HKSAR v. CHAN HAU LIM

DCCC137A/2011

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 137A OF 2011

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Reasons for Sentence

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1.  The defendant Chan Hau-lim faces three charges of money laundering offences. He pleads not guilty to Charges 1 and 2 but guilty to Charge 3. He is convicted of Charge 3 accordingly. Charges 1 and 2 are left in court’s file, not to be proceeded with without the leave of the court.

2.  The Summary of Facts reveals that enquiries were made by the police into the financial affairs of the defendant.  Between 2002 and 2009, the defendant filed tax returns to the Hong Kong Inland Revenue Department only in the years 2006/2007 and 2007/2008 as a sales manager of a motor company with a monthly salary of $50,000.

3.  He was the account holder of a HSBC bank account in which suspicious fund flows were found between 16 October 2002 and 29 January 2005.  In summary, there were 95 cash deposits, 270 transfer deposits and 23 cheque deposits amounting to a total of about $13 million.  All the monies in the account were withdrawn by 146 cash withdrawals and 368 transfer withdrawals.

4.  The defendant was arrested in November 2010. Under caution, he remained silent.  The defendant is admitting the charge on the basis that he had reasonable grounds to believe that the monies deposited into his account represented the proceeds of an indictable offence and he dealt with it.

Defendant’s personal background

5.  The defendant is now aged 31, a widower with two children aged 7 and 8 respectively.  He received education up to Form 3.  He was previously a sales manager in a motor company and a dispensary.  Defendant’s late wife, originally the 2nd defendant in this case, committed suicide in April 2011 because purportedly she could not stand the pressure of the proceedings.

6.  The defendant has three previous criminal convictions, with one involving blackmail and membership of a triad society in 1999.

Mitigation

7.  Mr Souyave has in his usual helpful manner most ably made submissions in mitigation on behalf of the defendant.  He has placed emphasis on the defendant’s active involvement in voluntary community service and the family tragedy as a result of the passing of the defendant’s wife.

8.  He also points out that although the defendant has a criminal record, the records were back in more than 10 years ago when the defendant was only a youngster.  Moreover, the offence in this case was committed long ago between 2002 and 2005.

9.  A number of mitigation letters from leaders involved in voluntary community work and church pastor have been submitted to this court for consideration.  I have duly noted the contents of these letters. 

10.  Pictures of the defendant are also handed up in support of his plea of community service.

11.  Relying on two cases, HKSAR v Boma [2012] 2 HKLRD 33 and HKSAR v Lee Ka Ki CACC148/2007, Mr Souyave submitted that a starting point in the present case should not be higher than 3 years.

12.  He also refers me to the sentences which I passed in respect of another two defendants who were split from the present case.  However, I do not think that the references to the other defendants would be of much assistance in this case as the facts of the charge to which the defendant in this case has pleaded guilty are not connected with the other defendants.  They all have different facts and background of their own. 

Sentencing consideration

13.  Money laundering is a very serious offence.  The maximum sentence is one of 14 years’ imprisonment.  There is no tariff in this offence as the circumstances of each case may vary infinitely.

14.  Without laying guidelines, the Court of Appeal has in a few cases found it helpful to provide some factors which a sentencing court should consider.  These factors can be seen recently in HKSAR v Hsu Yu Yi [2010] 5 HKLRD 545, HKSAR v Leung Wai Wah CACC201/2011 and Secretary for Justice v Wan Kwok Keung CAAR13/2010. 

15.  These factors include:

(1) Amount of money laundered;

(2) Nature of the underlying offence;

(3) Extent to which the offence assisted the underlying crime;

(4) The degree of sophistication of the offence;

(5) The defendant’s participation and knowledge;

(6) International element; and

(7) Whether the offence involves one transaction or many and the length of time over which the offence was committed.

16.  Two of the factors are relevant in the present case: 1, the amount of money laundered; 2, the number of transactions and length of the offence.

17.  Mr Souyave relies on Lee Ka Ki where the defendant laundered about $17 million over nearly two years.  The Court of Appeal, taking into account of the defendant’s clear record, says the appropriate staring point should be 3 years. 

18.  In this case, through the use of the defendant’s account, about $13 million had been laundered.  The offence was committed by a total of about 900 transactions of deposits and withdrawals over a period of 2 years and 3 months.  The period over which the offence was committed is longer than that in Lee Ka Ki. 

19.  While it is correct to say that the criminal record of the defendant was back in more than 10 years ago, he cannot claim privilege of unblemished record.

20.  In my judgment, the appropriate starting point for the defendant should be 3 years and 3 months.

21.  The defendant is entitled to one-third reduction of the sentence for his plea of guilty. 

22.  The defendant has provided evidence to show that for years he has been involved in voluntary community service to help the mentally retarded and the elderly.  He has also made financial donations to help others.  His conduct is meritorious and should be encouraged by recognition of the court.

23.  I also have sympathy for the defendant’s two young children who lost their mother last year.  The unfortunate passing of their mother must be a great shock to them.  I also believe that the loss of liberty of their father will be another heavy blow to them. 

24.  It may well be the price that the defendant has to pay for committing a serious crime, however, it is also true that the defendant’s family has indeed suffered an enormous tragedy.

25.  In the circumstances I will give the defendant an overall reduction of 3 months on top of the one-third reduction.  The defendant is therefore sentenced to 23 months’ imprisonment.