HKSAR v. LEE SIN MAN

DCCC619/2012

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 619 OF 2012

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Reasons for Sentence

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1.  The defendant stands convicted after trial of two counts of dealing with property known or reasonably believed to represent proceeds of an indictable offence, contrary to section 25(1) and (3) of the Organized and Serious Crimes Ordinance, Cap.455, Charge 1 and Charge 2. The offence is commonly known as money laundering.

2.  The defendant is a well-educated lady in her early 30s, a teacher by profession. She had hitherto a clear record. 

3.  Charge 1 concerns a total sum of $3,073,200 deposited into the defendant’s Jockey Club betting account between 1 January 2008 and 30 April 2009.  During the relevant period, record of cash deposits ranging from $500 to $20,000 were made to the betting account in 449 transactions totalling $3,073,200. 

4.  Charge 2 concerns a total sum of $3,116,832 transferred from the betting account and deposited into the defendant’s Hang Seng Bank account during the aforesaid period.  During the relevant period, regular withdrawals were made from the betting account and transferred to the Hang Seng Bank account in 63 transactions.  The total sum was $3,116,831, 61 of the transactions were in a fixed sum of $50,000. 

5.  I found that the defendant was the person who operated the two accounts during the relevant period.  I convicted the defendant on the basis that she had reasonable grounds to believe, not that she had knowledge, that the monies deposited into the betting account and the monies transferred to the Hang Seng Bank account from the betting account might be tainted by criminality. 

6.  There is no evidence that the monies that passed through the two accounts were in fact the proceeds of an indictable offence.  

7.  I have before me a background report of the defendant, a self-explanatory mitigation letter written by the defendant and eight mitigation letters written by colleagues, family members and friends of the defendant.  I do not propose to repeat the contents of the report and the letters, suffice to say that I have considered the contents carefully.

8.  I can understand the feelings and concern expressed in the mitigation letters, but, with respect, the plea for a non-custodial sentence made by the defendant’s family members is not a realistic one. 

9.  Stock VP pointed out in HKSAR v A male known as Boma Amaso, CACC335/2012:

“It is to be remembered that: ‘the criminality in laundering arises from the encouragement and nourishment it gives to crime in general. Without it, many crimes would be rendered much less fruitful and perhaps more difficult to perpetrate.’ R v Bazar [2002] 2 Cr App Rep Sentencing 469 at 472.”

10.  Charge 1 and 2 call for immediate terms of imprisonment.  It will be wrong in principle to pass non-custodial sentence for the offence of money laundering. 

11.  In sentencing the defendant, I have borne in mind the following factors:

i. the maximum penalty for the offence is a fine of $5 million and imprisonment for 14 years;

ii. deterrence is the paramount sentencing consideration for this category of offence;

iii. Charge 1 and 2 each involved over $3 million, a significant feature that should be considered;

iv. the nature of the predicated offence is not known;

v. the defendant was convicted on the basis that there were grounds to believe that the property was tainted with criminality and the defendant knew of the grounds. In my judgment, the defendant is at the very least within the category of reckless launderer identified in paragraph 40, subparagraph (2)(b) of Boma Amaso;

vi. there is no international dimension in this case. All the laundering activities were embraced in a domestic setting;

vii. the offences involved the use of a betting account and a bank account held in the name of the defendant, no deceit was practised and the offences were committed in relatively unsophisticated manner;

viii. there is no suggestion that the offences were committed by or on behalf of an organized criminal syndicate;

ix. the money laundering activities stopped before the defendant was discovered;

x. the offences involved many transactions over an extended period of 16 months. Weighing against this factor, Mr Hemmings draws my attention to the fact that the defendant was arrested 2½ years after the money laundering activities were over and there was nothing untoward on the part of the defendant during that 2½ years;

xi. the role of the defendant and the acts performed by her. The defendant was the person who operated the two accounts during the relevant period. Though, there is no evidence that the defendant had received any monetary benefit, the defendant’s role is much more culpable than “the drug addict or petty crook who is paid a small sum to open an account and hand over its operation to another with no more participation and no more knowledge than that it is going to be used for some sort of crime” as postulated in the final paragraph of Boma Amaso.

12.  Imprisonment is the only appropriate sentence in this case.  Any form of non-custodial sentence is wrong in principle and is inadequate to reflect the serious nature of the offences.

13.  All matters taken into consideration, I come to the view that Charge 1 and 2 each calls for a starting point of 3 years’ imprisonment.  I accept that the defendant has a positive good character and it is unlikely that she will ever re-offend.  For each of the offence, I shall allow the defendant 4 months’ reduction for her good character.

14.  The defendant pleaded not guilty to both charges and she was convicted after trial.  There is no mitigating factor apart from her positive good character. I am aware that the defendant is the sole breadwinner of her family and she has a 6 years old daughter that she needs to take care of.  I appreciate the defendant’s incarceration will put the defendant’s family in difficult position.  I am sympathetic to the difficulties that the defendant’s family and Mr Chow are facing.  But family difficulties and Mr Chow’s poor health cannot militate against the length of the prison terms.

15.  The various matters urged on the defendant’s behalf, whether considered alone or collectively, do not constitute exceptional circumstances or humanitarian grounds which justify a suspension of the prison terms. 

16.  On Charge 1, I sentence the defendant to 32 months’ imprisonment.  On Charge 2, I sentence the defendant to 32 months’ imprisonment.  I take into consideration the totality principle.  Charge 1 and Charge 2 concerned the use of the betting account and Hang Seng Bank account over an extended period of 16 months.  Cash sums were regularly deposited into the betting account, sums of monies would then be transferred to the Hang Seng Bank account before further withdrawals and transfers were made from the latter account. 

17.  In my judgment, the terms of imprisonment for Charge 1 and 2 should run concurrently with each other.  A total term of 32 months’ imprisonment should adequately reflect the overall laundering activities undertaken by the defendant.  I order both terms to run concurrently with each other.  The defendant has to serve a total of 32 months’ imprisonment.