HKSAR v. TSE PAK HIN

 DCCC1129/2009

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 1129 OF 2009

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Reasons for Sentence

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1.  The Defendant pleaded guilty to one charge of dealing with property known or believed to represent proceeds of an indictable offence.  In sentencing, I have considered the whole circumstances of the case, including its nature and facts, background of the Defendant and mitigation put forward on his behalf.

2.  Facts of the case are simple.  The Defendant was the holder of an account with HSBC.  On 9 September 2009, he presented his cash-withdrawal card and requested to withdraw cash of $1.17 million. 

3.  The account was opened by him on 17 August 2009 with an initial deposit of $2,000.  Later on the same day, $200 was deposited into the account and $2,000 were withdrawn.  Thereafter, no transaction was performed until NT$5 million, equivalent to some HK$1.177 million, were remitted into the account on 8 September. 

4.  The amount was remitted upon the instruction of a Mr Ko who had been deceived into doing so.  Whilst he was in Taiwan, he received phone calls from an unknown male who claimed to be a prosecutor of Taiwan.  He was told by that man that he was suspected to have committed the offence of money laundering and was told to pay him NT$5 million as security.

5.  After he had arranged for the remittance, Mr Ko found out that he had been deceived.  He made a report to the police in Taiwan. 

6.  HSBC was also notified.  Facing the request from the Defendant, the bank staff informed the police.  Soon, police officers arrived and arrested the Defendant.

7.  Under caution, the Defendant claimed he knew nothing.  He refused to answer any question in a subsequent interview.

8.  The Defendant is 29 years of age.  He is an electrical technician by occupation.  He has been working for China Light & Power for 10 years and at the time of the offence was earning about $12,000 to $13,000 per month.  He is single and living with his family.  His father is also working in China Light & Power, and his mother is a housewife.  His grandmother is already 87 years of age.

9.  He is not a first-time offender.  In 1998, he was fined for possession of a dangerous drug.  In 1998, he was again fined for the same offence.  In 2005, he was given a suspended sentence and fined also for the same offence.  Later in the same year, he was convicted for a copyright offence, and for that, he was imprisoned for 12 months. 

10.  The family is supportive.  The parents wrote a mitigation letter.  The mother, sister and aunt came to court.  In the letter, the parents said the Defendant is filial, nice and responsible.  They believe he was exploited by friends in committing this offence.

11.  In mitigation, learned counsel for the defence informed the court that the Defendant had taken out a loan of $100,000 as he acceded to the request of a friend to help him out to repay a car loan.  Unfortunately, the friend was imprisoned for driving whilst disqualified, and as a result, the Defendant had to shoulder the loan repayment.  He had been making regular repayments and the outstanding loan was down to $40,000. 

12.  Then a long-time friend, Ah Kwong, approached him and offered him a reward of $2,000 for opening of an account with HSBC.  He told the Defendant that he was to receive money from relatives in Taiwan for him to start business in the mainland.  The Defendant felt suspicious and asked Ah Kwong why he did not open an account himself.  He was given the reason that Ah Kwong still owed the bank money.  Ah Kwong also promised to pay off the outstanding loan from him.  Out of greed, the Defendant agreed.

13.  On the day of the offence, Ah Kwong told him the money was ready and asked him to withdraw the money for him.  Although the Defendant hesitated, out of recklessness and greed, he proceeded to make the withdrawal.  

14.  I am told that the Defendant had no knowledge of the underlying offence of deception.  There is no evidence to prove that he had.  The conviction is based on reasonable grounds to believe.

15.  I am told that the Defendant is now full of remorse.  I accept he is. 

16.  The offence is a serious one.  It legitimises proceeds of criminal activities and enables criminals to enjoy the fruit of their criminal activities with relative ease.  As said by the Court of Appeal in the case of Xu Xia Li [2004] HKC 16 at page 23:

          “Without the assistance of money launderers, it would be more difficult for criminals to clothe their illegal proceeds with the same respect as lawful gains, and the chances of law enforcement detection of illegal activities that produce monetary benefits would be enhanced.”

17.  The law provides for a maximum sentence of 14 years’ imprisonment and a fine of $5 million.  There is no tariff for this type of offence.  Each case has to be considered on its own merits. 

18.  The present case involved a one-off exercise.  It did not involve a sophisticated scheme.  The amount involved, however, cannot be said to be not substantial.  The Defendant was promised a handsome reward though there is no evidence that he had received it.  This is the first time the Defendant commits an offence of this nature.

19.  Having considered the whole circumstances very carefully, I am of the view that a custodial sentence is appropriate.  I adopt a starting point of 33 months.  The Defendant pleaded guilty and is remorseful.  He is entitled to a one-third discount.  Having considered all relevant matters, I am of the view that this is the extent of discount the Defendant is entitled to.

20.  Based on the matters aforesaid, I sentence the Defendant to 22 months’ imprisonment.