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DCCC1280/2005
IN THE DISTRICT COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
CRIMINAL CASE NO. 1280 OF 2005
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Before:
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H H Judge S. D’Almada Remedios
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Date:
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21 September 2011 at 10.10 am
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Present:
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Mr Newman Wong, Counsel on fiat, for HKSAR
Mr Daniel Marash SC, leading Mr Toby Jenkyn-Jones, instructed by Messrs Haldanes, for the Defendant
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Offence:
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(1) & (2) Dealing with property known or reasonably believed to represent proceeds of an indictable offence (處理已知道或合理相信為代表從可公訴罪行的得益的財產)
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Reasons for Sentence
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1. Defendant, I convicted you after trial of two offences of dealing with the proceeds of an indictable offence, contrary to section 25(1) and (3) of the Organised and Serious Crimes Ordinance, Cap.455.
2. In this case, unlike other money laundering cases, the proceeds of the indictable offence was known and that was money derived from massage or sauna establishments which were offering sexual services to its customers. These establishments are otherwise commonly known as vice establishments.
3. The money, involved in Charge 1 was in relation to the Temple Street Sauna which amounted to approximately HK$9.3 million. The money in relation to the other establishment was the New Crystal Spa that amounted to approximately HK$8 million.
4. The offences were committed over a period of about nine months. The sauna massage establishments were located in fairly large elaborate premises in Jordan Road and Tsim Sha Tsui respectively. As evidenced from all the banking documents, you alone had dealt with almost all the funds in the bank account of the two establishments, principally withdrawing about 90 per cent of the funds which amounted to HK$9.8 million from the account that was used by Temple Street Sauna, and HK$7.8 million from the account that was used by New Crystal Spa.
5. I found, as you were the person in charge of the vault of the sauna’s revenue, you knew or had reasonable grounds to believe that the income derived from the saunas were from services which included sexual services.
6. I have taken into account all that Mr Marash, SC, has said for you on your behalf in his very full and thorough mitigation. You are 54 years of age and have a clear record. You are married and have an adult daughter. Prior to your arrest in June 2005, you were a manager of a Karaoke nightclub, a sole proprietor and manager of a nightclub, and the manager of a foot massage sauna. It has been submitted by Mr Marash that you were given authority to deal with the bank accounts because the owners of the saunas trusted you and treated you like family. You, however, gained no profit from your dealing.
7. It has been urged upon me that, due to no fault of yours, you have suffered stress from the process of the trial since you were arrested in 2005 and have, as a result, suffered major setbacks in your health. Mr Marash has taken me carefully through the numerous medical reports submitted which attest to the fact that you had a stroke in 2006, 2007 and 2008 to which has now left you partially blind in both eyes and deaf in your right ear. You have difficulty walking, thus, need to use crutches and suffer from a bad hip as well as a sore back. Mr Marash has also asked me to take into account the delay in the proceedings from the date of your arrest until the date of your conviction today.
8. As a general background, at your first trial in 2006, that trial was aborted because you had a stroke. At the second trial that lasted, I am informed and I believe about 150 days before Deputy Judge Michael Jenkins, the judge there, found there to be no case to answer and acquitted you on all charges. The judge was then case stated by the prosecution and the Court of Appeal upheld the acquittals on some of the charges against you but remitted the present two charges back for trial.
9. The trial for the two charges which the Court of Appeal remitted back to Deputy Judge Jenkins however did not proceed before him and thus there was a re-trial before myself. It has, therefore, taken from the time of your arrest until the date of conviction, approximately 6 years.
10. Mr Marash has rightly pointed out that there are no sentencing guidelines for the present offences because the facts vary from case to case. The following factors are to be taken into account when determining sentence. The length of time the laundering had subsisted. The degree of sophistication of the laundering scheme, the number of people involved or affected, and if there was an international element.
11. In the case HKSAR v Siu Yu Yee, CACC159 of 2009, a Chinese decision translated into English, the Court of Appeal said:
“The amount of money involved is a major consideration and not the amount of benefit received by the defendant in any transaction. Further the culpability of the offence lies in the assistance, support and encouragement offered to the commission of the indictable offence so a defendant’s level of participation and the number of occasions on which he is involved in the money laundering activities are relevant factors to be considered.”
It went on to say:
“If the relevant indictable offence can be identified the court may take into account the sentence imposed on the indictable offence per se when determining the sentence of the dealing offence.”
12. The present case does not involve any international element. The length of time to which the offences lasted were approximately 9 months. There was no degree of sophistication in this scheme. The indictable offence can be identified as one of proceeds from a vice establishment. The amount of money involved in the two charges totally amount to about $17 million. This is not an inconsequential amount and the defendant, despite being registered with another signatory with the bank, dealt with almost all the proceeds in the bank accounts, which was money generated by the sauna and massage establishment. He was, therefore, a key player in these money laundering activities.
13. Taking all these factors into account and looking at the principle of totality, I do consider the appropriate starting point for the present two offences to be one of 3 years’ imprisonment. I, however, accept that the time lapse from the defendant’s date of arrest to his conviction the defendant has had to endure a long wait to the eventual end of these proceedings. This long wait has not been caused by the fault of the defendant. It appears that the charges and the long wait for the conclusion to this matter has caused physical and conceivably mental suffering and stress to the defendant as evidenced by his ailments.
14. The effects of this delay is, in my view, a strong mitigating factor that warrants a discount from the present starting point. I also note that the defendant has been a law abiding citizen for all his life, at least until the age of about 48, that is six years ago, when these offences were committed.
15. On the special facts of this case, defendant I consider one year to be an appropriate discount from the present starting point. In the circumstances, defendant you should be sentenced to 2 years’ imprisonment on each charge and both charges are to run concurrent to each other.
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(S. D’Almada Remedios)
District Judge |
Please refer to CACC426/2011 for the relevant appeal(s) to the Court of Appeal. |