HKSAR v MPATA KUNDENGA

DCCC 305/2012

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 305 OF 2012

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Reasons for Sentence

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1. The defendant has admitted one count of conspiracy to deal with property known or believed to represent the proceeds of an indictable offence, contrary to sections 25(1) and (3) of the Organized and Serious Crimes Ordinance, Cap 455 and sections 159A and 159C of the Crimes Ordinance, Cap 200, namely that between 31May 2010 and 1 March 2012, in Hong Kong, she conspired with persons known as ‘Santa’ and another Nigerian, opened and used a total of 9 bank accounts in the name of other persons to deal with property, knowing or having reasonable grounds to believe that the property in whole or in part directly or indirectly represented the proceeds of any indictable offence.

2. Facts admitted by the defendant disclose that she used five false passports in different names purportedly issued by different countries, namely France, Belgium and South Africa, but all bearing her photograph, to open nine bank accounts in Hong Kong, with the Bank of China, Hong Kong & Shanghai Banking Corporation, Industrial & Commercial Bank of China and Standard Chartered Bank.  The total amount deposited into these nine bank accounts was HK$1,841,669.41.

3. On 1 March 2012, the defendant was arrested at her residence.  Four of the bank accounts she had opened were not yet closed. She was questioned in a video interview under caution in respect of ten bank accounts believed to have been opened by her.  She admitted that she had opened seven of the bank accounts using four false identities at the request of one ‘Santa’ but denied opening the other three bank accounts.  She denied knowledge of the money deposited into those bank accounts.  She admitted withdrawing a total of HK$850,000 from one of the bank accounts on 19 July 2010 on 5 occasions, and passed the money she had withdrawn to a Nigerian who waited for her outside the bank.  She said ‘Santa’ had provided the passports and personal particulars to her to open the bank accounts, and she had passed all the documents as well as the bank passbooks, ATM cards and passwords back to ‘Santa’ after opening the bank accounts.  She was not aware of the falsity of passports.  She could earn 5% of the amount of cash withdrawn from the bank accounts as commission, but she had forgotten the total amount she had received.  Of the three bank accounts she had denied opening, a passport used in opening one of the bank accounts was the same as that used by the defendant in opening another bank account that she had admitted opening.  Another passport used in opening another bank account she had denied opening bore a photo of the defendant that was similar to that in other false passports used to open bank accounts the defendant had admitted opening.

4. I was satisfied beyond all reasonable doubt that the defendant between 31 May 2010, the date when the first bank account was opened, and 1 March 2012, the date of the defendant’s arrest, in Hong Kong, had conspired with ‘Santa’ and another Nigerian by the use of the said nine bank accounts that the defendant had opened in the name of others to deal with property, namely the money deposited or to be deposited into these bank accounts.  She knew or had reasonable grounds to believe that such money, in whole or in part, directly or indirectly, represented the proceeds of any indictable offence.  Accordingly, I convicted the defendant of the charge.

5. After hearing counsel in mitigation, I adjourned sentence until today, calling for a background report on the defendant, remanding the defendant in custody. The report is now before me.  In sentencing the defendant, I have carefully considered all that has been urged upon me in mitigation by counsel on behalf of the defendant, as well as the contents of the background report and the letter in mitigation written by the defendant.

6. The defendant is now aged 33 years.  She has a clear record.  She was born in the Congo.  She never knew her father – her mother died when she was 10 years old.  She had a relationship with a man there, and had two children, a son now aged 10 years and a daughter now aged 9 years.  There was a great deal of unrest in the Congo.  The man she was involved with was serving in the army.  When he was away, an aggressive and violent mob came to her house.  She left the Congo in 2005 with her daughter, and came to Hong Kong to seek asylum, and has been here since.  Her son is still in the Congo, being cared for by a church mission.  In Hong Kong, she stayed at a shelter, where she met her husband, who was playing professional football in Hong Kong.  Her husband’s visa to work in Hong Kong was not renewed and he left Hong Kong in 2007 when she was 5 months pregnant with their daughter, leaving the defendant in Hong Kong with two young daughters to care for.  The defendant met a lady named ‘Santa’ who was aware of the defendant’s financial problems and offered to help the defendant – she introduced the defendant to a Nigerian male who asked her to assist to open the bank accounts – the defendant was not told the purpose of opening these accounts, and he had accompanied her to open the accounts.  She had debts of about HK$16,000 and when the first bank account was opened, her debt was cleared and expenses paid for her to move to her address in Kam Tin.  Counsel submitted that although she did tell the police she could earn 5% of the sums withdrawn from the bank accounts, that was the promise given to her at the outset – she had no control over any of these bank accounts – her role was to open the bank accounts, and in respect of one account, she was taken to the bank to withdraw the funds. She was paid at most HK$1,000 to HK$2,000, which helped her tight financial budget.  It was out of financial necessity that she committed the present offence, to earn ‘easy money’.  The background report sets out her background in great detail, and disclosed that her application for asylum has been rejected twice.  I am told by Mr Boase that her application for refugee status has been refused twice and her claim as a torture claimant is still being investigated and that is why she is still in Hong Kong.

7. Section 25(3) of the Organized and Serious Crimes Ordinance, Cap 455, provides that a person convicted on indictment is liable to a fine of $5million and 14 years’ imprisonment.  As the circumstances of each case may vary infinitely, there are no sentencing guidelines for these offences.  The offence of dealing with proceeds is a very serious offence.  It legitimises proceeds of criminal activities and enables criminals to enjoy the fruits of their criminal activities with relative ease.  Deterrent sentences are required not only to punish the defendants but also to deter others from behaving in this way.  It is not wrong in principle to impose an immediate custodial sentence on a first offender (see HKSAR v Hui Kam [2000] 3 HKLRD 211).

8. In delivering the judgment of the Court of Appeal in HKSAR v Hsu Yu Yi, CACC 159/2009, [2010] 5 HKLRD 545, Cheung JA said:

“Sentencing Principles

9. There are no sentencing guidelines for the offence of dealing with the proceeds from an indictable offence because the facts vary from case to case. However the following factors are to be taken into account when determining sentence:

(1) It is the amount of money involved that is a major consideration and not the amount of benefit received by a defendant in the transaction.

(2) The culpability of the offence lies in the assistance, support and encouragement offered to the commission of an indictable offence. So a defendant’s level of participation and the number of occasions on which he is involved in the ‘money laundering’ activities are relevant factors to be considered.

(3) The offence of dealing with the proceeds from an indictable offence does not necessarily have any direct correlation with the indictable offence in question. However if the relevant indictable offence can be identified, the court may take into account the sentence imposed on the indictable offence per se when determining the sentence of the dealing offence.

(4) If the case has an international element involving activities carried out across different regions, the court may impose a more severe sentence. This is to protect Hong Kong’s reputation as an international finance and banking hub from being tarnished.

(5) The length of time the offence lasted.”

9. Here the amount of money involved was HK$1,841,699.41 and the period of time involved was some 21 months.  Five false passports from different countries were used to open nine bank accounts. Although the false passports were provided to the defendant, they all bore her photographs.  The use of false passports in opening the bank accounts into which the funds were deposited evidence a degree of pre-planning and sophistication.  To that extent, there was an international dimension as the passports were all foreign passports, and monies were deposited into these accounts from overseas.  Also, Hong Kong’s status as a financial and banking centre is undermined by such activities.  I had asked the prosecution to provide me with information as to the amounts deposited into these 9 bank accounts that were opened using the false passports.  The prosecution has submitted a table setting out the 9 bank accounts and the transactions involved.  Here, although there were 9 bank accounts opened, in respect of 7 accounts there was no activity – the only deposits were the amounts deposited to open the bank accounts, and the withdrawals were from these amounts deposited – there were no other deposits.  In respect of one bank account, item 5 on the table prepared by the prosecution, there has been no withdrawal at all.  There were overseas deposits in two of the bank accounts, one being the Bank of China bank account (item 6 on the table) wherein there was an inward remittance of AUD126,550 from South Africa on 9 July 2010 and cash and ATM withdrawals between 10 and 22 July 2010.  In respect of the HSBC bank account (item 9 on the table), there was an inward remittance of EUR91,967 from France on 19 November 2010.  There were no withdrawals from the account and the remittance was reversed back to the bank in France on 20 September 2011. 

10. The use of false passports to open bank accounts by the defendant in my view is far more serious than where a person allows his/her own bank account to be used by others for money laundering, and the role of the defendant becomes more significant.  The use of false passports would have the effect too of hindering the detection of crime, as by the use of false identities, the identity of the defendant would be concealed.  Here, the defendant’s role was not limited to the opening of the bank accounts – she also admitted to withdrawing monies from at least one bank account, albeit the monies were handed over to the Nigerian who was waiting for her outside the bank.  Her participation was in the opening of the bank accounts using the false documents and in my view her role was vital. 

11. I accept that in the present case there is no evidence to suggest that the defendant knew the source of the funds to be derived from serious crime.  Nor is there evidence that she derived direct financial benefit from her participation.  But she had been receiving financial support – her debts of some HK$16,000 had been paid off, and she was assisted to move to her residence in Kam Tin, and she received sums of HK$1,000 to HK$2,000. 

12. I have considered the defendant’s family circumstances, and her reason for being in Hong Kong, and that she has two young daughters who will be both motherless and fatherless if she is imprisoned. The probation officer who prepared the background report on the defendant has written in the penultimate paragraph of the report that International Social Services and the defendant’s roommate will continue to take care of the welfare of the two children.  In my view, her only mitigation of weight before me is her plea to the charge, which reflects her remorse.  

13. Taking all matters into consideration, in my judgment a starting point of 3 years and 6 months is appropriate.  The defendant is entitled to a reduction of one-third for her guilty plea.  She is sentenced to 2 years and 4 months’ imprisonment.