HKSAR v. SOMKANAY NITTAYA

DCCC 45, 224, 613 & 816/2023 (Consolidated)

[2024] HKDC 639

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NOS 45, 224, 613 & 816 OF 2023

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REASONS FOR SENTENCE

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Charge

1.  The defendant (D4), has pleaded guilty to one charge of dealing with property known or believed to represent the proceeds of an indictable offence, contrary to section 25(1)  and (3)  of the Organized and Serious Crimes Ordinance (“money laundering”).

Facts

2.  The facts agreed by the defendant revealed that as a result of a fraudulent scheme which commenced in 2019, money was generated from a property mortgage which then led to the obtaining of a HK$4 million loan through various false representations made in respect of the ownership of the property.  The said HK$4 million was then deposited into a bank account.  From 2 May 2019 to 7 May 2019, monies came from the mortgage loan were dissipated into different parties, including D4 who cashed a cheque of HK$1,776,000 on 2 May 2019.  D4 was arrested on 3 July 2020.  At the video recorded interview, she revealed to the police that:

(1)  A man called “Ah Wai” asked if D4 wanted to earn HK$2,000 by using a false cheque and told D4 that they did it before and there was nothing to be afraid of;

(2)  Upon the arrangement of “Ah Wai”, D4 met up 3 males in Jordon. One of the males was known as “Ah Fung”. D4 was instructed to cash a cheque wrapped in tissue paper and was told that she would not be arrested because the amount was small. D4 looked at the cheque and misread the amount as HK$19,000;

(3)  D4 went into the bank for withdrawal of cheque. When asked for the purpose of the withdrawal by the bank staff, D4 realised the large amount and replied that the money was for her use in Thailand; and

(4)  D4 put the withdrawn cash into her rucksack and passed it to the males accompanying “Ah Fung”.

3.  D4, knowing or having reasonable grounds to believe that the property in the sum of HK$1,776,000 in whole or in part directly or indirectly represented any person’s proceeds of an indictable offence.

Background and Mitigation of the defendant

4.  D4 has 3 previous convictions which all took place in 2004.  None of them relate to the present offence.

5.  This court was told by Ms. Crebbin, who appears for D4, that D4 was born in Thailand.  She is now 46 years of age.  She has 2 children in Thailand who are currently being looked after by her mother with money sent by D for their support.

6.  D4 originally came to Hong Kong to work as a domestic helper in 1998. While working in Hong Kong D4 met and married a local man but they eventually broke up.  D4 subsequently met another Hong Kong Man, Mr. Chan, with whom she started a relationship.  A few years prior to the commission of the present offence, D4 lost her job and also began to consume dangerous drugs.  Her behavior, caused rows between her and Mr. Chan which led to the termination of their relationship for a while.  D4 ended up with no job, no home, and no money.  She started to live in a gaming arcade where she was introduced to a person called Ah Wai who invited her to take part in the present offence.  She was promised a reward of HK$2,000.

7.  When D4 was first handed the cheque to cash, she only looked at it briefly and says she mistakenly read the figure on the cheque as only HK$19,000.  At that time, she believed what Ah Wai had told her that the amount involved was only small so that police would not bother with her.  D4 admits that when she presented the cheque and was questioned by the cashier, she suddenly realised just how much money was involved but she was too scared to pull out at that stage because on the way to the bank Ah Fung and two other men with her in the car had threatened to harm her if she said anything about the incident to anyone.

8.  D4 gave the money she received from the cashier to the man accompanying her in the bank and she was then subsequently given a reward of HK$20,000 (ten times what she had initially believed she would be paid).

9.  It was submitted by Ms. Crebbin that:-

(a)  D4 was not the perpetrator of the money laundering scheme but was well down the chain.

(b)  She did not know the nature of the predicate offence.

(c)  She only benefitted a minimal amount from the laundering process and she was clearly only acting as a conduit.

(d)  She was only involved in one transaction.

(e)  There was no international element involved.

(f)  She did not realise the large sum involved when she agreed to commit this offence as at the beginning. D4 believed she would just get a small reward of HK$2,000 for cashing a cheque worth under HK$20,000.

(g)  Defence referred to the range of sentences in SJ v Ngai Fung Sin Apple CAAR 1/2013; HKSAR v Poon Lok Man CACC 171/2012; SJ v Wan Kwok Keung CAAR 13/2010; HKSAR v Hsu Yu Yi [2010] 5 HKLRD 545 and suggested that when dealing with illegal transactions of around two million dollars the appropriate starting point for sentence is in the region of 3 years imprisonment.

(h)  D4 gave a non-prejudicial witness statement in relation to Ah Fung (D3), setting out his role in this particular incident for which D3 was never charged. The Prosecution however, have decided that this information is not sufficient to be of any valuable assistance to them (D3 has already been charged and sentenced in another case in connection to this money laundering operation). D4 was prepared to try to help Prosecution and testify in court against D3 if necessary, so even though, unfortunately, D4’s offer has not been accepted by Prosecution, defence submitted that D4 does deserve some small credit for her efforts.

(i)  There was delay in bringing the prosecution against the defendant. D4 was first arrested in July 2020. She was placed on police bail at that time but then about 6-7 months later was told by police that she would not be charged. It was only in mid-2023 that D4 was rearrested for the present offence.

Sentence

10.  There are no sentencing guidelines for the offence of money laundering.  The Court of Appeal stated in HKSAR v Hsu Yu Yi [2010] 5 HKLRD 545 factors to be taken into account when determining sentence:

(1)  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.

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

(3)  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 on the indictable offence per se when determining the sentence of the dealing offence.

(4)  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.

(5)  The length of time the offence lasted.

11.  Money laundering is a serious offence which warrants an immediate custodial sentence as there is a need to show that people such as the D4 should be prevented from taking part in similar illegal activities. A deterrent sentence is called for.

12.  Insofar as the D4 is concerned, I accept that she was not playing a leading role in the fraudulent scheme.  There is no evidence to indicate that she was aware of the predicate offence.  I further accept that D4 only took part in a single transaction which involved HK$1.7 million of laundered money, with no international element involved. 

13.  Having taken all matters into consideration as well as the submissions made by the defence, I adopt a starting of 30 months’ imprisonment.

14.  In view of her act in providing the non-prejudicial witness statement against D3 and her indication of her willingness to testify against him if required, I will give D4 a slightly higher sentencing discount of one of 35% to reflect the same as well as her guilty plea.

15.  After such reduction the sentence will be one of 19 months’ imprisonment.

16.  I will also give her a further 2 months reduction in view of the long lapse of time before she was eventually prosecuted, albeit through no fault of the prosecution.

Conclusion

17.  D4 is therefore sentenced to 17 months’ imprisonment.