HKSAR v. MOKONGA PIERROT MBUNGA AND ANOTHER

DCCC618/2011

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO.618 OF 2011

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Reasons for Sentence

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1.  There are 2 defendants in this case.

2.  D1 faces charges 1-4 and D2 faces charge 5. Charges 1, 2 and 5 are for Dealing with property known or believed to represent proceeds of indictable offence, contrary to s.25(1) and (3) of the Organized and Serious Crimes Ordinance, Cap.455. Charges 3 and 4 are for Using a false instrument, contrary to s.73 of the Crimes Ordinance, Cap.200.

3.  The defendants pleaded guilty to their respective charges, admitted to the summary of facts and were duly convicted.

Facts

4.  This money laundering case involves a total of 76 bank accounts, of which 44 and 32 respectively were opened and operated by D1 and D2 with 22 and 20 false passports.

Charges 1 and 5

5.  Between the charge dates, D1 dealt with the money in the 44 accounts listed in Annex A by way of withdrawals. The total amount being as set out in the particlulars of charge 1 (charge 1).

6.  In relation to charge 5, the total deposits received in the 32 accounts opened by D2 amounted to HK$4,318,717.16 and US$2,050, as set out in the particulars of charge 5 (charge 5).

Charge 2 and 3

7.  On 20^th August 2010, D1 used a false French passport to open an account with the Bank of East Asia. 3 days later, D1 deposited a check in the amount of US$300,000.46 into that account in person after showing the false passport. 1 day later, D1 returned to the bank to inquire about the deposit, producing the false French passport as proof of identity. The bank staff referred the matter to her supervisor. After 20 minutes, D1 left without collecting the passport.

8.  Upon forensic examination, it was confirmed that the French passport was a false instrument. Furthermore, the check that D1 deposited was also found to have been forged by altering the amount written on the check, both in words and in figure.

Charge 4

9.  On 19^th October 2010, 2 months after the said French passport check deposit incident, D1 used a false Belgian passport to open another bank account with the Industrial and Commercial Bank of China (Asia) Limited.

10.  A few weeks after opening the account, D1 went to the bank to collect the letter containing the password for the ATM card of the account. D1 produced the said Belgian passport as proof of identity. While the bank staff proceeded with the checking of D1’s documents, D2 entered the bank and started to chat with D1.

11.  Bank staff suspected the authenticity of D1’s passport and reported the matter to the Police who arrived shortly and arrested D1 and D2 at scene.

Video recorded interviews

D1

12.  Under caution, D1 admitted that he had opened 44 banks accounts with 22 false identities. D1 claimed that it was a ‘George’ who gave him the fake passports to open the bank accounts. D1 knew that a male named ‘Babou’ made the fake passports. D1 met George in the TST area about 2 years ago. George provided the documents including the fake passports for D1 to open the accounts. Once the accounts were opened, all the relevant documents were handed over to George.

13.  D1 would be given 12% as a commission out of the cash withdrawn from the accounts that D1 had opened. D1 cannot recall the exact amount but he reckon George had given him about $100,000 cash for the transactions.

14.  D1 knew the passports were fake, but he did not know the source of the money.

D2

15.  Under caution, D2 admitted that he had opened 32 bank accounts with 20 false identities. Two males ‘Sam’ and ‘Michelle’ [sic] gave him the fake passports to open the accounts. He claimed that a male named ‘Babou’ made the fake passports. ‘Sam’ and ‘Michelle’ gave D2 all the documents required to open the accounts and once the accounts were opened all the relevant documents were handed over to them.

16.  D2 was given a 12% commission from each cash withdrawal that he made from those accounts. Payment was always by way of cash after the withdrawals.

17.  D2 knew the passports were fake, but he did not know the source of the funds.

Identities of D1 and D2

18.  D1 is a Congo national who came to Hong Kong on 4^th December 2007 and was allowed to stay for 14 days. D1 surrendered to the Immigration Department on 18^th February 2008 and made a torture claim. D1 was allowed to stay in Hong Kong under a Form of Recognizance issued by the Immigration Department while his torture claim is being processed.

19.  D2 is a Mozambique national who came to Hong Kong on 7^th November 2010 and was allowed to stay for 14 days.

Previous Records

20.  Both the defendants are of previously clear record.

Mitigation

D1

21.  D1 is 34, educated up to secondary school. He is married, with his wife in Hong Kong. They have a 8-month old daughter and the family lives on government subsidy.

22.  D1 wrote a letter and explained that he committed the offences because he was in dire need of money.

D2

23.  D2 is 42, he arrived in Hong Kong on 7^th November 2010, just one day before his arrest. The defendant’s wife and children are in Mozambique. His wife is a housewife. They have 3 children, 2 boys aged 19 and 13 and a 9 year old. Unfortunately, the 13 year old boy is disabled and cannot talk or walk.

24.  The defendant had his own business in transportation in Johannesburg. He came to Hong Kong to repay outstanding insurance policies and various bills.

25.  D2 also wrote a letter in mitigation, pleading with the court for leniency because of his medical condition. The defendant says that both he and his wife are HIV positive.

26.  Apart from bringing some money into Hong Kong to pay the above mentioned bills, the defendant also pawned several items to raise more money. I am told by Ms. Remedios that this will have a bearing in the confiscation.

27.  Although D2 was promised 12% commission on the withdrawals, he however did not receive the full amount and he cannot now recall how much he actually received.

28.  D2 had been in Hong Kong before and that was when he had pawned the other items. They are all in his name except for the one for $50,000, it was a friend who pawned for him.

Sentencing authorities

29.  I refer to the case of HKSAR v Hsu Yu Yi [2010] 5 HKLRD 545 where the Court of Appeal set out various factors to be taken into account when sentencing for the offence of dealing with proceeds from an indictable offence.

“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 pre 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.”

30.  There are no sentencing guidelines for using false instruments and most cases referred to in Sentencing in Hong Kong are related to credit card cases.

Sentence

31.  The false passports that D1 and D2 knowingly used in the money laundering were supplied to them by ‘George’ , ‘Sam’ and ‘Michelle’ and made by ‘Babou’, someone who was staying in Thailand. The use of false passports in the money laundering evidenced a degree of pre-planning and sophistication.

D1

32.  The total amount of Hong Kong dollars equivalent that was laundered in charges 1 and 2 is 18,932,202.40 and 2,336,898.58 respectively.

33.  In terms of culpability, the use of false passports to open bank accounts by the defendant is far more serious than the person who allows his/her own bank account to be used by others for money laundering. The role of the defendant in the money laundering becomes more significant.

34.  In relation to charge 1, given the amount involved, the length of time the money laundering took place over (1 year and 5 months),  the slightly higher than normal level of participation by D1 and the international element of the offence, I will adopt a starting point of 5 years’ imprisonment. I will grant the defendant the full one-third discount in recognition of his guilty plea and reduce the sentence to that of 40 months’ imprisonment.

35.  In relation to charge 2, given the slightly less amount involved when compared to charge 1, but with the level of participation and international element, I will adopt a starting point of 3 years’ imprisonment, reducing it by one-third in recognition of his guilty plea and sentence D1 on charge 2 to 24 months’ imprisonment.

36.  In relation to charges 3 and 4, I will adopt a starting point of 3 years imprisonment on each of the charges, reducing each to 2 years imprisonment in recognition of the defendant’s guilty plea.

Totality

37.  I will order that 12 months of the sentence in charge 2 be served consecutively to the sentence in charge 1.

38.  Since I have taken into consideration the fact that false passports were used by the defendant in the money laundering process, I will order that the sentences in relation to charges 3 and 4 to run concurrently to the sentences of charge 1 and 2.

39.  D1 is therefore sentenced to a total of 40+12 = 52 months’ imprisonment for all 4 charges.

D2

40.  The amount of Hong Kong dollars equivalent that was laundered in charge 5 by D2 is $4,318,733.13.

41.  Based on the amount of money being laundered, the length of time involved, the usage of the false passports to open the various accounts by D2 and the international element, I will adopt a starting point of 4 and a half years’ imprisonment for charge 5. I will grant the defendant the full one-third discount in recognition of his guilty plea and sentence him to 36 months’ imprisonment.