HKSAR v. FAN KAI YIP

 DCCC635/2010

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO.635 OF 2010

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Reasons for Sentence

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The Defendant was charged for one count of dealing with property known or believed to represent proceeds of an indictable offence, contrary to section 25(1) and (3) of the Organized and Serious Crimes Ordinance, Cap.455.

The defendant pleaded guilty and admitted the facts. He is convicted accordingly.

Facts

A Hang Seng Bank account 293-9-333536 was used to receive bets on illegal soccer gambling. Bank records showed that the said account was opened on 10 February 2003 by the defendant.

The defendant admitted under caution that he owed a gambling debt in 2003 in the sum of HK$350,000, after his mother repaid 2/3 of the debt, he opened the said bank account for receiving gambling debts to set off HK$50,000 of his debt as instructed by his friend Ngau Gor. After he opened the account he handed over the ATM card and PIN of the account to Ngau Gor. Passbooks and statements of the said account were found and seized at the defendant’s residence.

The transaction history of the account during the period of the offence showed the total deposits ran up to HK$37,979,115. The Monday-Thursday deposits pattern is consistent with the indication that the money represented bets of illegal off-course horse-racing games took place at night on Wednesdays or noon/afternoon on Sundays, the settlement days of the illegal bets fell on Monday and Thursday.

At all material times, D had reasonable grounds to believe that the money deposited into his account represented proceeds of an indictable offence.

Between 10 February 2003 until 25 August 2009, a total sum of HK$37,979,115 had been deposited into and withdrawn or transferred out of the said account.

The defendant opened the account solely for receiving gambling debt in Hong Kong. For a period over 6 years, the defendant handed over the control of his account and allowed his account to be used to receive gambling debt up to HK$37,979,115. I accept the defendant was under pressure of the loan shark to open the account and he is only a cog of the machine, yet without the assistance of the defendant, those involved in the underlining indictable offence could not get the proceeds of the crime. I consider the appropriate starting point to be 3.5 years.

Mitigation

The defendant aged 31, married with a daughter. He has a decent job all along and with a clear record. He get involved with loan sharks because he wanted to help out his then girl friend and decided to take his chance at the casino, to the contrary of his wishes, he lost all his saving and ended up with a debt of $350,000 borrowed from a loan shark.

The defence submitted that after the mother learnt of the loan, the mother paid off $200,000 for the defendant (the prosecution referred to the defendant video interview where he said the sum was $200,000 odd); and the defence further submitted that the defendant was required to pay off the balance by monthly instalment in the range of $2000, and that he did not close up the account is because he was threatened by Ngau Gor and worried about the safety of his family. The defendant was remorse and regretted for his foolishness.

The defendant entitled 1/3 discount for his plea. I noted that the defendant was arrested on 25 August 2009 and he continued his job until recently, for his previous positive good character, I allow further deduction of 4 months. However, I do not consider there to be any mitigating factor call for further deduction.

Order

The defendant is sentenced to 24 months imprisonment.