HKSAR v. TONG PUI YING (ALSO KNOWN AS CHAN MEI PO)

DCCC 884/2024

[2025] HKDC 1068

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 884 OF 2024

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REASONS FOR SENTENCE

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1.  Defendant pleaded guilty to one count of dealing with property known or believed to represent proceeds of an indictable offence, contrary to s 25(1)  and (3)  of the Organized and Serious Crime Ordinance, Cap 455 of the Laws of Hong Kong.

Facts

2.  Defendant was the sole holder and sole signatory of a bank account numbered 012-87320008585 with Bank of China (Hong Kong)  Limited (“BOC account”).  She declared to be a student when she opened the said account and the source of funds as stated in the account opening form is housekeeping expenses.

3.  Mr Li saw a post on Carousell purporting to sell a PlayStation 5 console on 8^th December 2020.  He contacted the seller using the chatroom function in Carousell and was asked to remit HK$1,000 as surety to the BOC account.  Mr Li was also informed that the console will be delivered by the seller in person on 12 December 2020.

4.  At 1235 hours on 12 December 2020, Mr Li accidentally remitted HK$10,000 to the BOC account.  He immediately requested for a refund of HK$9,000 but the seller became out and reach and also failed to deliver the console as agreed.  Mr Li reported the case to the police.

5.  Between 9 November 2020 to 8 December 2020, there were 628 deposits totalling HK$3,581,098.01 and 238 withdrawals totalling HK$3,354,069.05 in the BOC account.  Mirror pattern has been observed from most of the transactions.  The deposits were withdrawn from the BOC account and transferred to various parties on the same day or within a few days after the deposits were made, with the BOC account being used as temporary repository of funds.

6.  It is observed that Mr Li‘s remittance of HK$10,000 into the BOC account was wholly  transferred to FPS account in the name of a surname Poon on the same day.

7.  The BOC account was closed by the bank on 1 April 2021.

8.  Defendant was arrested 30 December 2022. In a cautioned video-recorded interview, she stated, inter alia,

(i)  The BOC account was opened by her when she was 16 years old;

(ii)  The ATM card of the BOC account was disposed of;

(iii)  She ceased to use the BOC account; and

(iv)  She had not previously acquainted with PW1.

Defendant‘s Background and mitigation

9.  Defendant is 23 years old.  She was born in Hong Kong and raised in a single parent family, mainly cared by her grandparents.  She studied up to Form 3 and then worked as a saleslady and waitress. She was unemployed at the time of her arrest.  She is single and living with her parents prior to the arrest.

10.  Defendant has one previous conviction, which is not similar to the present offence.  She was sentenced to 4 months imprisonment for a charge of AOABH on 8 May 2025.  She has served all her sentence. 

11.  A background report and a psychologist’s report were called for at the request by Mr Donald, counsel for the defendant. As revealed in the reports, Defendant was diagnosed with Attention Deficit Hyperactivity Disorder (ADHD), Oppositional Defiant Disorder (ODD)  and Dyslexia during her primary school years, but that does not affect her cognitive functioning.  She had received psychiatric service in Queen Mary Hospital and was on medications until secondary three, when she complained of drowsiness that impaired her daily functioning.  She had abused various kind of drugs since she was 15 and abstained from such 6 to 8 months prior to incarceration. 

12.  Having interviewed the Defendant, she was assessed by the clinical psychologist to have traits of Antisocial Personality Disorder and was recommended to receive psychological treatment focusing on her antisocial attitudes.  However, the clinical psychologist is of the view that the Defendant showed limited motivation for change and her risk of recidivism was assessed to be high due to her lack of remorse and antisocial personality traits.

13.  Regarding the circumstances leading to the commission of the offence, Mr Donald stated that Defendant was approached by a friend to lend her the BOC account.  She insisted that she did not receive remuneration, although being promised that she would receive HK$2,000.   Being naive and young, and without realizing the serious consequences, she acceded to the request.

14.  Mr Donald referred this court to the case of HKSAR v Wang Yu Hsin CACC 173/2009 and HKSAR v Yam Kong Lai [2008] 5 HKLRD 384 to assist the court to determine sentence.

Reasons for sentence

15.  The maximum penalty upon conviction on indictment for money laundering offence is imprisonment for 14 years and a fine of HK$5 million.

16.  In HKSAR v Karman CACC 400/2004, Yeung JA as he then was emphasised that money laundering is a very serious offence as it is an attempt to legitimate proceeds from criminal activities.

17.  In HKSAR v Hsu Yu Yi [2010] 5 HKLRD 545, the Court of Appeal stated that there are no sentencing guidelines for money laundering offences, however factors needed to be considered in sentencing are :

(i)  The amount of money involved, which is the major consideration;

(ii)  Defendant’s level of participation;

(iii)  The sentence imposed on the predicate offence if it can be known;

(iv)  If the case has an international element; and

(v)  The length of time the offence lasted.

18.  The Court of Appeal in HKSAR v Boma [2012] 2 HKLRD 33 emphasized the importance of deterrence for this kind of offences, pointed out that the amount of money laundered was a significant feature, and set out a non-exhaustive list of other significant features, which includes the nature of the predicate offence, the state of the offender’s knowledge, whether an international element was involved, the sophistication of the offence, whether organised criminal syndicate was involved, the number of transactions and length of the offence, whether the offender continued to launder funds after knowing that they were proceeds of a serious crime, and the offenders’ role.

19.  In Secretary for Justice v Wan Kwok Keung [2012] 1 HKLRD 201, the Court of Appeal referred to the authorities which was summed up in Hsu Yu Hyi that the starting point of the sentence for money laundering charges would be like:

(a)  3 years or so between HK$1 million to HK$2 million;

(b)  4 years or so between HK$3 million to HK$6 million; and

(c)  Over 5 years where it is above HK$10 million.

20.  In Wang Yu Hsin, who is D7 in that case, was charged with one count of theft and one count of money laundering. The case involved extra-territorial phone scams and the amount of the money laundering involved in D7 case was more than HK$5 million.  In respect of the money laundering charge, it was alleged that D7 opened 8 bank accounts and the offence lasted within 6 months.  D7 was convicted after trial.  The trial judge adopted a starting point of 5 years 6 months imprisonment for the money laundering charge.  On appeal, it was reduced to 4 years’ imprisonment.

21.  In Yam Kong Lai, the appellant was convicted of one count of money laundering after trial.  Forged documents were created to transfer the deposit of a dormant account, totalling US$522,311.69, to other banks accounts, and ultimately drew down by the appellant.  The appellant was sentenced to 5 years’ imprisonment.  On appeal, the court of appeal stated that although the appellant played an active role in dealing with the funds by arranging the transfer to different accounts, she should be sentenced on the offence that she was charged and not the role she took part in the stealing of the funds.  The Court of appeal, having considered the amount of proceeds involved equivalent slightly less than HK$4 million, opted that a sentence of 4 years’ imprisonment after trial was appropriate.

22.  The predicate offence in the present case appears to be fraud.  There is no evidence that D knew or participated in the predicate offence.  There is also no evidence that she knew that the proceeds of the fraud were deposited into the BOC account and subsequently withdrawn. However, by “selling” her bank account, she must have reasonable grounds to believe that the BOC account would be used to deal with proceeds of crime. 

23.  The money laundered through the BOC account was approximately HK$3.58 million. Having considered the relevant authorities, the amount of the money laundered, the predicate offence involved and all other relevant matters, I am of the view that the starting point is 36 months’ imprisonment.

24.  Mr Donald stressed that defendant was only 18 years old, being young and naïve and easily to be persuaded, when she committed the present offence.  I accepted that it is a mitigation factor. Taking into account her young age, I consider that the appropriate starting point is 33 months’ imprisonment. 

25.  Defendant entered a time guilty plea and she is entitled to one-third discount.  The term of the sentence is reduced to 22 months’ imprisonment.

26.  It is obvious from the reports that the present offence has neither any bearing nor attributed to her ADHD and OPD and I do not consider that her mental condition as an mitigating factor which can attract further reduction of sentence.

27.  Defendant is sentenced to 22 months imprisonment accordingly.