HKSAR v. HOU SHUN HSIUNG

 DCCC777/2009

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 777 OF 2009

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Reasons for Sentence

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1.  The defendant, Hou Shun-hsuing, is a Taiwanese national.

2.  He flew in on 10 August 2008 and stayed for less than a month before he left Hong Kong on 2 September 2008. While he was here he opened two accounts, one at the China Bank; the other at the Hong Kong Bank. The China Bank account dealt with money amounting to about 3 million, while the Hong Kong bank account dealt with a little over 1 million. He also went to the moneychangers on three separate occasions to collect remittance of varying amounts from almost $30,000 to $50,000. Those amounts were particularised in charges 3, 4 and 5.

3.  The aggregate amount of money laundered came to about 4.15 million. About half a year later, whem he came back to Hong Kong, was arrested at the airport. Under caution he told the police that he came to Hong Kong for sightseeing and was looking for business opportunities. He met a man called “Little Black” at a karaoke in Mong Kok. The man asked him to open bank account to help him receive inward remittance. It was also under the instruction of “Little Black” that he went to the moneychangers to collect the remittance.

4.  The defendant is now aged 39. He received education up to Form 3. He has a clear record. It was submitted by defence counsel that the defendant was prepared to plead guilty to the charges at a fairly early stage. Counsel described how he came to commit the offences. He met the man, “Little Black” in karaoke here. “Little Black” is someone who was acquainted with back in Taiwan. “Little Black” told him he has some business here in Hong Kong and asked the defendant to open account for him to transfer funds in and out and the defendant did not receive any monetary reward except he was promised a job as a manager back in Taiwan in a restaurant owned by “Little Black” but when he went back to Taiwan he could not locate “Little Black” and nor did he get the job.

5.  Counsel also said all the charges related to the same month, took place in a short space of time but admitted that there were aggravating features in it. It involved international element-facts show that there are remittances from France. Counsel stressed that the defendant had no knowledge of the underlying offences but only that he had reason to believe the money represented the proceeds from an indictable offence.

6.  The defendant married twice. His present wife is now living in Hong Kong and today is in court to show support and concern for him. On that occasion when he was arrested, he was actually coming here to see his wife. He was a taxi driver by profession in Taiwan. He has three children aged from 6 to 12 from the previous marriage. They all stay in Taiwan and are supported by the wife financially from Hong Kong. Counsel also said all the money he dealt with went back to “Little Black”, he, himself, did not pocket any money.

7.  Money laundering is a very serious offence. Here I would like to quote a comment of the Court of Appeal in the case of Javid Kamran CACC200 of 2004.

“Money laundering is a very serious offence as it is an attempt to legitimise proceeds from criminal activities.  Serious criminal offences are very often motivated by financial gains and those who assist criminals in laundering money indirectly encourage them in their criminal activities.  Successful deterrents against money laundering could be effective measures against crime.”

What I understand from this judgment is that in order to clamp down on such serious offences like money laundering effectively, the sentence should carry sufficient deterrents.  It is to deter not only the offender himself but also to any like-minded persons.

8.  Your counsel rightly pointed out there is aggravating feature in the present case. It involves an international dimension. At least one of the facts shows that money came into your account from overseas. Here I would like to mention what the Court of Appeal said in the case of Ma Shing CACC322/2001.

“Where there was an international element to the offences and Hong Kong has to take a fairly serious view of such matters as its international reputation is not to be sullied.”

9.  I accept that in the present case there is no evidence to suggest that you knew about the underlying offences and you only had reasonable belief that the money came from indictable offences. It must be true because, according to you, “Little Black” told you he has some business here; he asked you to open a bank account for him to transfer in and out of funds. That kind of business must not be legitimate. If legitimate business they would not ask someone else to open an account for them to trade.

10.  The High Court also, in another case stated their views on money laundering offences. In the case of Chen Zhen Chu CACC433/2006, in paragraph 48 of the judgment the High Court says:

“The gravamen of a money laundering offence is the amount of money handled not the amount of profit to the defendants or the loss to the victims.  In most money laundering cases, it is simply not possible to determine the question of profit to the defendant or the loss to the victims, even if those victims could be identified.”

11.  What it counts, as I understand, is the money you dealt with. In the present case it is about 4.15 million. The Court of Appeal also went on to say in paragraph 54 of the same judgment:

“In the context of money laundering if the defendant knew that the money was derived from very serious crime, it would be an aggravating factor and, if we may add, sometimes a very important aggravating factor.”

They went on to say in paragraph 59:

“The sentence for money laundering offence when the underlying offence is not established, should not be more serious than a sentence for a similar offence where the underlying offence is identified.”

So I want to make it clear to you that I am sentencing you today on the basis of having reasonable belief, not actual knowledge.

I am aware of the fact that you had a clear record but as a foreigner coupled with the fact that you had only stayed here for a brief period-that fact doesn’t carry much weight.  Taking into account all the mitigation put forward, apart from your guilty plea, there is no other mitigating factor of real substance.

12.  For the reason given above for Charge 1, I take 3½ years as starting point. Charge 2-2 years. For the remaining charges 9 months. All these terms are reduced by one-third to reflect your plea. So for charge 1, 28 months’ imprisonment. Charge 2- 16 months’ imprisonment. The remaining charges 6 months each.

13.  As the High Court has said, it is the amount of money handled that really counts so it would not be appropriate to order all terms to run concurrent with each other because all this money add up to a large sum. But in view of the totality principle I order Charge 1 to run consecutively to 8 months of Charge 2 and concurrent with the rest. The total term is one of 3 years’ imprisonment.