HKSAR v. WASINI

DCCC 1033/2020

[2021] HKDC 959

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 1033 OF 2020

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REASONS FOR SENTENCE

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1.  The defendant pleaded guilty to eight charges of dealing with property known or believed to represent the proceeds of an indictable offence, contrary to section 25(1)  and (3)  of the Organized and Serious Crimes Ordinance.[1]

2.  Full details of the offences are set out in the facts admitted by the defendant.  In summary, the offences arise out of the transactions over a period of time from 5 December 2017 to 22 June 2020 involving a total amount of HK9,083,189.03 including overseas remittances through the bank accounts of the defendant from eight local banks.

3.  Bank records showed that the defendant had accounts in eight local banks, including The Hongkong and Shanghai Banking Corporation Limited (hereinafter called “Account 1”), Bank of China (Hong Kong)  Limited (hereinafter called “Account 2” ), Standard Chartered Bank (Hong Kong)  Limited (hereinafter called “Account 3” ), Hang Seng Bank Limited (hereinafter called “Account 4”), Nanyang Commercial Bank Limited (hereinafter called “Account 5”), Industrial and Commercial Bank of China (Asia)  Limited (hereinafter called “Account 6”), Citibank (Hong Kong)  Limited (hereinafter called “Account 7”)  and Dah Sing Bank, Limited (hereinafter called “Account 8” ).

4.  The defendant was an Indonesian who came to Hong Kong in 2013 to work as a domestic helper.  Employment contracts filed with the Immigration Department showed that the defendant’s 2-year contracts were renewed on three occasions in 2015, 2017 and 2019.  When the defendant was arrested on 22 June 2020, the defendant was still the domestic helper working for the same family.

5.  For Charge 1, the defendant opened Account 1 on 5 December 2017.  Eight remittances were made to Account 1 from overseas between 8 January and 13 April 2018, involving around HK$ 2,387,108.45.  The account was closed on 15 May 2018. 

6.  For Charge 2, the defendant opened Account 2 on 20 December 2017.  12 remittances were made to Account 2 from overseas between 2 May and 28 June 2018, involving around HK$ 4,387,758.77.  The account was closed on 28 August 2018.

7.  For Charge 3, the defendant opened Account 3 on 10 January 2018.  Account 3 was an integrated account with foreign currency sub-accounts.  Five remittances were made to Account 3 from overseas between 29 January and 9 March 2018 involving around HK$516,486.04, US$5,391.64 and CA$4,988.78 (amounting to around HK$590,095.01).  The account was closed on 9 March 2018.

8.  For Charge 4, the defendant opened Account 4 on 27 March 2018.  One remittance of HK$287,647 was made to Account 4 from overseas on 6 April 2018.  Cash withdrawals of HK$220,000 was made on the same day.  The remaining HK$67,647 of the fund was withdrawn together with the interests and the deposit of HK$500 when the account was closed on 22 November 2018.

9.  For Charge 5, the defendant opened Account 5 on 12 April 2018.  Two remittances were made to Account 5 from overseas on 30 May and 4 June 2018, involving around HK$590,763.78.  The account was closed on 22 June 2018.  The outstanding balance was refunded.  Within two days after the remittances were made, most of the funds were withdrawn in cash from the account, showing that it was a temporary repository of fund.

10.  For Charge 6, the defendant opened Account 6 on 18 October 2018.  Since the account was opened, there was a cash deposit of HK$8,000 to Account 6 through an ATM.  Cash withdrawals were made on 16 and 22 November 2018 and 3 and 4 December 2018 through ATM, amounting to HK$7,100.  On 27 and 31 March 2019, HK$150,000 and HK$10,000 cash deposits were respectively made to the account through either bank counter or ATM.  On 1, 8 and 21 April 2019, the same amount of around HK$160,000 was withdrawn from the account in cash.

11.  On 13 November 2019, a remittance of HK$237,281.38 was made to this account from overseas.  Withdrawals amounting to HK$237,500 were made from the account in cash through bank counter or ATM on the following two days, 14 and 15 November 2019.  The account was closed on 17 January 2020.  After the remittances into this account were made, most of the funds were withdrawn, showing that it was a temporary repository of fund.

12.  For Charge 7, the defendant opened Account 7 on 25 January 2019.  Two remittances were made to Account 7 from overseas on 20 and 22 May 2019, involving around HK$602,534.64.  The account was closed on 16 July 2019.  The outstanding balance was refunded.

13.  Within two days after the remittances were made, most of the funds were withdrawn in cash through bank counters and ATM from the account, showing that it was a temporary repository of fund.

14.  For Charge 8, the defendant opened Account 8 on 23 June 2018.  It was still active when the defendant was arrested on 22 June 2020.  Concerning deposits in the amount of more than HK$10,000, there were five cash/ATM deposits made on 23 June, 6 September, 20 December 2018 and 21 and 31 March 2019.  The overall amount of deposit and withdrawals amounted to HK$89,536.07 and HK$89,473.00 respectively. 

15.  There were 12 remittances of larger amounts made to Account 2 and two remittances made to Account 5 in the period between May and June 2018.  The account remains active with an outstanding balance of HK$63.07. 

16.  The amounts of deposits outstripped the defendant’s income as a domestic helper of around HK$4,000.  Fund flow analysis showed that remittances from overseas went into the bank accounts of the defendant.  In one or two days after the deposits were made, most of the funds were withdrawn in cash through ATM or branch counters.

17.  A search was conducted on the belongings of the defendant with four bank cards relating to Account 1, Account 6, Account 7 and Account 8 and two mobile phones seized.

18.  The defendant had a video-recorded interview in the presence of an Indonesian Interpreter, during which the defendant stated that she opened Account 1 to Account 8, and these accounts were not lent to others.  For the large-amount remittances and withdrawals, the defendant refused to disclose any details or stated that she did not know about the details.

19.  The defendant also admitted that some of her accounts were closed by banks.  So, she opened some other accounts to replace them; and no one else controlled her accounts.

Criminal records and background of the defendant

20.  Mr Ross submitted on behalf of the defendant that the defendant is of clear record in Hong Kong and is aged 40, and arrived in Hong Kong in 2013. She is married and her husband works as a farmer in Indonesia.  She has a 19 year old daughter and a 17 year old son, also in Indonesia.  I was told that her husband recently suffered from a stroke and needed her to take care of her husband as well as her children.

21.  Before arriving in Hong Kong she worked for 3 years in Taiwan as a foreign domestic worker.  She had worked for the same employer in Hong Kong as a domestic worker up to the time of her arrest on 22 June 2020.  She was earning around HK$4,000 per month.

22.  Mr Ross also submitted 3 letters to the court.  In the letter written by her employer, her employer gave her favourable comments and asked for leniency on her behalf.

Mitigation

23.  In mitigation, Mr Ross emphasized the fact that the defendant had pleaded guilty to the offences at the earliest opportunity and is entitled to the full one-third discount.

24.  Mr Ross submitted that all 8 bank accounts were opened in the defendant's name and were opened for the primary purpose of saving up money. She sometimes deposited some of her salary into a bank account.  Any withdrawal she made was only from money deposited by her.  Her sole income was from her work as a domestic worker.

25.  Mr Ross stated that the first 7 bank accounts (Charges 1-7)  were opened in the company of her friend, Muhamad, and the defendant opened the 8^th account (Charge 8)  by herself alone.  The defendant kept opening bank accounts after receiving letters from the respective banks requesting her to close the accounts.

26.  The defendant met Muhamad in Hong Kong before December 2017 through friends.  The defendant and Muhamad are friends only and have no other relationship.  Occasionally, they had lunch or dinner together but most of the time he contacted the defendant by telephone to ask her to accompany him to the bank.

27.  Mr Ross also stated that so far as the defendant knew, Muhamad had business overseas.  Muhamad travelled abroad and when he was in Hong Kong he would contact the defendant.

28.  Mr Ross further stated that the defendant opened the first account with HSBC (Charge 1)  for the purpose for using it for her savings, and sometime later Muhamad told the defendant that his friend needed to transfer money to him, but Muhamad did not have a bank account and he did not hold a Hong Kong Identity Card, and could not open a bank account in Hong Kong.

29.  Muhamad asked if the money could be transferred to the defendant's account instead.  The defendant agreed as she considered him her friend.  She did not ask the source of the money believing that it was related to his overseas business.  She did not use any of the money deposited into her account as it was not hers.  She was not offered anything in return for Muhamad using her account.

30.  Mr Ross stated that for Charge 1, the defendant received a letter from HSBC informing her that she was required to close the account.  So far as she could recall whether Muhamad had withdrawn all the money before she closed the account.

31.  If withdrawals were to be made from the account, and an ATM machine was used, the defendant gave Muhamad her bank card and Muhamad withdrew the money himself without the defendant being present.

32.  If money was withdrawn using a bank teller, then the defendant was present at the bank to make the withdrawal together with Muhamad.  The other bank accounts for all banks except the 8^th bank were opened and operated similarly.  The 8^th account with the Dah Sing Bank was the only account opened by the defendant alone without Muhamad being present.

33.  Mr Ross also stated that the defendant did not mention Muhamad’s name at the time of the Video Interview Record because she was scared at the time and did not know what was really going on.

34.  For sentence, Mr Ross submitted that there are no guideline tariffs for money laundering.  Mr Ross also relied on the authority of HKSAR v Boma [2012] 2 HKLRD 33 at pages 42-44 para 40(1)  and (2)  and stated that the funds laundered in that case involves over HK$9 million which is a significant sum and pointed out that there are a number of factors that affect the sentence:-

(1)  The nature of the predicate offence and whether the accused knew the offence and whether an accused has knowledge that the funds are the proceeds of an indictable offence. An international dimension is always a significant aggravating feature.

(2)  The degree of planning and sophistication, and whether deceit is practiced.

(3)  Whether the offence was committed by or on behalf of an organized crime syndicate.

(4)  The number of transactions and the length of time over which the offence was committed.

(5)  An accused continued to launder funds after discovering the funds are the proceeds of an offence.

(6)  The role of the accused and the acts performed by the accused.

(7)  The amount of funds laundered.

35.  Mr Ross also submitted that the defendant stated that she did not know that she was participating in money laundering and that the defendant operated the first account and continued to open others when a bank asked her to close her account.

36.  Mr Ross pointed out that as there is no tariff, the starting point for sentences vary greatly depending on the weight given to various factors.  Mr Ross submitted that sentences of 2 years 9 months and 3 years were supposed for laundering $11M and HK$11.57M (HKSAR v Hsu Yu Yi [2015 5 HKLRD 545, 555].  On the other hand a sentence of 4 years imprisonment was imposed for 2 cases of laundering HK$3M and HK$4M respectively.

37.  Mr Ross submitted that the defendant's culpability is based on having reasonable grounds to believe the money in her bank accounts were the proceeds of an indictable offence.  Also, she received no reward for allowing her accounts to be used by Muhamad.

38.  Mr Ross further submitted that the moneys appear to have come from overseas.  According to the defendant's knowledge, Muhamad had business overseas and did not have a job in Hong Kong, and that there is no evidence that the money was generated by an organized criminal syndicate.

39.  Mr Ross stated that the defendant only had contact with Muhamad, and the defendant's personal involvement was to open and close successive bank accounts, given the bank cards to Muhamad, and be present with Muhamad when making multiple teller withdrawals from the accounts.  There was no deceit on her part.

Sentencing considerations

40.  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].

41.  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].

42.  In determining the proper starting point, I have reminded myself of the sentencing principles laid down in HKSAR v Hsu Yu Yi [2010] 5 HKLRD 545 and HKSAR v Boma Amaso [2012] 2 HKLRD 33.  I have also borne in mind the amount of money involved, the duration of the offence, the defendant's role in relation to the movements of funds as well as her personal circumstances.

43.  In SJ v Ngai Fung Sin Apple [2013] 5 HKLRD 104, Yeung V-P held:-

“Generally speaking, the sentence passed in a “money laundering” case is primarily to reflect the amount of the “illicit/black money” involved. Neither the fact that the “illicit/black money” was actually not derived from an indictable offence nor the defendant's ignorance of the actual source of the “illicit/black money” is necessarily a valid mitigating factor…[8]”

44.  I accept that in the present case, there is no evidence that the money was generated by an organized criminal syndicate.  However, taking into account of the duration of the offences and the defendant’s repeated personal involvement of opening and closing successive bank accounts, the defendant had simply “turned a blind eye” to what happened and to the source of the money.

45.  I also cannot overlook the fact that roughly $9 million went through her bank accounts over a period of time from 5 December 2017 to 22 June 2020, and there were significant amount of overseas remittances involved which suggested that there is an international element to the commission of the offences.

46. In the circumstances, I adopt a starting point of 2.5 years’ imprisonment for Charge 1 and 3.5 years' imprisonment for Charge 2. With the guilty pleas, the sentence is reduced to 20 months and 28 months respectively.

47. For Charges 3, 5, and 7, I adopt a starting point of 18 months. With the guilty pleas, the sentence is reduced to 12 months for these Charges.

48. For Charges 4, 6 and 8, I adopt a starting point of 12 months. With the guilty pleas, the sentence is reduced to 8 months for these Charges.

49. Apart from the guilty plea, I see no other mitigating factors which warrant any further reduction.

50. Bearing in mind the totality principle, I consider a global starting point of 4.5 years’ imprisonment to be appropriate. A one-third discount is given for the guilty pleas, reducing the overall sentence to 3 years.

51. To achieve this result, I order the sentences for Charges 3 and 4 to run concurrently with Charge 1 and the sentences for Charges 2, 5, and 8 to run concurrently with one another with 14 months of Charge 2 to run consecutively to Charge 1.

52. I also order the sentences for Charge 6 and 7 to run concurrently with each other with 2 months of Charge 7 to run consecutively to Charge 1, thus arriving at a total prison term of 36 months.