HKSAR v. LO WAH LEUNG

 DCCC1407/2009

IN THE DISTRICT COURT OF THE

HONG KONGSPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 1407 OF 2009

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Reasons for Sentence

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1.  The defendant was charged with one count of bookmaking and three counts of money laundering. He pleaded guilty to Charges 1 to 3 consequent upon plea bargaining. I convicted him of Charges 1 to 3 and ordered that Charge 4 be left on court file.

The prosecution’s case

2.  On 11 July 2008 a team of police officers raided Snow Garden Restaurant which was situated at City Garden, Electric Road in North Point. At that time the defendant was the deputy manager of the restaurant and was present at the time of the raid.

3.  The defendant’s locker in the restaurant was searched, and 28 pieces of bookmaking betting slips (Exhibit 1 to 28) were found.

4.  Under caution, the defendant admitted that previously he had engaged in bookmaking but later ceased doing so. These exhibits were bookmaking slips documenting the bets he had received.

5.  Subsequently, the defendant further admitted that:

(1)  he started to receive bets on football matches from his colleagues in 2005;

(2)  he also started to take bets on Mark Six in 2007;

(3)  he ceased to do the bookmaking since May 2007 as the punters failed to repay the gambling debts to him;

(4)  the defendant forgot when the bets were placed and when he made the records, except Exhibit 19 which was dated 23 January 2005.

6.  The gambling expert analysed the betting slips and considered that Exhibit 2 and 4 were bookmaking betting slips recording the bets on Mark Six, and the total amount of the bets involved was 2,645. For Exhibits 6, 9, 11, 14, 15 and 21, they were betting slips recording the bets by a bookmaker on some football matches. The total amount of the bets was $138,800.

Charges 2 and 3

7.  Financial investigation into the defendant’s accounts was conducted, and two bank accounts with the Hang Seng Bank and Nanyang Commercial Bank respectively were analysed.

8.  The Hang Seng Bank account relating to Charge 2 was opened in May 1993 and remained active. The defendant was the sole signatory to the account. Between 1 January 2005 and 31 May 2007 suspicious fund flows were discovered. A total of $656,000-odd was deposited into this account by various means, such as cash, transfer and cheque deposits.

9.  After analysis, it was suspected that 116 deposits in the sum of $592,000-odd were made, and a total of $434,000-odd were deposited on Mondays and Thursdays. And that accounted for some 73 per cent of the total sum. On the other hand, a total of $655,000-odd was withdrawn from the account by means of cash withdrawal and transfer. It was suspected that 153 suspicious withdrawals in the sum of $601,000-odd were made, out of which $273,000-odd was withdrawn on Mondays and Thursdays. That accounted for 45 per cent of the sum.

10.  Regarding Charge 3, the Nanyang Commercial Bank account was opened on 22 December 2003 and was closed on 12 September 2005. The defendant was the sole signatory. Between 1 January and 12 September 2005 suspicious fund flows were detected. A total of $762,000-odd was deposited into the account by means by cash, transfer and cheques. It was suspected that 30 suspicious deposits in the sum of $762,000-odd were made, out of which $459,000-odd were deposited on Mondays and Thursdays. That accounted for 60 per cent of the sum.

11.  In relation to the withdrawals, a total of $767,000-odd was withdrawn. It was suspected that 69 suspicious withdrawals in the sum of $767,000-odd were made, out of which $559,000-odd were withdrawn on Mondays and Thursdays. That accounted for 72 per cent of the sum.

12.  According to the records of the Inland Revenue, the defendant had a reported income between 1 April 2003 and 31 March 2008 ranging from $192,000 to $196,000 odd.

Mitigation

13.  Defence lawyer for the defendant prepared a written mitigation. It was submitted that the defendant pleaded guilty to the three charges. He was cooperative with the police after his arrest. He admitted under caution that he had engaged in bookmaking before but had ceased to do so. The slips found in his locker were old betting slips. The defendant acted as a middleman in the bookmaking activities when he started to receive bets from his friends and associates. He would get 3 per cent as his commission.

14.  Between 1 January 2005 and 31 May 2007 for a time span of 29 months, the total amount of deposits and withdrawals from the two bank accounts was about 1.35 million. It was submitted that the defendant was prejudiced by the delay as he was arrested in July 2008 and was only charged on 2 December 2009. That caused mental disturbance to the defendant.

15.  The defendant was born in Hong Kong, aged 42, with one daughter. He was unemployed lately. He has previous minor convictions. The defendant is remorseful and pleads to this court to pass a lenient sentence.

Sentence

16.  The defendant had four convictions of theft in October 1980 and one of theft (shoplifting) in 1991. I would not take these previous convictions into account for the present sentencing purposes.

17.  I also consider that the facts of this case disclosed that the defendant was involved in a relatively small scale of bookmaking activities. I take note that the period of the bookmaking operation was between January 2005 and May 2007. There was no evidence to suggest that the defendant kept on perpetrating the activity after May 2007. Nevertheless, the bookmaking activities, albeit small scale, occupied a time span of some 29 months. The sum involved might well be around $140,000.

18.  On this charge, I would take a lenient sentence and adopt a starting point of 12 months. Given the guilty plea of the defendant, I would reduce the sentence to 8 months.

19.  As regards Charges 2 and 3, the total suspicious deposits made into these two bank accounts amounted to about 1.35 million. There was no indication of the involvement of a large syndicate, nor was there any international element. The Hang Seng Bank account was opened in 1993 while the account with the Nanyang Commercial Bank in 2003.

20.  As submitted by defence lawyer, the underlying offence for the money laundering offences was bookmaking, not other serious transnational crimes. That said, it has been repeatedly emphasized by the Court of Appeal that money laundering is a very serious offence as it is an attempt to legitimise proceeds from criminal activities. Successful deterrents against money laundering could be effective measures against crimes. However, there is no sentencing guideline for this offence.

21.  I have considered HKSAR v Javid Kamran CACC400/2004, HKSAR v Choi Sui Hey CACC277/2007 and HKSAR v Chen Zhen Chu [2007] 5 HKC 505. For Charges 2 and 3, I would adopt a starting point of 2½ years for each count. With the plea, I reduce the sentence to 20 months for each count and these two sentences are to run concurrently.

22.  I do not consider there is any undue delay on the part of the police to prosecute the defendant as financial investigation was often time consuming. However, I do take into account of the totality principle and order that 3 months of the sentence for Charge 1 to run consecutively with the remaining sentence. That is to say, the defendant is to be sentenced to 23 months.