HKSAR v. SO KAM WA

DCCC 1235/2024

[2025] HKDC 1629

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 1235 OF 2024

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REASONS FOR SENTENCE

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1.  The Defendant pleaded guilty to 2 charges of dealing with property known or believed to represent proceeds of an indictable offence:-

(i)  Charge 1:-

Involved a total of HK$170,399, AU$20,000, US$144,980 and NZ$60,000, between 16 March 2022 and 14 June 2022

(ii)  Charge 2:-

Involved a total of HK$4,575,741.51 between 17 February 2022 and 17 May 2022

SUMMARY OF FACTS

2.  The Defendant was the account holders and the sole authorized signatory of the two accounts in both charges.

Charge 1: HSBC accounts - opened on 16 March 2022

Charge 2: Heng Sang Bank - opened on 17 February 2022

3.  These two accounts have received crime proceed deposited by two victims of “pretend China officials” scam as the first layer accounts.

4.  The victims were deceived to transfer:-

(i)  a total of HK$169,999 to Charge 1 account on 31 March 2022;

(ii)  a total of HK$110,000 to Charge 2 account on 21 April 2022.

5.  Fund flow analysis was conducted, it was reviewed that both accounts had a high velocity of transactions with other counterparts within a short period of time:-

(i)  Charge 1 account:-

18 deposits with a total amount as stated in Charge 1 and with 11 withdrawal occasions,

(ii)  Charged 2 account:-

49 deposits with a total amount as stated in Charge 2 with 85 occasions of withdrawal.

6.  The Defendant was arrested for the offence of money laundering on 27 October 2022.  Apart from stating that he worked as a chef with a monthly salary of $20,000, the Defendant remained silent under the caution.

MITIGATION

7.  The Defendant has a clear record.

8.  He is 29 years old and single.  He previously lived with his parents and his younger sister, he worked as a cook with an average salary of HK$22,000 per month, and provided $5,000 to support his parents.

9.  In January 2022, the Defendant lost his job and was unable to find another job due to the onset of covid pandemic.

10.  The Defendant saw a job message in Facebook for opening bank accounts for companies to receive deposit with $1,500 as reward for each account.

11.  As the Defendant needed $3,000 to settle his credit cards bill, he agreed to open 2 accounts.  As the contact persons told him that those accounts would be used for 3 months only, the Defendant contacted them later, but they were out of reach.

12.  The Defendant’s father is 65 years old and suffered from a stroke in September 2024.  The Defendant’s mother is a security guard.

13.  The Defendant in his own mitigation letter, said that he is now extremely remorseful for committing the present offence.  He asked for a lenient sentence so that he can take care of his father.

SENTENCE

14.  The present offense carries a maximum sentence of 14 years’ imprisonment.

15.  In the case of Secretary of Justice v Siu Yun Yee[1] that immediate custodial sentence for offences of money laundering are required even for a first time offender.

16.  The defence accepted that there was no sentencing guideline for this offence, but quoted the judgement of HKSAR v Hsu Yu Yi[2] that there are a number of factors to be considered for sentencing.

17.  Same as in the case of HKSAR v Boma (2012)  2 HKLRD 3, the Court pointed out that given the highly variable circumstances in which the offence might be committed; it was difficult and undesirable to offer guidelines.  However, the Court of Appeal provided a non-excessive list of relevant sentencing factors for consideration.

18.  With this information in mind, I now proceed to consider the sentencing factors in the present case:–

(i)  The nature of the predicate offence was those of the “pretend China officials” scam. There was no evidence either from the summary of facts or in mitigation that the Defendant had any knowledge about the predicate offences or the sources and uses of the money being deposited into and participated in the withdrawal from the bank accounts.

(ii)  The bank account in Charge 1 involved foreign currency from Australia, America and New Zealand. The facts also stated that most of the deposits in foreign currencies were first transferred to the current account before they were withdrawn with mirror pattern observed. Both the Prosecution and the Defence agreed that the total sum after conversation of various concurrencies amount to $1.7 million.

(iii)  The Prosecution accepted that there was no evidence to show international element in the commission of Charge 1 offence.

(iv)  There is also no evidence to suggest that the offence was committed on behalf of an organized criminal syndicate.

(v)  The periods and its activities:-

Charge 1

(i)  from March to June – about 3 months

(ii)  about $1.7 million

(iii)  18 deposits with various currencies

11 withdrawals

Charge 2

(i)  from March to May - about 2 months

(ii)  about 4.5 million

(iii)  49 deposits - $4,575,741.51

85 withdrawals - $4,575,671.00

(vi)  the total of the 2 charges was about $6.2 million.

19.  As stated in the summary of facts, that “both accounts had a high velocity of transactions …… with in a short period of time.”  Charge 2 account was particularly active with numerous and multiple transactions.

20.  The role of the Defendant, according to the summary of facts he admitted, was to open both accounts at 2 different times.  

21.  In the judgement of Hsu Yu Yi:–

“The capability of the offense lies in the assistance, support and encouragement offered to the commission of an indictable offence.”

22.  In Secretary of Justice v Wan Kwok Keung[3], Yeung JA ( as he then was )  stated that:-

“the starting point is 3 years or so where the “black money” involved is between $1 million and $2 million, 4 years or so where it is between $3 million and $6 million; and could be over 5 years where it is above $10 million.”

23.  In the present case, the total amount being laundered was about $6.2 million, as it comprised $1.7 million in Charge 1 and $4.5 million in Charge 2.

24.  The defence quoted a number of District Court cases to inform this Court that the starting point Charge 2 should be about 3 years.

25.  I disagree.

26.  Firstly, the District Court cases have no binding effect upon me and there are Court of Appeal decisions to inform counsel not to use the District Court cases for reference as they have not been subjected to appeal.

27.  As such, taking into all the sentencing factors into consideration, I am of the view that the starting point for the individual charges should be as follow:-

(a)  Charge 1 - 2 years 3 months (30 months)  - after 1/3 discount is 18 months.

(b)  Charges 2 - 3 years 6 months - after 1/3 discount is 28 months.

ENHANCEMENT OF SENTENCE

28.  The defence has no objection as to the application by the Prosecution under S 27(2)  of OSCO Cap 455 and also accepted that this type of offence is still prevalent and caused harm to the community.

29.  According to HKSAR v Wong Fung Ming[4] that in determining the enhancement, the court has to regard to whether the nature of offence is prevalent at the time of sentence in order to deter others from committing the similar offence.

30.  The Prosecution submitted Chief Inspector Li’s statement[5] to support its application.

31.  The defence said that the figures are dropping by relying on table B (the detected with arrest)  cases for the use of stooge account on deception and ML cases which showed that the stooge accounts cases in the year of 2024 and the first 6 months of 2025, the amount of money involved was $4,466.39 million and $635.77 million while the number of cases were 3,675 and 511 respectively.

32.  However, when look at table A, the total number of deception cases and ML cases (both detected and undetected cases)  in 2024 and the first 6 months of 2025 were 47,063 and 22,542 respectively.  It shows that this type of offence remains on the high side without dropping.

33.  In any event, the defence accepts that there is no reason why the application for enhancement should be refused as this type of offence:-

(i)  has a negative impact on the reputation of Hong Kong as a well-known international financial hub;

(ii)  the multiple layers of accounts make it difficult to identify the masterminds;

(iii)  on the other hand, it facilitates the commissions of crimes and in turn, leads to more crimes being committed as the masterminds could easily get away from their criminal activates;

(iv)  people with low income or less awareness of the consequences of selling their bank accounts are more likely to lure to commit this type of offence for monetary reward.

34.  According to the recent authorities of 香港特別行政區訴楊鎧駿[6] that the usual enhancement rate is 1/3.  I do not see any reason to depart from the usual 1/3 enhancement rate.  As such I adopt 1/3 enhancement rate to enhance the sentence.

35.  The formula of the sentences:-

	Starting Point	1/3 discount	1/3 enhancement	Total
Charge 1	2 years 3 months (27 months)	18	6	24[7]
Charge 2	3 years 6 months (42 months)	28	9.3 (round down to 9)	37[8]

TOTALITY

36.  I order 10 months from Charge 1 to run consecutively to Charge 2, the final sentence is 47 months[9].

37.  The Defendant is ordered to serve a period of 47 months imprisonment.