HKSAR v. SU YUAN JEN

 DCCC125/2010

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 125 OF 2010

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Reasons for Sentence

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1.  The defendant pleaded guilty to four charges of dealing with property known or believed to represent the proceeds of an indictable offence. The offences were committed between 5 October and 28 October 2009, and each of the charges relates to monies being paid into and out of four banks in Hong Kong. Those banks are the Bank of China, Hongkong & Shanghai Bank, Hang Seng Bank and the Standard Chartered Bank, respectively. These accounts have been opened by the defendant and they were used to launder monies from scams which had an international flavour.

2.  The defendant arrived in Hong Kong on 4 October, and he opened three of the bank accounts on the following day and the Bank of China account on the day after that. Some of the monies paid into the Bank of China account were subsequently identified as being paid in by three victims of a lottery fraud which was perpetrated on the victims.

3.  It is a fairly common type of fraud and there have been may similar scams before the court. The gullible victims are told that they have won a sizable lottery, but before they can claim it, they are required to pay in certain advance fees as a pre‑condition to obtaining the prizes. They make an initial payment and then they are told by the perpetrator of the fraud that further sums are required for various reasons and, foolishly, they agree to remit further sums of money.

4.  The three victims referred to in the Summary of Facts are all from Singapore and their remittances were made solely into the Bank of China. Police inquiries reveal that there were other further remittances not only into that account but into other accounts which had been opened by the defendant. In the case of the Bank of China account, over $270,000 had been paid in, most of which had been withdrawn. Almost $230,000 was paid into the Hongkong & Shanghai Bank, over $54,000 to the Hang Seng Bank and over $77,000 to the Standard Chartered Bank. Nearly all the monies had been withdrawn by the defendant in cash over the counter or at the automatic teller machine.

5.  The defendant was arrested at the Hong Kong International Airport on 20 October as he was about to depart for Taiwan. He was found in possession of just over $37,000 in cash and a number of bank-related documents and forms. He told the police that in July of 2009, he met a man who he refers to as Ah Ming in Taiwan, who offered him a job in Hong Kong with a salary of $5,000 per month. He was to receive this money when he returned to Taiwan and meanwhile he would get free passage and accommodation in Hong Kong.

6.  He arrived on 4 October and met a man called Ah Q. On his instructions, the defendant opened the four bank accounts. He claims that he did not know the source of the monies but obviously knew it was illegal activity that was going on. On 16 October, on Ah Q’s instructions, the defendant withdrew $55,000 from the Bank of China account. He said that some of the money that was found on him had been withdrawn from the account when he made the withdrawal of $55,000 on 16 October. Apparently, of that money, the defendant said Ah Q had taken $20,000 and the balance of $35,000 was particularly handed over to Ah Ming in Taiwan.

7.  He said Ah Q had given him two mobile phone SIM cards and always contacted him by mobile phone. He did not know how to find or locate Ah Q and denied any knowledge of the lottery frauds. He said he was told by Ah Q to leave Hong Kong on 20 October.

8.  In respect of the four bank accounts, the total amount of money dealt with was deposits of $638,963.90 and withdrawals of $638,171.20.

Mitigation

9.  I was told that the defendant has a clear record. He is 33 years of age and was born and raised in Taiwan. He was educated to secondary level and on leaving school worked as an electrical worker. He was earning the equivalent of HK$10,000 per month from that employment until he lost his job last year. His father died when he was young. He is single. He lives with his mother who is aged 61 and the defendant is the sole breadwinner of the family.

10.  He lives in a village in Taiwan, and that village was greatly affected by floods last year when the village was destroyed. His mother has become seriously ill and is in hospital. I am told that it was in those circumstances that the defendant gave in to the offer that was put to him by Ah Ming to come to Hong Kong to earn this money. It was urged upon me in mitigation that the defendant cooperated with the police; he told the whole story. The defendant is not the main culprit and he feels very remorseful.

11.  Although there are four charges, it is urged upon me that they all arise out of the same incident, and I am asked to consider the question of totality.

12.  As regards the amount of money involved, the amount involved is just over $600,000 and, as cases of this type go, this is very much at the lower end of the scale of criminality.

13.  I was also asked to consider the degree of participation of the defendant. There were clearly a number of other people involved, and it was suggested that the defendant was clearly not the main player.

14.  I have considered all those circumstances when arriving at the sentence I intend to pass in this case. I accept that, in terms of the overall scam, the defendant was not a major player, but the defendant did play an important role in the commission of the offences. The schemes that led to the generation of the proceeds from victims of frauds were sophisticated, imaginative, well-executed and designed to play on the gullibility of victims. These scams would not be able to operate without the use of the accounts. There was an international dimension to the overall scheme. The defendant’s role was to open and operate accounts for the receipt and transfer of monies.

15.  And as the courts have recognised, money laundering is a very serious crime as it is an attempt to legitimise proceeds from criminal activities. Serious criminal offences are very often motivated by financial gains, and those who assist criminals in laundering monies indirectly encourage them in their criminal activities.

16.  There are no guidelines for offences of this nature, the reason for this being that the circumstances of each case may vary almost infinitely. There is a general recognition that sentences must be custodial and must be substantial to deter others. The sentences must also reflect public and commercial concerns about the use of bank accounts to launder funds derived from criminal enterprises.

17.  The fact that the victims were being asked to pay money into bank accounts adds a veneer of legitimacy to the underlying scam and serves to reassure the victims. Anybody who attaches himself to an international fraudulent scheme must expect to be dealt with severely if he is caught.

18.  I take as a starting point in respect of the first two charges a starting point of 2½ years’ imprisonment, and I will reduce those sentences by one-third to reflect the guilty plea of the defendant. The sentence, therefore, in the first two offences will be 20 months, and I order that they run concurrently.

19.  In respect of Charges 3 and 4, the starting points are going to be two years’ imprisonment reduced by one-third to reflect the guilty plea, which will be 16 months’ imprisonment and, again, their sentences are to run concurrently.

20.  I have considered the question of totality. Looking at all the features of the case, the amount involved, the role of the defendant, his clear record and all the other features, I have decided that eight months of the sentence for the Charges 3 and 4 shall run consecutive to the Charges 1 and 2.

21.  The defendant will, therefore, go to prison for 28 months.