HKSAR v. PARK SUNIL AND ANOTHER

DCCC 858/2010

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 858 OF 2010

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REASONS FOR SENTENCE

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1.  The defendants plead guilty to one charge of dealing with property knowing the property represented the proceeds of an indictable offence, contrary to section 25(1) and (3) of the Organized and Serious Crimes Ordinance, Chapter 455.

2.  Briefly in the evening of the 4th June this year Mr An, a Chinese of Korean descent, who operated a money exchange business in Macau, was asked by a Korean acquaintance of his, a Mr Park (“Park”), to exchange Korean Won into the equivalent of around HK$2 million.

3.  The next day Mr An took with him two bags of cash containing HK$700,000 and $1.5 million and met Park at a flat in Macau. The two defendants were also present in the flat. Park sealed Mr An’s mouth with adhesive tape. When Mr An struggled D2 stabbed his left thigh with a 25cm long knife and D1 tied up and blindfolded Mr An with adhesive tape. After the three left Mr An managed to untie himself only to find the money and his mobile phone were missing.

4.  On hearing of the robbery Mr An’s friend Mr Cho immediately went to Macau to try locate Park. On hearing Park had been intercepted at the Macau Immigration Office but the defendants had departed by ferry to Hong Kong, Mr Cho took a helicopter to Hong Kong. On arrival he saw the defendants at the immigration counter. Mr Cho pointed out the defendants to the police. On a search of D1’s luggage the police found HK$1.35 million, which was part of the proceeds of the robbery.

5.  The defendants having committed the robbery in Macau, dealt in the part of the proceeds of the robbery by jointly bringing HK$1.35 million to Hong Kong.

6.  Money laundering is a serious offence for which deterrent sentences are required (see HKSAR v XU Xia-li & another [2004] 4 HKC 16 at paragraph 18). In HKSAR v Javid Kamran CACC 400/2004 the court, stressing the need for deterrent sentences, said that it was not possible to lay down guidelines, as there is a very wide range of culpability. The court identified a number of factors relevant in determining the culpability of a defendant, including the nature of the offence that generated the laundered money, the extent to which the offence assisted the crime or hindered its detection, the degree of sophistication of the offence and perhaps the defendant's participation, including the length of time the offence lasted and the benefit he derived from the offence.

7.  In Secretary for Justice v Jerome Yuval Arnold Herzberg [2010] 1 HKLRD 502 the Court of Appeal said that other relevant factors are the amount of money involved; the degree of sophistication of the operation; the defendant’s knowledge of the underlying offence and whether there was an international element to the commission of the offence.

8.  The underlying offence is a serious armed robbery in which the victim was lured to a flat where he was attacked with a knife, tied up and blindfolded, then robbed of over HK$2 million. In HKSAR v XU Xia-li the court said; “…the nature of the indictable offence from which the money was derived should be of no particular significance in sentencing, save that if the defendant knew that the money was derived from very serious crimes, it would be an aggravating feature to be taken into account in sentencing” (see paragraph 11).

9.  This approach has been followed for example in HKSAR v CHEN Szu-ming CACC 270/2005 and HKSAR v YAM Kong-lai [2008] 5 HKLRD 384, the courts emphasising that the defendant is to be sentenced on the facts of the money laundering charge only and not on the facts of the underlying offence. In HKSAR v CHEN Zhen-chu CACC 433/2006 the Court of Appeal said; “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 (see Xu Xia Li) and, if we may add, sometimes a very important aggravating factor” (see paragraph 54).

10.  I am satisfied there is an international dimension to the case. The defendants are Korean and were visitors to both Macau and Hong Kong. The money was being brought to Hong Kong, no doubt to make more difficult the recovery of the proceeds of the crime.

11.  In passing sentence I take into account everything said on behalf of the defendants by Mr But. I note the defendant’s both have clear criminal records in Hong Kong. This however carries little weight where the defendant’s are only visitors, having just arrived in Hong Kong.

12.  Taking into account the amount involved was HK$1.35 million; the underlying offence was very serious, being an armed robbery which both defendants directly participated in and therefore knew where the money came from; and that there is an international dimension in that the defendants were taking part of the proceeds of the robbery to Hong Kong, I am satisfied the appropriate starting point after trial is 4 years imprisonment. Giving the defendants full credit for their guilty pleas they are both sentenced to 2 years and 8 months imprisonment.