HKSAR v. AHMAD SOHAIL

DCCC 1104/2016

[2018] HKDC 73

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 1104 OF 2016

____________

____________

REASONS FOR SENTENCE

1.  The defendant stands convicted after trial of one charge of dealing with property knowing or having reasonable grounds to believe the property represented the proceeds of an indictable offence, contrary to section 25(1) and (3) of the Organized and Serious Crimes Ordinance[1].

2.  Full particulars of the offence are set out in my verdict handed down this morning. In summary on 13 March 2002 the defendant opened an account with the Bank of China.  The defendant was the sole signatory of the account.  During the period 18 February 2007 to 25 July 2012 there were 195 deposits and 457 withdrawals.  Deposits totalled $3,516,737 of which $3,485,625 was withdrawn.

3.  Excluding salary, bank interest, the payment of $6,000 by the HKSAR Government; a transfer of $4,000 from Sidlow Gordon R and the MPF refund of $61,703.04 the amount deposited was $3,216,629[2].

4.  The bank account was cash intensive and used as a temporary depository. Almost all the money deposited was withdrawn with over $1 million withdrawn on the same day the money was deposited, sometimes within minutes of the deposit, monies which were not commensurate with the defendant’s income disclosed to the Inland Revenue Department or any other known source of income or assets. 

5.  I was satisfied the defendant dealt with the $3,216,629 having reasonable grounds to believe the money, in whole or in part, directly or indirectly represented the proceeds of an indictable offence.   

Mitigation

6.  I have carefully considered everything said on behalf of the defendant by Mr Wong SC, including that the defendant’s wife is now pregnant with their second child.  I take into account the defendant has no similar previous convictions and has only appeared in court once before in 1996 when he was fined and disqualified from driving.   

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 predicate offence that generated the laundered money; 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; the amount of money involved; 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 (see for example Secretary for Justice v Jerome Yuval Arnold Herzberg[3]; HKSAR v Hsu Yu Yi[4]; and HKSAR v A male known as Boma Amaso[5]).

8.  Mr Wong SC referring to the decision in HKSAR v A male known as Boma Amaso places emphasis on the fact that the predicate offence is unknown; there is no evidence the defendant received any benefit and there is no international element. 

9.  The courts have emphasised that a defendant is to be sentenced on the facts of the money laundering charge and not on the facts of the underlying offence(see for example HKSAR v Chen Szu-ming[6] and HKSAR v Yam Kong-lai)[7].  Further, sentence should mainly reflect the amount of the money laundered (see for example Secretary for Justice v Ngai Fung Sin, Apple)[8].

10.  Allowing a bank account to be used as a temporary depository for substantial cash sums facilitates the laundering of money by disguising the true owner of the money passing through the account.  This makes difficult the detection of crime and at the same time undermines the integrity of the banking system.  

11.  Mr Wong SC submits that the total sum of $3,216,629 is made up of transactions which had nothing to do with money laundering[9]. In court Mr Wong SC explains this refers to the two cheques in the sums of $266 and $163[10] and submits in passing sentence the court should disregard these sums and all deposits of less than $10,000.

12.  Whilst I am prepared to disregard the two cheques, I am not prepared to disregard all deposits of less than $10,000.  These were all cash deposits which for the reasons given I am satisfied the defendant had reasonable grounds to believe the money, in whole or in part, directly or indirectly represented the proceeds of an indictable offence.  Even if one was to disregard these sums the total amount would still be over $2.85 million.  Notwithstanding a difference of about $360,000 in the circumstances of the case the sentence would be the same.    

13.  Taking into account the amount involved was just over $3.2 million over a period of just over five years; the role of the defendant and that the defendant has no similar convictions having only appeared in court once over twenty years ago, I am satisfied the proper sentence after trial is 3 years’ imprisonment. 

Delay

14.  Mr Wong SC submits that the delay in bringing the case to trial was unreasonable and has caused the defendant unnecessary but lengthy anxiety[11]. 

15.  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; where the delay has given the offender the opportunity to rehabilitate himself; whether restitution has been made; whether there was a legitimate expectation the matter will not be further pursued; the size of the investigation and whether the time taken to bring the case to court was longer than necessary[12].

16.  The investigation commenced in February 2012.  The defendant was arrested on 2 August 2012.  The investigation took over four years to complete after which the police sought legal advice on 28 July 2016.  In the interim the defendant was released from police bail on 5 May 2015.  Legal advice was given on 18 October 2016 to charge the defendant. The defendant was rearrested and charged on 24 October 2016 and first appeared in the Eastern Magistracy on 28 October 2016. 

17.  The case was transferred to the District Court on 28 November 2016.  The first hearing in the District Court was on 16 December 2016 when the defendant indicated his plea of not guilty and the case was set down for trial on 9 May 2017.  On that day the court granted the defence application for an adjournment.  The trial commenced on 5 September 2017 just over five years after the defendant was first arrested.  

18.  Ms Sham explains the main reason for the time taken to investigate the matter was that initially three persons were arrested involving three bank accounts.  During the investigation further bank accounts were revealed widening the scope of the investigation.  Legal advice was initially sought in January 2014.  The Department of Justice advised that a report from the Treasury Accountant should be obtained and that the investigation should cover a longer period.  After the report from the Treasury Accountant was obtained in February 2015 further investigation took place, including into the counterparties in conjunction with ongoing legal advice from the Department of Justice. 

19.  I am satisfied that there has been no delay in bringing the case to trial after the defendant first appeared in court, the only adjournment being at the request of the defence.  Clearly whilst the police needed time to investigate the matter over four years would appear rather a long time to complete the investigation. Arguably the matter could reasonably have been brought to court earlier than it was. 

20.  No fault being attached to the defence for the time taken to investigate the matter I am satisfied some credit should be given in sentence for the time taken to bring the case to court[13]. In the circumstances I reduced the sentence by two months. 

Sentence

21.  The defendant is convicted and sentenced to 2 years and 10 months’ imprisonment.