HKSAR v. LIN YOUFA

DCCC104/2011

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO.104 OF 2011

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Reasons for Sentence

1.  The defendant pleaded guilty to one charge of dealing with property known or believed to represent proceeds of indictable offence, admitted to the amended summary of facts and was duly convicted.

Facts

2.  By false pretense, PW1, a mainlander living in Toronto, was tricked into depositing some money into a Hong Kong Bank of China account (“the BOC account”) purportedly for investment purpose by someone whom she met on the internet. PW1 was later told to come to Hong Kong to collect the profits, but she was not able to find the person who asked her to make the deposits when she came.

3.  By false pretense, PW2, a female living in Australia, was tricked into depositing money into the BOC account purportedly for investment purpose by someone whom she met on the internet. PW2 was later told that she had made a handsome profit but in order to withdraw the money she had to pay an administrative fee of US$60,000. Feeling suspicious, PW2 made enquiries about her purported investments and discovered that it was all a sham. PW2 later came to Hong Kong to make a report to the Police.

4.  The BOC account was opened on 15^th January 2010 and the defendant was the sole signatory. A total amount of HK$2,385,721.35 was deposited by PW1 and PW2 into the BOC account.

5.  CCTV footages show the defendant making withdrawals from the BOC account on 4 occasions at 3 different branches on the same day in June 2010. A total of HK$2,247,000 was withdrawn on that day.

6.  The defendant was arrested on 15^th November 2010 when he entered Hong Kong via the Shenzhen Bay Control Point. Under caution, the defendant said he had lent his account and ATM card with PIN number to a hometown friend whom he only knew as “Lo Yeung” for purchasing a flat and he had no knowledge of the bank transactions.

7.  3 days later in another interview, the defendant said under caution that he opened the account in 2009 for salary payments. He said “Lo Yeung” approached him and requested to borrow his bank account for remitting money from mainland China to Hong Kong for the purchase of property. The defendant agreed to let him do so.

8.  Sometime in June 2010, “Lo Yeung” requested the defendant to withdraw money from the bank account saying that his friend had remitted money to him. The defendant therefore went to 3 different branches to make the withdrawals. The defendant said HK$2 million was withdrawn and he gave them to “Lo Yueng”. The defendant claimed that he did not receive any reward and was only just helping his friend out. The defendant did admit that he owed “Lo Yeung” a few thousand dollars. The defendant failed to provide any details or means to contact “Lo Yeung”.

Mitigation

9.  The defendant has a clear record.

10.  The defendant is 49. Other personal details are contained in his antecedent statement and I will not repeat them here. When the defendant was working, he earned about $5-6,000 per month, about $1,500 would go towards supporting his mother in China and his younger sister in Hong Kong. The defendant is divorced with 2 grown up children both over 20. I was told the defendant suffers from gastric ulcer.

Sentencing cases

11.  Counsel for the defendant Mr. Perry very helpfully referred me to 5 cases in relation to money laundering sentencing. They are, in order of reference to them in court by Mr. Perry, the case of HKSAR v Javid Kamran, CACC 400/2004, HKSAR v Leong Wai Keong, CACC 476/2007, Secretary for Justice v Jerome Yuval Arnold Herzberg, CAAR 8/2008, HKSAR v Hsu Yu Yi, CACC 159/2009 and HKSAR v Chen Szu Ming, CACC 270/2005.

12.  In Hsu Yu Yi, the Court of Appeal considered various other cases. One of them was HKSAR v Zhan Jian Fu, CACC 258/2007. There a Taiwanese woman was defrauded of approximately $2,000,000 by the appellant who pleaded guilty to 2 counts of money laundering which involved a total of HKD$2 million. He was a mainlander who came to Hong Kong in November 2005 to set up accounts with the 2 banks involved. Within a 2 month period, money was remitted into the account from Taiwan. The appellant withdrew money from time to time for someone else. The Court of Appeal held that 3 years’ imprisonment was an appropriate starting point for each of the 2 charges.

13.  Together, the cases provide a good basis to decide on what factors should be taken into account in sentencing similar money laundering cases, as well as the range of sentence that might be appropriate.

Sentence

14.  In our present case, although the charge period is the 7 months period between January and August 2010, the money was only deposited by the victims and withdrawn by the defendant in the same month of June, rendering the duration of the defendant’s dealing with the proceeds relatively short.

15.  There is no evidence to suggest that the defendant knew about the nature of the underlying offence. The underlying offence is not the worst of its kind but there is however an international element and I find that it is an aggravating factor.

16.  Having considered all the circumstances of the case, including the clear record of the defendant, I will adopt a starting point of 3 years’ imprisonment, reducing it by 1/3 in recognition of the defendant’s guilty plea and sentence the defendant to 2 years’ imprisonment.