HKSAR v. CHAN NGOR LUNG

DCCC 55/2024

[2025] HKDC 351

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 55 OF 2024

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REASONS FOR SENTENCE

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1.  Mr NL Chan pleaded guilty before me to one charge of Conspiracy to deal 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, and sections 159A and 159C of the Crimes Ordinance, Cap 200.

2.  Particulars are that Mr NL Chan, between 29 March 2023 and 3 April 2023, in Hong Kong, conspired with a person known as “Ceci”, to deal with property, namely a chose in action in a total sum of $5,303,181.88 Hong Kong currency in the account numbered 01260810029410 held under the name of the said Mr NL Chan with Bank of China (Hong Kong)  Limited, knowing or having reasonable grounds to believe the said property, in whole or in part directly or indirectly represented any person’s proceeds of an indictable offence.

Facts admitted by Mr NL Chan

3.  At all material times, Mr NL Chan was a two-way permit holder.  He was the account holder and sole signatory of account numbered 01260810029410 held with the Bank of China (Hong Kong)  Limited (“the BOC Account”).  The BOC Account was opened on 26 August 2003.

4.  Between 29 March 2023 and 1 April 2023, 11 persons fell victim to “investment scam”, “employment scam”, “loan scam” or “compensated dating scam”, whereby they were instructed to deposit monies to some bank accounts to top up their investment accounts, to earn commissions, as guarantee fee or as service fee, but the scammers became out of reach soon afterwards.  Altogether they deposited a total sum of $716,006 into the BOC Account details of which were provided by the scammers.

5.  On 26 July 2023, Mr NL Chan was arrested for “Obtaining property by deception”.

6.  In the subsequent cautioned VRI, Mr NL Chan admitted opening the BOC Account.  He admitted that he rented out the BOC Account to one “Ceci” whom he came to know on Facebook.  He admitted knowing it was illegal to lend bank accounts to others.

7.  Between 29 March 2023 and 3 April 2023, the BOC Account received $5,303,181.88 by way of 134 transactions.  A total of $5,303,092.42 was withdrawn by way of 108 transactions.

8.  There were multiple deposits made into the BOC Account within a day. The funds deposited into the said account were withdrawn shortly after being deposited and the daily end balance of the account was low.

9.  Mr NL Chan now admits to the Particulars of Offence subject of the Charge.

Criminal record

10.  Mr NL Chan has a clear record.

Antecedents

11.  Mr NL Chan is aged 39 (37 at the time of the offence), educated to F5 level.  He was employed as a logistics worker since May 2023.  Mr NL Chan is married and lives with his retired mother (65)  in Tai Wai.

Mitigation

12.  Mr Ryan Chan of counsel (hereinafter “counsel”)  assigned by the Director of Legal Aid mitigated on behalf of Mr NL Chan.  The following is a summary of the mitigation submissions.

13.  Mr NL Chan is married and lives with his dependent elderly mother.  He is a warehouse casual worker earning $24,000 per month on average.  He has hitherto been of clear record.

14.  Because of the different circumstances that may arise in money laundering cases, it is not appropriate to provide a tariff of sentence: HKSAR v Boma Amaso [2012] 2 HKLRD 33.

15.  Per HKSAR v Hsu Yu Yi [2010] 5 HKLRD 545, the following factors are to be taken into account:

“(a)  It is the amount of money involved that is a major consideration and not the amount of benefit received by a defendant in the transaction;

(b)  The culpability of the offence lies in the assistance, support and encouragement offered to the commission of an indictable offence. So a defendant’s level of participation and the number of occasions on which he is involved in the ‘money laundering’ activities are relevant factors to be considered;

(c)  The offence of dealing with the proceeds from an indictable offence does not necessarily have any direct correlation with the indictable offence in question. However if the relevant indictable offence can be identified, the court may take into account the sentence imposed on the indictable offence per se when determining the sentence of the dealing offence;

(d)  If the case has an international element involving activities carried out across different regions, the court may impose a more severe sentence. This is to protect Hong Kong’s reputation as an international financial and banking hub from being tarnished;

(e)  The length of time the offence lasted.”

16.  In Secretary for Justice v Wan Kwok Keung [2012] 1 HKLRD 201, Yeung JA (as Yeung VP then was)  observed that:

“15. In HKSAR v Hsu Yu Yi [2010] 5 HKLRD 545, Cheung JA set out the amounts of money involved and the sentences passed in a number of “money laundering” cases. The sentencing starting point is 3 years or so where the “black money” involved is between $1 million and $2 million; 4 years or so where it is between $3 million and $6 million; and could be over 5 years where it is above $10 million.”

17.  Mr NL Chan is genuinely remorseful for his actions.  He committed the subject offence foolishly, as his debts were accumulating in light of his reduced income during the COVID-19 pandemic, which meant that the container traffic in warehouses dropped significantly.

18.  Mr NL Chan fully cooperated with the investigators making full and frank admissions.  He pleaded guilty at the earliest available opportunity.  The subject bank account was not opened for the purpose of committing the offence or for the use of others.  In fact, it was opened around 20 years prior.  He was not involved in, and was wholly unaware of, the predicate offence (ie the scams).  There was no international element.  The underlying deposits took place over a very short period of one week ie from 29 March 2023 to 3 April 2023.

19.  Counsel submitted on behalf of Mr NL Chan three mitigation letters written in Chinese respectively by Mr NL Chan himself, his elder brother and his elder sister.  The contents generally are that Mr NL Chan has not previously transgressed the law and is very remorseful and promises to abide by the law in the future.  The letter writers ask for a chance for reform and a lenient sentence be given to Mr NL Chan.

20.  Counsel confirmed by letter dated 14 February 2025 that the defence has no objection to the prosecution furnishing the OSCO statement pursuant to s27(2)  of OSCO.

21.  Counsel does not oppose enhancement of sentence under OSCO but asked for 25% enhancement only.  Counsel prayed in aid the District Court sentencing case of HKSAR v Lo Wing Hong [2025] HKDC 105 the facts of which, so he submitted, were on all fours with those of the present case.

22.  Upon enquiry by the court, counsel submitted that Mr NL Chan had not yet received remuneration for his renting out his bank account.

23.  Lastly, counsel asks that the court temper justice with mercy.

Sentence

24.  Having considered all relevant factors, I adopt, in Mr NL Chan’s case, a starting point of 3 ½ years’ imprisonment.  I am particularly influenced by the fact that the offence only lasted for about one week.

25.  Mr NL Chan pleaded guilty to the offence in good time earning for himself the full 1/3 sentencing discount.  For his previous clear record, I will grant him an extra month off after the 1/3 discount.  There are no other mitigating factors of substance that I can see which could have the effect of reducing his sentence further.

26.  Prosecution has furnished on the court a witness statement of CIP Li Yiu Nam dated 5 February 2025 containing information relating to (a)  the prevalence of the offence subject of the Charge (a specified offence within the meaning of OSCO, Cap 455)  and (b)  the nature and extent of any harm caused to the community by recent occurrences of that specified offence.

27.  In that statement, it can be seen from Table A in para 16 that the total number of Deception cases and related Money laundering cases in the first 10 months of 2024 was on an increasing trend and was 38,469.  It can also be seen from Table B in para 20 that the amount of reported losses or proceeds laundered for Money laundering cases in the same period was as high as HK$3,177.32M.

28.  I am satisfied from the information provided that money laundering cases were and are prevalent and the financial harm caused to the community by recent occurrences is substantial.

29.  I will therefore exercise the power under section 27(11)  of Cap 455 to enhance the sentence of Mr NL Chan.  The extent of the enhancement will be 1/3, in line with a number of Court of Appeal authorities, although I appreciate the sentencing court retains a degree of discretion in determining the level of enhancement.

30.  I am satisfied that the final sentence thus arrived at is not excessive in the circumstances of the offence and the offender.

(Mr NL Chan, please stand)

31.  The sentence is 36 months’ imprisonment.