HKSAR v. LAM KIT LING, EFFIC

DCCC 986/2023

[2024] HKDC 1750

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 986 OF 2023

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REASONS FOR SENTENCE

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1.  The defendant has pleaded guilty in this case to four charges related to dealing with property known or believed to represent proceeds of an indictable offence. This is contrary to Section 25(1)  and (3)  of the Organised and Serious Crime Ordinance, Cap 445. The charge relates to moneys received into the defendant’s personal accounts or the accounts of limited companies of which the defendant was the sole authorised signatory and also a Director.

2.  The sums that the court is dealing with today are as follows.  In respect of charge 1 which is the defendant’s personal accounts, there are 12 accounts in total with eight separate banks, a total of $1,411,193.52 between 22 August 2017 and 2 November 2021.  There is a company called Golden Wines Limited with five accounts with Hang Seng Bank between 1 September 2017 and 23 May 2018 where a total of $27,360,425.17 was handled by those accounts. Thirdly, there is a company called Silver Success, a total of 12 accounts operating between 5 September 2017 and 9 September 2020 with a total of $25,007,032.35, and finally, Kabo Food Company Limited, three accounts involved, between 6 March 2020 and 9 July 2020 with a total of just over a million, $1,074,950.10.  I note from the facts the defendant had directorships with Golden Wines, Silver Success and Kabo Food Limited.  Various other matters were agreed in terms of the facts showing the defendant’s income which bore of course no relation to the amount of money that were passing through the companies and into the defendant’s personal accounts.

3.  The defendant was arrested on 3 November 2021 and various documents were found.  There are video-recorded interviews which are set out in the Agreed Facts.  Suffice it to say that at this point the defendant clearly accepts that the moneys that she has dealt with in those various companies and in their accounts were properties that would be known or believed to represent the proceeds of indictable offences and that is admitted in the Admitted Facts in the final paragraphs.

4.  As far as the defendant’s background is concerned, we know that she is a lady who is now 55 years old, has been divorced, has a clear record in Hong Kong, described herself as working as a freelancer and self-employed person who traded companies.  In her antecedent statement she says that she had an income of around $10,000.

5.  As far as mitigation is concerned, the defendant’s main mitigation offered relates to her plea of guilty.  She has been living before she was incarcerated for this matter with her mother in Yuen Long.  She has two married adult daughters.  In terms of her mitigation, what is offered up is the plea of guilty, her clear record, her role in the offence which is described by the defence as assisting in transactions for others and not described as being high up in the food chain meaning she did not have overall responsibility for the setting up of the money laundering exercise and was not a part of whatever the predicate offences were in this case.  Now she says in relation to her mitigation that she feels she had been used by other persons, her culpability is limited and she is not a main mover.

6.  Turning to the court’s approach to sentencing in this case, the first thing to make clear is that there is no tariff for these kind of offences because the circumstances in which people can become involved in these kind of offences are very varied and no clear guidelines can be set out.  It is, however, a substantial factor or a significant factor the amount of money that is dealt with and the period of time over which the money laundering operation occurs.  Here the sum is just short of 55 million in total and the period would be between 2017 and 2021, so the operation took place over quite a substantial period and the amount of money involved is a substantial sum.

7.  There are some if not tariffs at least some indications of how the court should approach the aggravating mitigating factors that can be seen in the case of HKSAR v Boma [2012] 2 HKLRD 33 and the factors that are set out are the nature of the predicate offence that is not set out in the facts and presumably is not known in this case, the state of the defendant’s knowledge. What I can say is defendant has pleaded guilty which means the acceptance by her that it was possible that it was known or believed that the money she dealt with are proceeds of an indictable offence.  There is no particular evidence of an international dimension as an aggravating factor.  The offence is relatively sophisticated in that it required companies to be set up and moneys to be moved in and out of those companies.  It is not known whether the offence was committed on behalf of an organised criminal syndicate.  There was a large number of transactions over a considerable length of time which is the most serious aggravating factor I believe in this case.  The defendant’s activities finished when the activities were discovered.  And the role of the offender and the acts performed, the role of the offender is to be the person who acts as the front, as it were, of the money laundering operation, her personal accounts used and companies of which she is director are also for the movement of the money.

8.  As far as the sums are concerned, as I have said, they are substantial, however, it is difficult to find what I call a clear pattern as to how the amounts of money should be dealt with in terms of sentencing.  I refer to the case of Hsu Yu Yi which can be found at CACC 159/2009 which contains a helpful summary of a number of cases of which there had been sentencing where the sentences range from starting points of 3 to almost 6 years’ imprisonment when dealing with sums of between 1 million and 15 million in total.  Here the sums exceed that substantially, however, one must bear in mind the limit of the court’s jurisdiction and the need for the court to be able to allow for even larger sums to be dealt with within this jurisdiction.

9.  I bear in mind in sentencing the defendant her role in the affair, her relative lack of sophistication and what was described as naivety in her approach to what she was being asked to do.  I will deal with this by setting out firstly an overall sentence to deal with this as an overall transaction and then allocate the sentences between the individual charges.

10.  I consider that the starting point for sentence taking into account the fact that we are dealing with some $55 million over a number of years, the overall starting point for sentence should be around about 5 years and 3 months, that is 63 months’ imprisonment and the defendant should be entitled to a full one-third deduction from that, leading to an overall sentence of 42 months’ imprisonment.

11.  I will achieve that as follows. On the 1^st charge, I will take a starting point of 36 months and reduce that to 24 months’ imprisonment; and on the 2^nd charge, a starting point of 63 months reduced to 42 months’ imprisonment; the same on the 3^rd charge, a sentence of 42 months’ imprisonment, and on the 4^th charge a starting point of 36 months reduced to 24 months’ imprisonment.  To achieve that overall total I shall make all the sentences run concurrently to a total of 42 months’ imprisonment.