HKSAR v. SUEN HOK MAN

DCCC 339/2014

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 339 OF 2014

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REASONS FOR SENTENCE

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1.  Suen Hok Man you have pleaded guilty to one charge of dealing with property knowing or believing the property represented the proceeds of an indictable offence, contrary to section 25(1) and (3) of the Organized and Serious Crimes Ordinance, Chapter 455.

2.  In summary between March 2011 and February 2012 Mr Lam Hon Min borrowed money from a loan shark.  Repayment of the loans was made by deposits into a HSBC bank account opened by you in March 2004.  Investigation revealed between August 2006 and June 2012 there were 2,509 deposits totalling $4,373,855.50 and 1,275 withdrawals totalling $4,374,110.69.  You closed the bank account in June 2012.

3.  On the 31 January 2013 you were arrested and explained in a video interview, inter alia, that you opened the bank account sometime in 2004 and that around August/September of the same year you passed the bank card and PIN number to your then girlfriend and thereafter had nothing to do with the account.  After breaking up with your girlfriend in December 2004 you intended to get back the bank card the next time you met however you never saw your girlfriend again.  

4.  In mitigation Ms Lee has further explained the circumstances you came to lend your bank account to your girlfriend.  Initially you opened the bank account so that your salary could be paid into the account.  Having changed jobs you no longer had the need for this bank account therefore when your girlfriend said she needed to deposit $15,000 into a HSBC bank account you lent your bank account to her.  Being busy you also handed over the bank card so she could withdraw the money. 

5.  At the time you asked your girlfriend about the nature of the deposit but she did not tell you anything.  Without asking your girlfriend anything more you just simply lent her your bank account.  It is accepted that when you lent your girlfriend your bank account (albeit this is outside the period of the charge) you had reasonable grounds to believe the $15,000 in whole or in part represented the proceeds of an indictable offence.  By not asking your girlfriend to return the bank card to you it is also accepted that you had reasonable grounds to believe that your account was being used and that the continued deposit and withdrawal of funds into the account, in whole or in part represented the proceeds of an indictable offence.  

6.  In passing sentence I take into account everything said on your behalf by Ms Lee, including your early co-operation with the police; your family support and that you were last before the court in 2002.    

7.  Money laundering is a serious offence for which deterrent sentences are required.  A number of significant factors have been identified as relevant in determining the culpability of a defendant, including the nature of the offence that generated the laundered money and the extent to which the offence assisted the crime or hindered its detection; whether the defendant had knowledge of that underlying offence or has turned a blind eye to the source of the money; whether there was an international element to the commission of the offence; the degree of sophistication of the offence and the level of the defendant's participation, including the length of time the offence lasted and the benefit he derived from the offence; and the amount of money involved (see for example Secretary for Justice v Jerome Yuval Arnold Herzberg [2010] 1 HKLRD 502; HKSAR v Hsu Yu Yi [2010] 5 HKLRD 545; and HKSAR v Boma Amaso [2012] 2 HKLRD 33).

8.  The lending of a bank account facilitates the laundering of money by disguising the true owner of the money.  This makes difficult the detection of crime and at the same time undermines the integrity of the banking system.  

9.  Whilst there is no evidence you gained any benefit from lending your account sentence should mainly reflect the amount of the money laundered and not the benefit obtained (see HKSAR v Wu Jianbing [2012] 1 HKLRD 781). 

10.  Taking into account that over a period of almost 6 years over $4.3 million went through your bank account; your role was lending the bank account to your then girlfriend; and that there is no evidence you benefited from the crime, I am satisfied the proper starting point after trial is one of 3 years and 6 months imprisonment.  Giving you full credit for your plea of guilty reduces the sentence to 2 years and 4 months imprisonment.

Delay

11.  As noted earlier you were arrested on the 31 January 2013.  You were only charged in April this year some 14 months later.  Delay in bringing an offender to justice is a mitigating factor which may be taken into account in sentence. All the circumstances must be looked at including whether the offender has acknowledged guilt; the size of the investigation and whether the time taken to bring the case to court was longer than necessary (see for example HKSAR v Cheung Suet Ting CACC 226/2009 and HKSAR v Chiu Chi Wing CACC 243/2012).

12.  Miss Leung has explained today the reason why you were not charged until April this year.  Much of the delay appears to arise from the time taken to obtain legal advice.  Accepting that money laundering cases can take a long time to investigate and the Department of Justice have many such cases to consider there is in my view nothing which appears to justify the taking of over 14 months from arrest to charge.  The matter could reasonably have been brought to court earlier than it was.  

13.  I am satisfied some credit should be given in sentence for this delay (see HKSAR v Wong Ka Wah CACC 260/2006).  In the circumstances I reduce the sentence by 2 months imprisonment to 2 years and 2 months imprisonment.  You are convicted and sentenced to 2 years and 2 months imprisonment.