HKSAR v. CHOW LAI YING CANDY

CACC 80/2021

[2021] HKCA 1922

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO 80 OF 2021

(ON APPEAL FROM DCCC NO 656 OF 2019)

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J U D G M E N T

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1.  The applicant was charged with 8 charges of dealing 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. On 8 March 2021, she was convicted on her own pleas to Charges 1, 4, 6 and 7 before HH Judge Tam (“the judge”)  in the District Court. The remaining charges were ordered to be left on the court file, marked not to be proceeded with without leave of the court. On 29 March 2021, the applicant was sentenced to 2 years and 7 months’ imprisonment. The applicant now applies for leave to appeal against her sentence.

Particulars of the charges

2.  All four charges to which the applicant pleaded guilty alleged that she had made use of bank accounts under her own name with the Hongkong and Shanghai Banking Corporation Limited (“HSBC”)  and Bank of China (Hong Kong)  Limited (“BoC”)  during different periods of time, and dealt with different sums of money known or believed to represent proceeds of an indictable offence.  The particulars of the four charges were as follows:

Charge	Bank account involved	Period of dealing	Total amount dealt with (HK$)
1	HSBC 438-820664-888 (“AC1”)	9 May 2008 – 13 January 2011	36,942,620.28
4	BoC 012-816-1-007294-8 (“AC4”)	6 May 2006 – 16 December 2010	47,761,009.43
6	HSBC 438-820664-001 (“AC6”)	9 May 2008 – 13 January 2011	15,969,393.82
7	HSBC 506-802248-001 (“AC7”)	14 January 2011 – 31 December 2011	2,423,500.00

The admitted facts

3.  At all material times, the applicant was the sole named account holder of the four bank accounts in question, styling herself as a “housewife” in most of the bank opening mandates.  Both AC1 and AC6 were opened on 9 May 2008 and closed on 13 January 2011.  AC4 was opened in 2003 and closed on 16 December 2010.  AC7 was opened on 14 January 2011. For the period from 1 January 2004 to 27 October 2011, the applicant did not file any tax returns or make any payments to, or enter into any correspondence with, the Inland Revenue Department.  The applicant lived with her husband and family prior to her leaving Hong Kong and remaining living outside the jurisdiction from 1 July 2012 until her arrest on 18 April 2019.  The husband and the daughter were arrested on 3 July 2012.

4.  During the said period, the applicant’s accounts had numerous transactions with her husband, her daughter, Kwok Yun-wah (Kwok), Wong Kwok-chuen (Wong), Mak Kwok-kwong (Mak)  and Leung Shun-wing (Leung), all of whom had also been proceeded against for money laundering offences.  The transactions in the bank accounts involved in each of the charges set out below were not commensurate with the applicant’s background and any legitimate income:

(1)  Between 9 May 2008 and 13 January 2011 inclusive, AC1 received deposits of some HK$36.9 million, all of which was subsequently withdrawn.  The main sources of the deposits were cash, AC6, her husband and her daughter.  Approximately 28.4% of the deposits were withdrawn on the day of deposit or in the following week.

(2)  Between 6 May 2006 and 16 December 2010 inclusive, AC4 received deposits of some HK$47.7 million and all money deposited was subsequently withdrawn.  The main sources of the deposits were cash and Leung.  Approximately 40% of the deposits were withdrawn on the day of deposit or in the following week.

(3)  Between 9 May 2008 and 13 January 2011 inclusive, AC6 received deposits of some HK$15.9 million.  The vast majority of the funds came from AC1 and were withdrawn on the day of deposit.

(4)  Between 14 January 2011 and 31 December 2011 inclusive, AC7 received deposits totalling HK$2.4 million with 99.6% sourced from another account of the applicant in HSBC.  Most of the funds were withdrawn on the day of their deposit or in the following week.

5.  In pleading guilty to the charges, the applicant accepted that at the material times, knowing or having reasonable grounds to believe that property, namely the sums of money in the bank accounts or held in her name with different banks in Hong Kong, in whole or in part directly or indirectly represented a person’s proceeds of an indictable offence, dealt with the said property.

Mitigation

6.  At the time of sentencing, the applicant was 57 years of age and had two previous convictions for minor offences through a single court appearance in 1995.  She was a married housewife, living with her husband, two daughters and a son.  She had had lung cancer in 2019, but that was said to have been resolved[1].

7.  It was submitted that the major money laundering accounts, namely AC1, AC4 and AC6, were closed 18 to 19 months before the arrest of the husband, who was the main culprit.  As a mere housewife, the applicant only had reasonable grounds to believe the husband had engaged in unlawful bookmaking and that her accounts were being used by her husband for related activities.

8.  It was asserted that the applicant had committed the offences out of loyalty to her husband and in accordance with his instructions, which amounted to ‘special circumstances’ warranting the exercise of a further discount on sentence.  However, having taken instructions over the luncheon adjournment, counsel indicated that he would not be calling either the applicant or her husband on the issue[2].

9.  The applicant had gone to the United States in April 2012 with her son, who was then 15 years of age and due to commence his studies there.  When her husband was arrested in July 2012, she continued to take care of her son, and returned to Hong Kong in 2019 to surrender himself.

10.  The judge was urged to order the sentences for the respective charges to run concurrently and adopt an overall staring point of 2½ years’ imprisonment.

Reasons for sentence

11.  Whilst accepting that the predicate offence was unlawful bookmaking, the judge found the applicant at the very least had reasonable grounds to believe and did believe that the property she was dealing with was the proceeds of the unlawful bookmaking operation perpetrated by her husband.  Without evidence, the judge was not prepared to accept that special circumstances, as discussed in HKSAR v Chan Wai Yan[3] and HKSAR v Lai Kam Yee Teresa[4] existed so as to justify any further discount.

12.  Having taken into account the total amount of HK$102.9 million being laundered over a period of 5 years and 7 months, the principle of totality, the predicate offence being unlawful bookmaking carrying a maximum sentence of 7 years’ imprisonment and the sentencing considerations enunciated in HKSAR v Boma[5], the judge adopted a global starting point of 4 years’ imprisonment.  He discounted the starting point by one-third for the applicant’s plea.  Taking into account what the judge described as her “de facto clear record”, and to facilitate an early reunion with her family, the judge granted a further one-month discount.  The ultimate sentence was 2 years and 7 months’ imprisonment.

13.  In arriving at the final sentence of 2 years and 7 months, the judge imposed the following sentences on each charge:

(1)  Charge l: 2 years’ imprisonment;

(2)  Charge 4: 2 years’ imprisonment, 4 months of which was to run consecutively to the other sentences;

(3)  Charge 6: 16 months’ imprisonment, 1 month of which was to run consecutively to the other sentences; and

(4)  Charge 7: 12 months’ imprisonment, 2 months of which was to run consecutively to the other sentences.

Applicant’s ground of appeal and submission

14.  In his perfected grounds of appeal against sentence, Mr David Ma, with him Mr Winson Yung, complained that the sentence of 2 years and 7 months’ imprisonment was in all the circumstances manifestly excessive, since the judge had failed to give any discount for the applicant’s loyalty to her husband in carrying out her part.  It was submitted that, in accordance with the decisions in Chan Wai Yan and Lai Kam Yee Teresa, the Court could give a further discount on sentence, if a spouse committed the offence of money laundering out of loyalty to her husband. There was said to be a credible ring to the applicant’s case in this regard. Although there was no evidence before the court on the matter, the judge should have drawn the irresistible inference that such was the position. 

Respondent’s submission

15.  Ms Virginia Lau, with her Ms Sabra Lo, on behalf of the respondent, cited the decision in HKSAR v Ngai Ho Ting[6] for the proposition that the judge was not bound to accept everything put forward from the Bar table.  The judge had properly informed the applicant that he was not prepared to accept the mitigation without evidence.  Having taken instructions, defence counsel in mitigation, who was also Mr Ma, confirmed that no evidence would be called and he would merely rely on the circumstances of the husband and wife relationship to put forward the submission. 

16.  It was further submitted that the global starting point of 4 years’ imprisonment had been lenient, given the applicant’s mens rea for the offence, the predicate offence of bookmaking and the laundering of no less than HK$102.9 million.

Consideration

17.  A major hurdle for Mr Ma, in the submission he has eloquently presented, is that the judge made quite clear during mitigation, on more than one occasion, that he was not prepared to accept the mere assertion that the applicant had carried out her husband’s instructions out of blind loyalty to him; yet, Mr Ma, upon instructions, had responded that he was not intending to call either the applicant or her husband to give evidence on the matter.  It seems to me that the judge, in those circumstances, can hardly be blamed for not accepting the assertion.

18.  Moreover, it was not, with respect a matter that necessarily had a credible ring to it.  The applicant’s actions in the laundering of HK$102.9 million had spanned more than 5½ years, the sort of monetary amounts and duration of time that might have caused the applicant to stop and consider what she was doing and facilitating.  There was no evidence that she ever did so, or why she did what she did.  I do not see it as reasonably arguable that the applicant was entitled to any further discount than she received. Indeed, I regard Chan Wai Yan and Lai Kam Yee Teresa, who had both given evidence at trial, as distinguishable on their facts.

19.  Ultimately, the Court of Appeal will look at the total sentence for the overall criminality involved.  Although Mr Ma has deftly tried to present the applicant as the unwitting and subservient tool of others, one could argue from the sheer scale of the funds coming in from various sources and going out to various sources over more than 5½ years that she was the spider in the centre of a rather intricate financial web, even though her husband was the one generating the proceeds of the indictable offence.  And, as the judge held[7]:

“…irrespective of whether she herself has personally benefitted from the offences, it could still be said that the family of which she was a part has benefitted from the joint activities of her husband’s unlawful bookmaking and the associated money laundering conducted by herself: in this connection, one cannot fail to notice the four subject accounts are littered with outgoings such as insurance payments, credit card payments, loan repayment, fund payment, jewellery and motor spending all of which were quite substantial”.

20.  I do not see it as reasonably arguable that 2 years and 7 months’ imprisonment upon pleas of guilty was, in this case, either manifestly excessive and/or wrong in principle.  Indeed, having been taken by Ms Lau to the judgment of HKSAR v Chiu Chi Wing[8] and the cases referred to by the Court therein, I can well conceive that some judges might take the view that the sentence was lenient.  I accordingly refuse leave to appeal against sentence.

21.  In view of my last remark that the sentence could be viewed as lenient, I should advise the applicant that she has the right to renew her application for leave to appeal against sentence to the Court of Appeal.  However, she should also be warned that the Court has the power to order loss of any time which the applicant has spent in custody pending her appeal, if it were to come to the conclusion that there was no justification for the renewal of the application.