Tung’;

(5)  PW4 would then be arranged to stay at a hotel for 7 days, but D5 did not know the details; and

(6)  As to the meeting on 6 April 2022, he was instructed by ‘Ah Tung’ to have PW4 withdraw the funds from his Binance account to repay ‘Ah Tung’.

D6

29.  In the three cautioned VRIs conducted with D6 on 7 April 2022, D6 stated, inter alia, the following:

(1)  He was informed that Fong had identified PW4 as a ‘man of sacrifice（死士）’, who would be willing to supply his bank accounts and PINs for ‘Ah Fei’;

(2)  He believed that the bank accounts and PINs would be used for money laundering purpose（相信係會攞嚟洗黑錢）for there would be no other ostensible reason to make such transactions;

(3)  He had ‘surmised’ that the funds in the accounts were ‘dirty money’;

(4)  In return, he was promised a reward of 10% of the ‘laundered’ funds deposited into the accounts;

(5)  The reward would be shared amongst himself, ‘Ah Fei’, ‘Ho Chai’ and PW4;

(6)  After receiving PW4’s bank account details, PINs, HKID and address proof, D6 forwarded the same to ‘Ah Fei’; and

(7)  One week prior to his arrest, one ‘Ying Ying’ and one “Wai Wai’ told D6 to liaise with PW4 for the return of the remaining funds of about HK$100,000 in PW4’s Binance account, but he did not agree to do so.

Bank Accounts

30.  PW1, PW4 and PW5 turned in the following bank accounts to the syndicate:

Holder	Bank	Account Number
PW1	Bank of China (Hong Kong)  Limited (“BOC”)	012-722-1-xxxxxx-x (“Account 1”)
PW4	BOC	012-738-2-xxxxxx-x (“Account 2”)
	The Hongkong and Shanghai Banking Corporation Limited (“HSBC”)	5922191xxxxx (“Account 3”)
PW5	BOC	012-351-2-xxxxxx-x (“Account 4”)

31.  Account 1 was opened by PW1 on 12 February 2016 with PW1 being the sole account holder and signatory.  Between 23 and 26 March 2022, there were a total of 29 deposits into Account 1 totalling HK$2,678,820 and 66 withdrawals totalling HK$2,678,804.05.  Withdrawals were made via FPS on the same day after deposits of equivalent amount had been made to the account.

32.  Account 2 was opened by PW4 on 1 March 2022 with PW4 being the sole account holder and signatory.  Between 24 and 26 March 2022, there were a total of 70 deposits into Account 2 totalling HK$1,949,440 and 62 withdrawals totalling HK$1,949,400.06.  Withdrawals were made via FPS or ATM on the same day after deposits of equivalent amount had been made to the account.

33.  Account 3 was opened by PW4 on 4 March 2022 with PW4 being the sole account holder and signatory.  Between 23 and 28 March 2022, there were a total of 3 deposits into Account 3 totalling HK$88,000 and 6 withdrawals totalling HK$88,000.  Withdrawals were made via ATM on the same day or a few days after deposits of equivalent amount had been made to the account.

34.  Account 4 was opened by PW5 with PW5 being the sole account holder and signatory.  Between 25 and 26 March 2022, there were a total of 49 deposits into Account 4 totalling HK$1,284,819.57 and 31 withdrawals totalling HK$1,284,792.  Withdrawals were made via FPS on the same day after deposits of equivalent amount had been made to the account.

Binance Accounts

35.  PW1, PW4 and PW5 also turned in the following Binance accounts to the syndicate:

Holder	Account Number
PW1	4207xxxxx (“Account 5”)
PW4	4155xxxxx (“Account 6”)
PW5	4238xxxxx (“Account 7”)

36.  Between 23 and 24 March 2022, 5 withdrawals of USDT in the total sum of roughly US$219,040 were made from Account 5.

37.  Between 24 and 26 March 2022, 10 withdrawals of USDT in the total sum of roughly US$209,473 were made from Account 6.

38.  On 25 March 2022, 5 withdrawals of USDT in the total sum of roughly US$147,425.97 were made from Account 7.

39.  Binance is a company that operates, inter alia, cryptocurrency exchange services where cryptocurrencies including USDT could be held or traded.  USDT is a stablecoin pegged to and exchangeable with (or convertible to)  the US dollar.

The Offences

40.  At the material times:

(1)  ‘Male X’, D2, D3, ‘Male A’ and D10, in Hong Kong, conspired together and with other person(s)  unknown, to unlawfully and injuriously imprison PW1, PW4 and PW5, and to detain them against their will (Charge 1);

(2)  D3, ‘Male A’ and D10, in Hong Kong, conspired together with other person(s)  unknown, to deal with property, namely the sums of money transacted in Accounts 1 to 7, totalling HK$5,971,079.57 and approximately US$575,938.97, knowing or having reasonable grounds to believe that the said property, in whole or in part directly or indirectly represented any person’s proceeds of an indictable offence (Charge 2); and

(3)  D5, D6, D9, ‘Male B’ and another, in Hong Kong, conspired together with other person(s)  unknown, to deal with property, namely a total sum of HK$1,949,440 in Account 2, and a total sum of HK$88,000 in Account 3, knowing or having reasonable grounds to believe that the said property, in whole or in part directly or indirectly represented any person’s proceeds of an indictable offence (Charge 3).

Criminal record and Mitigation

D2

41.  Apart from one minor traffic record, D2 has no criminal conviction record.

42.  D2, aged 21, was born and raised in Hong Kong and received education up to Form 6 level.  His father passed away in 2018.  He had good academic results, however due to disruptions caused by the Covid-19 pandemic and difficulties with online classes, he was unable to pass his Diploma of Secondary Education Examination.  He then studied for a Diploma in General Studies at UOW College (part of the University of Wollongong, Australia)  and discontinued his studies in March 2022, due to his arrest.

43.  He had been remanded in jail custody for a lengthy period before his release on bail in October 2023.

44.  He has been attending a course in business management at Hong Kong U SPACE since September 2024.  Being a keen cricket player, he has played for local cricket clubs at the league level.  He was a member of the Hong Kong U19 cricket team; he has also coached youth teams at the Lantau Cricket Club for several years.

45.  At the time of the offence, he was 19 years old.  During that time, the cricket playing and coaching activities were also suspended. He not only faced difficulties with studies, but was also left jobless and without prospects.  He fell into a bad crowd and met ‘Ami’, i.e., D10 in the present case, at a hotel party in around early 2022.  He was influenced by D10 into participating in the offence and was told that he could earn $1,600 per day if he stood shifts at the designated hotel rooms.  He would have to fetch food upon request and inform D10 if anyone wanted to leave.  His participation was minor, with a low level of culpability.

46.  Although the victims were deceived into surrendering their bank accounts and details, the amended Summary of Facts revealed a minimal level of compulsion on them.  The scale of false imprisonment was at the lowest level. 

47.  He has since the time of offence significantly matured.  He has returned to cricket coaching and has been in gainful employment in the construction industry since his release on bail.  This case has made him realize that he must be responsible for supporting his sickly mother.

48.  His guilty plea, albeit belatedly, showed genuine remorse for his offending.  His risk of reoffending, if any, slight. 

49.  Mr Delaney draws my attention to: the sentence passed by another judge on D10 following her conviction upon guilty plea in respect of Charge 1 in the present case; the age gap of 10 years between D10 and D2; D10’s role being the mastermind; and the short time duration of D2’s involvement. It is submitted that a suspended sentence of imprisonment meets the overall justice of the case.

50.  The defence also relies on a number of authorities[1] in support of the mitigation.  I have read D2’s certificates and the mitigation letters written by the president of the Lantau Cricket Club, D2’s former secondary school teacher and best friends.

D3

51.  He appeared in the court on 17 May 2022 for two offences relating to possession of a dangerous drug and Part 1 poison and received a total sentence of 4 weeks’ imprisonment suspended for 24 months.

52.  He is now aged 43.  He is single and lives with his retired parents.  He was born in Hong Kong and received education up to Form 5 level. 

53.  He previously worked as a bartender with a monthly income of around $18,000 to $20,000.  Due to the Covid-19 pandemic, he lost his job.  At the time of the offence, he was unemployed. 

54.  A friend asked him to assist in this case and promised to pay him a reward of $1,600 per day.  As his savings were not enough to support his daily expenses, he foolishly took the opportunity to earn quick money.  However, he has never received any payment.

55.  Regarding Charge 1, Miss Li points out that D3 was not the mastermind. No use of violence or threat or mistreatment or insult on his part and the three victims did not sustain any injuries during the incident.

56.  D3 is deeply remorse for what he had done and is willing to take responsibility and accept punishment.  He vows not to reoffend and is determined to start anew upon release.

57.  Regarding the application for enhancement of sentence by the prosecution in relation to Charge 2, the stance of D3 is for the prosecution to satisfy the court that the requisite grounds are made out.  Miss Li has no submission to make in this regard.  However, if the court is minded to grant the application, Miss Li refers to the sentences passed on D10 earlier in the present case, and in another case DCCC 487/2023 involving offences similar to the present case, and invites the court to consider an enhancement of not more than one-third increment.

58.  The defence relies on a number of authorities[2] in support of the mitigation.

D5

59.  He has clear criminal record.  He is now aged 25, single and received education up to lower secondary level.  He works part-time in the decoration field and resides with his mother.

60.  He had been remanded in custody for the present offence for a lengthy period following his arrest in April 2022.  He was released on bail in August 2023.  The reasons, including the circumstances for his involvement in the present offence are set out in the written submissions.  I note that they are largely consistent with what he told the police under caution.

61.  His role was limited to sourcing bank accounts.  His case involved only PW4, and the use of PW4’s bank accounts lasted three to six days only.  As the sum involved was around 2 million, Mr Leung urges me to consider a starting point of no more than 2.5 years.

62.  There is no objection by D5 to the prosecution application for enhancement of sentence.  Mr Leung urges me to consider an enhancement of less than one-third increment.

63.  The defence relies on a number of authorities[3] in support of the mitigation.

D6

64.  D6 has appeared in court on three occasions, involving six offences in total, with no similar offence.  He last appeared in court on 22 July 2021 for breach of probation order.

65.  He has two younger brothers.  He received education up to Form 3 level, but was then too young for permanent employment.  His parents were in gainful employment.

66.  Prior to his involvement in the present offence, he was a part-time laundry worker.  The reasons, including the circumstances leading to his commission of the present offence are set out in detail in the written submissions.  Suffice to say they are largely consistent with what he told the police under caution.

67.  At the time of the offence, he was 18 years old with no financial pressure to support the family.  He committed the present offence out of greed.  Under caution, he at once divulged that he was involved with three others in money laundering; that is, ‘Ah Fei’, Fong and Wong.  Later on the same day when interviewed by the police, he also gave a full account of the reasons for his involvement.  He did not get the promised reward of payment. He had no idea about the scale of conspiracy, including its duration.  He only came to know about the detention of PW4 in hotel room for days when the investigation result was revealed to him, and that eight persons were involved in the scheme laundering a total sum around 2 million via PW4’s account when he was brought to court.

68.  He had already spent a lengthy period in custody for the present case. During the said period, he reflected upon his misdeeds; how irresponsible he was to his family as the eldest son and brother; his parents’ contribution to the family and their love for him despite his contravention of the law.

69.  Subsequent to his release on bail in October 2023, he enrolled in a scaffolding training course but quitted shortly following his parents’ strong objection against working at heights.  He then secured apprenticeship in decoration and air conditioning installation field and his master valued his performance highly.  To better equip himself for better pay to provide for his family as well as broadening his horizon, he now has a day job with a broadband service provider whilst working for his master on a part-time basis.  He hopes to be qualified as a registered electrician by the age of 25.

70.  His fiancée is now pregnant, expecting delivery around February 2025. He and his fiancée have been able to maintain their romantic ties throughout, despite the lengthy period of his remand in jail custody.  He plans to save more money and marry her after the present case is over.

71.  I have read the mitigation letters written by D6, his fiancée, his parents and his employer.  D6 does not resist the application for enhancement of sentence by the prosecution.

D9

72.  He has one criminal conviction record involving common assault offences for which he was sentenced to 2 months’ imprisonment suspended for 1 year, in January 2021. 

73.  He is now 22 years old.  As his parents divorced during his childhood, he has limited contact with his father and elder brother.  He currently resides with his mother and younger brother in a public housing unit.  He received education up to Form 2 level and subsequently entered the workforce as a part-time waiter.  He lost his job due to the Covid-19 pandemic, and, in the same year, his mother received a diagnosis of stage 4 breast cancer.

74.  While his younger brother maintains a full-time job position, he has committed himself to the care of their mother who struggles with mobility.  He accompanies her to the hospital for all medical appointments and treatments. Recently, his mother’s cancer has metastasized to other major organs.  His mother appreciates his unwavering dedication and describes him as a loving son.

75.  The family relies on CSSA for financial support but continues to confront significant economic challenges, especially given the severity of his mother’s illness.

76.  D9 was 20 years old at the time of the offence.  Although he did not indicate his guilty plea at the earliest stage, he now admits his wrongdoing, is prepared to face the legal consequences.  He committed the present offence out of greed and regretted his wrongdoing.  He vowed not to engage in further offences.

77.  He also took the initiative to seek assistance and counselling from social workers at the Chinese YMCA of Hong Kong YMCA.  Mr Wong, the social worker, passed favourable comments on his character as an individual, his sincere sense of remorse, his commitment to abstain from future offending, and his intention to contribute to society through community service.

78.  He was not involved in the incidents occurred at the hotels and had no knowledge as to how the money laundering activities were to be executed.  He only acted as an intermediary in relation to passing the information of PW4 from his friends to another person.  His role and level of participation were relatively trivial.

79.  I have read the mitigation letters written by D9, his mother and the YMCA, and the medical reports of D9’s mother.  There is no objection by D9 to the application of enhancement of sentence by the prosecution.

80.  The defence relies on a number of authorities[4] in support of mitigation.

Sentence

81.  For each defendant, I have carefully considered all the written and oral submissions advanced by counsel in mitigation.  I note that the contents of the defendant’s background report are overall consistent with the mitigation submissions.

Charge 1

82.  For the offence of false imprisonment, the maximum penalty is 7 years’ imprisonment.  In R v Miller, the UK Court of Appeal provided a list of factors to be considered when assessing the gravity of a false imprisonment case:

“It is accepted that, in assessing the gravity of cases of false imprisonment, the relevant factors will include the length of the detention, the circumstances of the detention, including location and any method of restraint, the extent of any violence used, the involvement of weapons, whether demands are made of others, whether threats were made to others, the effect on the victim and on the others, the extent of planning, the number of offenders involved, whether there was the use of torture or humiliation, whether what was done arose from or in furtherance of previous criminal behaviour and any particular vulnerability of the victim whether by reason of age or otherwise.”

83.  In Secretary for Justice v. Yiu Man Chun, CACC 14/2010, the Court of Appeal did not consider themselves to be assisted by the cases placed before them.  As the offence of false imprisonment, carrying a maximum penalty of 7 years could occur in such a wide variety of circumstances, it would often be difficult to come across a previous decision that exactly or even roughly matched the facts of the case under consideration.

84.  In HKSAR v. So Tang-fat and Wong Ah-Lun, CACC 183/1997, the victim was indebted to one of the co-accused.  In order to force repayment of the debt, the two applicants, together with other co-accused, confined the victim for approximately 40 hours.  During the period of confinement, the victim attempted to find persons who could repay the debt on his behalf.  He was also assaulted, with the 2^nd applicant (Wong), being a party to a joint enterprise to assault him.  The 1^st applicant (So), appealed against sentence. As revealed in the facts, the 1^st applicant did not use any violence and played a lesser role.  The Court of Appeal upheld the starting point of 2 years’ imprisonment.

85.  As revealed in the Amended Summary of Facts, the three victims had been confined in hotel rooms for more than a day, or up to about three days, to facilitate the commission of money laundering offences by other culprits. This, in my view, is an aggregating factor. On the facts of the case, I am satisfied that the proper starting point after trial is 24 months’ imprisonment.

86.  Given D2’s age, the court ought to have regard to the rehabilitative aspect of any sentence.  I note the sentence passed on D10, who had pleaded guilty on an earlier occasion before another District judge.  In view of the gravity of the offence and the seriousness of the facts involved, I find that imprisonment is the only appropriate sentencing option.

87.  As can be seen from the facts, D2 played a lesser role than that of D10, and his involvement was for a shorter duration.  I reduce the starting point by 3 months to reflect the same, i.e., 21 months.

88.  A discount between 25% and 20% is afforded to a defendant who indicates his guilty plea after the trial dates are fixed but before the first day of trial, HKSAR v Ngo Van Nam[5]. The indication of guilty plea was given by D2 in late July 2024, which was more than one month before trial.  I reduce his sentence by 23% to 16.17 months and round this figure down to 16 months. 

89.  There are no other mitigating factors which would justify any further reduction.  I also do not find that there exists any special reasons and/or exceptional circumstances which justify the imposition of a suspended sentence.  I therefore sentence D2 to 16 months’ imprisonment.

90.  As revealed in D3’s antecedent statement, he committed the present offences whilst on police bail for the two offences involving dangerous drugs and Part 1 poison.  I would not consider it as an aggravating factor in view of the dissimilar nature of those offences. 

91.  In my view, there is no significant/distinguishable difference between his involvement in the offence, including the role played by him, and that of D10.

92.  D3 indicated his guilty plea at the early outset.  Giving him a full guilty plea discount, I reduce his sentence to 16 months’ imprisonment.  There are no other mitigating factors which would justify any further reduction.  I therefore sentence him to 16 months’ imprisonment.

Charge 2 and Charge 3

93.  For an offence of money laundering, an offender is liable upon conviction upon indictment to a fine of HK$5 million and to imprisonment for 14 years.  In HKSAR v Hsu Yu Yi, the Court of Appeal listed the following factors for consideration when determining the appropriate sentence:

“(a)  The amount of money involved was a major consideration, not the amount of benefit received by a defendant in the transaction;

(b)  The culpability of the offence lay in the assistance, support and encouragement offered to the commission of an indictable offence so a defendant’s level of participation and the number of occasions on which he was involved in the ‘money laundering’ activities were relevant factors;

(c)  The offence of dealing with proceeds from an indictable offence does not necessarily have any direct correlation with the indictable offence in question, but if the latter offence can be identified, the court could take into account the sentence imposed on it per se when determining the sentence for the former offence;

(d)  If the case has an international element involving activities carried out across different regions, the court might impose a more severe sentence so as to protect Hong Kong’s reputation as an international finance and banking hub from being tarnished;

(e)  The length of time the offence lasted.”

94.  Also, in Hsu Yu Yi, the amount of money involved and the sentences passed in a number of money laundering cases were reviewed. The sentencing starting point is 3 years or so where the “black money” involved is between 1 million and 2 million; 4 years or so where it is between 3 million and 6 million; and could be over 5 years where it is above 10 million: [see also paragraph 15 of the case of Wan Kwok Keung] .

95.  There is no sentencing guideline because the range of facts by which the offences can be committed is so different:  HKSAR v Boma.  In Boma, the Court of Appeal listed some of the significant features which the sentencing court should take into account.  The list was non-exhaustive, including:

(a)  the nature of the predicate offence, if known, and the penalty available for the predicate offence;

(b)  the state of the offender’s knowledge;

(c)  where the operation involved an international dimension, this would be a significant aggravating feature;

(d)  the sophistication of the offence, including the degree of planning; whether deceit was practiced to achieve the objective;

(e)  where the offence was committed or on behalf of an organized criminal syndicate would be an aggravating feature;

(f)  whether there was one transaction or many and the length of time over which the offence was committed;

(g)  whether the offender continued to launder funds after he had discovered the nature of funds were proceeds of an offence or a serious offence was involved; and

(h)  the role of the offender and the acts performed by him.

96.  In the case of Wan Kwok Keung, the Court of Appeal was of the view that money laundering was a serious offence and must be deterred; other factors relevant to sentencing, including the number of offences involved, the duration of the offence, the defendant’s level of participation, whether or not it was organized or sophisticated crime; and the sentence should be adjusted upwards, if there was information to prove that the ‘black money’ originated from serious crimes or the defendant’s benefit was huge.

97.  As to the prosecution’s application for enhancement of sentence pursuant to section 27(2)  of the Organized and Serious Crimes Ordinance, Cap. 455, it is based on the information set out in the statement of Chief Inspector of Police Yip Chun-man, which is admitted into evidence without objection by the defence. 

98.  According to CIP Yip’s statement dated 17 April 2024, Table A shows that the numbers of money laundering cases in 2022 and the first two months in 2024, i.e., January to February, were 1,013 and 411, respectively.  Table B shows that the numbers of arrested person during the said periods were 1,152 and 218 respectively.  Table D shows that the numbers of stooge accounts involved during the said period were 957 (representing 83.07% of the total at 1,152)  and 170 (representing 77.98 % of the total at 218).

99.  It is submitted by the prosecution that the said figures clearly established the prevalence of the money laundering offences involving the use of stooge accounts in 2022 and 2024.

100.  I also note from the same tables that there were significant increases in the relevant figures for the intervening year of 2023.

101.  As to the harm caused by recent occurrences of money laundering offences to the community, the prosecution mainly refers me to paragraph 32 and 33 of the statement to show how the anti-money laundering regime in Hong Kong is hampered by the increasing use of stooges for money laundering activities and despite a lot of resources spent by the police on crime prevention, advertising and warning people not to sell or lend their bank accounts to others to avoid the possibility of falling trap to the commission of money laundering offences, the trend in the use of stooge accounts for money laundering continues to rise.

102.  Having carefully considered the contents of CIP Yip’s statement and the submissions made by the prosecution, I am satisfied beyond reasonable doubt that the offences of money laundering involving the use of stooge accounts are prevalent.  Coupled with the nature and extent of harm done to the society, I am of the view that an enhancement of sentencing in respect of each of the two offences is warranted.

103.  In HKSAR v Hung Yung Chun, the respondent referred the Court of Appeal to a number of sentencing cases with a view to seeking guidelines on telephone deception cases.  Those cases showed that the level of enhancement mostly ranging from one-third to 60 per cent.  To reflect the prevalence of the offence, the Court of Appeal considered the enhancement of sentence by one-third appropriate in respect of the case before them.

104.  Mr Leung, counsel for D5, urges me to consider enhancement of less than one-third increment in respect of Charge 3, as unlike HKSAR v Chan Ho Kit, there is no evidence that the money laundered is related to telephone scam. 

105.  As can be seen in the judgment of Chan Ho Kit, the Court of Appeal enhanced the sentence of each offence by one-third in view of the evidence on the prevalence of telephone scam before them.

106.  In this case, the prosecution’s application is based on the prevalence of money laundering offences.  Also, there is nothing in the judgment of Chan Ho Kit to show that the money laundering offence had to be related to telephone scam in order to justify a one-third enhancement.

107.  Mr Leung also referred me to two sentencing cases of the District Court in relation to enhancement of sentence.  I note the facts involved in those cases were different from the facts of the present case.  I do not find them helpful.

108.  The facts in respect of each of Charge 2 and Charge 3 clearly show that both the numbers of culprits and total sum of money involved were significant, which in my view aggravate the seriousness of each offence.  Further, taking into account the prevalence of the money laundering offences, I am of the view that an enhancement by one-third is appropriate and justified in relation to each offence. 

109.  For both offences, the prosecution accepts that other than the victims, PW1, PW4 and PW5, were deceived through employment scam into surrendering their accounts to the culprits, the predicate offence or offences leading to the deposits of money into the subject bank accounts remain unknown.

110.  For Charge 2, taking into account the facts, including the amount involved being HK$5,971,079.57 and US$575,938.97, i.e., over 10 million in total, and the culpability of D3, I am satisfied that the proper starting point after trial is 54 months’ imprisonment.  The starting point is reduced to 36 months to reflect his guilty plea.  There are no other mitigating factors which would justify any further reduction.  I enhance the said figure by one-third and sentence him to 48 months’ imprisonment. 

111.  Taking into account the totality principle, I order 8 months of the sentence of Charge 1 to run consecutively to the sentence of Charge 2 and sentence D3 to a total of 56 months’ imprisonment.

112.  For Charge 3, as can be seen from the facts, D5, D6 and D9 played their respective roles on the instruction of or at the invitation of other culprits for rewards.  They were all involved in the handling of PW4’s bank account information at different stages.  Although D5 was also involved in meeting with PW4 for the transfer of remaining funds from PW4’s Binance account, I note that he did so on the instruction of ‘Ah Tung’.

113.  On the facts before me, the three defendants did not appear to be the mastermind. Nor is there any evidence to show or suggest that.  However, in my view, the offence would have been impossible to complete without each of the three defendants playing his part.  Having regard to the involvement of each of the three defendants in the offence, I do not see any significant and/or distinguishable differences in their respective roles.  I find that they share an equal culpability. 

114.  Taking into account the facts, including the amount involved being HK$2,037,440 in total, and their equal culpability, I am satisfied that a proper starting point after trial is 30 months’ imprisonment in respect of each of the three defendants.

115.  Although both D6 and D9 have criminal conviction records, I note that dissimilar offences were involved.  In the circumstances, I do not regard their respective records as aggravating factors. 

116.  Given the respective ages of D6 and D9, the court ought to have regard to the rehabilitative aspect of any sentence.  Only D9 invited me to consider calling for a detention centre suitability report.  D9 also relies on 香港特別行政區 訴 高銘樂  and 香港特別行政區 訴 王和發 in support.

117.  I do not find both cases helpful as the facts involved were very different from those of the present case.  The case of 王和發 involved offences of burglary. The sentence of detention centre is, in my view, inadequate to reflect the seriousness of both the offence and the facts involved in the present case.  In view of the gravity of the offence and seriousness of the facts involved, I find that imprisonment is the only appropriate sentencing option in respect of both D6 and D9.

118.  For each of D5 and D6, other than his guilty plea, there are no other mitigating factors which would justify any further reduction.  The starting point for sentence is reduced to 20 months’ imprisonment.  I enhance the said figure by one-third, i.e., 6.67 months, and round this figure down to 6 months.  I sentence D5 and D6 each to 26 months’ imprisonment.

119.  As to D9, he indicated his guilty plea a few days before trial.  A discount of 21% is given for his guilty plea.  The starting point for sentence is reduced to 23.7 months.  In view of the recent deterioration of his mother’s cancer problem, I am prepared to exercise my discretion and reduce the starting point to 22 months.  There are no other mitigating factors which would justify any further reduction.  I enhance the said figure by one-third, that is 7.33 months and round this figure down to 7 months.  I sentence D9 to 29 months’ imprisonment.