HKSAR v. CHU CHI YIN aka CHU KONG TO

DCCC 1079/2023

[2024] HKDC 1644

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 1079 OF 2023

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REASONS FOR SENTENCE

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1.  The defendant has pleaded guilty to a single offence of attempting to deal with property known or believed to represent the proceeds of an indictable offence which we know is contrary to Section 25 subsection (1)  and (3)  of Cap 455 and also of the Crimes Ordinance, Cap 200. The particulars are the offence occurred on 3 July 2023 in Hong Kong where the defendant together with other persons known or unknown had reasonable grounds to believe the property, namely HK$60,000, in whole or in part, directly or indirectly represented any proceeds of an indictable offence and he attempted to deal with that property.

2.  The facts are very simple.  On 3 July 2023 a person, PW1, who is aged 86 received a call from an unknown male who alleged to be the victim or PW1’s son. He said there had been an assault and $60,000 was requested for compensation. PW1 realised it was a scam, reported the matter to the police straightaway and confirmed that his son was safe.  This clearly is what is described as a ‘telephone deception case’.  PW1 was told that someone would come to his building and collect the money downstairs.  PW1 did as he was told, he went downstairs, saw the defendant approaching.  He passed an orange plastic bag with some paper inside which had been prepared as dummy cash by the police.  It was handed to the defendant.  Defendant took the money and was intercepted by the police.  Defendant said that a person called ‘RB’ had told him to collect the money.

3.  In a subsequent record of interview, the defendant said that he met RB from prison, kept in contact with him via Telegram, he did not have any other means to find him.  Formally the defendant has admitted that he knew or had reasonable grounds to believe that the property, namely the HK$60,000 in whole or in part, directly or indirectly represented the proceeds of an indictable offence and attempted to deal with that property and accordingly I convicted the defendant.

4.  The defendant’s antecedents show him to be now aged 31 years old.  He has a number of previous convictions which are mainly drug-related.  He had a shoplifting case in 2007 and from 2013 onwards he has been involved in drug offences, has served Probation, Drug Addiction Treatment Centre and more recently a term of imprisonment.  Further evidence on the defendant’s background is that he has lived in Kwun Tong with his parents, grew up in Hong Kong, has worked as a part-time renovation worker earning $10,000 per month.

5.  In terms of the approach to sentence, I have been referred to two cases which are relevant.  Of course the defendant is charged and convicted of an offence of what can be colloquially described as money laundering by way of dealing with the proceeds of a telephone deception.  It is common ground that in neither of the telephone deception cases nor money laundering cases is there any guideline sentence, however, there are cases that can be referred to to provide the court some assistance in determining an appropriate starting point for sentence.  I bear in mind that the amount attempted to be laundered in this case was $60,000 which is relatively modest compared to other money laundering cases the court can come across.

6.  The leading case on approach to sentencing in money laundering cases can be found in HKSAR v Boma found at [2012] HKCA 52 which sets out an eightfold approach to the approach to these cases.  The court must look at the nature and penalty for the predicate offence, the knowledge or belief of the predicate offence on behalf of the money launderer, whether there is any international element, the sophistication of the offence, whether there is a criminal syndicate involved, things such as the number of transactions and the length of time involved, any subsequent knowledge of the predicate offence discovered by the defendant and the role and acts of the defendant in the case.  Again, it is common ground here that defendant would not have had any knowledge or necessarily participated directly in the predicate offence itself and there is no evidence at this stage to prove he benefitted.

7.  The other case that the courts are often referred to is the case of HKSAR v Wu Yangjin, again it is a telephone deception case where there were three charges of money laundering and one charge of conspiracy to launder money and in that case, as in this one, there was no evidence the applicant participated directly in the predicate offence and no evidence to prove the benefit he obtained.  Nevertheless, the Court of Appeal in that case determined that a starting point for each charge should be one of 3 years’ imprisonment or 36 months.

8.  There were several features in the Wu Yangjin case which were not present in this case, for example, there is no international element in this case, defendant’s role is relatively small and there is one incident and one victim. I do note in relation to aggravating factors that the defendant would have committed the offence while he was on bail from a drug offence that was in the Magistrates Court in Kowloon which he was subsequently sentenced to 6 months’ imprisonment.

9.  Taking all these factors into account and the defendant’s position, I will take a starting point of 33 months’ imprisonment for this offence.  The defendant is entitled to a full one-third discount which leads to a final sentence of 22 months’ imprisonment for this offence.