HKSAR v. MAK YIU KWAN

DCCC 525/2024

[2025] HKDC 504

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 525 OF 2024

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Reasons for Sentence

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1.  The defendant pleaded guilty to two counts of money laundering and was convicted accordingly.

2.  The amended Summary of Facts reads as follows.  At all material times, the defendant was the sole signatory of an account held with the Bank of China with the account number 012-567-2-025464-6 (Account 1)  and an account held with the HSBC with the account number 588195008833 (Account 2). 

Charge 1

3.  In December 2022, Lady Wong (PW1)  came to know a Brian through a dating platform.  They exchanged phone numbers and maintained contact on WhatsApp.

4.  Brian asked if PW1 would be interested in investing in USDT, and referred PW1 to a webpage http://www.freesp.vip.  PW1 successfully registered as a member and invested according to Brian’s tips.  She topped up her account by HK$4,095 on 31 December 2022, made a gain and successfully withdrew HK$4,916.43.  Thereafter, she invested more.

5.  Between 2 January 2023 and 18 February 2023, for the purpose of topping up her investment account at freesp.vip, she made further deposits totaling HK$1,804,761 to various designated bank accounts, of which HK$220,473 was paid to Account 1.  Corresponding credits were shown in her freesp.vip account but she was unable to withdraw any of the money.  The case was reported to the police.

6.  In November 2022, Lady Lau, PW2, came to know Lau through WeChat and became lovers.

7.  In January 2023, Lau referred PW2 to a website k.alibaba23.com for investment.  PW2 successfully registered as a member.  She topped up her account by HK$10,000 for investment on 9 January 2023, made a gain and successfully withdrew HK$500.  Thereafter, she invested more.

8.  Between 11 January 2023 and 4 February 2023, for the purpose of topping up her investment account at k.alibaba, she made further deposits totaling HK$261,000 to various designated bank accounts, of which HK$20,000 was made to Account 1.  Corresponding credits were shown in her k.alibaba account but she was unable to withdraw any of the money.  The case was reported to the police.

Bank information and the fund flow of Account 1

9.  Investigation reveals that Account 1 was officially opened on 29 December 2022 and closed on 9 February 2023. An ATM card was issued.

10.  The defendant declared to be a warehouse assistant with an expected annual salary of HK$10,000 to HK$25,000.  The opening mandate attaches a photocopy of the defendant’s Hong Kong ID card.

11.  Fund flow analysis shows that, within the charged period, Account 1 was only active for 5 days (16 January 2023 to 20 January 2023)  yet received a total of HK$3,712,408.62 by way of 67 deposits (consisting of HK$220,473 from PW1 and HK$20,000 from PW2).  Same day mirror-patterned withdrawals were observed.  The last transaction prior to the closure of the account was a withdrawal of HK$5, leaving a positive deposit of HK$47.46.

Charge 2

12.  In December 2022, Lady To, PW3, received a WhatsApp message from an unknown Diana, offering job opportunities.  PW3 showed interest and was instructed to follow YouTube channels to finish various tasks.

13.  Subsequently, PW3 was referred to (instructor)  Yvonne who referred her to a webpage http://6571467.com. There, PW3 met a BTC investment instructor, Ash.  PW3 successfully registered as a member and invested according to Ash’s instructions.  She successfully withdrew money from the account twice and then she invested more.

14.  Between 1 January 2023 and 25 August 2023, for the purpose of unfreezing the account, to show active status, to retrieve the money within the account as tax payments, etc, she made further deposits, totaling HK$16,776,059.7 to various designated bank accounts, of which HK$1,450,000 was made to Account 2.  However, PW3 still failed to withdraw any money from the 6571467.com account.  The case was reported to the police.

Bank information and fund flow of Account 2

15.  The account was officially opened online on 31 December 2022 and closed on 23 September 2023.

16.  The defendant declared to be a worker of SF Express, with an expected annual salary of HK$300,000.  A photocopy of the defendant’s Hong Kong ID card marked with certified true copy was retained by the bank.

17.  Fund flow analysis shows that there was HK$500 opening balance on 31 December 2022.  There then, the account was opened only in operation for 4 days, 16 January 2023 to 19 January 2023, and received a total of HK$1,800,410.34 by way of 13 deposits (consisting of HK$1,450,000 from PW3).  Mirror-patterned transactions were observed.  By 19 January 2023, the remaining balance was HK$4.34 and the account was left idle since then.

Arrest and cautioned statement

18.  The defendant was arrested relating to Account 1 on 21 September 2023 at his residence.  Upon arrest under caution, he said he had lent Account 1 to his friend, Ah Chau last year, that is 2022, and he did not use the account since then.

19.  A letter from BOC dated 30 January 2023, requesting for the defendant’s authorisation to reverse a misdirected fund of HK$400,000 in Account 1 was found during the house search.

20.  The defendant was again arrested on 14 December 2023 relating to Account 2.

21.  In a video cautioned interview conducted on 15 January 2024, the defendant confirmed that the registered phone numbers of Account 1 and Account 2 was his personal mobile phone.

Mitigation

22.  The defendant was born in Hong Kong and is now aged 24, Form 5 level.  He worked as a warehouse keeper.  The defence said the defendant is determined to rehabilitate and has made progress in obtaining specific skills in certain field of construction.  Currently, the defendant is working in a gondola company. Today, the defendant’s father and his girlfriend or fiancée is in court to support him.  The defence also tendered the mitigation letter of the defendant’s girlfriend or fiancée today.  The mitigation letter of defendant’s father has been submitted earlier on.

23.  The defence accepts that there is no sentencing guideline for this type of offence.  The prevalence of the money laundering is also accepted and there is no objection to the application of enhancement under section 27 of the OSCO.

24.  The defendant accepts responsibility for this wrongdoing and indicated plea at the earliest opportunity.  He is remorseful.

25.  When asked, the defence said the defendant lent his bank account to his friend without any reward and without asking any questions.  It was said the defendant expected to get some jobs from his friend.  That said, the defence said the defendant was told that his friend, Grey Bear, intended to use the 2 involved bank accounts for his own use (paragraph 16 of the mitigation).  It was submitted that there was nothing to suggest that the defendant knew about the predicate offence.  The defendant was not the mastermind and his role, it was said, was minimal.  He had no actual involvement of the money flow.

Sentence

26.  The Court of Appeal in HKSAR v Boma [2012] 2 HKLRD 33 has promulgated 8 factors for consideration when passing sentence for the offence of money laundering.  There is no sentencing guideline.

27.  Account 1 was opened on 29 December 2022 and closed on 9 February 2023; while Account 2 was opened on 31 December 2022 and closed on 23 September 2023.  From the dates that these 2 accounts were opened, it can be inferred that the defendant deliberately opened these 2 accounts for his friend, Grey Bear, if this person did exist. The offence period was from 29 December 2022 to February 2023.  These 2 offences involved a total sum of about $5.5 million.

28.  I accept that the role of the defendant was not significant but with his bank accounts, it would facilitate the perpetrators to launder the black money.  There is no evidence to suggest that the defendant knew about the scam.  The Court of Appeal has repeatedly said that the gravamen of a money laundering offence is the amount of money handled, not the amount of profit to the defendant.  It is also said successful deterrents against money laundering could be effective measures against the crime.

29.  The defendant’s fiancée in her mitigation letter said the defendant lent his bank account to a friend due to a moment of naivety and ignorance.  The defendant is a kind and upright person with a strong sense of responsibility towards his family and friends.  The incident has prompted the defendant to have a deep reflection.  She hopes the court can impose a lighter sentence so that the defendant can have an opportunity to reform and become a contributing member of society.

30.  The defendant’s father said his son is a kind and simple-hearted child.  The incident was not driven by malice or greed, but a lack of social experience and judgment.  The whole family would be grateful for the court’s leniency by imposing a lighter sentence.

31.  The defendant has one previous conviction of criminal damage back in 2021, and he was sent to a rehab centre and was discharged in January 2022.

32.  Taking all factors into consideration, I would adopt a starting point of 3 years, and with his plea, the sentence is reduced to 2 years for each charge, to be served concurrently.

33.  On the other hand, the prosecution applied for an enhancement of sentence and tendered a statement from CIP Li, dated 12 February 2025, to support the application.  The number of deception cases has risen from 16,643 cases in 2020 to 47,063 in 2024. The amount of money relating to deception and money laundering cases increased from 3,017 million-odd in 2020 to 6,115 million-odd in 2024 with the number of cases rose from 1,844 cases to 5,250 cases during the same period.  There is no objection from the defence.  I also rule that the prevalence of the specified offence and the nature and extent of harm to society is substantiated.

34.  Given the role played by the defendant and the prevalence of this offence, I would take an increase of 25% for enhancement (i.e. 6 months).  As such, the sentence is enhanced to 2½ years (30 months).