HKSAR v. ZHAN JIANFU

CACC 258/2007

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 258 OF 2007

(ON APPEAL FROM  DCCC 267 OF 2007)

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J U D G M E N T

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Hon. Yuen JA (giving the judgment of the Court):

1.  This is an application for leave to appeal from a sentence of 2 years imprisonment imposed on the Applicant by Deputy Judge Sham in the District Court in respect of each of 2 charges of dealing with property known or believed to represent proceeds of an indictable offence.  Having imposed a term of 2 years imprisonment for each charge, taking into account the totality principle the judge ordered that 8 months of the 2-year term for the 1^st charge should run consecutively to that for the 2^nd charge, so that the total term was one of 32 months.

Facts

2.  The Applicant is a Mainlander.  He opened accounts with two banks in Hong Kong in November 2005.  Between February and April 2006, some $2 million was remitted from an account in Taiwan to these accounts.  He withdrew the money from time to time and left Hong Kong on 18 April 2006.  He next entered Hong Kong on 10 February 2007 when he was arrested. 

3.  In fact the money remitted to the Applicant’s accounts was from a woman in Taiwan who had been deceived in a scam.  The woman was first told that she had won some money in a lottery, but subsequently she was asked to make a series of payments, first to become registered as a member of the lottery-organizing company and later as “investments” and fees for recovery of her money.  Following those instructions she remitted some of the money to the Applicant’s bank accounts in Hong Kong.

4.  The Applicant pleaded guilty in the District Court to two charges, one in respect of each of his bank accounts.  In mitigation it was submitted on his behalf by counsel that in 2004 when he was unemployed he came to know a Taiwanese person Chan who claimed to be wealthy and who was looking for opportunities to invest on the Mainland.  Chan allegedly told the Applicant that his family would be remitting money to him in Hong Kong but that he was unable to open a bank account in Hong Kong.  Chan allegedly asked the Applicant to open two bank accounts in Hong Kong for which he was given $2000.  From time to time Chan also instructed him to withdraw money from the accounts and to bring it to him.  For this he was given $1500 a month until May 2006 when Chan disappeared.

5.  In mitigation it was also said on the Applicant’s behalf that he was not aware of the deception practised on the Taiwanese woman and that he “only believed that the money came from some suspicious sources”.

Sentence

6.  The Applicant was sentenced to a total term of 32 months.  In the judge’s Reasons for Sentence he doubted the Applicant’s allegation that he knew nothing of the deception, but accepted that he was a cog in the machine.  Having said that, the judge considered that a light sentence would not serve to deter such persons from assisting in money-laundering activities.  The judge also took into account the fact that the sum involved was substantial and that the operation involved Taiwan, the Mainland and Hong Kong.

7.  In passing sentence the judge took as a starting point a term of 3 years imprisonment after considering the cases of  Javid Kamran CACC 400/2004 and Mak Shing CACC322/2001 and then gave the usual 1/3 discount for the Applicant’s plea.  The judge had also considered a medical report which had been ordered after the Applicant complained of being unwell, but the report did not disclose any serious illnesses that might impact on sentence.  After considering the totality principle, the judge sentenced the Applicant to 32 months imprisonment.

Appeal

8.  In his grounds of appeal the Applicant has written only that he considered his sentence too heavy.  Subsequently he also wrote two letters to the court, one dated 28 October 2007 and the other dated 22 November 2007. 

9.  In the 1^st letter he suggested that he had pleaded guilty without realizing that he was not guilty if he did not know that the money was proceeds of criminal activities. 

10.  On 14 November 2007 the Applicant appeared before Yeung JA.    As the Applicant had been represented by counsel in the District Court, in light of the allegations in the 1^st letter Yeung JA directed the Applicant to set out in writing his allegation as to counsel’s advice and provide a copy to counsel.

11.  Subsequently on 22 November 2007 the Applicant wrote a 2^nd letter in which he reiterated that he wished only to appeal against sentence and not conviction.  It would appear from this letter that he was saying that he did not know that the money was obtained by deception.  The Applicant has confirmed to this court that he is no longer alleging that he did not know or believe that he was dealing with proceeds of an indictable offence.

12.  In the 2^nd letter the Applicant retracted some of the statements he had made in Court on 14 November and said that in fact counsel had not advised him to plead guilty and that he had decided to do so of his own volition.  He also said that prior to sentence he had written to his lawyers and to the court saying that he had committed the offence without knowledge in the hope that he would receive a lighter sentence.

13.  In the upshot the Applicant’s present stand appears to be that he had not been aware of the scam itself but that he admits involvement in a money-laundering scheme.  Counsel for the Respondent however has drawn to our attention the fact that even though the Applicant says that Chen disappeared in May 2006, he (the Applicant) was returning to Hong Kong in February 2007 in order to withdraw the balance of money in the accounts.   

14.  Counsel for the Respondent has provided us with a number of cases on sentences for these offences.  Having considered them (HKSAR v Abayomi Bamidele Fayomi CACC197/2005, HKSAR v Chen Szu Ming CACC 270/2005, HKSAR v Yam Kong Lai CACC 458/2006) in the light of factors such as the Applicant’s involvement and the sum involved, we consider the sentence in the present case to be appropriate. 

Order

15.  Accordingly, the application for leave to appeal against sentence is dismissed.