HKSAR v. TO KIT YAN

DCCC1267/2010

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 1267 OF 2010

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Reasons for Sentence

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1.  The defendant in this case, D1 on the indictment, has pleaded guilty to the 2nd charge, a charge of conspiracy to deal with property knowing or having reasonable ground to believe that the property, namely HK$450,000, represented the proceeds of an indictable offence contrary to section 25(1) and (3) of the Organised and Serious Crimes Ordinance Cap.455 and sections 159A and 159C of the Crimes Ordinance Cap.200, Laws of Hong Kong.

2.  The brief facts which the defendant has agreed establish that the victim in this case discovered that a fraudulent transaction had occurred regarding his HSBC account, to wit a sum of $450,000 had been transferred without his authority from his account to an account at the Bank of China held in the name of Panda Money Exchange.  Subsequently a staff member of Panda received a call from a Mr Choi who told her that he wanted to remit the $450,000.  Checks were made and it was verified that the 450,000 was being held in the company account.  Mr Choi was asked to come to the company for the remittance procedure.  Later on the defendant arrived at the company and the remittance application was carried out for a transfer of the $450,000 to the defendant’s bank account in Shenzhen. 

3.  The defendant was subsequently arrested as she surrendered to the police on 2 September and under caution she told the police, amongst other things, that she carried out this procedure at the request of a person called Pang who, in fact, is D2 in this indictment and her co-defendant on Charge 1, and it was he who gave her $2,000 as a reward for effectively lending her account for this illegal operation to take place. 

4.  This matter is Charge 2 on the indictment, the defendant having already pleaded guilty in March of this year to a similar charge, Charge 1 of conspiracy.  For that offence the learned deputy judge adopted a starting point of 2½ years’ imprisonment, reduced it by the customary one-third to reflect the defendant’s plea of guilty, coming to 20 months’ imprisonment of which he ordered 12 months to run consecutively to a sentence that the defendant was already serving in relation to an offence of using a false instrument. 

5.  In sentencing the defendant I do, of course, take account of everything that Mr Boyton has said on behalf of the defendant. It seems to me that taking everything into account - that is, the amount involved, $450,000 - the participation of the defendant, the lack of any international element and the fact that I accept that the defendant did not know the source of these illicit funds, a starting point of 15 months’ imprisonment is appropriate.  I will reduce that by one-third to reflect the defendant’s plea of guilty, coming to 10 months’ imprisonment on Charge 2.  I do not propose to give the defendant any extra discount for surrendering to the police.  This has already been accounted for in respect of Charge 1 when the learned deputy judge gave the defendant a discount of 4 months’ imprisonment to reflect this.  I am satisfied that no further discount would have been given had these 2 charges been dealt with together as they should have been. However, I am aware that the defendant is currently serving a total sentence of 2 years and 10 months’ imprisonment and due to the question of totality of sentence I will order that 6 months of the sentence of 10 months is to run concurrently with the sentence on Charge 1 and the balance of 4 months consecutively.