HKSAR v. HON SIN LUN

DCCC 55/2022

[2023] HKDC 153

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 55 OF 2022

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REASONS FOR SENTENCE

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1.  The defendant is convicted on his own plea and agreement to Summary of Facts to a charge of dealing with property known or believed to represent proceeds of an indictable offence, contrary to section 25(1)  and (3)  of the Organised and Serious Crimes Ordinance, Cap 455.

Facts

2.  On 3 December 2017, when police searched the defendant’s flat, they found the following properties inside the flat:-

(a)  In the defendant’s bedroom

(i)  2 bags in wardrobe containing cash of HK$2,125,500 in total;

(ii)  1 mobile phone; and

(iii)  1 bank card.

(b)  1 computer in another bedroom;

(c)  In the living room

(i)  1 brown bag containing paper chits, 1 notebook, 1 calculator, 2 internet banking security devices, bank cards, bank slips and bank statements (the paper chits and the notebook had calculations, dates and words like “receive” and “changes” written on them);

(ii)  1 black bag containing 2 laptops and 3 tablet computers;

(iii)  1 mobile phone; and

(iv)  1 SIM card.

3.  The defendant was arrested for the offence of money laundering.  Under caution, he admitted that:-

(a)  He lived at the flat.

(b)  He was asked to collect cash which was illegal football gambling bets. He did as instructed and brought home the cash so collected.

(c)  The cash did not belong to him. He was waiting for instructions as to how he should deal with the cash.

4.  WhatsApp conversations between the defendant and an unknown person indicate that:-

(a)  On 21 October 2017, the defendant sent to the unknown person a message containing the name of a Spanish football club.

(b)  On 24 October 2017, the unknown person sent the defendant a login and password, and requested the defendant to lay a HK$10,000 bet. The defendant replied by giving a bank account number. The unknown person then asked the defendant whether to deposit HK$40,000, and the defendant replied yes.

(c)  On 25 October 2017, the unknown person sent a deposit advice slip to the defendant.

5.  Investigations of the defendant’s tax records show that the defendant has been employed as a driver or a shop helper earning HK$120,000 per year from 2012 to 2017.

6.  At the material times, the defendant did not own any properties in Hong Kong and the flat was owned by the defendant’s mother.

7.  On 3 December 2017, the defendant knowingly or having reasonable grounds to believe that cash of HK$2,125,500, in whole or in part, directly or indirectly, represented the proceeds of an indictable offence, dealt with the said property.

Criminal Record

8.  The defendant has 2 previous conviction records, not similar.

Mitigation

9.  The defendant is aged 37.  He was born in Hong Kong and he lives with his parents and a 7-year-old daughter.  His father is 70 years old and his mother used to work as a security guard until she met an accident at work.  The defendant was educated up to Form 5.  He worked as a delivery worker at the time of arrest and is presently working as a waiter in a canteen earning $13,000 per month.  He is the sole breadwinner of the family.

10.  He wrote a letter in mitigation to this court and asked for leniency so that he could take care of his parents and his daughter as soon as possible.  He said that he was paid $10,000 per month for collecting the betting money for another person since the summer of 2017.

11.  Defence counsel invited this court to consider the case of HKSAR v Hsu Yu Yi [2010] 5 HKLRD 545.  He also urged this court to adopt a sentencing starting point of below 3 years’ imprisonment.

Discussion

12.  Before sentencing, this court has considered the mitigation submissions, the mitigation letter written by the defendant himself, authority cited by the defence counsel as well as authorities concerning money laundering involving predicate offence of bookmaking, which include Secretary for Justice v Wan Kwok Keung [2012] 1 HKLRD 201; HKSAR v Leung Chi Fai [2013] 6 HKC 151; HKSAR v Chiu Chi Wing, CACC 243/2012; Secretary for Justice v Siu Yun Yee [2017] 3 HKLRD 678; as well as HKSAR v Lam Hing Wan, CACC 387/2016.

13.  The amount of money laundered in this case is HK$2,125,500.  The predicate offence, from the facts of the case, is bookmaking and any person convicted of such an offence is liable to imprisonment for 7 years and a fine of $5 million.  This is not the most serious type of indictable offence.

14.  From the agreed facts, it is clear to the court that the defendant, at the time of commission of the offence, is not just aware of the nature of the predicate offence.  From the WhatsApp messages between the defendant and the unknown person and all the items seized from the defendant’s flat, the defendant is substantially involved in actual bookmaking operation apart from just receiving the money and depositing them.

15.  There is no evidence of international dimension in the commission of the present offence.

16.  The role of the defendant is obviously, in the bookmaking operation, manifold and indispensable.  The gain to the defendant from his own words is about $10,000 a month.

17.  In the case of Wan Kwok Keung, it was held that money laundering is a serious offence and must be deterred.  The sentence should reflect the amount of “black money” laundered and not the benefit obtained by the defendant or others.  However, it is said that if the “black money” originated from various organised indictable offences or the defendant’s benefit was huge, then the sentence should be adjusted upwards.

18.  In the Wan Kwok Keung case, the Court of Appeal referred to the case of Hsu Yu Yi, the case cited by the defence counsel, where the sentencing starting point is 3 years or so where the “black money” involved is between $1 to $2 million, and 4 years or so where it is between $3 million and $6 million.

19.  It is on the defendant’s own admission that he started committing offence since the summer of 2017, presumably August 2017, therefore up to the time of arrest it would be about 3 months.

20.  The defendant’s previous convictions are not similar.  This court therefore, in sentencing, is not going to consider that.

21.  Considering the circumstances of the case, the only appropriate sentencing option is obviously one of immediate imprisonment. The court finds that the appropriate sentencing starting point is 3 years’ imprisonment.

22.  In this case, the most valid mitigating factor is that of the defendant’s own guilty plea, for which he is entitled to a full one-third sentencing discount.

23.  The defendant was arrested on 3 December 2017, but he was only charged on 10 January 2022.  There was a time lapse of over 4 years.   Having considered the chronology of events tendered to the court by the prosecution and having noted that investigation of the 5 bank accounts involved are all local bank accounts, this court considers there is a delay in prosecution in the present case not due to the fault of the defendant, but obviously due to the management from the side of the prosecution, for which this court is minded to discount the sentence by 2 months.

24.  Accordingly, the defendant is sentenced to 22 months’ imprisonment for this offence.