HKSAR v. LAM MAN YIN

CACC 306/2025, [2026] HKCA 1029

On Appeal From [2025] HKDC 1306

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO 306 OF 2025

(ON APPEAL FROM DCCC NO 923 OF 2022)

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J U D G M E N T

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1.  The applicant pleaded guilty on 17 March 2025 in the District Court before Deputy Judge Peony Wong (“the judge”) to a charge of conspiracy to deal with property known or believed to represent proceeds of an indictable offence, contrary to section 25(1) and (3) of the Organized and Serious Crimes Ordinance, Cap 455 and sections 159A and 159C of the Crimes Ordinance, Cap 200. On 31 July 2025, she was sentenced to 25 months and 15 days’ imprisonment (representing a 50% discount from a starting point of 51 months’ imprisonment).

2.  By her Form XI filed on 7 August 2025, the applicant seeks leave to appeal against her sentence. The respondent opposes the application.

3.  On 28 May 2026, I heard arguments from the parties and reserved judgment, saying that I would hand down my decision in due course. This is my decision.

The facts of the case

4.  The case arose from an email scam targeting GM Plast A/S, a Danish company (“the Company”). Between 12 and 26 April 2018, the Company’s Chief Financial Officer received five fraudulent emails purporting to come from the Company’s CEO, attaching forged invoices. The Company accordingly remitted a total of US$3,130,555.10 to various Hong Kong bank accounts[1].

5.  In relation to one of the five fraudulent emails, on 30 April 2018, the Company made a remittance of US$825,946 to the Dah Sing Bank account of Funson Trading Limited Hong Kong (“Funson”)[2].

6.  The applicant became Funson’s director and shareholder on 1 November 2017 and was the sole authorised signatory of the Funson account, which she opened on 26 January 2018[3]. On 30 April 2018, US$245,740 was transferred out of the Funson account to Interlinks International Limited[4].

7.  The applicant was arrested on 15 May 2019[5]. WhatsApp messages on her telephone revealed that she regularly sought and received instructions from Wong Sai-kui, Wilson (“D2”) to open various bank accounts[6]. In her video recorded interview, the applicant admitted that she was heavily in debt and accepted the job from D2 to earn quick money[7].

8.  The applicant provided two non-prejudicial statements (on 28 April 2023 and 18 January 2024) and testified as a prosecution witness at the trial of D2 and another defendant (“D3”)[8]. Although D2 and D3 were acquitted, the judge accepted the applicant’s evidence and accorded her a 50% discount of the appropriate starting point for sentence[9]. No issue is taken by either party with this discount.

Sentence

9.  The judge identified the relevant sentencing factors set out in HKSAR v Boma[10]. She noted that the applicant had no knowledge of the predicate offence; however, the fact of an email scam as the predicate offence, the international element (the victim being a Danish company), the sophistication of the offence, the involvement of a criminal syndicate, and the six-month duration of the conspiracy were all relevant sentencing considerations[11].

10.  Although the actual loss attributable to the Funson account was US$245,740, the judge took into account that the sum deposited by the Company was US$825,946 and that the potential loss should not be completely disregarded[12].

11.  The judge considered the authorities of Secretary for Justice v Wan Kwok Keung[13] and HKSAR v Hsu Yu Yi[14], concluding that the present case was more serious than both of them: the amount involved in the present case (the equivalent of some HK$6.5 million) was larger than in Hsu Yu Yi (where the appellant had personally dealt with approximately HK$2.5 million), while the present offence was more sophisticated and involved an international element and syndicate unlike the circumstances in Wan Kwok Keung[15].

12.  On the issue of delay, the judge found that there had been no dilatory or neglectful conduct on the part of the authorities or the prosecution[16]. She held that the time spent reflected the normal workings of the criminal justice system and that there was no delay warranting any further discount. If she was found to be wrong on that issue, she observed that there had been no prejudice to the applicant from any delay such as a thwarted or interrupted rehabilitation process or substantial stress or uncertainty which would justify an additional discount[17].

13.  The judge adopted a starting point of 51 months’ imprisonment[18] and, discounting the starting point by 50% discount for plea, passed a sentence of 25 months and 15 days’ imprisonment.

Grounds of appeal

14.  Mr Edward TC Chan, on behalf of the applicant, seeks leave to appeal on two grounds:

(i)  the judge failed to find that there had been any delay in the case or failed to grant any discount for delay, notwithstanding the prosecution’s admission that there had been delay over a certain period of time (specifically, between 28 February 2023 and the end of 2023); and

(ii)  the judge erred in adopting a starting point of 51 months’ imprisonment, which was manifestly excessive in all the circumstances, and failed to consider or adequately consider that the case was a “wheel conspiracy” in which the applicant had a limited role.

The respondent’s submission

15.  Mr Andrew Li, for the respondent, opposes the application and submits that:

(i)  on Ground 1, the judge was entitled to find that there was no undue delay or that any delay was not such as to require any discount. The judge accepted prosecuting counsel’s explanation that work was in fact done during the relevant period and, in any event, there was no rehabilitative progress on the applicant’s part or significant stress occasioned to her so as to justify a discount; and

(ii)  on Ground 2, the starting point of 51 months was not manifestly excessive. The judge correctly identified the relevant sentencing factors, the applicant's limited role was taken into account, and the sentence fell within the range of sentence indicated in the authorities of Hsu Yu Yi and Wan Kwok Keung.

Consideration

Ground 1: Delay

16.  The applicant’s case on delay focuses on a letter dated 11 January 2024 from prosecuting counsel on fiat (Mr Tracy) to HH Judge Eddie Yip, requesting that the trial of D2 and D3 (fixed for 24 to 30 January 2024) be vacated[19]. In the letter, prosecuting counsel stated that: (a) the applicant had yet to give a second non‑prejudicial statement; (b) there were 1,063 pages of unindexed and undescribed pictures from a mobile telephone; and (c) certification of translated WhatsApp messages was not ready. The adjournment was granted, and the case was re‑fixed to 17 March 2025, which was over a year later.

17.  Mr Chan submits that the letter is important because it demonstrates that even by January 2024, nearly 11 months after the trial had been fixed on 28 February 2023, basic preparatory work remained incomplete. Furthermore, he contends that after the third mention dated 28 February 2023 when the applicant indicated her guilty plea in court until the last quarter of 2023, nothing or very little was done by the prosecution. He relies on an oral concession made by Mr Tracy, during the sentencing hearing, such as, “there was undoubtedly delay in that period”[20] and “nothing was done in that period” until a new senior inspector was assigned[21].

18.  However, the judge had stood down the matter for Mr Tracy to take instructions and clarify the matter[22]. After a short adjournment, prosecuting counsel stated that he may have laid too much emphasis on the fact that no active work was undertaken during that period. He clarified that “some work was going on including the processing of electronic information on the phones and that, because they were investigating a very large amount of material took a very considerable time.”[23]  The judge was plainly alive to the issue and also questioned Mr Tracy on the ongoing work in relation to checking the mobile telephones and messages[24].

19.  This is consistent with the judge’s Reasons for Sentence at [28]-[34][25]. She set out the chronology, noted that the refixing of the trial from 24 January 2024 to 17 March 2025 was due to the need to translate and certify 7,000 pages of WhatsApp records and for the applicant to provide a more detailed non-prejudicial statement. She also observed that D3 was not arrested until 30 June 2020, and that the case involved an overseas victim in a different time zone and bank documents from three different banks involving multiple bank accounts[26].

20.  The judge cited HKSAR v Chiu Chi Wing[27] and correctly directed herself that delay caused by dilatory or neglectful conduct by the State may result in a discount, but that delay is not of itself a mitigating factor. She concluded that there had not been any dilatory or neglectful conduct and that the time spent reflected the workings of a normal criminal justice system. In the alternative, she found no rehabilitation progress beyond the part-time job already advanced in mitigation, and no stress resulting from uncertainty that would have justified an additional discount. I would agree with Mr Li that the judge has met the argument for discount on delay head on, cited the relevant authority and dealt with the arguments for and against it in a principled way. Since it is very much a discretionary matter, it will ultimately be incumbent on the applicant to demonstrate that the judge’s exercise of discretion miscarried.

21.  My function at this stage is to decide, not whether I would have reached a different conclusion, but whether the judge’s discretionary exercise is reasonably open to attack in an appellate court. In this regard, I would observe that the judge had the advantage of presiding over the trial of D2 and D3 and assessing the volume and importance of the documentary exhibits. The period of alleged inaction (at most nine months) must be viewed in the context of the overall chronology of the case. The applicant was arrested in May 2019, the case reached the District Court in October 2022, and the trial was originally fixed for January 2024. There were problems for everyone from 2020 to 2022 in the context of the Covid pandemic, which resulted in two General Adjourned Periods (“GAPs”) in the entire court system from 29 January 2020 to 3 May 2020, and from 7 March 2022 to 11 April 2022. Whilst this case would not have been directly affected by the two GAPs, it is well known that there was a considerable interruption in the investigation of all cases, as well as a backlog generated at all levels of the court system, over a three-year period. The need to translate thousands of pages of WhatsApp messages and to obtain further evidence or assistance from the applicant were obvious reasons for the adjournment.

22.  In any event, there was a specific finding of no prejudice to the applicant, even if there had been some delay. Ultimately, even if this ground were to succeed, it could only result in reducing the applicant’s sentence by a token period of perhaps 3 months’ imprisonment at most. However, I am not persuaded that it is reasonably arguable there was such delay so as to warrant any further discount of sentence. For these reasons, I refuse leave to appeal on this ground.

Ground 2: Starting point manifestly excessive / wheel conspiracy

23.  The applicant submits that the judge failed to give adequate weight to her limited role in a “wheel conspiracy”, where the central conspirators (D2 and D3) were the hub and she was merely a spoke in the wheel. Reliance is placed in this regard on HKSAR v Lam Tsz Him[28].

24.  However, it seems to me that the judge expressly considered the applicant’s role. She accepted that there was no evidence to suggest the applicant knew anything about the predicate offence and that she was “merely executing orders”[29]. Furthermore, the judge noted that much planning was involved in recruiting the applicant, that she was provided with company documents to study, and that she was coached on answers to give to bank staff[30]. She noted that the applicant took a “liaison role between the bank and D2 to pass on messages”[31].

25.  The fact that this was a wheel conspiracy does not automatically reduce the applicant’s culpability. This was not a case where the applicant simply lent her account to someone else to launder funds. She had actively participated in deceiving the bank in relation to the business of Funson, had studied company documents, received coaching, and followed up with the bank when necessary. I do not see any reasonable argument that the judge has wrongly identified or assessed the applicant’s role in the conspiracy.

26.  As to the starting point of 51 months, the amount dealt with, accordingly to the particulars of the charge, was US$825,946[32]. The judge was entitled, as she did[33], to have regard to potential loss.

27.  Comparisons with other cases, which turn on their own facts, are of limited value, particularly in this area of sentencing where, as Stock VP pointed out in Boma, the variety of circumstances in which money laundering offences are committed make it “neither realistically possible nor desirable to attempt guidelines”[34].

28.  Although Mr Li in his oral submissions has characterised the eventual sentence of 25 months and 15 days as “on the high side”, I consider that the judge has properly addressed the various issues which bore on the sentence she considered appropriate and, despite the able submissions of Mr Chan, I do not see any reasonable argument that the sentence is either manifestly excessive and/or wrong in principle.

Conclusion

29.  Accordingly, the application for leave to appeal against sentence must be refused. The applicant is reminded that she has the right to renew her application for leave to appeal to the Court of Appeal, but she should also be warned that the Court has the power to order the loss of any time which the appellant has spent in custody pending the determination of her appeal, if it should come to the view that there was no justification for the renewal of the application.