HKSAR v. IVANOVS ERIKS

CACC 93/2014

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 93 OF 2014

(ON APPEAL FROM DCCC NO. 1060 OF 2013)

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J U D G M E N T

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Introduction

1. The applicant was charged with one count of conspiracy to deal 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, Cap 455 and sections 159A and 159C of the Crimes Ordinance, Cap 200.  The applicant pleaded guilty to this charge in the District Court before District Judge Anthony Kwok (“the judge”) and on 7 March 2014 was sentenced by him to a period of 36 months’ imprisonment.  The applicant now applies for leave to appeal his sentence.

The Background to the Offence

2. The prosecution alleged that between 25 January 2013 and 18 June 2013 the applicant conspired with a person by the name of Sleiman Mohammad Said to deal with the sum of $604,582 United States currency.  The Summary of Facts which the applicant admitted for the purposes of his plea revealed that an amount of US$237,150 of the US$604,582 were the proceeds of an international commercial fraud which involved a deception being practised on three Hong Kong businessmen causing them to deposit the US$237,150 into a Bank Account at the Nanyang Commercial Bank at 151 Des Voeux Road Central.

3. On 18 June 2013 the applicant and his co-conspirator Sleiman approached the Customer Service Manager of the bank and requested to withdraw all the money from the Bank Account that was in the name of Funding and Guarantees Limited.  When bank staff became aware that the police had an interest in this account, they contacted the police and this led to the subsequent arrest of the applicant and Sleiman.

4. In his interview under caution, the applicant admitted that whilst he was in the United Kingdom his co-conspirator Sleiman had promised to pay him £600 to a £1,000 pounds if he opened a Bank Account in Hong Kong and that he would be provided with air tickets and the payment of all his travel expenses to Hong Kong.  He agreed to this proposal and travelled to Hong Kong where he registered a company under the name of Funding and Guarantees Limited.  He then opened a Bank Account in this company’s name at the Nanyang Commercial Bank.  He returned to the United Kingdom and passed all the internet banking materials to Sleiman to enable him to operate this account.  For his assistance he was paid by Sleiman €500 to €600.  About 5 months later Sleiman told him to go to Hong Kong in order to close the account and promised to pay him US$2,500 if he did so.  This led to he and Sleiman travelling to Hong Kong and to their ultimate arrest.

5. The bank records in relation to this account revealed that between 25 January 2013 and 18 June 2013 there were a total of twenty nine deposits amounting to US$604,582 and twenty withdrawals amounting to US$491,662.  The bank’s record further showed that within a day to several days after the deposit of a substantial amount into this Bank Account, money in the same approximate amount was then transferred out from the Bank Account to other overseas accounts.

The Reasons for Sentence

6. The judge took note of the background of the applicant who is 25 years of age, is single and has a clear record in Hong Kong.  He comes from Latvia where he was brought up by his grandmother after being abandoned by his parents at the age of 6.  He left school at the age of 18 and worked as a restaurant waiter but later became an internet technician.

7. His counsel urged the judge to adopt a starting point of about 3 years and said that the applicant was remorseful for his actions and had apologized for them.  He said the applicant hoped to return to his grandmother as soon as possible as she was dependent upon him for support.

8. In respect of the circumstances of this offence he noted that the underlying offence, being an international commercial fraud, was serious and highly sophisticated in its nature.  However, he specifically took into account the fact that it was common ground between the prosecution and the defence that there was no evidence that the applicant knew the nature of the predicate offence.  But this, he pointed out, did not significantly lessen the applicant’s culpability.

9. He noted that the amount of money that was laundered in the course of this conspiracy equated to approximately HK$4.7 million.  He said of the applicant’s role that he not only assisted in the opening of the Bank Account and transferred all the Bank Account operating materials to Sleiman, but additionally assisted in the closing of the Bank Account.

10. The judge disagreed with the applicant’s counsel that 3 years was the appropriate starting point for a money laundering offence involving this amount of money, with an underlying predicate offence as serious as this, and with the importance of the role played by the applicant in carrying out the conspiracy.  He was of the view that the proper starting point should be 4½ years and that no discount should be allowed from this starting point simply because the applicant is a foreigner.  He then awarded the applicant the usual one-third discount from his starting point for the plea of guilty and thereby reached a final sentence of 36 months’ imprisonment.

The Grounds of Appeal

11. The applicant is unrepresented and in a letter to the court set out his complaints.  He refers to more lenient sentences being imposed in other similar cases.  He also refers to the fact that he pleaded guilty immediately and expressed remorse and co-operated with the police.  He was clearly resentful that his co-conspirator, whom he claimed was the mastermind of this money laundering case, was able to abscond whilst on bail and so had escaped justice, with the consequence that all the punishment for the offence had now fallen upon him, the applicant.  I understand this grievance.  He refers to the fact that he has no prior criminal record and says that in view of all the matters which he has mentioned, his sentence is too severe.

Discussion

12. I have carefully considered the Reasons for Sentence of the judge.  He provided a very detailed set of Reasons for Sentence in which he revealed the principled approach he adopted to his sentencing task.  He referred to a number of Court of Appeal authorities for this offence.  He had regard to the sentencing considerations for this offence as set out by Stock VP in HKSAR v Boma Amaso [2012] 2 HKLRD 33 and discussed the application of these considerations to the case before him.

13. I can detect no error by the judge in his assessment of the seriousness of the offence, the culpability of the applicant or in his application of the relevant sentencing principles to the circumstances of this case.

14. As to the specific complaints of the applicant there is no merit in any of them.  The imposition of different sentences by different judges in other cases has no relevance to the sentence imposed upon this applicant and he cannot rely upon them in order to argue that his sentence is excessive.  His sentence cannot be said to be outside the range of appropriate sentences for this type of offence of this level of seriousness.

15. What happened in relation to his co-conspirator is unfortunate but should the co-conspirator ever be located and tried in Hong Kong then, if convicted, he will no doubt be punished appropriately.

16. The other matters to which the applicant refers, namely his plea of guilty, his remorse, his cooperation with the police and his lack of a criminal record have all been taken into account in the one‑third discount. They do not entitle him to any greater discount nor do they entitle him to a lower starting point.  Given the seriousness of the circumstances of this offence and the culpability of the applicant in its commission I see no basis for concluding that the starting point adopted by the judge in respect of the applicant was in any way excessive.

Conclusion

17. For these reasons, the application for leave to appeal against sentence is dismissed.