HKSAR v. XIE RUSHENG

DCCC 769/2012

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 769 OF 2012

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REASONS FOR SENTENCE

The defendant pleaded guilty to a "Money laundering" offence. The total sum involved is HK$1,115,777.

Summary of Facts

2.  On 18 April 2012, a phone deception took place in Taiwan; the victim is a 70-year-old female Taiwan resident.  She remitted HK$500,000, HK$300,000 and NT$1,200,000 from her bank account in Taiwan to an HSBC account in Hong Kong (the "HSBC Account") respectively on 19 April, 23 April and 3 May 2012.  The lady made a report to the Taiwan Police on 14 May 2012.  The Hong Kong Police was alerted.

3.  The HSBC Account was opened on 29 February 2012 with an opening deposit of HK$2,000.  The defendant is the sole account holder and signatory of the account.

4.  Upon receiving each remittance from Taiwan, an almost equivalent amount of cash in Hong Kong currency was withdrawn from the HSBC Account the same day of receipt.[1]

5.  The defendant was arrested at the Lo Wu Border Control Point on 16 July 2012 when he entered Hong Kong.

6.  In a video-recorded interview, the defendant admitted that he is a mainlander with no assets in Hong Kong or elsewhere.  About March or April 2012, a friend named "Ah Bun" asked him to open an HSBC bank account in Hong Kong in return for monetary rewards.  The defendant agreed and Ah Bun gave him HK$2,000 as opening deposit.  After opening the HSBC Account, the defendant returned to the mainland and informed Ah Bun the account number.  Later on, the defendant, upon Ah Bun's instructions, withdrew cash from the HSBC Account on 3 occasions and handed over all the cash to a male named "Ah Chi".  The defendant received a total of HK$7,000 as his reward.  After making the 1^st withdrawal, the defendant gave the bank card and password to Ah Chi.  The defendant claimed that he did not withdraw money using an ATM and had no idea about the ATM withdrawals from the HSBC Account.

7.  The defendant's immigration records show that he entered Hong Kong on the dates of the remittances and left on the dates of the withdrawals.

Mitigation & Sentence

8.  The defendant is 39 and has a clear record.  He is married and has an 11-year-old daughter in the mainland.  Prior to his arrest, he worked as a security guard and ran a part-time tourist conveyance business earning a total of RMB3,000 per month. 

9.  Defence counsel Mr. CHU submitted that there is no evidence showing that the defendant had knowledge of or took part in the deception offence in Taiwan.  He was used by the fraudsters as a foot soldier, receiving only a few thousand dollars as his reward.  As revealed in the Summary of Facts, the defendant had suspicion about the source of the money after making the 1^st withdrawal.  Regrettably, he continued to assist the fraudsters owing to his financial difficulty.  A letter written by the defendant was placed before me; its contents are duly noted.

10.  The Court of Appeal in SJ v WAN Kwok Keung [2012] 1 HKLRD 201 held:

"Money laundering" is a serious offence for not only does it encourage criminal activities indirectly, but also attempt to legitimize the proceeds of crime. In order to crack down on serious crimes, to prevent offenders from getting financial gains, it is necessary to deter the commission of the "money laundering" offences.

Generally, the sentence for "money laundering" offences should mainly reflect the amount of "black money" laundered and not the benefit obtained by the defendant or others. The reason being that it is very difficult to prove the benefit concerned, and in most "money laundering" cases, there may not be evidence to show from what indictable offence the "black money" are in fact derived. Of course, if there is information to prove that the "black money" is originated from serious crimes, including drug trafficking, kidnap and blackmail, illegal human trafficking, other organized crimes, etc. or the defendant's benefit is huge, then the sentence should be adjusted upward.[2]

11.  In determining the proper starting point, I have reminded myself of the sentencing principles laid down in HKSAR v HSU Yu Yi [2010] 5 HKLRD 545 and HKSAR v Boma Amaso [2012] 2 HKLRD 33.  I have also borne in mind the amount of money involved, the duration of the offence, the defendant's role in relation to the movements of funds as well as his personal circumstances. 

12.  For the purpose of sentencing, I accept that the defendant probably had no knowledge of and did not take part in the deception offence in Taiwan.  On the other hand, he admitted that he had suspicion about the source of money in the HSBC Account after the 1^st withdrawal.  He was even bold enough to ask Ah Chi about it.  The defendant could have stopped his involvement at that point, but he chose not to owing to his desire for the reward.  Furthermore, an international element is clearly involved.

13.  Time after time, the court has expressed in very clear terms that being in financial difficulty (however serious) is no mitigating factor for committing a crime.

14.  As held by the Court of Appeal in both HSU Yu Yi and WAN Kwok Keung, when the "black money" involved is between $1 million and $2 million, the starting point is 3 years' imprisonment or so.  Hence, in this case, I adopt a starting point of 3 years' imprisonment.  A one-third discount is given for the guilty plea, reducing the sentence to 2 years.  Apart from this, I see no other mitigating factors which warrant any further discount.  The sentence for I pass is therefore 2 years.