The sentence imposed on you in respect of Counts 3 and 4 is 6 years’ imprisonment on each count. The sentence imposed in respect of Count 5 is 7 years’ imprisonment. I order that 1 year of the sentence of imprisonment imposed in respect of Count 3 be served consecutively to the sentence of imprisonment imposed in respect of Count 5. Accordingly, the total sentence of imprisonment imposed on you for Counts 3, 4 and 5 is 8 years’ imprisonment. I order that the sentences of imprisonment imposed in respect of Counts 3, 4 and 5 be served concurrently to the other sentences of imprisonment imposed on you on Counts 1 and 2. Accordingly, the overall total sentence imposed on you is 11 years’ imprisonment. Please sit down.
Ha Ting-pong, the sentence imposed on you in respect of Count 2 is 6 years’ imprisonment. The sentence of imprisonment imposed on you in respect of Count 3 is 5 years’ imprisonment. I order that 1 year of the sentence of 5 years’ imprisonment imposed in respect of Count 3 be served consecutively to the sentence of 6 years’ imprisonment imposed in respect of Count 2. Accordingly, the total sentence of imprisonment imposed on you is 7 years’ imprisonment. Please sit down.
Ha Wai-shing, the sentence imposed on you for Count 4 is 3 and a half years’ imprisonment. The sentence imposed on you for Count 5 is 5 and a half years’ imprisonment. I order that 1 year of the sentence of imprisonment imposed in respect of Count 4 be served consecutively to the sentence of 5 and a half years’ imprisonment imposed in respect of Count 5. The total sentence of imprisonment imposed on you, therefore, is 6 and a half years’ imprisonment. Please sit down.
I turn then to my reasons for reaching and imposing those sentences, first of all, to the authorities to which the court was referred. Mr Wong drew my attention to the judgment of the Court of Appeal in relation to the fraud offences in HKSAR v Cheung Mee Kiu [2006] 4 HKLRD 776 and HKSAR v Kwok Wing & Another CACC 398/2007, unreported, 27 June 2008. That was a judgment delivered in Chinese but I have an English translation.
In the judgment of the court in HKSAR v Cheung Mee Kiu, in which Burrell J delivered the judgment of the court, of which the then Ma CJHC as the Chief Justice was then was a member, guidelines were provided for sentencing in cases of theft of moneys by a person in a gross breach of trust reposed in him. The guidelines were formulated, having regard to the judgment of the Court of Appeal of England and Wales in R v Clark [1998] 2 Cr App R 137, and addressed, inter alia, the issue of currency fluctuations between the pound sterling and the Hong Kong dollar.
In HKSAR v Ng Kwok Wing, I think I referred to that inappropriately earlier. It was not Kwok Wing. It is Ng Kwok Wing. The court revised the bands of which the guidelines were applicable. The court stipulated that theft in those circumstances of breach of trust of $3 million to $15 million attracted sentencing in the range of 5 to 10 years’ imprisonment and that theft in the range of 1 million to $3 million attracted sentences in the range of 3 to 5 years’ imprisonment. It left untouched the upper band, namely that theft in circumstances of breach of trust of over $15 million attracted sentences in the range of 10 years or more.
In his submissions said to be relevant to sentencing in fraud offences, Mr Leung referred the court to the judgments of the Court of Appeal in the Secretary for Justice v Schmitt Charles Lee and the Secretary for Justice v Chan Boon Ning. The first of those cases is CAAR 12 of 2006, unreported, 17 June 2008, and the latter case is also CAAR 1 of 2002, unreported, 16 March 2004.
The former case concerned 19 counts of false accounting, not fraud, and the latter case involved three charges of theft and four of false accounting. As this court pointed out in the course of lengthy submissions, the factual circumstances were wholly and entirely different from the circumstances of these defendants. Those cases were not of any assistance in sentencing these defendants.
Turning then to what I am going to call money laundering, Mr Wong drew the court’s attention to the judgments of the Court of Appeal in HKSAR v Hsu Yu Yi [2010] 5 HKLR 545 and the Secretary for Justice v Lau Man Ying [2012] 4 HKLRD 435. Also of relevance is the judgment of the Court of Appeal in HKSAR v Boma Amaso, which is reported but I will give the unreported references at this point, CACC 335/2010, 1 February 2012.
In all three cases, the court sought to identify factors that are relevant when determining sentence in cases of offences contrary to section 25(1) and (3) of the Organized and Serious Crimes Ordinance, Cap 455, namely money laundering.
In HKSAR v Hsu Yu Yi, at paragraph 9, the court identified relevant factors for determining sentence and, inter alia, they were: the amount of money involved is a major consideration and not the amount of benefit received by a defendant; that 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; the length of time over which the offence lasted; and the indictable offence, if it can be identified in the sentence imposed on the indictable offence, is a matter to which the court can have regard.
In Secretary of Justice v Lau Man Ying, in the judgment of the court, the Vice President, Yeung J, stressed that money laundering was a very serious offence and the court had a duty to deter its commission. Also, he said that if there was evidence to prove the provenance of the money and that it was derived from serious crime and the defendant was aware of its origin, “that would be an aggravating factor”. That is at paragraph 29.
Finally, the court reiterated that sentencing should reflect the amount of money involved and the length of time the offence lasted:
“The larger the amount of money involved and the longer the time the offence lasted, then the heavier should be the sentence.”
In HKSAR v Boma Amaso, the Court of Appeal, of which I was a member, having regard to the multiple variations in the manner in which the offence of dealing with the proceeds of an indictable offence with the requisite mental element might be committed, declined to provide guidelines for sentencing. However, in the judgment of the court, the Vice President, Stock J as Stock J non-permanent judge was then, went on to identify the factors relevant to sentence. First, regard was to be had to the maximum penalty. That is 14 years’ imprisonment. Secondly, the offence was one that fell into a category of which “deterrence is paramount”, paragraph 36. Of the significant features relevant to sentencing, the court said that regard was to be had, inter alia, to the nature of the predicate offence and its maximum penalty.
In his submissions, Mr Cheung referred the court to the judgment of the Court of Appeal in HKSAR v Xu Xia Li [2004] 4 HKC 16 as relevant to sentencing for an offence contrary to sections 25(1) and (3) of the Organized and Serious Crimes Ordinance. As the court pointed out in the course of submissions, given the fact that the factual circumstances were entirely different, it appeared that Mr Cheung judged the case relevant only by the fact that the amount of money involved in the case, $11 million, was close to the 10,600-odd thousand dollars stipulated in Count 3. In that case, whilst approving in principle the sentence of 3 years’ imprisonment imposed on the applicants by the trial judge after their conviction after trial, the Court of Appeal nevertheless reduced the sentences by 3 months to reflect other factors not taken into account by the judge.
In his submissions, Mr Lo referred the court to the judgment of the Court of Appeal in HKSAR v Chiu Kit & Another, CACC 210/2009, unreported, 20 May 2010. Again, the facts were wholly different from the facts relevant to sentencing the 3rd defendant. And again, counsel appears to have been attracted to the case as being relevant on the basis that the amount of money which was “laundered”, namely $42 million, was even more than the amount of money laundered by the 3rd defendant in the combined totals of Counts 4 and 5.
Further, Mr Lo invited the court to note that the Court of Appeal, having noted that the judge had taken a starting point of 5 years’ imprisonment, had reduced it to 4 and a half years’ imprisonment, having regard to the defendant’s age. No detail was disclosed as to what the defendant’s age was. However, the Court of Appeal determined that the judge had not taken into account the fact that the 2nd applicant had acted under the influence of the 1st applicant and that his role was passive, and the court reduced the sentence to 2 and a half years’ imprisonment.
With respect to Mr Cheung and Mr Lo, none of the cases they referred the court to are of any assistance in sentencing these defendants.
All three counsel invited the court to have regard as a factor in mitigation to what was asserted to be the unreasonable delay from the time of the report of the payroll irregularities at Bonjour by Bonjour to the police on 6 April 2011 up until the time that they were rearrested and charged on 10 November 2016.
And I will turn next to a chronology relevant to that submission. On 22 March 2011, Bonjour discovered irregularities in its payroll payments of salary, as a result of which the 1st and 2nd defendants were dismissed that day from their employment as manager and assistant manager of the HR and administrative department.
On 6 April 2011, the matter was reported to the police and Commercial Crimes Bureau took over the investigation.
On 6 September 2011, the 1st, 2nd and 3rd defendants were arrested at their home for offences of fraud.
On 7 September 2011, they were placed on police bail of $10,000 in cash and required to report to the police once every two months. That regime continued until 3 June 2015, when the defendants were told that they were released unconditionally from their bail condition. However, on 10 November 2016, the 1st, 2nd and 3rd defendants were rearrested for the same offences for which they had been arrested on 6 September 2011.
On 10 November 2016, they were charged with various offences and appeared in Eastern Magistracy on the same date. The magistrate remanded all three defendants in custody.
On 5 January 2017, on their application for bail, Yau J granted the 2nd and 3rd defendants bail on terms which included that each of them deposit $300,000 in cash, that they report twice weekly to a police station, and that they undertake not to leave Hong Kong. Those terms of bail, with the other provisions, had been extended for the 2nd and 3rd defendants until the jury delivered its verdict in the early afternoon of 25 March 2019.
Mr Cheung submitted that even when the defendants were released from police bail on 3 June 2015, the 2nd defendant’s request that the computer which he and the 1st defendant owned be returned to them was met with a negative reply and an explanation that the matter was still under investigation. Mr Lo reaffirmed that to be the explanation that had reached the 3rd defendant. Mr Cheung submitted that the weight on the minds of the defendants arising from their concern that one day they might be prosecuted was ongoing and continued up and until their rearrest and charging on 10 November 2016.
For the 3rd defendant, Mr Lo submitted that the unreasonable delay taken by the police before charging the defendants on 10 November 2016 impacted particularly on the 3rd defendant because he was now 71 years of age and hitherto having been of good character was for the first time faced with the prospect of a lengthy term of imprisonment. Mr Lo submitted that if the prosecution had proceeded at an appropriate pace, the defendant might have reached their trial in 2014 or thereabouts. If so, the 3rd defendant would have been facing the prospect of going to prison for the first time in his life at a less advanced age.
In his submissions, Mr Wong acknowledged on behalf of the prosecution that there had been unreasonable delay in charging the defendants on 10 November 2016. He acknowledged that the investigation could have been dealt with more expeditiously and said that it probably could have been completed by the end of 2014 or the beginning of 2015. He acknowledged that the period between those dates and the date of charging, namely 10 November 2016, was an unreasonable delay of about 22 months.
Turning then to mitigation, Mr Leung invited the court to note that the 1st defendant’s criminal record, which evidenced convictions for 43 charges of theft and two charges of false accounting in the Tsuen Wan District Court on 28 April 1983 for which the 1st defendant was sentenced to a total of 18 months’ imprisonment, was very old. He informed the court that he did not propose to address the court on the circumstances of the commission of those offences. Similarly, Mr Leung informed the court that he did not propose to address the court on the circumstances in which the 1st defendant had committed the offences of which she had been convicted by the jury.
Of Counts 3, 4 and 5, Mr Leung submitted that they were part and parcel of the commission of the fraud, it being a necessary step to obtain the transfer of the moneys from Bonjour in the EasyPay online system, to provide another bank account to receive the deposit of the money. In those circumstances, he invited the court to order that such sentences as the court determined to be appropriate in respect of those counts be made concurrent to the sentences imposed in respect of Counts 1 and 2.
In respect of Counts 1 and 2, Mr Leung invited the court to have regard to the overall amount of money defrauded and the overall period in which the offences were committed. He invited the court to impose sentences appropriate to each count but then having regard to totality, to impose the appropriate order, making part of the sentence imposed in respect of Count 2 consecutive to that imposed in respect of Count 1.
Turning then to the 2nd defendant, in mitigation for the 2nd defendant, Mr Cheung invited the court to note that the 2nd defendant was now 42 years of age whereas in 2004, when he joined Bonjour, he was 27 years of age, and when he left Bonjour in March 2011, he was 34 years of age. Mr Cheung invited the court to take into account the fact that the 2nd defendant had no criminal convictions and, in that sense, was of good character and that whilst employed by Bonjour, although employed first of all as a clerk, had been promoted to the position of assistant manager of the HR department by 2009.
In respect of Count 2, Mr Cheung invited the court to note that the offence involved about $12.3 million and was committed over a period of one year and nine months. Mr Cheung acknowledged that the judgments of the Court of Appeal in HKSAR v Cheung Mee Kiu and HKSAR v Ng Kwok Wing were relevant to the court determining the appropriate sentence. He said that on a purely arithmetic calculation of the application of the guidelines set out in those cases to Count 2 resulted in a sentence of 8 years and 9 months’ imprisonment.
Mr Cheung acknowledged that there were factors in aggravation of the commission of the offence, the subject of Count 2, namely, there were two persons involved, not one; the offence lasted 21 months; and there were “numerous” transfers.
Turning then to the role of the 2nd defendant, Mr Cheung invited the court to have regard to the role of the 2nd defendant which he submitted, having regard to the fact that the 1st defendant had committed the acts, the subject of Count 1 on the indictment, in a period of five years before he joined her in that conduct on 1 June 2009, the 2nd defendant’s role was secondary to that of the 1st defendant.
Then turning to the mitigation advanced on behalf of the 3rd defendant, Mr Lo invited the court to note that the 3rd defendant had no connection with Bonjour. So there was no issue of any breach of trust. Mr Lo invited the court to note the relationship between the 1st and 3rd defendants, namely, husband and wife married for decades, and submitted that the 3rd defendant had played a passive role in the use of his bank accounts. Mr Lo submitted that the 3rd defendant was not an instigator of the commission of the offences.
He went on to suggest that the 3rd defendant had not benefited from the money laundering carried on in his bank accounts. However, he then accepted that moneys had been used for what he called family expenses and “overseas trips” and eating expenses. He submitted that payments for the 3rd defendant’s credit card were for transactions in which the 3rd defendant had acted merely on the instructions of the 1st defendant.
Mr Lo invited the court to take an overview of the criminality involved in Counts 4 and 5, namely, that taken together, they involved the deposit of about $27 million into his two bank accounts with HSBC over a period of over six years.
Then turning to sentencing and the reasons for my sentences, the good character of the 2nd and 3rd defendants. In sentencing the 2nd and 3rd defendants, I take into account in their favour that they are mature men of good character in the sense that they had no previous criminal convictions until those resulting from the verdicts of the jury. Given the age of the 1st defendant’s convictions in 1983 for multiple charges of theft and false accounting, I take no account of them.
Turning then to Counts 1 and 2 and the 1st defendant, Madam Kiu, in finding you guilty of Counts 1 and 2, the jury have found you guilty of defrauding Bonjour Cosmetic Wholesale Center Limited in the overall period, 24 May 2004 to 31 March 2011 of the total sum of $40,491,749 by dishonestly and falsely representing to Bonjour through Madam Vanky Chung that the salary payment information that you presented to her on a USB drive to be uploaded to the EasyPay online payment system and the HR-Lite payment system were payment of salary by the Bonjour account with HSBC to employees were true and accurate and therefore genuine salary payments which had been approved by Mr Wilson Ip. Rather, that payment information contained payments of salary to persons who were not entitled to any salary at all or payments of salary in excess of such entitlement that other persons were entitled to.
In the result, the vast majority of those moneys were transferred from Bonjour’s bank account with HSBC to the bank accounts of your husband, Ha Wai-shing, and to the bank accounts of Ha Ting-pong, your son, but some of the moneys were transferred to your own bank accounts. Those moneys were withdrawn as cash or transferred between those accounts and are lost to Bonjour. No money has been recovered. The majority of the moneys were ultimately withdrawn from your family bank accounts in cash and are untraceable and unrecoverable.
The circumstances of your dishonest false representations to Miss Vanky Chung represented a gross breach of trust. You were the manager of the HR and administration department and Miss Vanky Chung, the manager of the accounts department, at all material times. Before the salary payment data contained on the HSBC drive could be transmitted to HSBC through the EasyPay online and HR-Lite systems, it was necessary for Miss Vanky Chung to input a password. She did input that password on hundreds of occasions in consequence of the dishonest, false representations that you made to her.
In her evidence, she said that she did so because she “trusted you”, adding that you were the manager of the HR department. In that role, you were trusted to check and then collate the calculations of salary payments of both office and shop staff and of commission payments to the latter of your subordinates and present them to Miss Vanky Chung in the USB drive to be uploaded to the EasyPay online system. You abused that trust and did so repeatedly for months which became years and years.
Having been employed on 24 May 2004 by Bonjour as the manager of what was then the personnel and administration department that soon became the HR and administration department, you discovered at a very early stage key weaknesses in the security of the EasyPay online payment system, in particular, that it was possible to change the information in respect of the bank-account details of a particular payee as well as changing the name of the payee and the details of the staff code of the employee but still to effect payment without detection.
You admitted in evidence that you caused the payment made on 30 June 2004 of $15,000 to the account of Ha Wai-shing - that is D3, account 1 - made to your husband as payee using your own staff code number 01669. To do so, you had edited your own payment details, deleting your own name and bank account and inserting those of Ha Wai-shing. Those moneys, it appears, represented your own salary. Perhaps you diverted those moneys to your husband’s account because, as you said in testimony, you were about to be made the subject of a bankruptcy order.
You repeated that exercise with a payment on 31 July 2004 into the bank account of Ha Wai-shing. Again it appears that the moneys were your own salary, but what you had established was the weakness in the system.
Then in August 2004, you made five payments to the same account in which Ha Wai-shing was named as the payee but which payments were not your salary and certainly not his because he was never employed by Bonjour. Those payments were to a total of over $121,000, and they were on 6 August $23,800, page 2065; 14 August, $19,000, page 2072; on 20 August, $27,000, page 2074; and on 31 August, two payments, one of $19,833.34 and the other of $32,310.80, page 2080. A payment of $14,250 on 26 August 2004 may have been your own salary less your Mandatory Provident Fund contribution although it is to be noted that there was a payment of $14,000 on the same date to your own newly-opened bank account. That is D1, account 2.
It is to be noted that the payments made to Ha Wai-shing’s account on the 6th, 14th, 20th and one of the payments on 31 August all used the staff code number 00023. Those deposits represented your first use of the employee staff name of other employees or former employees of Bonjour.
Then beginning with a payment on 25 September 2009 of $35,000 in which the payee was named as Ma Lai-man at annex 14, table 1, you used the names of other employees or former employees as the payee in the salary payment instructions to HSBC although you stipulated the bank account of your husband, Ha Wai-shing, or your son, Ha Ting-pong, as the bank account to which the transfer was made. On occasions, you even transferred the moneys to your own account. Those payments are set out in paragraph 36 of the admitted facts in which the names of 35 persons who were named as payees but the moneys were transferred to your Ha family bank account is set out.
The aggregate of those transfers in the period up until 21 February 2011 was $14,862,438.24. Clearly, having found that you could successfully divert funds to your husband’s account by editing the electronic payment system, you embarked on deploying that discovery to engage in rampant theft from your employer’s bank account. You repeated the exercise multiple times each month for years on end.
Your criminality was only brought to an end by the serendipitous discovery on 22 March 2011 that Miss Michelle Wong Ming-wai’s actual salary payment far exceeded that to which she was entitled. That led to your dismissal and that of Ha Ting-pong that afternoon. Finally, that brought your rampant stealing to an end.
Turning to the 2nd defendant’s role in Count 2, Ha Ting-pong, in finding you guilty of Count 2 on the indictment, the jury found that you together with your mother, Madam Kiu Mei-ling, defrauded your employer, Bonjour, of $12,368,388.81 in the period 1 June 2009 to 31 March 2011.
The mechanics of the fraud in which you joined your mother in that period had been well-established, as I have described, by your mother in the period up to 31 May 2009. Having been recruited as a clerk in the HR department of Bonjour on 23 August 2004, on 1 June 2009, you were appointed to be the assistant manager of the HR and administration department.
In that position, you had access to the otherwise confidential information of salary payments made to office staff. In particular, you were a trusted member of the staff. In that role, you accompanied your mother to Miss Vanky Chung’s office on occasions, and representations were made to her about the proprietary nature of the data contained on the HSBC drive that she was asked to upload for EasyPay online system. You made such representations yourself. Clearly, your conduct was a gross breach of the trust reposed in you by your employer. Also, it was a betrayal of your fellow employee, Miss Vanky Chung. That conduct was repeated over a period of more than 21 months on multiple occasions.
None of the moneys that were stolen in the 2nd count were recovered. Over $5 million of those moneys were paid into one or other of two of your bank accounts. However, there was a clear pattern of transfer of moneys to one of the other Ha family bank accounts and withdrawals of moneys in cash which rendered it untraceable and unrecoverable.
Turning then to the sentences to be imposed on the 1st defendant for Counts 1 and 2, for the 1st defendant, I approach the overall starting point for sentence, having regard to the overall sum of money stolen, namely, $40,491,749, and the fact that it occurred in the overall period of 24 May 2004 to 31 March 2011 together with the fact that there were multiple individual gross breaches of trust. I have regard to the fact that no money has been recovered. In my judgment, an overall starting point of 12 years’ imprisonment is appropriate.
Having regard to the fact that in Count 1 over $28 million was stolen together with the circumstances of gross breach of trust, I take a starting point for sentence of 11 years’ imprisonment.
Count 2. Having regard to the fact that in Count 2 over $12 million was stolen together with the circumstances of gross breach of trust, I take a starting point for sentence of 8 years and 6 months’ imprisonment.
Turning next to the issue of delay. I am satisfied that Mr Wong was entirely correct to concede that there was unreasonable delay in bringing charges against the defendants only on 3 November 2016 given that the investigation had begun on 6 April 2011.
Having regard to the delay in bringing the 1st defendant on to trial, I reduce the sentence which I would otherwise have imposed on each count by 1 year’s imprisonment. Accordingly, the sentence of imprisonment imposed on the 1st defendant in respect of Count 1 is 10 years; and in respect of Count 2, 7 years and 6 months’ imprisonment.
Having regard to the overall gravity of the commission of Counts 1 and 2, I order that 1 year of the imprisonment imposed in respect of Count 2 be served consecutively to the sentences of imprisonment imposed in respect of Count 1. Accordingly, the total sentence imposed on the 1st defendant in respect of Counts 1 and 2 is 11 years’ imprisonment.
Turning then to Count 2 and the 2nd defendant, having regard to the 2nd defendant’s previous good character together with the fact that by the time the 2nd defendant joined his mother in committing fraud on Bonjour on 1 June 2009 the mechanics of the fraud had been well-established by her and having regard to the lesser role that he necessarily played in those circumstances and mindful of the starting point for sentence that I have stipulated in respect of the 1st defendant, in my judgment, it is appropriate to take a lower starting point for the 2nd defendant. I take a starting point for the 2nd defendant for the 2nd count of 7 years’ imprisonment.
For the reasons that I have given, I am satisfied that the 2nd defendant is also entitled to a reduction in sentence of 1 year’s imprisonment to reflect the unreasonable delay in bringing those proceedings on to trial. Accordingly, the sentence imposed on the 2nd defendant on Count 2 is 6 years’ imprisonment.
Turning next to Counts 3, 4 and 5 in the case of the 1st defendant, I accept Mr Leung’s submission that the commission of the offences, the subject of Counts 3, 4 and 5, were a necessary part of the fraud committed by the 1st defendant. Given that they were the means by which the moneys were stolen from Bonjour, in order to steal the moneys, the 1st defendant needed to stipulate a recipient account to which she could transfer deposits from Bonjour. In doing so, the 1st defendant used bank accounts in her own name, that of her husband and her son. They were existing accounts of her husband - in his case, throughout - and the Hang Seng Bank account of her son, another existing account. Although other accounts were opened in both her name and that of her son, nothing was done to conceal the identities of those accountholders.
Count 3 involved $10,644,958 deposited into the four bank accounts of Ha Ting-pong on and between 30 September 2004 and 18 March 2011. Count 4 involved $10,586,616 deposited into one of the two HSBC accounts of Ha Wai-shing on and between 30 June 2004 and 3 January 2011. Count 5 involved the deposit of $16,468,193 into the other account of Ha Wai-shing with HSBC on and between 20 October 2004 and 18 March 2011.
Having regard to the fact that the 1st defendant was convicted of stealing of about $37 million of property, knowing it to be the proceeds of her own fraud, Count 1, and the fraud that she committed with the 2nd defendant, Count 2, which offences themselves were very serious, in my judgment, the appropriate overall starting point for sentence for the 1st defendant on Counts 3, 4 and 5 is 9 years’ imprisonment.
Having regard to the amount of money involved in the individual counts, in my judgment, the appropriate sentence for Counts 3 and 4 is 7 years’ imprisonment on each count, and the appropriate sentence for Count 5 is 8 years’ imprisonment.
Having regard to the unreasonable delay in bringing charges against the 1st defendant, in my judgment, the 1st defendant is entitled to a discount of 1 year’s imprisonment on those sentences of imprisonment. As a result, the sentences imposed on the 1st defendant in respect of Counts 3 and 4 are 6 years’ imprisonment, and the sentence imposed for Count 5 is 7 years’ imprisonment.
Having regard to the appropriate totality of sentence, I order that 1 year of the sentence of imprisonment imposed in respect of Count 3 is served consecutively to the sentence of imprisonment imposed in respect of Count 5. Accordingly, the total sentence imposed on the 1st defendant for Counts 3, 4 and 5 is 8 years’ imprisonment.
Given that the commission of the fraud, the subject of Counts 1 and 2, required the 1st defendant to arrange a bank account into which the moneys were to be received, having been transferred from Bonjour, and having regard to all the other circumstances of the use of those bank accounts, that criminality of the 1st defendant in the commission of the offences, the subject of Counts 3, 4 and 5, added little to the criminality already involved in her commission of Counts 1 and 2. In those circumstances, it is appropriate to order that the sentences of imprisonment imposed in respect of Counts 3, 4 and 5 be served concurrently to the sentences of imprisonment imposed in respect of Counts 1 and 2, and I so order.
Turning then to Count 3 and the 2nd defendant, the 2nd defendant’s conduct in lending himself to the money-laundering activities in his bank accounts preceded his involvement in the fraud, the subject of Count 2, which began on 1 June 2009. He was involved in his money-laundering activities from 30 September 2004. There is no doubt that in all the circumstances between those dates, the 2nd defendant had reasonable grounds to believe that the moneys were the proceeds of a fraud committed by his mother in Bonjour and that he assisted her in those circumstances.
In the period prior to 1 June 2009, the 2nd defendant’s bank statements for his HSBC bank account - D2, account 1 and D2, account 2 - were replete with references to “Bonjour Cosmetic WHO salary”, were amounts of money that were greatly in excess of any salary to which he was entitled to receive. After 1 June 2009 when he was a party to the fraud, the subject of Count 2, he knew the moneys deposited into his bank accounts were the proceeds of that indictable offence.
It is quite clear that the 2nd defendant derived benefit from the use of the moneys deposited by the 1st defendant into his bank account in the period prior to his involvement in the offence, the subject of Count 2. He continued to benefit in that way in the period after he joined her in the commission of the latter offence. Those benefits included the payment of credit-card bills and other payments.
Having regard to the 2nd defendant’s good character and the lesser role that he played in relation to the role played by the 1st defendant in the commission of the offence, the subject of Count 2, in my judgment, the appropriate sentence to impose on the 2nd defendant for Count 3 is 6 years’ imprisonment. Having regard to the element of unreasonable delay in bringing charges against the 2nd defendant, I reduce that sentence by 1 year’s imprisonment. Accordingly, the sentence imposed on the 2nd defendant in respect of Count 3 is 5 years’ imprisonment.
Having regard to the fact that the 2nd defendant’s conduct, the subject of Count 3, occurred over the overall period 30 September 2004 to March 2011 whereas together with the 1st defendant he defrauded Bonjour in conduct, the subject of Count 2, over the period 1 June 2009 to 31 March 2011, I order that 1 year of the sentence of 5 years’ imprisonment imposed in respect of Count 3 be served consecutively to the sentence of 6 years’ imprisonment imposed in respect of Count 2. Accordingly, the total sentence of imprisonment imposed on the 2nd defendant is 7 years’ imprisonment.
Finally, turning to the 3rd defendant and Counts 4 and 5, in sentencing the 3rd defendant, I take into account his previous good character, his age and what I accept to be the lesser role that he played in relation to the 1st defendant who was clearly the prime mover in the offences with which he committed together with her.
It is clear that the 3rd defendant had reasonable grounds to believe that the moneys deposited into his accounts, the subject of Counts 4 and 5, were the proceeds of a fraud committed by the 1st defendant against Bonjour. Similarly, it is clear that the 3rd defendant benefited from some of the moneys deposited into his accounts, for example, by the purchase of foreign exchange for foreign holidays, the payments of bills and the payments of credit cards.
The total sum of money in which he dealt in Counts 4 and 5, contrary to sections 25(1) and (3) of the Organized and Serious Crimes Ordinance, was about $27 million. In my judgment, the overall appropriate sentence for that conduct is 8 years’ imprisonment. In my judgment, the appropriate sentence to be imposed in respect of Count 4 is 5 years’ imprisonment and 7 years’ imprisonment in respect of Count 5.
Having regard to the unreasonable delay in charging the 3rd defendant and his co-accused, in particular, having regard to the fact that because of that delay he finds himself at 71 years of age, a person hitherto of good character facing prison for the first time in his life, I reduce the otherwise appropriate sentences of imprisonment that would have been imposed on him by 1 and a half years. Accordingly, the sentence imposed in respect of Count 4 is 3 and a half years’ imprisonment and in respect of Count 5 is 5 and a half years’ imprisonment.
Having regard to the principle of totality, it is appropriate to order that 1 year of the sentence of imprisonment imposed in respect of Count 4 be served consecutively to the sentence of 5 and a half years’ imprisonment imposed in respect of Count 5. I make that order. Accordingly, the total sentence of imprisonment imposed on the 3rd defendant is 6 and a half years’ imprisonment.
By way of an epilogue, I want to make some observations about the conduct of this case. It is a matter of dismay to me that a case of this kind was not presented in an electronic format. This case lent itself particularly to such presentation to a jury. I presided in cases more than 10 years ago in trials in which that was the method by which the evidence was laid before the jury. A person was assigned to bring up the information contained on a computer on the screens provided to the judge, witnesses, counsel and the jury. The jury in that and another case that I did at that time were provided with their own laptops. They had their own passwords to the laptops, so that they were secure. They were able to mark the documents. That of course makes for the presentation of evidence contained in thousands and thousands of pieces of paper much more digestible.
I am aware because I am involved in work elsewhere that the Market Misconduct Tribunal and the Securities and Futures Appeals Tribunal uses electronic presentation of evidence. It is a well-developed way of presenting voluminous documentary evidence. Also, of course, it presents the inestimable benefit of being able to search the documents, and we had examples in this case where witnesses were asked to search to find particular information, hundreds of pages of paper where they shrugged their shoulders. What were they to do? A computer search would have been done in seconds.
Another aspect of the use of electronic presentation of evidence is the unfortunate reality which is that the facilities for the jury trying a case of this kind are inadequate. One only has to look at the width of the desk provided to the juror to realise - and we witnessed it throughout the trial - how difficult it is for a juror, unlike counsel, unlike the judge’s bench, to have at their fingertips several different lever arch box files. It was the fact that each of the jurors, doing the best they could, had lever arch box files behind them and at their feet. All of that would be rendered unnecessary in the electronic presentation of evidence.
The second matter to which I wish to return - and it is a matter I raised before - is the quality of the photocopying of documents. The prosecution produced documents in the primary form that were perfectly legible but when they were copied into core bundles, they were extremely badly copied, and also not all of the documents were copied. That is inexcusable. The jury are entitled to better than that.