HKSAR v. LIAN XINGBIN

DCCC651/2011

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 651 OF 2011

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Reasons for Sentence

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The Charge and the Facts

1.  The Defendant pleaded guilty to one charge of “dealing with property known or reasonably believed to represent proceeds of an indictable offence”, contrary to sections 25(1) and (3) of the Organized and Serious Crimes Ordinance, Cap. 455. The property involved was a total sum of US$119,489.76.

2.  The facts were these : the Defendant is a Mainlander. On 7 May 2008, he travelled to Hong Kong and had an account opened in the name of “Shun For Tai International Electronics Company” with the Tsuen Wan HSBC Business Centre. At the time, the Defendant’s Two-Way Permit and a certificate of the business registration in the name of “Shun For Tai” was provided to the bank. Business registration record showed that the Defendant was registered as the sole proprietor of this company.

3.  I have examined the relevant business registration documents and it was recorded there that the registration was done on 28 April 2008, that is, more than one week before the opening of the bank account in question. Mr. So acting for the Defendant accepted that it was so and also that the Defendant was the sole authorized signatory of the bank account.

4.  Between 7 May 2008 and 9 November 2009, remittances from Belarus, Belgium, the PRC, Germany, Israel, the Netherlands, Singapore and South Korea, were made to the Defendant’s aforesaid account on 71 occasions. There were also another 16 deposits made to the account through the internet. The amounts deposited ranged from US$192.94 to US$8,242.89. The total was the amount of US$119,489.76 particularized in the charge. All these amounts were then transferred out from the account through the internet.

5.  On 8 March 2011, the Defendant was arrested when he entered Hong Kong. During his cautioned interview, the Defendant claimed that he was brought to the bank by his two good friends in the afternoon of 7 May 2008. There, one of his friends took his Two-Way Permit and China ID card and told him to sign some documents. However, he claimed that he was not aware of what he was signing at that time. His friends merely told him that it would bring him good. The Defendant admitted that in November 2008, his friend gave him RMB¥8,000 as a reward for signing the documents.

Mitigation

6.  The Defendant has a clear record in Hong Kong. He is aged 26 and is a Mainland resident. Prior to his arrest, the Defendant worked as a salesman in Shenzhen, earning about RMB¥4,000 to 5,000 per month. He is married and his wife is due to give birth to their first child this month. Moreover, the Defendant’s father is said to have been suffering from a liver problem and he, as well as the Defendant’s mother, has to rely on the Defendant to support them.

7.  In mitigation, it was said that although the Defendant opened the bank account for others to use and got a reward of RMB¥8,000, he did not share any of the proceeds deposited into the bank account. He was not the one who transferred the money out through the internet. He merely passed on the particulars and the passwords to others for them to withdraw the proceeds.

8.  It was also said that while the police were able to point out that a sum of US$4,400 was involved in a deception case in Belgium where the amount was deposited into the Defendant’s bank account for the purchase of electronic goods, the police had no information as to the particular crime said to have been committed in relation to the rest of the proceeds. Mr. So submitted that the Defendant pleaded guilty on the basis of “having reasonable grounds to believe” that the money represented proceeds of an indictable offence, not that he himself had any actual knowledge of the particular crime involved.

9.  Given the Defendant’s relatively minor role, Mr. So asked for a lenient sentence to be imposed.

Sentencing Considerations

10.  In HKSAR v Hou Shun Hsiung CACC 472/2009, 22 October 2010, (unreported), the Court of Appeal referred to HKSAR v Hsu Yu Yi [2010] 5 HKLRD 545 and reiterated that,

“13. … There is no sentencing guideline for this offence because of the wide range of culpability involved but the following are considered to be relevant factors for sentencing :

(1) The amount involved in the transaction is a very important consideration and not merely the benefit received by the defendant.

(2) The gravamen of the offence is the assistance given to the commission of the indictable offence, therefore the extent of the defendant’s participation and the number of transactions in the money laundering are relevant.

(3) The indictable offence and the money laundering charge may not necessarily have a direct connection but if the indictable offence can be identified then the Court in considering the penalty for the money laundering offence may take into account the sentence related to the indictable offence.

(4) The Court may adopt a more serious sentence if the case involves an international element in order to ensure that the reputation of Hong Kong as an international financial and banking centre may not be damaged.

(5) The length of the time of the offence.”

11.  In this case, the Summary of Facts admitted by the Defendant showed that the deposits were made from various overseas countries. This international element should be reflected in the sentence. Moreover, this money laundering exercise had lasted for quite a sustained period (1½ years) during which a total of 87 deposits were made. This is also a matter which I would bear in mind when considering the sentence.

12.  I also note that the Defendant was the sole authorized signatory of the bank account in question and that he was registered as the sole proprietor of “Sun For Tai” more than one week before the account was opened. This illustrated that the Defendant’s role in this money laundering scheme was not as minor as Mr. So has submitted and was not as limited as the Defendant was prepared to admit when being interviewed under caution.

13.  The relevant business registration made under the name of the Defendant was, no doubt, a preparatory step for the opening of the bank account in question. Since the business registration was done on 28 April 2008, it must have been the case that the Defendant had first provided his particulars for such registration purpose, and he then assisted in the opening of the account. Moreover, when these acts were conducted, the Defendant was, no doubt, in Hong Kong on the strength of his Two-Way Permit. In other words, he deliberately came to Hong Kong to engage himself in this money laundering exercise.

Sentencing in This Case

14.  In view of the facts of this case, the role played by the Defendant, and the matters mentioned above, I consider a starting point of 3 years to be appropriate.

15.  The Defendant pleaded guilty and he would receive a one-third reduction in sentence. Other than his plea, I see nothing in his mitigation which would warrant any further reduction in sentence. His personal predicament is not a ground for reducing the sentence. While the court is sympathetic over his family situation, the Defendant should have carefully considered all possible harm which he would bring to his family before committing the offence.

16.  3 years reduced by one-third is 2 years. The Defendant is therefore to serve a term of 2 years for this charge.