HKSAR v. YU KIN MING

DCCC1333/2011

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 1333 OF 2011

------------------------------------------

------------------------------------------

-------------------------------

Reasons for Sentence

-------------------------------

The Charge and the Facts

1.  The Defendant pleaded guilty to 9 charges 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 charges are (1) – (5), (9) – (11) and (14).

2.  He pleaded not guilty to 6 other such charges, that is, charges (6) – (8), (12), (13) and (15). The prosecution applied for these charges to be left on the court file and not to be proceeded with without the leave of the court. It was so ordered.

3.  The offences came to light when the police conducted investigations into a series of overseas lottery frauds and examined the Defendant’s bank accounts. It was discovered that, between 2 October and 9 December 2009, the Defendant used four different bank accounts to collect payments from Australia, Japan, Germany, Canada and Singapore.

4.  The accounts were all opened on 2 October 2009 and closed on 9 December 2009. It was revealed that shortly after deposits were made by way of overseas remittances into the bank accounts, cash was withdrawn by using the ATM machines or by the Defendant over the counter.

5.  Between 15 October 2009 and 21 January 2010, the Defendant also collected payments remitted from Australia and Malaysia.

6.  The total amount dealt with by the Defendant through his bank accounts and from the remittance payments he collected was a total sum of about HK$2.1M.

7.  Upon arrest by the police, the Defendant gave different versions of the events but he made various admissions. He stated that the bank accounts were opened for his friend and he withdrew the cash upon instructions given by his friend. In return, he was given a reward ranging from HK$50 to HK$1,000.

Mitigation

8.  The Defendant has a clear record in Hong Kong. He is aged 56 and is married with a daughter and a son. Both of his children are gainfully employed. At the time of the Defendant’s arrest, he was living with his wife and the son while the daughter was living apart.

9.  The Defendant was born in the Mainland. He came to settle in Hong Kong in 1985. After arriving in Hong Kong, the Defendant had taken up various employments, including working as a workman in a factory. At the time of his arrest, he was working as a security guard and was earning about HK$7,000 per month. In mitigation, it was said that the Defendant had been a security guard since 2003 and, all along, he had been in stable employment.

10.  Mr. Lee, who acted for the Defendant, emphasized the Defendant’s good character and the fact that he had been a responsible and law-abiding citizen in the past decades. Mr. Lee also submitted that the Defendant has a very supportive family and all of his family members speak highly of him. In the letters given to the court, the Defendant was described as a responsible and caring son, husband, and father who had worked hard to provide for his family. It was said that the Defendant’s commission of the offences came as a complete surprise and was out of character.

11.  While accepting the Defendant had reasonable grounds to believe that the money he dealt with represented proceeds of an indictable offence, Mr. Lee submitted that there was no evidence to suggest that the Defendant indeed took part in the underlying offence. Nevertheless, since the money came from various countries, it was accepted that there was a clear international element in this case.

12.  In short, Mr. Lee urged the court to pass as lenient a sentence as possible given the Defendant’s previous good character, his plea, and his personal background. It was also said that it is very unlikely for the Defendant to re-offend given his supportive family.

Sentencing Considerations

13.  There is no tariff for this type of offencebecause of the wide range of culpability involved. However, a number of factors relevant to sentencing have been identified by the Court of Appeal (see e.g. HKSAR v Hsu Yu Yi [2010] 5 HKLRD 545 and HKSAR v Leung Wai Wah, CACC 201/2011, 9 November 2011, (unreported)). These include the amount of money involved in the transaction (not merely the benefit received by the defendant); the nature of the offence that generated the proceeds; the extent to which the offence assisted the underlying crime or hindered its detection; the degree of sophistication of the offence; the extent of the defendant’s participation; the duration of the offence; and whether there was an international dimension.

14.  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 about 4 months during which about HK$2.1M was laundered. This is also a matter which I would bear in mind when considering the sentence.

15.  No doubt, on the facts admitted, the Defendant, in return for monetary rewards, agreed to operate the bank accounts and to collect the overseas remittances on behalf of others. In doing so, he was clearly aware of the large amount involved in the money laundering exercise.

Sentencing in This Case

16.  In view of the facts of this case, the role played by the Defendant, and the matters mentioned above, I consider an initial overall starting point of 3 years to be appropriate. I, however, accept that the Defendant’s commission of the present offences was out of character and that it would seem rather unlikely for him to re-offend given his background and his supportive family. Therefore, I am going to reduce the starting point to 33 months to take account of all these.

17.  The Defendant pleaded guilty and he would receive a one-third reduction in sentence. 33 months reduced by one-third is 22 months’ imprisonment.

18.  The Defendant is therefore to serve a term of 22 months for each of charges (1) to (5), charges (9) to (11) and charge 14. Considering the totality principle, I order that the sentences for all these charges are to be served wholly concurrently. That is, he is to serve a total term of 22 months’ imprisonment.