HKSAR v. GALVADORES RACHEL RIPATO

DCCC 751/2023

[2024] HKDC 1907

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 751 OF 2023

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REASONS FOR SENTENCE

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Charge

1.  The defendant is D3 in this case.  She is charged with an offence of dealing with property known or believed to represent proceeds of an indictable offence (“money laundering”)  (3^rd charge)  and she pleaded guilty to it.

Facts

2.  The defendant admitted the following facts.

3.  In 2020 Wong Pui-yan (PW1)  fell prey to a “romance scam” in which her “cyber lover” claimed to have sent her certain gifts.  A purported “Courier Company’s” staff then requested from her “clearance fees”.  PW1 consequently deposited certain sums in certain bank accounts.  Amongst these on 2 March 2020, she deposited HK$10,000 by Bank Transfer to D3’s bank account (“the said bank account”). 

4.  D3 opened and held the said bank account in her name.  D3 was the sole account holder and signatory of the said bank account which was opened on 31 July 2015 and closed on 19 November 2020.  In the opening mandate she stated that she was a domestic helper. 

5.  Between January 2020 and 18 November 2020, the said bank account had possessed, for the purpose of the present charge, HK$444,700 in total deposits.  During the said period, the said bank account had processed HK$444,700 by a number of short deposits and correspondingly quick withdrawals.

6.  The feature of “mirror transaction pattern” was present with at most a few days between the deposits and the withdrawals of similar amounts.

7.  D3 did not own any property and vehicle in Hong Kong.  She could not be identified from the record of the Inland Revenue Department for 2018-2020 inclusive.

8.  Under caution, D3 admitted, inter alia, the following:

(a)  She lent the said bank account to another Philippine female friend and passed the ATM card together with the password to her;

(b)  The same friend guaranteed monetary reward in return in January 2020 but she claimed she had never received money from her.

9.  D3 admitted that, between January 2020 and 18 November 2020, in Hong Kong, together with a person unknown, knowing or having reasonable grounds to believe that property, namely a total sum of HK$444,700 held in the said bank account, in whole or in part, directly or indirectly represented any persons’ proceeds of an indictable offence, dealt with the said property.

Criminal record

10.  The defendant is of clear record.

Mitigation

11.  The defendant is represented by Mr Delaney.  He submitted that the defendant is 48 years old, one of 7 siblings, and was only educated up to secondary school in the Philippines.  She is separated from her husband and has 1 daughter aged 19 and 1 grandson in the Philippines.  She also has an 84-year-old mother in the Philippines.  They all depend on the defendant financially.

12.  The defendant has been working as a domestic helper in Hong Kong since 2018, earning a salary of HK$4,730.  The defendant’s employer, Dr Chong Siu Man Ambrose, regarded her a dedicated and honest employee; and her family members described her as a deeply respected and much-loved member of a large family.  In her mitigating letter, the defendant said she is deeply remorseful and regretful for what she had done.  She has learned a lesson and she now asks for forgiveness.  

13.  Mr Delenay said the defendant’s friend, Victoria, told her that her (Victoria)  friend Jennifer needed the defendant’s account and the ATM card to use for her (Jennifer)  business; in exchange, the defendant would receive a share of the profits.  The defendant had no idea that her account was to be used in any scam.  Further, she has no knowledge whatsoever of other defendants in this case and PW1 and PW2.  Because the defendant owned Victoria around $1,000 so she agreed to hand over her ATM card. Since then, she has not had access to her account nor has she received any money from Victoria or Jennifer.

14.  Mr Delaney drew the court’s attention to HKSAR v Boma  [2012] 2 HKLRD 33 and HKSAR v Marque Charity Alonzo [2023] HKDC 1307.  He then emphasized that (i)  the money laundered in this case is comparatively low; (ii)  the laundered proceeds were not dealt with by the defendant; (iii)  the period that the funds were dealt with was relatively short; the predicate offences (fraud), while serious, are not the worst of their kind (e.g. drug trafficking); (iv)  the defendant was at the lowest end of culpability in handing over her account for a small reward which was never obtained; (v)  she was a caring and a diligent domestic helper who has made a contribution to her employer’s family, and has demonstrated remorse by pleading guilty.

Reasons for Sentence

15.  In sentencing, I have considered the facts of the case, the mitigation advanced and the relevant sentencing authorities.

16.  The Court of Appeal has said time and time again that the offence of money laundering is a serious offence and a deterrent sentence is called for (see: HKSAR v Javid Kamran CACC 400 of 2004; SJ v Wan Kwok Keung [2012] 1 HKLRD 197 and HKSAR v Boma [2012] 2 HKLRD 33).

17.  The Court of Appeal has also said it is not feasible to lay down guidelines for sentence of money laundering offence, as there is a very wide range of culpability (see: HKSAR v Javid Kamran CACC 400 of 2004).  However, a number of significant factors have been identified as relevant in determining the culpability of a defendant, including:

(a)  the nature of the predicate offence;

(b)  the state of the offender’s knowledge;

(c)  whether the operation involved an international dimension;

(d)  the sophistication of the offence, including the degree of planning;

(e)  whether the offence was committed by or on behalf of an organized criminal syndicate;

(f)  whether there was one transaction or many and the length of time over which the offence was committed;

(g)  whether the offender continued to launder funds after he had discovered the nature of the funds were proceeds of an offence or a serious offence was involved; and

(h)  the role of the offender and the acts performed by him[1]

18.  In HKSAR v Hsu Yu Yi [2010] 5 HKLRD 545, the Court of Appeal reiterated that the amount of money involved was the major consideration, not the amount of benefit received by a defendant in the transaction.

19.  In the present case, the defendant’s culpability lies in lending her bank account to someone else.  The method of the defendant committing the offence was not complicated and did not involve cross border factors.  However, I do not lose sight that the lending of bank accounts for someone else facilitates the laundering of money by disguising the true owner of the money passing through the bank accounts.  This makes difficult the detection of crime and undermines the integrity of the banking system.

20.  Having considered all the circumstances of the case including that the defendant had simply handed over her account to another with no more participation and no knowledge of the predicate offences; that the amount of money laundered “$444,770” was relatively not a large sum of money, I take a starting point of sentence of 18 months’ imprisonment.

Sentence reduction

21.  According to records and confirmed by counsel, the defendant was granted legal aid in February 2024; upon receiving legal advice, it was proposed that the amount of money laundered in the 3^rd charge should be amended.  By a letter dated 23 April 2024, the defence proposed such an amendment which was accepted by the prosecution.  The prosecution then submitted to the court the Re-amended Charge Sheet dated 17 June 2024.  By a letter of 24 July 2024, the instructing solicitors acting for the defendant wrote to the court and indicated that the defendant would enter a plea of guilty on the first day of trial. 

22.  It is of note that the amendment was first proposed by the defence.  As a result, the 3^rd charge was amended accordingly.  Following that, the defendant indicated her plea of guilty.  I consider it appropriate to give her the full one-third discount of sentence from the starting point.

23.  In AG v Yeung Kwong Chi[1989] 1 HKLR 266, the Court of Appeal said “…positive good character, i.e. something more than the mere absence of a criminal record, being particular behavior, usually unrelated to the crime itself, which has been of benefit to the community.”   Although the defendant is well regarded by her employer and family members, she cannot be described as having positive good character.  As such, she is not entitled to a further discount of sentence.  

24.  The defendant is sentenced to 12 months’ imprisonment.