HKSAR v. LO KAI SING

CACC 10/2025 [2026] HKCA 1346

On appeal from [2025] HKDC 37

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO 10 OF 2025

(ON APPEAL FROM DCCC NO 586 OF 2023)

_______________

_______________

________________

J U D G M E N T

________________

1.  The applicant applies for leave to appeal against his sentence of 46 months’ imprisonment imposed by Deputy District Judge M Chow (the judge) following his plea of guilty to the offence of dealing with property known or believed to represent the proceeds of an indictable offence, contrary to section 25(1) and (3) of the Organized and Serious Crimes Ordinance (Cap 455) (OSCO), which is commonly referred to as money laundering.

2.  The applicant opened a bank account for a friend, “Ah Kam”, on 7 January 2020 because his friend needed to collect money from another person.  He gave the bank card and the password of the account to his friend.  He claimed that he had no knowledge of most of the transactions, but in 2021 he learnt from the police that his account might have been used for online fraud and then closed it. 

3.  Between 7 January 2020 and 1 February 2021 (when the applicant closed the account), a total of HK$25,702,187.61 was deposited into the account by way of 50,504 deposits (50,478 of which were online transfers).  During this period, the same total sum was withdrawn from the account by way of 7,573 withdrawals.  Of this amount, HK$24,326,828.41 was withdrawn by way of 7,455 online transfers and HK$1,340,300 was withdrawn by way of 109 ATM cash withdrawals. 

4.  On 13 April 2021, the applicant was arrested for money laundering and, in a subsequent video-recorded interview, explained that he had opened the bank account for “Ah Kam” and later closed it when he learnt it was involved in online fraud.

5.  In sentencing the applicant[1], the judge noted that the predicate offence was unknown ([17(a)]); there was no evidence that the applicant was aware of the predicate offence until the police informed him ([17(b)]); the period of the money laundering was about 13 months ([17(h)]); the amount involved was approximately HK$25 million ([17(i)]); and there was no evidence to suggest that there was an international element ([17(j)]).  She also noted that the applicant’s role was to open the account and make it available to “Ah Kam” to use (he provided him with the bank card and password of the account) ([17(c)]); the applicant was unemployed, had taken out a loan, and was “financially vulnerable” to engaging in illegal activities ([17(d)]); the applicant believed the account was for the collection of funds and subsequently learnt that it was used illegally ([17(e)]); the applicant closed the account in 2021, and for about a year he did not “care” about the activities in the account ([17(f)]); and whilst the applicant did not state that he obtained any remuneration, when the account was closed there was a balance of about HK$3,000 which he withdrew ([17(g)]).

6.  The judge adopted a starting point of 4 years’ (48 months’) imprisonment on the basis that the amount laundered was approximately HK$25 million over a period of 13 months. She reduced his sentence by 25% for his guilty plea to 36 months’ imprisonment, because he had informed the court of his guilty plea some seven weeks before the trial.  She enhanced his sentence by one third to 48 months’ imprisonment pursuant to section 27(2) of OSCO, due to the prevalence of money laundering at the time of sentence.  She then reduced his sentence by two months for his mental anxiety, resulting in a sentence of 46 months’ imprisonment. 

7.  There are two grounds on which the applicant can reasonably challenge his sentence. 

8.  First, whether the starting point of 4 years’ imprisonment was appropriate in the circumstances of the applicant’s case (HKSAR v Boma[2]; Secretary for Justice v Wan Kwok Keung[3]). This starting point would normally be for the actual launderer of the money according to the amount involved, and the question arises as to whether it should also be the starting point for someone who merely opened a bank account for another person without any due regard to its use.  In this instance, it was used for the very serious crime of online fraud. 

9.  Secondly, whether the one third enhancement under OSCO was appropriate in the circumstances of the case (HKSAR v Cheng King Lung)[4]. This enhancement is for specified offences having regard to the nature of the harm caused by the offence; the prevalence of the offence; and the nature and extent of the harm caused to the community by recent occurrence of the offence.  The OSCO enhancement usually ranges from 20% to 50%, but will obviously be offence and fact specific.  The question is whether an enhancement of one third was too high in the particular circumstances of the applicant’s case.  However, I should point out that the use of “stooge accounts” in money laundering offences is prevalent and causes considerable harm to the community.

10.  Initially, I considered whether the applicant had an argument against his sentence on the basis that he should have been given the usual one third discount for a timely guilty plea (HKSAR v Ngo Van Nam[5]). He was originally charged with conspiracy to deal with property known or believed to represent the proceeds of an indictable offence.  It was alleged that he had conspired with “Ah Kam”.  When he appeared in court on 9 January 2024, he indicated that he would plead not guilty to the conspiracy charge and intended to challenge his video recorded interview.  The applicant’s case was fixed for a three day trial to commence on 6 January 2025.  On 22 April 2024, the prosecution informed the court that it intended to amend the conspiracy charge to a substantive charge of money laundering.  On 11 November 2024, the applicant informed the court that he would plead guilty to the amended charge, and accordingly the hearing for 6 January 2025 was fixed for plea and sentence.  However, as pointed out by the respondent, the amendment of the charge was not a significant change of circumstances as the charge was simply converted to a joint charge still alleging that he had committed the offence with “Ah Kam”.  This ground of appeal is not reasonably arguable. 

11.  The applicant further raised, as a ground of appeal, the judge’s failure to take into account his family and personal circumstances when passing sentence on him.  There is no merit in this ground, as the judge had given him a reduction of two months to his sentence for his personal circumstances.  

12.  On the basis of the above two grounds, I grant the applicant leave to appeal against his sentence. I also grant him an Appeal Aid Certificate to be legally represented in his appeal in respect of those grounds under Rule 12(3) of the Legal Aid in Criminal Cases Rules (Cap 221D).  I have further ordered that his appeal be given an expedited hearing, as he is due to be released in July next year.

13.  The applicant is reminded of his right to renew his application for leave to the Court of Appeal in relation to the grounds on which I have refused him leave, but he is also informed of the consequences of doing so, which may include a direction for any loss of time spent in custody pending his appeal if the Court were to come to the view that there was no justification for the renewal of his application.

[1]  Reasons for Sentence, at [17].

[2]  HKSAR v Boma [2012] 2 HKLRD 33, at [38]-[40].

[3]  Secretary for Justice v Wan Kwok Keung [2012] 1 HKLRD 201, at [15].

[4]  HKSAR v Cheng King Lung, unrep., CACC 67/2002, 28 August 2002.

[5]  HKSAR v Ngo Van Nam [2016] 5 HKLRD 1, at [224].