|
DCCC 172/2022
[2024] HKDC 166
IN THE DISTRICT COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
CRIMINAL CASE NO. 172 OF 2022
________________________
| |
HKSAR |
|
| |
v. |
|
| |
LAM So-yi, Zoe |
2nd Defendant |
________________________
| Before: |
Deputy District Judge Francis Cheng |
| Present: |
Mr. Polson, Ian H., counsel on fiat, for HKSAR |
| |
Mr. So Ho Yee, Max, instructed by Messrs Littlewoods, for the 2nd Defendant |
| Offence: |
[3] Dealing with property known or believed to represent proceeds of an indictable offence
(處理已知道或相信為代表從可公訴罪行的得益的財產) |
________________________
REASONS FOR SENTENCE
________________________
The Charge
1. The 2nd defendant pleaded guilty to one charge 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 (Charge 3).
The Facts
2. The summary of facts agreed by the 2nd defendant revealed that loan fraud was committed between February and July 2017. Victims received unsolicited phone calls offering low-interest rate loans. They attended the office of a Right Fortune Enterprise Ltd (“RFEL”) in Tsimshatsui. They were told that, they need to apply for loans from licensed money lender, and to settle a payment (alleged to be deposit, surety to improve credit rating, or application fee) before being entitled to the low-interest rate loans.
3. On 6 April 2017, a victim complied with the instruction and issued a cheque of HK$400,000 (as surety) to D2 (on behalf of RFEL).
4. D2 is the sole account holder and signatory of a Bank of China (Hong Kong) Limited account (“D2's account”). Bank records revealed that on 6 April 2017, HK$500,000 and HK$400,000 were received via cheque deposit and on 11 April 2017, HK$300,000 was transferred to D3's bank account.
5. At all material times D2 dealt with the sums of money totaling HK$900,000 in D2’s account, knowing or having reasonable grounds to believe that the said HK$900,000 wholly or in part directly or indirectly represented any person's proceeds of an indictable offence.
Mitigations
6. Mr. So who appeared for the 2nd Defendant told this court that the 2nd Defendant is now 28 years of age. She was born and raised in Hong Kong. After attaining Form 5 she went to New Zealand to continue her studies. After completion of her secondary school in New Zealand, she came back to Hong Kong.
7. The 2nd Defendant is the mother of her 9-years-old son and 8-months-old daughter. The 2nd Defendant was well supported by her fiancé.
8. The defence acknowledged that the 2nd Defendant had been convicted on 10 different occasions (totaling 15 charges) in the past. The defence submitted that all of these offences were of a different nature from Charge (3) and thus urged this court to disregard them for the purpose of the present sentencing exercise.
9. Insofar as the commission of Charge (3) is concerned, Mr. So submitted that after the 2nd Defendant’s return from New Zealand, she had acquaintance with some bad companions which led to the present offence. The 2nd Defendant admitted that she did lend her bank account to one of her acquaintances. She was well aware that her bank account would not be used for a proper purpose, yet she still lent the bank account foolishly.
10. Mr. So submitted that there was no evidence to suggest that the 2nd Defendant took part in the underlying frauds nor that she knew about the underlying frauds. She played a limited role in the money laundering and the money laundering was not committed by or on behalf of an organized criminal syndicate. The defence also submitted communications between the 2nd Defendant and those giving instructions to her demonstrated that she was, to a certain extent, coerced in the course of dealing with the subject laundered monies.
11. Mr. So also addressed to this court that the 2nd Defendant was passionate and enthusiastic in volunteer work. She started participating in a volunteer organization named “Go In Love Charity Foundation Limited” (“the Charity Foundation”) in 2020 and was dedicated in different volunteer works.
12. Mitigations letters written by the 2nd Defendant, her father, the Chairman of the Charity Foundation, the employer of the 2nd Defendant and Chairman of Tai O Rural Committee were submitted.
Sentence
13. There are no sentencing guidelines for the offence of dealing with the proceeds from an indictable offence as the facts vary from case to case.
14. The maximum sentence on conviction upon indictment is a fine of $5,000,000 and 14 years’ imprisonment.
15. The Court of Appeal however stated in HKSAR v Hsu Yu Vi [2010] 5 HKLRD 545 that insofar as the determination of the appropriate sentence was concerned, the following factors are to be taken into account:
“(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.”
16. Further, in Secretary for Justice v Wan Kwok Keung [2012] 1 HKLRD 197, the Court of Appeal stated that “where the “black money” involved is between 1 million and 2 million dollars”, the appropriate starting point is one of 3 years.
17. In the present case, I am satisfied that the 2nd Defendant did not have a major role in the fraudulent scheme. There is no evidence to suggest that she possessed the knowledge of the predicate offence, namely fraud. The duration involved was short and the number of transaction were few.
18. I therefore adopt a starting point of 26 months’ imprisonment.
19. The 2nd Defendant is entitled to a one-third discount a result of her guilty plea.
20. For Charge (3), she is sentenced to 17 months’ imprisonment.
|
( Francis Cheng ) |
|
Deputy District Judge |
|