HKSAR v. LAM SIU FUNG AND ANOTHER

HCCC 112/2023

[2025] HKCFI 4244

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 112 OF 2023

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REASONS FOR SENTENCE

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1.  D1 and D2 pleaded guilty to the respective charges they face, admitted to the summary of facts before a Magistrate, and was committed to the Court of First Instance for sentence.  They each confirmed their pleas and admissions before me, and their convictions were duly recorded.  

2.  Charge 1 (D1 and D2), Conspiracy to traffic in a dangerous drug[1], is against both D1 and D2.  Particulars are that they, between a day unknown in December 2020 and 22 January 2021, in Hong Kong, conspired together and with other person(s)  unknown, to unlawfully traffic in a dangerous drug, namely cocaine.  

3.  Charge 2 (D2), Dealing with property known or believed to represent proceeds of an indictable offence[2] (commonly known as money laundering), is against D2 alone.  Particulars are that he, on or about 22 January 2021, in Hong Kong, together with LIN Shut-yu (連述瑜), knowing or having reasonable grounds to believe that property, namely cash in the sum of $2,003,500; 5 watches valued approximately at $3,469,000 in total; and 3 handbags valued approximately at $100,000 in total, in whole or in part directly or indirectly represented any person’s proceeds of an indictable offence, dealt with the said property.

4.  Charge 3 (D2), Dealing with property known or believed to represent proceeds of an indictable offence is against D2 alone.  Particulars are that he, between 28 September 2020 and 30 September 2020, in Hong Kong, knowing or having reasonable grounds to believe that property, namely a total sum of $880,000, in whole or in part directly or indirectly represented any person’s proceeds of an indictable offence, dealt with the said property.

5.  Charge 4 (D2), Dealing with property known or believed to represent proceeds of an indictable offence is against D2 alone.  Particulars are that he, between 27 February 2018 and 1 February 2021, in Hong Kong, knowing or having reasonable grounds to believe that property, namely a total sum of $2,630,831.07 in the account numbered 012-706-1-040030-2 held under D2’s name with Bank of China (HK)  Limited, in whole or in part directly or indirectly represented any person’s proceeds of an indictable offence, dealt with the said property.

SUMMARY OF FACTS

Charge 1

6.  At 9:03pm on 22 January 2021, D1 was intercepted when he came out of Room 1820, 18/F, Metro Centre, 1 Lam Hing Street, Kowloon Bay.  He was found to be in possession of 15 plastic bags, containing 332g of a solid containing 274.1g of cocaine (purity of 82.56%).

7.  D1 was arrested and claimed under caution that he was delivering the cocaine for his ‘boss’ for a reward of $5,000.

8.  D1 was brought to Unit C of Room 1820 where the following items were found.  Unit C was rented by D1 on 27 December 2020.

(a)  10 plastic bags containing a total of 213g of a solid containing 167g of cocaine (purity of 78.4%);

(b)  1 plastic bag containing 501g of a solid containing 465g of cocaine hydrochloride; (purity of 92.81%)

(c)  1 glass bowl and metal spoon containing 0.06g of a solid containing cocaine;

(d)  1 plastic bowl containing 0.03g of a solid containing cocaine;

(e)  2 glass bowls one of which contained 0.09g of a solid containing cocaine;

(f)  1 stack of paper containing 0.05g of a solid containing cocaine;

(g)  1 metal spoon, rack and rod containing traces of a solid containing cocaine;

(h)  1 plastic bag containing 68.4g of a solid containing phenacetin, which is a listed Part 1 poison;

(i)  1 paper box containing 475g of a solid containing sodium bicarbonate which is not controlled under the Dangerous Drug Ordinance;

(j)  1 plastic bag containing 932g of a solid containing sodium bicarbonate;

(k)  1 pot containing traces of a solid which did not contain any substances controlled under the Dangerous Drugs Ordinance.

9.  D1 said under caution that he did not manufacture the drugs and that he only packed the cocaine.

10.  In the subsequent video recorded interview, D1 claimed that he was in heavy debt, and a friend of his, “Ah Ming”, asked if he wanted to traffic in dangerous drugs to earn $5,000.  D1 agreed and was then contacted by a person he addressed as ‘boss’, who gave D1 money to rent Unit C.  The phone number of ‘boss’ was 6763 7062, saved under “$$” in D1’s phone.  D1 had never met ‘boss’.  

11.  D1 said he bought some of the items in Unit C.  He would pack the cocaine after they were dried, and pass them to a taxi driver with the phone number 9313 4978. He had done this 3 times before (this being his 4^th time)  and had earned $15,000.

12.  In one of the phones seized from D1 (“Phone 1”), some drug related photos and WhatsApp message with “$$” were retrieved.  Some messages with the taxi driver were also found.  

13.  The street value of the cocaine seized in Unit C was estimated to be $2,111,292.14.

14.  Shortly after D1’s arrest that day, Flat D, 20/F, Jet Foil Mansion, 415-421 Jaffe Road, Wan Chai (“Flat D”), which was rented under D2’s name on 23 October 2020, was raided.  D2 and a female LIN Shut-yu (“Lin”)  were located therein.  They were both arrested and they exercised their right to silence, both at scene and at their subsequent video recorded interviews.

15.  3 mobile phones were found on the bar table in the living room and 3 mobile phones were found in the bedroom.  One of the phones found in the living room with number 6763 7062 had the screen on when found.  This is the number that is saved as “$$” in D1’s Phone 1, the person referred to as ‘boss’ by D1 On that phone was a security camera app used to monitor Unit C.  Some drug-related WhatsApp communications with one of D1’s Phone 1 were also found.  They are dated between 16 and 22 January 2021.  

16.  A copy of the contents of the WhatsApp messages between D1 and D2 was provided to the court.  There are 301 messages between 6^th and 22^nd January 2021.  

Charge 2 (stated as Charge 4 at bundle p.145)

17.  Flat D was searched and the following were found and seized:

(a)  1 rental agreement (of Flat D)  signed by D2 was found in the bedroom;

(b)  Cash of HK$2,003,500 was found in the bedside drawers;

(c)  5 luxury watches were found in the bedside drawers: a Richard Mille watch with an estimated market value between $2.35 and $2.9 million, 3 Rolexes watches with a total estimated market value between $989,000 and $1.195 million, and 1 Royal Oak Offshore watch with an estimated market value between HK$130,000 and HK$160,000;

(d)  3 luxury bags were seized from a cabinet in the bedroom: a Hermes mini shoulder bag with an estimated market value between $70,000 and $95,000, a Prada mini shoulder bag with an estimated market value between $15,000 and $17,000, and 1 Christian Dior mini handbag with estimated market value between $15,000 and $17,000;

(e)  1 black wallet containing cash of HK$4,400, 2 Bank of China (HK)  bank cards in the respective name of D2 and Lin; and D2's Hong Kong Identity Card was found in the living room.

18.  D2 and Lin were arrested for money laundering and they exercised their right to silence.

Charge 3 (stated as charge 5 in bundle p.146)

19.  At 02:10am the following day, a Porsche 718 Cayman motor vehicle purchased by D2 under the name of Ngai Lik International (HK)  Company Limited (“Ngai Lik”)  with D2 as the sole shareholder and director was seized from a garage in Yuen Long.

20.  The vehicle was bought by D2 by way of part payments in cash ($80,000 on 28 September 2020), part with a cashier’s order that D2 purchased with cash ($616,169 on the same day), and a bank transfer of the balance on 30 September 2020 ($183,831).  The total purchase price was $880,000.

Charge 4 (stated as charge 6 at p.146 of bundle)

21.  The Bank of China bank card in D2’s name that was found in Flat D was linked to D2’s active personal bank account with Bank of China, account number 012-706-1-040030-2, which was opened on 27 February 2018.

22.  The opening mandate of the account recorded D2 as a worker of an engineering company earning $10,001 to 25,000 per month, with a public housing estate in Aberdeen as his address.  Investigation revealed that D2 did not own any real estate, and he did not file any tax return between 2014 and 2021.  Ngai Lik was incorporated by D2 on 15 May 2020 and there is no bank account under its name.

23.  Between 27 February 2018 and 1 February 2021, a total of $2,630,831.07 was deposited into D2’s Bank of China account, and a total of $2,614,133.20 was withdrawn.

24.  $2,164,300 out of the said $2,630,831.07 was deposited by way of 220 ATM cash deposits.  The amounts varied from HK$100 to HK$48,000.  There was no interbank transfer.  77 cash deposits totalling $696,300 were made after midnight.

25.  As to withdrawals, the monies were withdrawn shortly after deposit (mostly within one week).  $2,290,020 was withdrawn by way of ATM cash withdrawals.  A total of $79,000 was transferred to LIN.

26.  By their admission to the Summary of Facts, D1 and D2 admitted that they conspired together with other person(s)  to unlawfully traffic in cocaine between an unknown date in December 2020 and the 22rd day of January 2021.

27.  D2 further admitted that he dealt with the properties as particularised in:

(a)  Charge 2 by concealing the properties at Flat D;

(b)  Charge 3 by converting the property into a Porsche;

(c)  Charge 4 by concealing the property in the bank,

28.  Knowing or having reasonable grounds to believe that the said properties represented the proceeds of an indictable offence.

PREVIOUS CONVICTIONS

29.  D1 is of previously clear record.

30.  D2 has one previous conviction dated 9 December 2013, when he was sentenced to 5 years’ imprisonment in the Court of First Instance for one count of trafficking in dangerous drugs.  He was discharged on 17 April 2016.  

D1’S BACKGROUND AND MITIGATION

31.  D1 was born in November 1996 and is 28.  He is educated up to Form 6 level.  His father passed away in 2017, and he was living with his mother before his arrest in this case, when he was working as a transportation worker, earning about $20,000 per month.  

32.  D1 wrote and tells the court how he has cultivated the habits of exercising and reading while in custody and has gained insights into his misdeeds and the harm he had caused his friends and family.  Seeing his aging mother dragging herself to visit him causes him to be so ashamed.  He plans to apply for cookery and English courses when serving his sentence, hoping to find work upon release and to look after his family.  

33.  D1’s mother wrote in mitigation.  She blames herself for not giving D1 a proper upbringing.  She says D1 has always been pure and obedient, actively participating in school activities, including voluntary work, basketball, football, track and field events, and has received multiple medals and awards.  D1 has always been a hard working person, be it a construction site worker, cleaner, kitchen worker, or waiter.  As a result of losing some goods in his transportation worker job, D1 had to take out a loan to repay the $30,000 odd.  When the pandemic hit, D1 lost his job and was eventually forced into committing the present offence to try to make some quick money.

34.  Pastor Lam of Conservative Baptist Ming Tao Church wrote and gave more details about D1 losing his employer’s goods, saying that it was D1’s colleagues who had set up D1 and falsely claimed that D1 had lost the goods.  They then induced D1 to borrow money from finance companies, which eventually led to his commission of the offence to try to make some quick money to repay the loan.  He believes D1 has a good nature, is remorseful, and seeks leniency on his behalf.  

35.  Mr. Victor Lee, counsel for D1, submitted that for the total of 906.33g of cocaine and cocaine hydrochloride, a proper starting point would be about 17.6 years.  He pointed out that the defendant was relatively young and had a clear record when he committed the offence, that he did not own the drugs, nor was he the manager, organizer or mastermind in this trafficking operation.  

D2’S BACKGROUND AND MITIGATION

36.  D2 was born in April 1996 and is 29.  He was 24 at the time of his commission of the offence in count 1, as well as at the time of arrest.  D2 was educated up to Form 1 level.  He is single.  His parents are in their 60s and working, as is his 30 year old elder brother.  

37.  Mr. Warren Louis Tang, counsel for D2, identified the defendant’s timely pleas as the strongest mitigating factor.  He reminded the court that there is no international element involved in either the drug trafficking or the money launderings; that there is no evidence that D2 was the mastermind or organizer in any syndicate that might be related to the drug trafficking or money laundering.  

38.  It is D2’s instructions that only D1, D2 and another male were involved in the conspiracy to traffic in dangerous drugs.  

39.  In fact, Mr. Tang told the court that the mastermind, or the actual boss, was the man who installed the CCTV in Unit C.  D2 did not know D1 before they conspired to traffic in the cocaine.  D2 was provided with the phone with the number 6763 7062, with the monitoring app for Unit C already installed.  D2 was instructed by the mastermind to contact D1 with that phone.  

40.  In relation to the money laundering charges, Mr. Tang fairly accepted that there is no rebutting evidence to suggest that the money that was laundered was not related to drug trafficking in charge 1.

41.  Mr. Tang submits that the sentences for the laundering should be made fully, or at least partly, concurrent to the trafficking sentence, given the lengthy term of imprisonment for that charge.

42.  Mr. Tang also referred to D2’s effort to assist the police in locating and apprehending the ‘mastermind’ of the whole operation.  This is dealt with below.

SENTENCING CONSIDERATIONS

COUNT 1: CONSPIRING TO TRAFFIC IN DANGEROUS DRUGS

43.  The maximum sentence on conviction upon indictment for conspiracy to traffic in dangerous drugs is the same as that of trafficking in dangerous drugs, which is life imprisonment and a fine of $5 million.

44.  It is not disputed that the sentencing guidelines for trafficking in cocaine as updated in HKSAR v Huang Ruifang [2025] 2 HKLRD 138 should be adopted to benefit the defendants[3].

45.  It is also not disputed that the sentencing approach for trafficking in dangerous drugs in HKSAR v Herry Jane Yusuph [2021] 1 HKLRD 290 are applicable in a conspiracy to traffic charge with the relevant adaptations.

46.  I have reminded myself that, despite the presence of raw materials and paraphernalia found in Unit C that would indicate that drugs might have been or would be manufactured there, the defendants are being sentenced for conspiring to traffic and not to manufacture the drugs.

47.  In the case of HKSAR v Chan Kam Loi (陳鑑來)  CACC 410/2012, the Court of Appeal provided some guidance in sentencing for conspiring to traffic in dangerous drugs cases:

“100. ...But, in respect of inchoate offences it may not be possible to assess precisely the amount of drugs that were, or were going to be, trafficked. This does not mean that the Court is absolved from reaching a view on the gravity of the offence, merely that it does not have the advantage of doing so in the usual way. Of course, quantity is not the only fact relevant to the assessment of gravity but it has provided the courts with a ready means of identifying an appropriate starting point which can then be enhanced should there be present aggravating factors which increase the gravity of the offence.

101. Thus, even in respect of inchoate offences, the natural course is for the Court to analyse evidence to see whether it allows the Court to reach a conclusion which fairly reflects the quantity of drugs that were trafficked or were agreed to be trafficked.

102. The evidence may not always allow of precise quantification but it may be possible to reach a view of the very least that was trafficked by recourse to inferences drawn from the evidence or assumptions based on the evidence. Such a course is permissible as long as the inferences and assumptions are based upon evidence and do not become mere speculation with no evidential foundation. Whether the evidence and the inferences that are drawn from it enable the Court to have recourse to the quantity based sentencing bands will inevitably vary from case to case. But sight should not be lost of the ultimate goal which is to make an accurate assessment of the gravity of the offence so as to enable the Court to impose a just sentence.”

48.  Chan Kam Loi was followed in the case of HKSAR v Tsang Ka-wing (曾嘉穎)[2017] 5 HKLRD 799; CACC 97/2016, where the Court of Appeal added that,

“33. …unless the facts which give rise to the inferences and assumptions are clear-cut, they will inevitably lean in favour of the defence”.

49.  In assessing the gravity of the present offence, I have taken into consideration the fact that the conspiracy lasted around 27 days and it involved D1, D2, and a taxi driver.

50.  The WhatsApp messages between D1 and D2 show that D2 was the dominant figure in the communications, and that he had assumed the role of a supervisor of D1, telling him what to do and when to do it, scolding D1 when he had done something not to D2’s liking.  There are also photos of drugs being packed and weighed sent by D1 to D2, reporting on the progress of his packaging work.

51.  Based on the contents of communication between D1 and D2, as well as the monitoring app found in D2’s phone, I find that the only reasonable inference is that D2 was a higher ranking officer in the drug trafficking, and he had taken up the role of recruiting D1 and instructing D1 and supervising D1 in the trafficking conspiracy.  

52.  In relation to the quantity of drugs that the defendants had conspired to traffic in, I find that I can rely on D1’s admission that this was his fourth delivery.

53.  I am, however, hesitant to make further assumptions as to the quantity of the previous deliveries, or the nature of the drugs, or the purity of the drugs, since the Summary of Facts are silent on these matters.

54.  To assume, without further supporting evidence, that each previous delivery by D1 was more or less the same quantity as what he had on him on the day of the arrest may not be correct, and may be unfair to the defendants.  

55.  Furthermore, given the large quantity of dangerous drugs seized, the eventual sentence would already be substantial.

56.  Be that as it may, I find that some upward adjustment to the 906.33g seized is required to truly reflect the gravity of the offence.

57.  I would, therefore, proceed to assume that the previous 3 deliveries that D1 had done was of a similar quantity, but assuming a lower purity of 78% in favour of the defendants.  330g of substance at 78% purity would yield 257.4g of cocaine.  I will round this down to 250g in favour of the defendants, which means that the 3 previous deliveries would have involved a total of 750g of cocaine.

58.  I will, however, only make an upward adjustment to take the total to 1,000g, being an increase of 93.67g[4], leaning heavily in favour of the defendants.  For 1,000g, the applicable tariff band is “16 to 20 years”.  

59.  For a simple storekeeper or courier, an arithmetical application of the Huang Ruifang tariffs would lead to a notional starting point of 18 years’ imprisonment.

60.  Based on the Summary of Facts, the role of D1 was someone who had taken part in the packaging of the dangerous drugs, and his culpability would be higher than that of a simple courier or storekeeper.

61.  As for D2, he was the person who controlled and supervised D1 in the packaging of the drugs.  As such, his role in the trafficking operation was more important than that of D1, and his culpability higher.

62.  Taking into consideration the tariff sentence, the overall gravity of the offence, and the individual role and culpability of the defendants, I adopt a starting point of 18 years and 9 months’ (225)  imprisonment for D1, and that of 19 years 9 months (237 months)  for D2.

AGGRAVATING FACTOR

63.  This is D2’s second drug trafficking related conviction.  I find that D2’s sentence for count 1 must be enhanced in order to strengthen the element of deterrence.  For this aggravating factor of being a repeat offender, I enhance his sentence by 6 months, taking it to 243 months.  

MITIGATING FACTORS

64.  D1 is, first of all, granted the full one-third discount for his timely plea of guilty, leading to a sentence of 150 months.  

65.  I have been told that D1 had made a total of 4 non-prejudicial statements, but that after investigation, they were considered to have been of no practical value to the police.  Be that as it may, I find that D1 had made a genuine attempt to try to assist the police in helping to apprehend the mastermind of the operation.  For this, I will grant him a reduction of 3 months[5], resulting in a sentence of 147 months after plea, or 12 years 3 months’ imprisonment.

D2

66.  In relation to D2, without going into details, despite there being no material outcome, I find that D2’s efforts to assist the authorities to bring the supposed mastermind of the drug trafficking operation to justice should also be recognized.  However, since D2 is being sentenced for 3 other offences which are linked to count 1, I find it best to deal with this mitigating factor when applying the totality principle later on.  At this stage, the sentence against D2 for charge 1 after granting him a one-third discount would be 162 months.

THE MONEY LAUNDERING CHARGES (D2 ONLY)

67.  The maximum sentence on conviction upon indictment for money laundering is that of 14 years’ imprisonment and a fine of $5 million.  D2 alone faces all 3 money laundering charges.

68.  In the case of HKSAR v Boma, CACC 335/2010, the Court of Appeal stressed that deterrence was paramount in sentencing money laundering cases.  The amount of money laundered, while not the be-all and end-all of a case, is a significant feature.  Other significant matters include the nature of the predicate offence; the state of the launderer’s knowledge of the predicate offence; the sophistication of the laundering including the degree of planning, whether it was just one transaction or many and the length of time over which the laundering had carried on; whether the offender continued after discovering the nature of the money; as well as the role of the offender and the acts performed by him.

AMOUNT LAUNDERED

69.  In the present case, the amount of money laundered in charges 2 to 4 are $5,572,500, $880,000 and $2,630,831.07 respectively.

PERIODS OF LAUNDERING

70.  In relation to charge 2, the particularized period of the laundering is “on or about 22 January 2021”, being the day of the arrest.  The laundered sum was in the forms of cash, 5 watches, and 3 handbags found in D2’s residence that day.  

71.  In relation to charge 3, D2 dealt with the money by paying for the motor vehicle in cash on 28 September 2020, and a bank transfer 2 days later, making up the total of $880,000.

72.  In relation to charge 4, the laundering period was between 27 February 2018 and 1 February 2021, which is close to 3 years.  During this period $2,614,300 was deposited via 220 ATM cash deposits, with amounts ranging from $100 to $48,000.  In the same period, a total of $2,614,133.20, being 99.995% of the said deposits, was withdrawn.  Most of the withdrawals were within one week of the deposits.  $2,290,020 (being 87.6% of the withdrawals)  was withdrawn via ATM cash withdrawals, and $79,000 was transferred out of the account to the woman LIN who was found inside D2’s residence on the day of the arrest.

73.  D1 and D2’s conspiracy to traffic in dangerous drugs is particularized as having taken place between a day unknown in December 2020 and 22 January 2021.  The charge 4 laundering period covered the entire conspiracy to traffic period, as well as extending back to February 2018.  

74.  D2 had admitted through the summary of facts that he did not file any tax return between 2014 and 2021, and as at 27 February 2018 when the Bank of China account was opened, he was earning $10,000 to 25,000 per month.  The pattern of the deposits does not match that of regular salary payments.  

75.  When taken together, the above facts all point to the only reasonable inference that the property that D2 had dealt with in charges 2 and 3 must have stemmed from proceeds related to the predicate offence of conspiring to traffic in dangerous drugs in charge 1, and that part of the properties dealt with in charge 4 must have included those stemming from charge 1 as well.  

76.  Based on the monitoring app found on D2’s phone, and the communications with D1, the only reasonable inference must be that D2 knew about the predicate offence, and that D2 had dealt with the property while knowing about, and taking part in, the drug trafficking conspiracy.

77.  Based on the amount of cash, the time needed to purchase the watches and bags, the only reasonable inference must be that the dealing in the property was not a one off incident, and that the dealing must have gone on for some time.  While the exact length of time is not known, it definitely would not have been done in one day.

78.  Although there must have been some degree of planning in D2’s dealing with the properties, the acts of dealing themselves were not sophisticated.  D2 either kept and concealed the money in Flat D that he rented, or converted the money into watches and bags and kept them there.  

79.  The lack of sophistication, however, does not make his criminal acts less repugnant.  He was amassing a fortune, likely for himself together with others, while knowing that the generation of the money was based on poisoning the community.  

80.  Taking into consideration all the above factors, with reference to Boma and the sentencing cases mentioned therein, and bearing in mind in particular D2’s knowledge and participation in the predicate offence, I find that a proper starting point for the $5,572,500 laundered in charge 2 is 5 years’ imprisonment.  

CHARGE 3

81.  In the summary of facts that D2 had admitted to, in relation to the conspiracy to trafficking in dangerous drugs, D1 had stated that he had engaged in trafficking with D2 on 3 previous occasions before 22 January 2021.  

82.  Based on the above, and other circumstances of the case, I find that the $880,000 D2 used to purchase the Porsche must also have stemmed from drug trafficking proceeds, and that D2 must have known about the predicate offence when he dealt with the property.

83.  For the lesser amount, I find that a proper starting point is that of 3 years 6 months’ imprisonment.

CHARGE 4

84.  As mentioned above, based on the overlapping period of the laundering in charge 4 and the conspiracy to traffic in charge 1, it can be inferred that part of the money in the Bank of China account also stemmed from the conspiracy.  Although the summary of facts does not disclose how much money was dealt with in which particular period, the only reasonable inference must be that D2 had known that at least part of the money being dealt with was from the predicate offence.  

85.  As for the money that was laundered outside of the charged conspiracy period, the defendant is sentenced on the factual basis that is in his favour, in other words that the predicate offence might not have been drug trafficking, and that the defendant might not have known about it when he dealt with that part of the money.

86.  For the amount of money laundered, and the 3 year period of laundering, I adopt a starting point of 4 years’ imprisonment.  

TOTALITY IN RELATION TO D2

87.  In relation to charge 1, D2’s sentence is 162 months’ imprisonment after plea, without taking into consideration the mitigating factor of his attempts to assist the authorities.  

88.  His sentences for charges 2 to 4 after plea are, respectively, 40 months, 28 months, and 32 months.  Likewise, these are sentences without considering the said mitigating factor.

89.  As to the application of the totality principle, I rely on the following passage quoted and adopted by the Hong Kong Court of Appeal in HKSAR v Ngai Yiu Ching (倪耀偵)  [2011] 5 HKLRD; CACC 107/2011:

“26. Finally there is a decision of the New South Wales Court of Criminal Appeal in Cahyadi v The Queen 168 A Crim R 41. At page 47, paragraph 27 Howie J summarized the legal position in a way which we would adopt:

“…… there is no general rule that determines whether sentences ought to be imposed concurrently or consecutively. The issue is determined by the application of the principle of totality of criminality: can the sentence for one offence comprehend and reflect the criminality for the other offence? If it can, the sentences ought to be concurrent otherwise there is a risk that the combined sentences will exceed that which is warranted to reflect the total criminality of the two offences. If not, the sentences should be at least partly cumulative otherwise there is a risk that the total sentence will fail to reflect the total criminality of the two offences. This is so regardless of whether the two offences represent two discrete acts of criminality or can be regarded as part of a single episode of criminality. Of course it is more likely that, where the offences are discrete and independent criminal acts, the sentence for one offence cannot comprehend the criminality of the other. Similarly, where they are part of a single episode of criminality with common factors, it is more likely that the sentence for one of the offences will reflect the criminality of both.”

90.  In the present case, D2 had chosen to commit the money laundering offences in addition to the conspiracy to traffic in dangerous drugs offence.  He did not have to commit the laundering offences.  The laundering of the drug related proceeds would have made it more difficult to trace and recover such ill-gotten gains, whether the gains were for himself or someone else, and innocent third parties might have been affected.  I find that if all the sentences were to run wholly concurrently, the final sentence would not be sufficient to reflect the full criminality of D2’s conduct.

91.  Taking a step back, I order that 6 months of each the sentences in charges 2, 3 and 4 (totaling 18 months)  to run consecutively to the 162 months sentence in charge 1, the balance concurrently, resulting in a sentence of 180 months.

92.  As mentioned above, the fact that D2 had tried his best to assist the police in bringing the mastermind of the operation to justice needs to be recognized.  Given what is known to this court, I will grant him a reduction in sentence of 9 months from the above sentence, resulting in a final sentence for the 4 charges of 171 months, or 14 years 3 months’ imprisonment[6].

93.  I find that the sentences of D1 and D2 fair, just and balanced in the circumstances.