HKSAR v. JAIN NIKHIL AND ANOTHER

CACC405/2006

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. CACC 405 OF 2006

(ON APPEAL FROM DCCC 522 OF 2006)

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J U D G M E N T

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Lunn J (Giving the judgment of the Court) :

1. The applicants sought leave to appeal against the sentences imposed upon them by Deputy District Judge Adriana Tse following their pleas of guilty to two charges of conspiracy to deal with property known or reasonably believed to represent proceeds of an indictable offence, contrary to sections 25(1) and (3) of the Organised and Serious Crimes Ordinance, Cap. 455 and sections 159A and 159C of the Crimes Ordinance, Cap. 200 (Charges 1 and 2) and to one separate charge each of using a false instrument, namely a passport, contrary to section 73 of the Crimes Ordinance, Cap. 200 (Charge 3 for the 1^st applicant and Charge 4 for the 2^nd applicant).  The judge imposed sentences on each of the applicants of three years and four months imprisonment in respect of Charges 1 and 2 and 12 months imprisonment on each of Charges 3 and 4 for the 1^st and 2^nd applicants respectively.  She ordered that all sentences be served concurrently, with the result that the total sentence imposed on each applicant was three years and four months imprisonment.

2. At the conclusion of the hearing on 15 February 2007, we dismissed these applications. Now we give our reasons for so doing.

The facts

3. The two conspiracy to defraud charges, Charges 1 and 2, arise out of allegations that the applicants were dishonest and fraudulent participants in a well-known variation of the “Nigerian money transfer fraud” : in hope and expectation of a share in a large fortune of money the avaricious victim is gulled into parting with money that is said to be necessary to pay fees to enable access to be made to the monies.

Charge 1

4. The two victims of the conspiracy, the subject of Charge 1, were contacted in the period December 2005 to March 2006 by strangers, who told them that they were the beneficiaries of huge inheritances, but that they required the assistance of the victims to provide monies, so that various fees could be paid to enable them to obtain the inheritances.  One of the victims was an American doctor working in Brazil and the other a French merchant working in the Mainland.  Between them they remitted a total of US$561,000 and €209,339 to a savings account in the name of Transworld held with the Bank of Communications in Hong Kong.  That account had been opened by the 1^st applicant on 26 September 2005, when he presented to the bank manager a business registration certificate in that company name together with a passport in the name of Garg Rahul Kumar.  That use of the passport is the subject of Charge 3.  Needless to say, neither of the victims received any share of monies from the inheritance.

Charge 2

5. In October 2005 a resident of the United States received e-mails from a stranger who promised to pay 20% of the millions of United States dollars that he wished to transfer out of Canada.  However, so the stranger told the victim, first he needed some monies to be remitted to his account in order to make advance payment of taxes.  As a result, in the period of January to March 2006 the victim remitted US$13,500 to a savings account in the name of First Financial Services with a Hong Kong branch of the Bank of Communications.  The 2^nd applicant had opened that account on 26 September 2005, having presented a business registration certificate in the name of the company and a passport in the name of Goyal Sidharth Kumar to the bank manager.  That use of the passport is the subject of Charge 4.  Needless to say, once again the victim lost contact with the strangers who had persuaded him to part with his monies and he never received any of the monies promised in return.

6. When the monies held in the respective bank accounts of Transworld and First Financial Services were frozen on 31 March 2006 only US$261,051, €42,151 and HK$10,513 were left in the former account and in the latter US$28,086 and almost HK$10,000.

Charges 3 and 4

7. The passports, in the name of Mr Garg, and the one in the name of Mr Goyal each bore the photographs respectively of the 1^st and 2^nd applicants and, on an inner page, a ‘chop’ of the Hong Kong Immigration Department stating that the holder was permitted to remain in Hong Kong for 14 days from 19 September 2005.  Both of the passports and the Hong Kong Immigration Department ‘chop’ were found to be false.  There was no entry or departure record in the Immigration Department records indicating the use of either passport.

8. In the morning of 29 March 2006 the 1^st and 2^nd applicants had each approached bank staff at the branch of the Bank of Communications and asked to add the name of a person who accompanied them to the bank, Jain Rajesh, as a signatory to the accounts of Transworld and First Financial Services respectively.  The 1^st applicant asked to re-activate the e-mail banking services of Transworld.  On their return to the bank in the afternoon the 1^st and 2^nd applicants were arrested.  The 1^st applicant was found to be in possession of the passport in the name Mr Garg and the 2^nd applicant the passport in the name Mr Goyal together with bank pass books, business registration certificates company chops and blank remittance forms of both Transworld and First Financial Services.

The Reasons for sentence

Charges 1 and 2

9. In her Reasons for Sentence the judge said of the two charges of conspiracy to defraud that they were very serious and affected the reputation of Hong Kong as a financial and banking centre.  She noted that the victims had parted with the equivalent of over HK$6.6 million and that HK$3.9 million was lost.

10. In acknowledging that there were no ‘guidelines’ for sentencing for the offences the subject of Charges 1 and 2 and that each case had to be judged on its own fact the judge went on to say (see appeal bundle page 9 P-R) :

“There are a number of aggravating features in this case. The defendants are of Indian nationality.  They do not live in Hong Kong.  Both of them came to Hong Kong specifically to commit these offences.  They came to Hong Kong twice.  Neither of the defendants are related to the culprits who perpetrated the fraud.  They committed the present offences for personal gain, free trips to Hong Kong and a fee.”

11. The judge went on to note that the two applicants were the sole signatories of the two bank accounts, the one of Transworld and the other of First Financial Services, and that they had taken part in disposing of the HK$3.9 million which was now lost to the victims.  Of their roles, she went on to say (appeal bundle page 10A-B) :

“They may be acting upon instructions but they are an integral part of the money-laundering operation.”

Starting point, discount and sentence

12. The judge stated that she took a “global starting point of five years imprisonment”.  Then, stating that she took a starting point of five years in respect of Charges 1 and 2, she discounted sentence for the guilty pleas and imposed sentences of 40 months imprisonment on each of the charges.  For Charges 3 and 4, the judge stated that she took a starting point of 18 months imprisonment, which she discounted for the guilty pleas to one of 12 months imprisonment.  She ordered all sentences to be served concurrently.

Grounds of appeal against sentence

13. By the grounds of appeal against sentence it is contended that the judge erred in taking a starting point for sentence of five years imprisonment in respect of Charges 1 and 2 and, in the alternative, the sentences were manifestly excessive or wrong in principle.

Submissions in support of the grounds of appeal against sentence

14. Mr McGowan, who appears for both applicants, accepts that there are no ‘guidelines’ laid down by this Court in respect of sentences for the offences the subject of Charges 1 and 2.  However, he contends that a review of the judgments of this Court and in the appellate jurisdiction of the Court of First instance indicates that the starting point taken by the judge for each of those offences of five years imprisonment is manifestly excessive. In support of that submission Mr McGowan has referred the court to a number of its previous judgments in respect of offences against sections 25(1) and (3) of the Crimes Ordinance.  In particular, he invites the court to have regard to the judgment of this Court in HKSAR v. Xu Xai Li [2004] HKC 16, in the course of which judgment a review was conducted of earlier relevant judgments of the court (see paragraph 10 at page 20-21F).

15. In addition to the judgment of this Court in Xu Xai Lai, Mr McGowan has invited the court to have regard to the trial judge’s Reasons for Verdict in that case and, in particular, his findings in relation to the conduct of the two applicants in ‘laundering’ the money.  In that case, the two appellants were convicted after trial, each of a single charge of conspiracy alleged to have occurred between 15 and 24 October 2001, to deal with property knowing or having reasonable grounds to believe that it represented the proceeds of an indictable offence.  On 14 October 2001 the 1^st appellant came to Hong Kong from the Mainland, and on 15 October 2001 opened a bank account at the Sceneway Gardens branch of the Standard Chartered Bank, of which she was the sole signatory, and deposited a cheque in the sum of $11 million into the account.  She departed for Canada on 16 October 2001, where she stayed in the house provided to the 2^nd appellant by a man called Kwong.  On 18 October 2001 she gave instructions by telephone for the transfer of $10.2 million from the account to a Canadian dollar account that she held with the same bank and of which he was the sole signatory.

16. The 1^st and 2^nd appellants came to Hong Kong together on 22 October 2001.  On that day the 1^st appellant effected a number of banking transactions : first, the return of all but CAD$50,000 from her Canadian dollar account to the account that she had opened on 15 October 2001, secondly the transfer from that account by cashier’s orders of $2 million each to bank accounts in her name with the Hong Kong Bank and Hang Seng Bank respectively, thirdly the withdrawal from that account of $1,010,000 in cash and finally the hiring of two safety deposit boxes and Hang Seng Bank.  On 23 October 2001 the 1^st appellant transferred from that account $1.5 million to each of her accounts with Hong Kong Bank and Hang Seng Bank respectively, after which she withdrew the balance of just over $2.2 million in cash and closed the account.  Also, on that day she withdrew in cash the remaining amount of CAD $50,000 from her Standard Chartered bank Canadian account.  On 24 October 2001 the 1^st appellant caused a further five banking transactions to occur together with opening another bank account in her name with the Hang Seng Bank into which she transferred money.  On her arrest on 25 October 2001 a total of $2.8 million and CAD $20,000 in cash was found in the two safety deposit boxes

17. In summarising the transactions in which the 1^st applicant, Xu Xai Li, had been involved the trial judge in that case said :

“…in a three-day period she conducted 16 transactions in five bank account the original source of the funds involved in those transactions being the cheque for $11 million..”

However, earlier he had noted that in respect of each transaction of any nature with the bank the 1^st applicant had provided her genuine personal particulars.

18. Of the 2^nd appellant’s conduct in ‘money-laundering’ in Xu Xai Li, the trial judge had found that following the deposit of $3 million in total into two accounts in her name, one with the Standard Chartered bank and the other with the Hang Seng Bank, on 16 October 2001 she had conducted 12 transactions involving six bank accounts of which “the original source of at least a portion of the firms involved in those transactions being $3 million transferred to her by Kwong on 16 October 2001”.

19. The judge at trial took a starting point of three years imprisonment and imposed the sentence on each of the applicants.  Woo VP, in giving the judgment of this Court, said that the sentences were not to be criticized.

20. Mr McGowan went on to point out that the starting point of five years imprisonment was the same starting point taken by the trial judge in sentencing in HKSAR v. Wong Ping Shui Adam [2001] 1 HKC 600.  He submits that the facts of that case reveal a far more serious and heinous offence.  In his review of other judgments of this Court, in his judgment in Xu Xai Li, Woo VP summarised the relevant facts thus :

“The offence was exposed by an ICAC undercover agent who represented that the funds to be laundered were from protection or extortion and prostitution activities in Russia.  The plan suggested by the applicants to the agent was for the transfer of substantial sums of money from such activities to casino operators in the Hong Kong and Macau who were to take a 9% commission before returning the balance of the money to be laundered.”

Mr McGowan accepted that the Court of Appeal in Wong Ping Shui Adam had said that the sentences imposed were not “one day too long.”

21. Next, Mr McGowan has drawn the attention of the court to its judgment in HKSAR v. Abayomi Bamidele Fayomi, CACC197/2005 (unreported).  In that case, the applicant was convicted after trial of three charges of ‘money-laundering’, contrary to sections 25(1) and (3) of the Organised and Serious Crimes Ordinance, Cap. 455.  The applicant had opened a bank account in the name of Global Investment Company (“Global”), of which he was the sole signatory, in Hong Kong on 21 November 2003.  The victim, a resident of the United States of America, was contacted by e-mail and informed by a person purporting to be a barrister that he was the beneficiary of an estate to the extent of US$8 million.  In due course, he was advised that, before that money could be released by a Nigerian bank monies had to be received by them.  As a result, in the period 18 February to 2 March 2004 the victim transferred US$ 160,000, as requested, to the bank account of Global in Hong Kong.  The equivalent of that amount of money in Hong Kong dollars at that time was $1,243,261.  Almost all of that money was withdrawn from that bank account by the applicant within a short period of time.  It was the judgment of this Court that the sentence of three years and three months imprisonment imposed upon the applicant, it having being discounted from a starting point of three years and six months imprisonment for the applicant’s clear record and the manner in which the defence had been conducted at the trial, could not be criticized.

22. Finally, in his oral submissions Mr McGowan drew the attention of the court to the factors advanced in mitigation of sentence before the judge, including the fact that there had been an early intimation to the prosecution of the prospective pleas of guilty, so that it had been unnecessary for them to have embarked on what, Mr McGowan contended, would have been the onerous and time-consuming requirements of preparing for the presentation of a ‘money-laundering’ case at trial.  He invited the court to note that in Mak Shing (see CACC332/201, page 6, paragraph 29) and Xu Xai Li (see [2004] 4 HKC 16 at page 27, paragraph 38) in dealing with appeals against sentence imposed on appellants convicted after trial this Court had discounted sentence, from the appropriate starting point, to take account of the manner in which the defence had been conducted at trial which had resulted in the saving of the time of both the prosecution and the court.  Mr McGowan submits that the judge had not afforded the applicants a discount to reflect this factor.

The submissions on behalf of the respondent

23. Mr Sean, on behalf of the respondent, produced a written summary of the judgments of the judgments of this Court that he submitted were relevant to sentence in this case.  Of the conduct of the two appellants in Xu Xai Li, Mr Sean says that, by comparison, the applicants in this case took more steps in the ‘money-laundering’ then did the two ladies in that case.  No doubt, it was in light of that submission that Mr McGowan invited us to have regard to the trial judge’s Reasons for verdict in Xu Xai Li.  He acknowledged that the amount of money ‘laundered’ in that case was respectively $11 million and $3 million.

24. He invites the court to note that in Abayomi the total amount of money ‘laundered’ was $1,243,261 and that this Court upheld a sentence of three years and three months imprisonment imposed after a starting point had been taken of three years and six months imprisonment.  Of Mak Shing, he asks the court to note that $1.5 million was ‘laundered’ and this Court said that the appropriate starting point should have been four years rather than five years imprisonment.

25. Finally, he draws our attention to the judgment of the court in HKSAR v. Javid Kamran, CACC400/2004 (unreported).  In that case, on a plea of guilty to two charges of unlawfully trafficking in dangerous drugs and one charge of ‘money-laundering’ in the sum of $1,190,264 the judge had taken a starting point of four years imprisonment and imposed a sentence of 32 months in respect of the latter offence.  In the judgment of this Court, delivered by Yeung JA, it was noted that the appellant was a drug trafficker who had allowed his bank accounts to be used for ‘laundering’ drug money for a period of 18 months and that there was no international element.  In the result, this Court said that the appropriate starting point ought to have been three years, rather than four years, imprisonment and reduced the sentence imposed on that charge to two years imprisonment.

26. Mr Sean conceded that, having regard to the relevant facts of this case, including the amount of money involved and the respective roles of the two applicants the starting point of five years imprisonment taken by the judge at trial for Charges 1 and 2 was on the high side.  He submitted that a starting point of four years imprisonment would have been more appropriate.

A consideration of the submissions

27. At the outset it is convenient to deal with the matter raised in oral argument by Mr McGowan in respect of the discount of sentence, from the starting point, afforded by the judge to the applicants in imposing sentence.  The judge stated: “I give you full credit for a guilty plea.”  Thereafter, it is clear that she went on to discount the starting point by one-third.  It appears to be Mr McGowan’s submission that there ought to have been some discount additional to the one-third discount, afforded to the applicant by the judge, to reflect the fact that the early intimation of pleas of guilty had saved the prosecution the task of preparing the case for trial as opposed to preparation for pleas of guilty.  We are bound to say that on its face it would appear that the prosecution case was of narrow compass and not unduly onerous for the prosecution to prepare and present. However, in any event, as this Court has indicated on numerous occasions the various consequences beneficial to the prosecution, its witnesses and the court that flow from a ‘timely’ plea of guilty are all subsumed within the discount of one-third from the starting point that is now almost invariably afforded to defendants who enter a ‘timely plea’ of guilty.  Accordingly, there is no merit in the submission. 

28. As this Court has said on previous occasions, given the widely varying circumstances in which offences of ‘money-laundering’ may be committed, it is not possible to articulate guidelines for sentence.  Of the purpose of the legislation and the seriousness of the offence Woo VP said in the judgment of this Court in Xu Xai Li (see [2004] HKC 16 at page 23E-H, paragraph 18) :

“The prohibition of the offence is in order to strike at those who give assistance to criminals to dispose of or retain their ill-gotten gains as if they were derived from legitimate activities.  Without the assistance of money launderers, it would be more difficult for criminals to clothe their illegal proceeds with the same respect as lawful gains and the chances of law enforcement detection of illegal activities that produce monetary benefits would be enhanced.  Money laundering is therefore treated as a serious offence.  If money laundering activities were allowed to be carried out in Hong Kong with impunity or treated lightly with minor penalties it would mar Hong Kong’s reputation as a world-class financial and banking centre.”

29. In the judgment of this court in Kamran, Yeung JA, having observed that it was not possible to lay down guidelines for sentence for ‘money-laundering’ offences, enumerated some of the factors that might be relevant in determining the culpability of a defendant(see HKSAR v. Kamran,CACC400/2004 at paragraph 35) :

“Other factors include 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.”

The role of the applicants in the commission of the offences the subject of Charges 1 and 2

30. As the judge noted in her Reasons for Sentence the applicants are both nationals and residents of India who had come to Hong Kong to commit the offences with which they were charged.  They had done that twice : once in September 2005 when they opened bank accounts with the Tsim Sha Tsui branch of the Bank of Communications, the 1^st applicant in the name of Transworld and the 2^nd applicant in the name of First Financial Services, and secondly, in late March 2006 when each of them approached the same branch of the bank and asked to add the name of Jain Rajesh to the signatories of the two accounts of which, at that stage, they were the sole signatories respectively.  In addition, the 1^st applicant asked that the e-mail banking facility of Transworld be re-activated.

31. In order to open the two bank accounts, each of the two applicants had presented to the bank not only a business registration certificate in the name of the company in which they wished to open an account but also what purported to be their respective passport, bearing their name, photograph and a Hong Kong Immigration Department chop indicating that the holder of the passport was permitted to be in Hong Kong.

32. Clearly, those bank accounts, they having been opened on 26 September 2005, were being prepared for the approaches that were made in due course to the three victims involved in the conduct that is the subject of Charges 1 and 2.  The victim in Charge 2 was contacted in October 2005 by e-mail and he made remittances of money to the bank account of First Financial Services between January and March 2006.  The victims of Charge 1 made remittances of money to the bank account in the name of Transworld between December 2005 and March 2006.

33. Following the arrest of the applicants on the afternoon of 29 March 2006 on the 31 March 2006 the bank accounts of both Transworld and First Financial Services were frozen.  The latter account was in credit to the amount of US$28,086 and HK$9,998, namely more than twice the amount that had been remitted to that account by the victim of Charge 2.  By contrast, the account of Transworld was in credit to the extent of only US$261,051 and  €42,151, that is to say more than US$300,000 and €167,000 less than the total amount of that between them the two victims of Charge 1 had transferred to that bank account. 

34. The disbursement of monies from those two accounts was described in the Summary of Facts presented to the court on plea, without any condescension to detail, in these terms: 

“Investigation revealed that such money remitted into Transworld’s account and first financials account was diverted into various local and overseas bank accounts.”

Of course, throughout the sole signatories of the two accounts were the respective applicants.

35. The judge accepted the purposes of sentencing the applicants that neither of them was related to the culprits who perpetrated the fraud. She said that they were motivated to commit the offences for “personal gain, free trips to Hong Kong and a fee”. As observed earlier, in determining the starting point appropriate for sentence the judge said :

“7.   Counsel agree that a global approach would be appropriate in this case.  I adopt a global starting point of five years imprisonment.

8.    For Charges 1 and 2, using a starting point of five years, I give you full credit for a guilty plea.  The sentence is reduced to 40 months.”

36. The Judge’s reference to taking a global starting point is understandable only in the context of an interchange between Mr McGowan, appearing for the applicants at trial, and the judge :

“MR McGOWAN:  …. Really, I would suggest, your Honour, the two offences - or three offences for each defendant are intrinsically linked.  The passport is part of the...

COURT:  You say they’re part and parcel of the same scheme.MR McGOWAN:  Yes, that’s exactly right and effectively committed as part of the conspiracy - a necessary part of the conspiracy.  It’s not something they produced, as you’ve heard...

COURT:  Why is it a necessary part of the conspiracy?  Very often you get people who agree to open accounts in their own names to receive and dispose of moneys.  It’s not every time that they use false documents to open accounts in other names.

MR McGOWAN:  Yes.  It might, perhaps, be something to do with the age of these two defendants.  They were both under 21 at the time but they were acting on instructions; this is what they were told to do, and they were provided with the necessary means to do it.”

The interchange concluded a little later :

“COURT:  I presume you’re asking for global approach for all the offences.

MR McGOWAN:  Yes.  As I say, I think they’re all really wrapped together, your Honour.”

37. Clearly, the judge’s approach to sentencing on Charges 1 and 2 was to take into account that fact that the use of the false passports by the two applicants in the opening of the bank accounts of Transworld and First Financial Services respectively was an integral part of the conspiracy alleged in the respective Charges 1 and 2.  As the judge had observed in the interchange with Mr McGowan, very often those involved in these kinds of offences use their own names and bank accounts to facilitate ‘money-laundering’ and do not employ false passports and other documents of identification to do so.  That there is a truth in the judge’s observation is, perhaps, borne out by the fact that in none of the authorities to which we have been referred in the hearing of these applications has there been any reference to bank accounts used for ‘money-laundering’ that were opened by the use of false passports.  At all events, clearly the use of the two false passports was a factor in aggravation of the offences committed in Charges 1 and 2.  It evidenced a degree of pre-planning and sophistication absent in many other cases.

38. Whilst both Charges 1 and 2 allege conspiracies to deal with property known or reasonably believed to represent the proceeds of an indictable offence, in each case the substantive offence had been completed.  A factor relevant to sentence, but only one of such factors, is the amount of money that was ‘laundered’ in the accounts.  Converting the total US dollars and Euros received into the two bank accounts into their Hong Kong dollar equivalent the judge calculated that over $6.6 million had been received into the accounts and $3.9 million lost to the victims.  It is to be noted that in Abayomi, which also falls to be described as a ‘Nigerian money transfer fraud’, in which the applicant had opened the bank account and was its sole signatory of the amount of money ‘laundered’ in the account was $1,243,261.  There this court was satisfied that is a sentence of three years and three months imprisonment resulting from a starting point of three years and six months imprisonment was not excessive.  Of course, the amount of money received into the two accounts subject of Charges 1 and 2 was over five times that amount.

39. In the context of the relevance of the amount of money received into and dissipated from an account used to ‘launder’ money it is to be noted that in Xu Xai Li the 1^st appellant had received into an account that she had opened especially for the purpose HK$11 million all of which had been transferred out of that account, which had been closed before her arrest.  By contrast, the 2^nd appellant received into two pre-existing accounts in her name $3 million all of which monies had been transferred out of those accounts and largely dissipated by the time of her arrest.  In the judgment of this court delivered by Stuart-Moore VP in Abayomi it was noted that (CACC197/2005, page 5, paragraph 9) :

“There, the court was dealing with two appellants charged with conspiracy to launder $11 million and $3 million respectively, both of whom received the same sentence.”

Conclusion

40. In our judgment, the judge was clearly correct in having regard to the use by the respective applicants of the false passports to open the two bank accounts, into which remittances from the victims were received subsequently, as acts in furtherance of the respective conspiracies in determining the appropriate starting point for sentence for Charges 1 and 2.  That conduct was a factor of aggravation in the commission of the offences.  In addition to the fact that each of the applicants, being residents of India, had travelled to Hong Kong twice in order to commit acts in furtherance of the conspiracy relevant to sentence was the fact that each of them was a conspirator for a period of over six months during which time, as the sole signatories to the respective accounts, they effected such transfers as there were out of the accounts.

41. In the result, we are satisfied that the judge was entitled to take a starting point for sentence in respect of Charges 1 and 2 of five years imprisonment and, having given the applicants the appropriate discount of one-third from the starting point for their pleas of guilty, to have imposed concurrent sentences of three years and four months imprisonment for those charges.  Having taken the use of the false passport into account in determining the appropriate sentence in respect of Charges 1 and 2 it was entirely appropriate that the sentences imposed on the respective applicants for Charges 3 and 4 were ordered to be served concurrently with the other sentences.  Accordingly, for the reasons that we have given we dismissed the applications for leave to appeal against sentence.