HKSAR v. FANG JIANLIN

DCCC 927 & 1183/2024

[2025] HKDC 1246

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 927 & 1183 OF 2024

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REASONS FOR SENTENCE

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1.  Upon the request of defence counsel, the hearing was conducted in English.

2.  Defendant pleaded guilty to three counts of “money laundering”, contrary to section 25(1) and (3) of the Organised and Serious Crimes Ordinance, Chapter 455 of the Laws of Hong Kong. 

3.  In fact, a company in Thailand was stolen over US$270 million.  The money was dissipated into 19 jurisdictions including Hong Kong into defendant’s bank account, which amount was about US$1 million. 

4.  Case was reported, the Hong Kong Police was alarmed and started looking into the above defendant’s account (Count 1 account), where it was found that over a period of two months there were some 800 transactions involving a total sum of around US$40 million, which are all believed to be illegal proceeds. 

5.  Defendant’s two other bank accounts were also checked (Count 2 and Count 3 accounts), where the Count 2 account recorded some 80 transactions involving HK$42 million whereas Count 3 account recorded a few transactions involving around a hundred thousand euros.  They are all believed to be illegal proceeds. 

6.  The defendant came to Hong Kong to open all the above three accounts in the year 2019. 

7.  The defendant was stopped at the border when he came to Hong Kong this time.  He is a mainlander.  He said he helped his friend to open the three accounts.  He received RMB 5,000 as a reward.  He did not know about the transactions. 

8.  Defendant is 45 years old.  He is married, he has two children.  His family is also living in the mainland.  He works in a factory.  He has a clear record in Hong Kong. 

9.  In the case of HKSAR v Hsu Yu Yi [2010] 5 HKLRD 545, Justice of Appeal Cheung, in the Court of Appeal laid down the sentencing principles as follows, see paragraph 9: 

(a) 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.

(b) The culprit of the offence lies in the assistance, support, encouragement offered to the commission of the indictable offence. So defendant’s level of participation and the number of occasions in which he is involved in the money laundering activities are relevant factors to be considered.

(c) 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 an indictable offence per se when determining the sentence of the dealing offence.

(d) 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.

(e) The length of time the offence lasted.

10.  In the case of HKSAR v Boma [2012] 2 HKLRD 3.  In addition to highlighting the amount of money involved as a significant factor for consideration, the Court of Appeal listed a number of factors for a sentencing judge to take into account, see paragraph 40: 

(a) The nature of the predicate offence.

(b) The state of the offender’s knowledge.

(c) The operation involved an international dimension this will be a significant aggravating feature.

(d) The sophistication of the offence including the degree of planning.

(e) Where the offence is committed by or on behalf of organised criminal syndicate would be an aggravating feature.

(f) Where there was one transaction or many and the length of the time over which offences committed.

(g) Whether the offender continued to launder funds after they had discovered the nature of the funds are the proceeds of an offence or a serious offence was involved.

(h) The role of the offender and the acts performed by him.

11.  In the case of Secretary for Justice v Wan Kwok Keung [2012] 1 HKLRD 201.  Cheung, Justice of Appeal, as Cheung VP then was, observed therein, see paragraph 15: 

“In Hsu Yu Yi, Cheung JA set out the amounts of money involved and the sentences passed in a number of ‘money laundering cases’. The sentencing starting point is 3 years or so where the ‘black money’ involved is between 1 million to 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 HK$10 million.”

12.  In the case of Secretary for Justice v Lau Man Ying [2012] 4 HKLRD 435, the defendant laundered the money total HK$530 million using a number of accounts owned and operated by her over a period of two years and eight months.  Her sentence was 18 months’ imprisonment suspended for two years.  The Secretary for Justice applied for a review of the sentence.  The Court of Appeal held there were no exception or special circumstance in the case to justify lenient sentence or a suspended sentence.  The appropriate starting point should not be less than 5 years’ imprisonment.  Taking into account the defendant’s background, the appropriate sentence was said to be 4 years’ imprisonment. 

13.  The total amount of illicit money in this case is some equivalent HK$350 million, transacted over a period of two months in three bank accounts.  These features are not as bad as in Lau’s case, however, there are some international elements because some transfers were made with overseas banks and there is a cross-border issue too because the defendant is not a Hong Kong resident.  He came to Hong Kong to open the bank accounts.  All factors considered, this court adopts 5 years’ (i.e. 60 months) imprisonment as a starting point. 

14.  The defendant has timely indicated that he would plead guilty to the charges and he is entitled to one‑third discount. 

15.  In relation to the prosecution’s application for enhancement of sentence under section 27(2) of the same ordinance, defence does not have any objection but wishes this court to take a lenient approach. 

16.  In the case of HKSAR v Tam Wai Po [1998] 2 HKLRD 949, the Court of Appeal set out the approach of dealing with such application: 

(a) the appropriate starting point having regard to the part played by the defendant and the sentence that the court would have imposed taking into account of the defendant’s mitigation and totality;

(b) whether the offence was an organised crime under section 2 of Chapter 455 of the Laws of Hong Kong;

(c) whether the crime calls for an enhancement under section 27(11) having a regard to the information supplied by the prosecution under section 27(2)(a) to (e) or section 27(28) or the general nature of the organised crime itself; and

(d) if enhancement is called for, the percentage should be increased by.

17.  Having considered the information in the prosecution papers, the prevalence of the offence in recent years, the increasing number of victims in the trend, the enormous amount of illicit money involved, the adverse impact on Hong Kong as an international financial and banking centre, this court is minded to increase the sentence by 25 per cent. 

18.  The overall imprisonment term of 50 months are factored into: Count 1, 48 months’ imprisonment; Count 2, 40 months’ imprisonment; Count 3, 20 months’ imprisonment, where 1 month each of Count 2 and Count 3 are to run consecutive to Count 1, making a total of 50 months’ imprisonment.