HKSAR v. SHAMSUDEEN SYED AHMED

DCCC 947/2013

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 947 OF 2013

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REASONS FOR SENTENCE

1. Syed Ahmed Shamsudeen you stand convicted after trial of six charges of dealing with property 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 offences are set out in my reasons for verdict delivered on 24 November 2015.  In summary in April 2011 Mr Owen John Shaw received a cold-call at his home in Australia asking him to invest in gold options through a German company called Weissmuller & Sons.  Believing this to be a genuine investment Mr Shaw agreed to purchase a total of US$500,000 worth of gold and silver options.   

3. There was no genuine investment.  Mr Shaw was deceived into remitting the sums of US$20,000, US$170,000, US$10,000 and US$300,000 on 13, 15, 18 and 29 April 2011 to the bank account of Golden Touch Trading Company (“Golden Touch”), held with the DBS Bank (Hong Kong) Ltd. 

4. After deduction of bank charges the monies were credited to the Hong Kong dollar and the US dollar accounts of Golden Touch, part of which was transferred to the bank account of Yauni Exports.  You were the sole proprietor of both Golden Touch and Yauni Exports and the sole signatory of the bank accounts of both companies.

5. I was satisfied that the four sums credited to the Golden Touch DBS accounts, part of which was transferred to Yauni Exports, were the proceeds of an indictable offence and that you dealt with the monies, having reasonable grounds to believe the monies, in whole or in part, directly or indirectly, represented the proceeds of an indictable offence.

6. 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[2]; HKSAR v Hsu Yu Yi[3] and HKSAR v A male known as Boma Amaso)[4].

7. 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[5] and HKSAR v Yam Kong-lai)[6].  Further, sentence should mainly reflect the amount of the money laundered (see for example Secretary for Justice v Ngai Fung Sin, Apple)[7]. 

Mitigation

8. I have carefully considered everything said by Mr Harris SC on your behalf together with the mitigation letters which speak of you very highly.  I take into account you have a clear record and a young family in Malayasia, from whom you have been separated for over two years.  In Secretary for Justice v Ngai Fung Sin, Apple[8] the Court of Appeal said that courts should not totally ignore the consequences which a defendant and his family would suffer as a result of the sentence, but in considering sentence a court cannot pay too much attention to this factor and sentence the defendant in an exceptionally compassionate manner. 

9. Taking into account that:

(a) the amounts involved: US$20,000, US$170,000, US$10,000 and US$300,000;

(b) the monies were remitted from Australia as a result of investment fraud, thereby adding an international element to the charges;

(c) there is no evidence you knew the monies were remitted from Australia as a result of investment fraud;

(d) you dealt with the monies between 13 and 29 April 2011;and

(e) your clear record and family circumstances;

I am satisfied the proper sentence after trial is 12 months imprisonment on charge 1; 12 months imprisonment on charge 2; 3 years imprisonment on charge 3; 3 years and 6 months imprisonment on charge 4; 3 years imprisonment on charge 5 and 3 years and 6 months imprisonment on charge 6.

Agreement of the prosecution case

10. Mr Harris SC asks that credit be given for the defence agreeing almost the entirety of the prosecution case.  In HKSAR v Hsu Yu Yi[9] the Court of Appeal approved of the reduction of one month on account of admitting the prosecution case.  Hsu Yu Yi was referred to in HKSAR v Tam Lap Shek & another[10] where the Court of Appeal said that a small discount ought to have been given for agreeing the prosecution case.[11]  Although one prosecution witness was called the evidence was not challenged.  Court time was saved by agreeing the prosecution case, in particular saving Mr & Mrs Shaw coming from Australia.  In the circumstances I am satisfied the sentences are to be reduced by one month.  

Delay

11. Mr Harris SC asks that the court take into account the time taken to conclude the trial during which time you have been separated from your family in Malaysia. 

12. You were arrested on 14 July 2013 and charged on 15 July 2013.  The case was transferred to the District Court on 8 October 2013.  Clearly there was no delay in bringing the case to court.  The delay has arisen by reason of the defence witness Jailani not coming to Hong Kong to give evidence.  Letter of Request was issued on 13 December 2013.  Pursuant to the Letter of Request Jailani gave evidence on 2 March 2015 in the High Court of Malaya. 

13. Where there has been unreasonable delay in bringing an offender to justice this 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].

14. The time taken to conclude the trial, almost 2½ years since your arrest, is largely attributable to the application for Letters of Request.  I note from the evidence of Mr West[13] that Jailani did come to Hong Kong after you were charged but was not willing to come to Hong Kong to give evidence.  In my view the fact a long time was taken for the defence to obtain their evidence is not a matter which should result in a reduction in sentence.

Sentence

15. You are sentenced as follows:

Charge 1 - 11 months imprisonment;

Charge 2 - 11 months imprisonment;

Charge 3 - 2 years and 11 months imprisonment;

Charge 4 - 3 years and 5 months imprisonment;

Charge 5 - 2 years and 11 months imprisonment; and

Charge 6 - 3 years and 5 months imprisonment;

   All the offences arising out of the monies remitted by Mr Shaw to the Golden Touch DBS accounts, I am satisfied concurrent sentences are appropriate. You are sentenced to a total sentence of 3 years and 5 months imprisonment, which I am satisfied properly reflects your criminal culpability on the charges.