HKSAR v. NG MAN YEE

DCCC 1200/2012

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 1200 OF 2012

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REASONS FOR SENTENCE

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1.  The defendant was convicted after trial of an offence of money laundering HKD77,984,090.31 between 06 May 2006 and 19 May 2012. The sum referred to in the charge is the amount of money deposited  during the relevant period into a bank account opened by the defendant on 01 March  1994 with the Hang Seng Bank, account number 287-197214-888  (HSB A/C 1).

2.  The defendant opened HSB A/C1 on 1^st March 1994. The defendant told the court that he opened the account for the use of his former girlfriend, Connie Ng Wai Man. The defendant had had a relationship with Connie  Ng who bore his child in June 1993. Connie Ng left Hong Kong in December 1993 to take up residence in Taiwan. She has not returned to Hong Kong since the arrest of the defendant on 19 May 2012 and is currently a wanted person.

3.  The defendant claimed that Connie Ng asked him to open the  account as she wanted a bank account in Hong Kong in the name of someone she could trust and who could on occasion attend personally at the bank. Transfers of HKD1 million or more had to be dealt with by the defendant attending the bank personally. The defendant said that he agreed to assist Connie Ng as she had assumed sole responsibility for the upbringing and education of their daughter and he felt that this was one of the few ways in which he could assist.

4.  Bank records in respect of HSB A/C1 show that during the relevant period the sum referred to in the charge was deposited into the account. Withdrawals from the account amounted just over HKD77.3 million. There were 230 deposits and 238 withdrawals.

5. The defendant dealt personally with the following transactions:

(i) 7/11/2006 $2,000,000 deposit by Defendant

(ii) 14/05/2007 $2,000,000 withdrawal by Defendant

(iii) 15/05/2007 $1,000,000 withdrawal by Defendant

(iv) 28/01/2010 $7,000,000 withdrawal by Defendant

(v) 6/03/2012 $2,000,000 withdrawal by Defendant

(vi) 7/03/2012 $2,000,000 withdrawal by Defendant

6.  The defendant had a second bank account with HSB  (HSB A/C 2) The defendant said that  from 1994 this account was also used by  Connie Ng. Over the relevant period just over HKD2.6 million was paid into this account  and withdrawals of just over HKD2.8 million. There were 33 deposits and 120 withdrawals. There were 20 transfers involving just over HKD2.6 million from HSB A/C 1 to HSB A/C2.

7.  The defendant opened a Visa Card account on 20 November 1994 which he said he used on the instructions of Connie Ng. This account was paid by standing order from HSB A/C2 mostly by autopay.

8.  In September 1993 the defendant opened a Jockey Club Account. The defendant said this was used by Connie Ng from 1993. From October 2006 to May 2011 a total of HKD4 million was deposited from the HSB A/C 1into the Jockey Club Account. A credit of HKD1 million was made to the HSB A/C1 from the Jockey Club Account on 24 April 2007.Between June 2011 and May 2012 there were 16 deposits from HSB A/C1 to the Jockey Club account.

9.  As the Club only retains records for one year only the statements for the 14-month period from 20 May 2011 to 07 June 2012 could be obtained by the police. The statements reveal frequent and substantial horse betting transactions.

10.  Total winnings for that year amounted to HKD4,367,100 and there was only one withdrawal of HKD400,000 on 15 June 2011. On 30 November 2011 bets totaling HKD840,000 were placed.

11.  Connie Ng had an account with the Hang Seng Bank which she opened in May 1993. Between April 2006 and May 2012 there were deposits into this account of  just over HKD29 million and withdrawals of just over HKD30 million. Between January 2007 and May 2012 there 27 transfers from HSB A/C1 to the account of Connie Ng in totaling HKD25,200,000. There were 14 transfers totaling HKD12,970,000 from the account of Connie Ng to the HSB A/C1.

12.   During the relevant period the defendant was working as a jeweler with his earnings rising to a maximum of HKD27,000 per month. His wife, whom he married in 2007, earned HKD40,000 to 50,000 per month as an accountant. They have two children.

Connie Ng

13.  There are no Inland Revenue records for her between 2006 and 2011. Immigration records show she left Hong Kong  on 05 May 2012 and had not returned as at 16 April 2013.

14.  The defendant purchased  the flat in which he was arrested jointly with his wife in October 2011. The current market price is estimated to be about HKD5.5 million and there is subject to a mortgage.

15.  At trial the defendant maintained that he neither believed nor had reasonable ground s to believe that the money he dealt with represented  the proceeds of an indictable offence. I was sure that the defendant did not tell the court the truth about the circumstances in which the various accounts were used or the nature of his relationship with Connie Ng. I found that there were cogent reasons to believe the funds were the proceeds of crime.  I was sure that if he did not in fact know the source of the funds, he deliberately closed his eyes to what was taking place.

Mitigation

16.  The defendant had a clear record. He is 47 years of age, married with two children aged 3 and 12 months. At the relevant time he was working as a jeweler earning about HKD27,000 per month.

17.  When arrested for this offence he told his employer about the proceedings and was dismissed from his employment. He has been out of work since and I am told that the family has had to rely on the earnings of the defendant’s wife.

18.  It was suggested that this offence was at the lower end of the scale as there was no evidence to suggest the nature of the predicate offence. There was no evidence as to what benefit was received by the defendant. There was no evidence as to what benefit her received. He did not appear to live beyond his means and lived in a modest flat subject to a mortgage.

19.  It was urged up the court that because Connie Ng was the mother of his daughter, he would have felt some obligation to assist.

20.  This was not a case where funds flowed into the account from overseas.

Sentencing Considerations

21.  Yeung JA in HKSAR v Javid Kamran CACC400/2004 observed:

“30. Money laundering is a very serious offence as it is an attempt to legitimize proceeds from criminal activities.

31. Serious criminal offences are very often motivated by financial gains and those who assist criminals in laundering money, indirectly encourage them in their criminal activities…..

32. Successful deterrents against money laundering could be effective measures against crime.

33. The maximum sentence for a money laundering conviction on indictment is a fine of $5 million and 14 years’ imprisonment, which is perhaps a reflection of how such an offence is viewed.”

22.  No tariff exists for money laundering offences, but such offences are invariably treated seriously and substantial sentences of imprisonment are regularly imposed. The amount of money laundered will inevitably be relevant to sentence.

23.  I was referred to the case of  HKSAR v. Leung Wai Wah and Anr CACC 201/2011. The Court of Appeal in that case were referred to a number of authorities. The court stated that :

“From various cases cited to this court [HKSAR v Hsu Yu Yi [2010] 5 HKLRD 545, Secretary for Justice v Herzberg [2010] 1 HKLRD 502, HKSAR v Javid Kamran (supra)], it appears that the following factors are relevant to sentence in “money laundering” cases:

1. The amount of money laundered, which was described as the major consideration.

2. The nature of the offence that generated the “laundered money”.

3. The extent to which the offence assisted the underlying crime or hindered its detection.

4. The degree of sophistication of the offence.

5. The defendant’s participation, both in the underlying offence and in the “money laundering” activities.

6. The length of time that the offence lasted.

7. The benefit that the defendant had derived from the offence.

8. Whether there was an international element in the commission of the offence.”

24.  The amount of money laundered in this case is substantial. The predicate offence has not been established. As offences of this type go, this was not a sophisticated offence. I was satisfied that the defendant was centrally involved in the money laundering offence. He controlled the account through which the funds were laundered and he alone was entitled to make transfers of  HKD1 million or more. He personally handled the transfer of HKD16 million. The offence lasted a considerable period of time, namely 6 years. There was no evidence as to what benefit the defendant derived from the offence.  There was no evidence of funds being laundered from abroad. I was sure that the defendant tried to mislead the court as to the true nature and extent of his dealings with Connie Ng.

25.  Taking into account all the circumstances, in my view a sentence of 5 years and 6 months is the appropriate.