HKSAR v. YIP KAM MUI

DCCC 480/2018

[2019] HKDC 1057

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 480 OF 2018

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REASONS FOR SENTENCE

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INTRODUCTION

1.  The defendant is convicted upon her own guilty plea of 11 charges of dealing with property known or believed to represent proceeds of indictable offence.

FACTS

2.  Law Ko-tak (“Law”) and the defendant were husband and wife until they divorced in 2012.

Financial background of Law and D1

3.  Between 2006 and 2014, Law filed the following tax returns to the Inland Revenue Department (“IRD”):-

Year of assessment	Annual salary income	Annual rental income
2006/2007	HK$58,000
2007/2008	HK$336,000	HK$37,350
2008/2009	HK$56,000	HK$48,450
2009/2010	---	---
2010/2011	---	---
2011/2012	---	---
2012/2013	---	---
2013/2014	---	---

Total income (salary and rental income):	HK$535,800
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4.  Between 2007 and 2014, the defendant did not report to the IRD that she had engaged in any employment or business.  She only received rental income as follows:-

Year of assessment	Rental income
2007/2008	HK$120,150
2008/2009	HK$200,517
2009/2010	HK$310,400
2010/2011	HK$395,400
2011/2012	HK$628,300
2012/2013	HK$851,906
2013/2014	HK$746,400

Total	HK$3,253,073
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5.  Between 2004 and 2015, the defendant spent HK$30,936,000 to purchase 1 fishing vessel and 8 real properties.  Among those property, she sold out 1 vessel and 3 properties, and received a total of HK$20,180,000 sales proceeds.

Bank records of the defendant (Charge 1 to Charge 9)

6.  The defendant was the registered holder and sole signatory of the following 9 bank accounts:-

Charges	Names	Bank accounts
1.	“YIP-AC01”	Bank of China (HK) Limited No 012-611-1-00XXXX-9
2.	“YIP-AC02”	Bank of East Asia Limited No 015-519-10-3XXXX-2
3.	“YIP-AC03”	Bank of East Asia Limited No 015-138-33-0XXXX-3
4.	“YIP-AC04”	Hong Kong and Shanghai Bank Corporation No 813-06XXXX-833
5.	“VIP-AC05”	Hong Kong and Shanghai Bank Corporation No 006-0-0XXXX6
6.	“YIP-AC06”	Nanyang Commercial Bank Limited No 043-493-1-01XXXX-6
7.	“YIP-AC07”	Hang Seng Bank Limited No 236-26XXXX-888
8.	“YIP-AC08”	Hang Seng Bank Limited No 236-0-0XXXX6
9.	“YIP-AC09”	Standard Chartered Bank Limited No 419-2-11XXXX-2

7.  Upon calculation, there were substantial amounts of transactions:-

Account	Analysis period	Deposits		Withdrawals
		Amount	No.	Amount	No.
YIP-AC01	6/11/2006-6/12/2014	HK$10,679,828.74	150	HK$10,608,677.55	117
YIP-AC02	9/8/2006-8/1/2015	HK$6,706,063.58	193	HK$6,667,419.75	223
YIP-AC03	5/7/2007-2/3/2015	HK$20,191,345.21	245	HK$19,702,842.87	91
YIP-AC04	31/8/2006-28/3/2015	HK$4,710,459.43	121	HK$3,899,462.60	14
YIP-AC05	1/1/2005-5/1/2015	HK$6,910,427.32	263	HK$6,682,657.72	338
YIP-AC06	4/1/2005-5/1/2015	HK$3,072,554.53	67	HK$2,970,374.86	443
YIP-AC07	16/2/2007-26/2/2015	HK$1,333,403.48	152	HK$1,292,840.91	143
YIP-AC08	1/1/2005-3/2/2015	HK$13,682,523.91	194	HK$13,778,789.30	467
YIP-AC09	17/8/2005-17/1/2015	HK$5,796,850.76	152	HK$5,612,454.78	73

	Total:	HK$73,083,457.01		HK$71,215,520.52
		=============		=============

8.  Treasury Accountant examined the transactions at these accounts and identified the following suspicious features:-

(i) Bank deposit amounts disproportionate to the defendant’s reported income

Between 2005 and 2015, the total amount of deposits (i.e. HK$73.1 million) was much greater than the defendant’s income (i.e. HK$23.4 million, including rental income and proceeds from sale of properties);

(ii) Large amount of cash deposits

Over 20% of total deposits (i.e. HK$17.3 million) in the bank accounts were received in cash;

(iii) Usage of cashier orders

Cashier order transactions took place among the defendant’s accounts, and between the defendant’s accounts and her ex-husband’s account. It was not normally expected that cashier orders were used in transferring money between the defendant’s own bank accounts or between family members, particularly the defendant had a current account under the same integrated bank account.

Sometimes, two cashier orders were issued to the same counterparty on the same day.

(iv) Payments to insurance companies

A total of HK$6.7 million (i.e. 9.7% of total withdrawals) was paid to insurance companies. In comparison with the defendant’s annual income, the amount of payments to insurance companies was very high.

(v) Investment in property market

From 2004 to 2015, the defendant purchased 8 properties. The ratio of mortgage loan was less than 45%. Thus the defendant had to pay a total downpayment of HK$16.9 million, which was disproportionate with her income.

9.  Upon deducting those deposits which arose from legitimate income (i.e. rental income and amounts arising from property transactions), the net suspicious deposits were as follows:-

Charges	Gross deposits	Net suspicious deposits
1	HK$10,679,828.74	HK$7,014,400.00
2	HK$6,706,063.58	HK$3,537,234.50
3	HK$20,191,345.21	HK$1,432,629.65
4	HK$4,710,459.43	HK$2,080,000.00
5	HK$6,910,427.32	HK$6,125,594.99
6	HK$3,072,554.53	HK$2,959,185.95
7	HK$1,333,403.48	HK$680,000.00
8	HK$13,682,523.91	HK$9,624,987.20
9	HK$5,796,850.76	HK$2,600,300.00

	Total	HK$36,054,332.29
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Arrest and house search of the defendant (Charges 10-11)

10.  On 5 January 2015, the defendant was arrested by the police at her residence in Tseung Kwan O.  House search was conducted and the following properties were seized from a safe which was placed inside the defendant’s bedroom.  The safe was opened by the police with the pin numbers provided by the defendant.

Charge 10

Cash	●  HK$1,339,500 ●  Other foreign currency: US$13,824, EUR€1,595, Singaporean $20,000, RMB18,000 and GBP1,495 (Sub-total value : About HK$1,616,803.59)
Watches and jewellery	●  62 pieces of jewellery (valued at HK$3,628,772); ●  5 watches (valued at HK$704,600)
	Total value: HK$5,950,175.59
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11.  On 6 January 2015, further search was conducted at the defendant’s safe deposit box in the Bank of China (HK) Limited.  A total of 33 pieces of jewellery were found therein, valued at HK$470,217 (Charge 11).

Whereabout of Law

12.  Efforts were made by the police to locate and arrest Law, but in vain.  At present, he is still at large.

Conclusion

13.  At the material times, the defendant knowing or having reasonable grounds to believe that the following properties, namely:-

Charges	Amounts
1	YIP-AC01:   HK$7,014,400.00
2	YIP-AC02:   HK$3,537,234.50
3	YIP-AC03:   HK$1,432,629.50
4	YIP-AC04:   HK$2,080,000.00
5	YIP-AC05:   HK$6,125,594.99
6	YIP-AC06:   HK$2,959,185.95
7	YIP-AC07:    HK$680,000.00
8	YIP-AC08:   HK$9,624,987.20
9	YIP-AC09:   HK$2,600,300.00
10	Cash:           HK$1,616,803.59   Jewellery:     HK$3,628,772.00   Watches:      HK$704,600.00
11	Jewellery:     HK$470,217.00

	Total: HK    $42,474,724.88
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in whole or in part directly and indirectly represented any person’s proceeds of indictable offence, dealt with the said properties.

ANTECEDENT

14.  The defendant had a clear record prior to the commission of the present offences.

15.  The defendant was born in Hong Kong in October 1962.  She is divorced.  She has a daughter and a son, both in their thirties.

MITIGATION

16.  Mr Boyton helpfully submitted written Points of Mitigation for Yip Kam Mui dated 12 July 2019 to the court.  Mr Boyton submitted that the defendant who received no or little education had always placed great trust and confidence in her ex-husband, Law, who had routinely handed money to the defendant for safekeeping because he had to go to sea.  By 1 January 2005 the defendant had already dealt with her ex-husband’s finance for over 25 years.  She was accustomed in dealing with it from the beginning of their marriage.  Mr Boyton referred me to R v Whitehead[1] in which the Court of Appeal in England and Wales accepted that it was an important mitigating factor where a defendant wife participated in the offence out of a sense of misguided loyalty. 

17.  In the Points of Mitigation, it was stated that there was undue delay in prosecution[2].  At the hearing on 18 July 2019, Mr Boyton submitted that there was no fault on the part of the prosecution, and the point he was making was that the defendant had experienced anxiety since the lengthy time lapse between her arrest and being formally charged.

18.  Mr Boyton also pointed out the following matters for the court’s consideration:-

(i) the total amount involved in the 11 charges is approximately HK$42.5 million;

(ii) the period involved was from 1 January 2005 to 28 March 2015;

(iii) the defendant had a clear record;

(iv) the nature of the predicate offence is unknown to the court;

(v) the defendant has no knowledge of the predicate offence, or that the funds were actually proceeds of indictable offences;

(vi) the present offences were not committed in a sophisticated way; and

(vii) there was no international element involved in the present case.

19.  As the amounts of proceeds involved in the present 11 charges vary from HK$470,217 (Charge 11) to HK$9,624,987.20 (Charge 8), Mr Boyton helpfully submitted a Research on the Starting Point dated 24 July 2019 enclosing 47 judgments to the court for consideration. I note, however, from those judgments that the respective lengths of time over which those offences were committed were in most cases much shorter than those in the present case – an overall period of more than 10 years from 1 January 2005 to 28 March 2015.

20.  As to the overall starting point, Mr Boyton did not take issue on the Court of Appeal’s judgment HKSAR v Yu Kam Yun[3] submitted by the prosecution.  Mr Boyton only pointed out that in Yu Kam Yun, the appellant had a previous similar conviction and there was no influence from a significant other.

SENTENCE

Charge 1 (HK$7,014,400)

21.  The amount involved in Charge 1 was HK$7,014,400 for a period of 8 years and 1 month.  Mr Boyton referred me to HKSAR v Boma[4], HKSAR v Xu Xia Li[5], HKSAR v Chiu Chi Wing[6] and SJ v Wan Kwok Keung[7].  He particularly drew my attention to Boma and Xu Xia Li.  Charge 4 in Boma involved money laundering in the sum of approximately HK$7.8 million for a period of about 1½ years where no predicate offence was identified.  A starting point of 3½ years was upheld by the Court of Appeal.  For Charge 1 in the present case, I will adopt a starting point of 3½ years’ imprisonment.

Charges 2, 4, 6 & 9 (about HK$3.5m, HK$2.1m, HK$2.96m & HK$2.6 m)

22.  Mr Boyton referred me to HKSAR v Chan Wai Yan[8] in which the appellant was convicted after trial of two counts of dealing with property known or believed to represent proceeds of an indictable offence.  The total sum the appellant laundered was approximately HK$2.7 million for a period of about 3 years and 8 months.  No predicate offence was identified.  The Court of Appeal said a starting point of 3 years’ imprisonment for each charge could not be regarded as manifestly excessive.  The Court of Appeal also considered that the fact that the appellant committed the offence for the sake of maintaining her relationship with the person who requested her to receive the funds so that her children would be taken care of rendered it appropriate to adopt 2 years’ imprisonment as the starting point for each of the two charges.  In the present case, the mitigation was that the defendant did what Law had told her out of her loyalty as a wife.  There was no submission that the defendant committed the offences for the sake of making sure that her children would be taken care of.  After all, by January 2005, the defendant’s daughter and son was approximately 23 and 17 already. 

23.  For each of Charges 2, 4, 6 and 9, I will adopt a starting point of 33 months’ imprisonment.

Charges 3, 7 & 11 (about HK$1.43m, HK$0.68m & HK$0.47m)

24.  Mr Boyton referred me to HKSAR v Lam Hing Wan[9] for Charge 3 (the sentence on D2 in Lam Hing Wan for laundering HK$1.03 million being the proceeds derived from an illegal gambling establishment was not a subject matter in the appeal), SJ v Siu Yun Yee[10] for Charge 7, HKSAR v Lam Kong[11] and HKSAR v Wang Yu Hsin[12] for Charge 11.

25.  In Lam Hing Wan, the duration of D2’s money laundering was 1 year and 3 months only and D2 did not appeal against sentence. 

26.  In Siu Yun Yee, the appellant dealt with HK$630,000 for the period from 16 November 2009 to 18 August 2011.  The predicate offence was that of operating an unlawful gambling establishment.  Upon review, the Court of Appeal considered a starting point of 18 months appropriate.  In addition to the usual one-third discount given to the appellant, a further one-month discount was given to reflect the time for the matter to be brought to court.[13]

27.  D8 in Wang Yu Hsin laundered a total of about HK$600,000 in 5 charges.  The predicate offence related to a fraud.  The Court of Appeal considered an overall starting point of 3 years’ imprisonment appropriate.  The duration of those offences was 2 days.

28.  Having considered the judgments submitted by Mr Boyton, that there is no known predicate offence in the present case but the respective durations of the offences in Charges 3, 7 and 11 were much longer, I will adopt a starting point of 18 months for Charge 3, and a starting point of 12 months for each of Charges 7 and 11.

Charges 5 & 10 (about HK$6.1m & HK$6m)

29.  Mr Boyton referred me to HKSAR v Lee Sin Man[14] and Wang Yu Hsin.  Charge 5 covered a period of 10 years whereas Charge 10 covered a period of 1 day only.  I will adopt a starting point of 3 years’ imprisonment for Charge 5, and 30 months’ imprisonment for Charge 10.

Charge 8 (about HK$9.6m)

30.  Mr Boyton referred the court to Boma, Xu Xia Li, Chiu Chi Wing and Wan Kwok Keung. As Charge 8 covered a period of over 10 years but there is no known predicate offence in the present case, I will adopt a starting point of 45 months’ imprisonment for Charge 8.

31.  I should make it clear that I have already taken into account that there is no known predicate offence in adopting the aforesaid starting points.

One-third discount for the defendant’s guilty plea

32.  I give full one-third discount to the defendant for her timely indication of guilty plea.  Her previous clear record is subsumed in the credit given for her guilty plea: SJ v Ko Wai Kit[15].  After the one-third discount, the respective sentences for Charges 1 to 11 are as follows:-

Charge	Starting Point (months)	After 1/3 discount (months)
1	42	28
2	33	22
3	18	12
4	33	22
5	36	24
6	33	22
7	12	8
8	45	30
9	33	22
10	30	20
11	12	8

Loyalty to husband and anxiety suffered as a result of delay in being charged (although not the prosecution’s fault)

33.  Mr Boyton referred me to HKSAR v Wong Wing Shun[16] in which HK$58 million was involved (predicate offence unknown) and an initial sentence of 5 years and 10 months’ imprisonment was upheld by the Court of Appeal but reduced by 10 months for misguided loyalty to the appellant’s husband.

34.  I am also prepared to give some discount to the defendant for the anxiety she had suffered as a result of delay in being charged (although not the prosecution’s fault).

35.  Because of the mitigating factors mentioned in paragraphs 33 and 34 above, the respective sentences for Charges 1 to 11 are further reduced by 15% to the following:-

Charge	After 1/3 discount (months)	After taking into account loyalty and delay
1	28	23.8months Rounded off to 23 months and 3 weeks
2	22	18.7months Rounded off to 18 months and 3 weeks
3	12	10.2 months Rounded off to 10 months
4	22	18.7months Rounded off to 18 months and 3 weeks
5	24	20.4months Rounded off to 20 months
6	22	18.7months Rounded off to 18 months and 3 weeks
7	8	6.8months Rounded off to 6 months and 3 weeks
8	30	25.5months Rounded off to 25 months and 2 weeks
9	22	18.7months Rounded off to 18 months and 3 weeks
10	20	17 months
11	8	6.8 months Rounded off to 6 months and 3 weeks

Totality

36.  Mr Boyton referred me to a number of cases, including Wong Wing Shun and HKSAR v Tam Lap Shek[17] in which HK$43.8 million was involved over a 6-year period where predicate offence was not known.  The Court of Appeal described the starting point of 3½ years’ imprisonment adopted by the trial judge as “generous”.

37.  As stated in paragraph 33 above, in Wong Wing Shun HK$58 million was involved (predicate offence unknown) and an initial sentence of 5 years and 10 months’ imprisonment was upheld by the Court of Appeal but reduced by 10 months for misguided loyalty to the appellant’s husband.

38.  The prosecution referred this court to HKSAR v Yu Kam Yun in which over HK$40 million was involved (predicate offence unknown).  Mr Boyton submitted that the initial overall starting point of 5½ years’ imprisonment in Yu Kam Yun is consistent with the defence submissions in the present case.

39.  I consider an overall sentence of 36 months appropriate for this case.  To achieve that end, I order that 16 months’ imprisonment imposed in Charge 10 is to run consecutively with 20 months’ imprisonment imposed in Charge 5, and all other sentences to run concurrently, thus making a total sentence of 36 months’ imprisonment.