The 1st count involved 8.61 grammes of cocaine, while the 2nd count involved a sum of $5,212,000. The defendant pleaded guilty to both counts before me and was duly convicted of both offences upon him admitting to the Summary of Facts.
The Summary of Facts show that on 17 June last year, 2013, the defendant was intercepted by the police when he approached a private car at Kai Hong Close, Tsuen Wan. Upon search, a plastic bag containing 40 packets of what was later confirmed to be 10.67 grammes of a solid containing 8.61 grammes of cocaine, was found inside his trouser pocket.
The street value of the cocaine was about $10,328. That is the 1st count.
The police conducted a search of the defendant’s home at Hoi Pa Street, Tsuen Wan, upon execution of a search warrant. Under the defendant’s bed, the police found five plastic bags containing cash of HK$4,992,000 all in banknotes. And in a drawer, the police found three bundles of cash tied up by rubber bands valued at HK$220,000. The police seized all the cash totalling HK$5,212,000.
The defendant admitted on the day in question, that is 17 June 2013, he dealt with this sum of 5,212,000, and that he knew or had reasonable grounds to believe that all of them represented the proceeds of an indictable offence.
Background and Mitigation
The defendant is a 26-year-old man with two previous convictions. The conviction of theft occurred in 2003 and was put on probation for 12 months. The second conviction was for the offence of claiming to be a member of a triad society. He was sentenced on 10 March this year, 2014, to three months’ imprisonment suspended for 18 months. This suspended sentence was, of course, passed after the commission of the present offences.
The defendant is single who used to live with his father. He was educated up to Form 4 Standard. He had worked as a kitchen worker, a waiter and a hairdresser. According to the antecedent he had been unemployed since 2009.
I was informed by Ms Yip, counsel for the defendant, that upon the defendant’s release from the DATC (Drug Addiction Treatment Centre) where he was sent as a youngster after being convicted of an offence of trafficking in dangerous drugs, he was able to stay away from dangerous drugs and started a second-hand car business with a partner.
However, he then befriended someone called Ah Hung and became hooked on cocaine upon the enticement of this Ah Hung, so much so that he eventually could not run the business anymore and had to borrow money from his family, and also asked to have cocaine on loan.
Ah Hung then suggested to the defendant to allow him, that is Ah-hung, to use the defendant’s flat to store money. The defendant agreed and Ah Hung brought money to his flat on two occasions in June 2013. Though Ah Hung gave the defendant the impression that the money would be taken away in about a week’s time, that did not happen and the money was still in the defendant’s flat when he was arrested for the dangerous drugs offence.
The defendant said that he did see a lot of money being brought in by Ah Hung, though he did not know the exact amount or how or from where Ah Hung got such a large sum of money.
As a reward of allowing Ah Hung to store the money, the defendant was given cocaine for free. The defendant believed that the money had something to do with the dangerous drugs trade, although he did not know that for sure.
Referring to the authority of HKSAR v Boma Amaso [2012] 2 HKLRD 33, Ms Yip submitted there was not aggravating factors in the present case of money laundering. And as to the possession of a rather large amount of cocaine, Ms Yip also submitted that there is no evidence to support actual risk of dissemination in this case. She frankly submitted that the only mitigation she could advance on behalf of the defendant is his plea of guilty.
For the offence of possession of dangerous drugs, the starting point for mere possession of a quantity of dangerous drugs, which a bona fide user would normally have in his possession, should be in the range of 12 to 18 months. Such a starting point is enhanced if there is the actual risk of dissemination. Should the judge be minded to enhance the sentence on this basis, counsel must be forewarned in case the accused challenges the issue: HKSAR v Wan Sheung Sum [2000] 1 HKLRD 405; HKSAR v Mok Cho Tik [2001] 1 HKC 261; HKSAR v Minney [2011] 3 HKLRD 556.
Bearing in mind the circumstances of this case and the amount of the cocaine involved, I do not intend to consider any enhancement. I am of the view that the appropriate starting point is one of 15 months.
In the case of Boma Amaso, the Court of Appeal reminded sentencing judges of the relevant sentencing considerations, no sentencing guideline being handed down by the Court of Appeal.
The first is the maximum penalty available. The second is the primal importance of deterrence.
The Court of Appeal pointed out that while the amount of money laundered is a significant feature, it is not be all and end all of a case. The following significant features are identified:
(1) The nature of the predicate offence, if known, and the penalty available for that offence.
(2) The state of the knowledge of the offender, with an offender who knows the nature of the predicate offence be more culpable than the one who does not. There is also a distinction between a person who intentionally deals with the proceeds of crime and a person who is negligent about it.
(3) An international element was involved.
(4) The degree of the sophistication of the offence.
(5) Whether the offence is committed by or on behalf of an organised crime syndicate.
(6) Whether one transaction or more, and the length of time over which the offence was committed.
(7) Where an offender continues to launder funds after he had discovered that the funds are proceeds of an indictable offence.
(8) The role played by the offender and whether any benefit had been received.
So the maximum sentence for the offence of money laundering is one of 14 years, and a fine of $5 million upon conviction on indictment.
Upon the defendant’s own admission, he believed that the predicate offence was one involving dangerous drugs, an offence much more serious than, say, gambling.
There is no evidence of any international element. The offence took place on one day, of course, 17 June last year, but it will be naïve to think that all the money just happened to be deposited with the defendant on one single day. There is no evidence how long this arrangement had been going on.
The defence says that it started at the beginning of June and lasted for about two weeks or so. The prosecution is not in a position to dispute this allegation. So I will consider sentence on the basis that the defendant had dealt with this amount for around two weeks.
The defendant is clearly used by a syndicate to store the money in his home. There is no information as to how big or how sophisticated is the syndicate behind it. And, of course, I would not sentence the defendant on the basis of a big or sophisticated syndicate, I will only bear in mind there is some sort of syndicate behind it.
Now, on the one hand it can be said that it was a rather crude way of simply stashing cash underneath one’s bed or in one’s drawer. It may even be said it is somewhat similar to a person allowing someone else to use his bank account. But on the other hand, the cash stashed in such a way will not attract the attention of the authorities, as in the case of large sums going in and out of a bank account. Of course, the culpability of the defendant is allowing his place to be used by a syndicate to keep the money and then launder it.
So for this particular offence, Count 2, having considered all these factors, I am of the view that a starting point of three-and-a-half years is appropriate.
The defendant had pleaded guilty before me and is entitled to the full one-third discount.
I am prepared, in view of the defendant’s relatively young age and particular circumstances of this case, to give him an extra discount which would amount to, altogether, 40 per cent.
So for the 1st count, with a starting point of 15 months, a 40 per cent discount would amount to 9 months. For the 2nd count a starting point of three-and-a-half years, the 40 per cent discount would be roughly 25 months, slightly more than 40 per cent, actually - 25 months.
So I now have to consider the question of totality.
The offence of possession of dangerous drugs and the offence of money laundering are distinct and separate, so they should be ordered to serve consecutively to each other.
Having considered 9 months and 25 months making a total of 34 months, I am of the view that it is appropriate for these two offences together and I do not think there is any need to order part of the sentence to run concurrently to each other. In other words, I do not find that the totality of 9 and 25 months together is such that I need to make any adjustment to reduce it.
So this is the actual sentence: 1st count, 9 months; the 2nd count, 25 months to run consecutively to the sentence of 9 months imposed on the 1st count, making a total of 34 months.