DCCC390/2009 HKSAR v. TSAI SHIH MING AND OTHERS - LawHero
DCCC390/2009
區域法院（刑事）H H Judge Tallentire11/1/2010
DCCC390/2009
A DCCC390/2009 A
IN THE DISTRICT COURT OF THE
B HONG KONG SPECIAL ADMINISTRATIVE REGION B
CRIMINAL CASE NO. 390 OF 2009
--------------------
C C
HKSAR
D D
v.
E Tsai Shih-ming (D1) E
Kao Chun-hua (D2)
Nien Chih-chiang (D3)
F F
--------------------
G G
Before: H H Judge Tallentire
Date: 12 January 2010 at 2.32 pm
H Present: Ms Margaret Yu, PP of the Department for Justice, for H
HKSAR
I
Ms Flora Cheng, instructed by S Y Chu & Co, assigned by I
the Department of Legal Aid, for the 1st defendant
Mr Jasper Kwan, instructed by Wong, Fung & Co, assigned
J by the Director of Legal Aid, for the 2nd defendant J
Mr Bruce Tse, instructed by Joseph C T Lee & Co.,
assigned by the Director of Legal Aid, for the 3rd
K defendant K
Offence: (1) to (3), (5) to (10), (12) to (14), (16) & (17)
L Dealing with property known or believed to represent L
proceeds of indictable offence (處理已知道或相信為代表從可
公訴罪行的得益的財產)
M (4), (11) & (15) Attempting to deal with property known M
or believed to represent proceeds of indictable offence
N (企圖處理已知道或相信為代表從可公訴罪行的得益的財產) N
(18) Possession of offensive weapon in a public place
(在公眾地方管有攻擊性武器)
O O
---------------------
P P
Reasons for Sentence
Q --------------------- Q
R R
1. Defendant 1, you pleaded guilty to six offences of
dealing with property known or believed to represent the
S S
proceeds of an indictable offence contrary to section 25(1) of
T
the Organised and Serious Crimes Ordinance Cap.455 and one T
offence of attempting to commit the same contrary to that
U U
CRT31/12.1.2010/STW 1 DCCC390/2009/Sentence
V V
A section of that Cap. under section 159G of the Crimes Ordinance A
Cap.200.
B B
2. D2, you pleaded guilty to three offences dealing with
C C
property and one offence of attempting to do so contrary to the
citations above.
D D
E 3. D3, you pleaded guilty to the five offences of dealing E
with property, one attempting to do so again contrary to the
F same sections as mentioned above. Additionally, and purely for F
the record, you pleaded not guilty to a single offence of
G G
possession of an offensive weapon in a public place contrary to
section 33(1) of the Public Order Ordinance Cap.245 and that
H H
charge was dismissed on an offer of no evidence by the
I
prosecution. I
J 4. You each admitted the brief facts for the offences for J
which you pleaded guilty and I convicted you. Those facts were
K as follows. K
L L
5. Overseas Chinese people were contacted by email or
telephone, the senders purporting to be from the Hong Kong
M M
Jockey Club. The senders claimed the recipients had won
N lotteries or horse races. They were to pay advance fees before N
their winnings would be sent to them. They were to deposit the
O fees to the bank accounts of D1, D2 or D3 who were the holders O
of Taiwanese passports.
P P
6. D1, you arrived in Hong Kong from the Mainland on
Q Q
2 January 2008. You opened a bank account with HSBC and another
R with the Bank of East Asia. Between 2 January 2008 and R
6 February 2009 a total of HK$1,082,765.72, HK$71,491.45 and
S US$27,524.48 were deposited in addition to the initial deposit S
into the Hong Kong and Shanghai Bank. That is Charge 5. Between
T T
4 January 2008 and 6 February 2009 a total of HK$486,317.88 in
addition to the initial deposit was deposited into the BEA
U U
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V V
A account, Charge 6. D1, you left Hong Kong to go to the Mainland A
on 7 January 2008 and returned on 13 January. You opened two
B bank accounts at Citibank, two accounts at Standard Chartered B
Bank and one account with the Hang Seng Bank.
C C
7. Between 14 January 2008 and 6 February 2009,
D D
HK$230,102.87 in addition to the initial deposit was deposited
E into Citibank, Charge 1. Between 14 January 2008 and 6 February E
2009, $43,230.82 and US$26,066.54 other than the additional
F deposit was deposited into the second Citibank account which is F
Charge 2. Between 14 January 2008 and 6 February 2009, HK$60,040
G G
other than the initial deposit was deposited into the Standard
and Chartered account, Charge 3. Between 14 January 2008 and
H H
6 February 2009 other than the initial deposit, nothing was
I
deposited in the Standard Chartered account which is Charge 4. I
Between 14 January 2008 and 9 August 2008, HK$121,067.51 other
J than the initial deposit was deposited into the Hang Seng J
account which is Charge 7.
K K
8. On 16 January 2008, D1, you left Hong Kong for the
L L
Mainland arriving back on 22 January. On 27 January you departed
once again.
M M
N 9. On 31 March 2008, D2, you arrived from Taiwan. You N
opened a bank account with the Hong Kong and Shanghai Bank and
O three with Citibank. Between 31 March 2008 and 23 August 2008, O
HK$119,395.29 and US$11,752.69 other than the initial deposit
P P
was deposited into the Hong Kong and Shanghai Bank account which
is Charge 8. Between 1 April 2008 and 3 October 2008,
Q Q
HK$691,256.04 other than the initial deposit was deposited to
R one of the Citibank accounts, Charge 9. Between 1 April 2008 and R
3 October 2009, US$84,578.88 and 1,003.45 Euros, 200,000 Yen and
S CAD963.31 other than the initial deposit was deposited into the S
other Citibank account, Charge 10. Between 1 April 2008 and
T T
3 October 2008, other than the initial deposit nothing was
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V V
A deposited into the third Citibank account, Charge 11. D2, you A
left Hong Kong on 2 April 2008.
B B
10. On 10 April 2008, D1, you arrived from Taiwan and left
C C
that same day for the Mainland. You arrived back on 15 July
2008. On 16 July 2008, you D2 and you D3 arrived from Taiwan.
D D
D3, you opened an account with the Hong Kong and Shanghai Bank,
E two with Citibank, and one with Standard Chartered Bank and one E
with Hang Seng Bank. On 18 July 2008 all three of you defendants
F left Hong Kong. Between 15 July 2008 and 28 December 2008, F
HK$$365,500.27 and US$32,809.88 other than the initial deposit
G G
was deposited into the Hong Kong and Shanghai Bank account,
Charge 12. Between 15 July 2008 and 17 January 2009, other than
H H
the initial deposit HK$282,716.13 was deposited into the
I
Citibank account, Charge 13. Between 15 July 2008 and 17 January I
2009, US$36,492.82 other than the initial deposited was
J deposited into the other Citibank account, Charge 14. Between J
15 July 2008 and 17 January 2009, other than the initial deposit
K nothing was deposited into the Standard and Chartered Bank K
account, Charge 15. Between 15 July 2008 and 1 November 2008,
L L
other than the initial deposit HK$15,000 was deposited into the
Hang Seng account, Charge 16.
M M
N 11. On 20 July 2008, D1, you arrived from the Mainland and N
returned on 24 July 2008.
O O
12. On 1 October 2008, D2, you arrived and were arrested
P P
when you tried to depart on 2 October.
Q Q
13. On 28 October 2008, D3, you arrived from Taiwan and
R opened another Hang Seng account the next day. Between R
29 October 2008 and 25 December 2008, HK$9,947.78 and US$599.78
S other than the initial deposit was deposited to that Hang Seng S
Bank account, Charge 17. On 29 October 2008, D3, you left Hong
T T
Kong for Taiwan. You returned on 16 January 2009 and you were
arrested.
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V V
A A
14. On 5 February 2009, D1, you were arrested on your
B return from the Mainland. In your possession were five mobile B
phones, seven SIM cards and a thumb drive which had an
C C
electronic document bearing the logos “The Hong Kong Government”
and “The Hong Kong Jockey Club”. They were false and identical
D D
to those sent overseas. Other electronic documents were also
E found with script identical to the overseas communications. They E
contain details of bank accounts of D2 and D3. All deposits to
F the accounts of D1, D2 and D3 were made from overseas. Once a F
deposit was made it was either withdrawn in whole in Taiwan or
G G
by repeated withdrawals on the same day in Shenzhen. Under
caution, D2, you said that around March 2008 D3 had told you to
H H
come to Hong Kong to open bank accounts. You received TWD6,000
I
for each. This was later reduced to 5,000. On each occasion you I
opened an account you gave the passbook to two persons in Hong
J Kong. You said D3 told you that the accounts were for overseas J
workers in Taiwan for tax purposes. The ATM cards and statements
K were sent to you in Taiwan and you gave them to D3. D3, you told K
police that a male in Taiwan told you to come to Hong Kong and
L L
open bank accounts for which your gambling debts would be wiped
off.
M M
N 15. Each of you are of hitherto clear record. Miss Cheng N
on behalf of you, D1; Mr Kwan on behalf of you D2, and Mr Tse on
O behalf of you, D3, entered mitigation. The mitigation common to O
all you three defendants was as follows. All of you are of clear
P P
records and had pleaded guilty. None of you knew or were
involved in fraudulent schemes which allowed those responsible
Q Q
to collect funds. All three of you had simply opened bank
R accounts and surrendered them for use. D1, you had done so in R
the course of your employment as the manager of a shop in the
S Mainland. You had been told to do so by your boss, Mr Lam, and S
initially believed that it was for tax purposes.
T T
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V V
A 16. D2, you also believed that you were assisting in tax A
matters and opened bank accounts for a reward of TWD5,000 each.
B You had come to Hong Kong to close those accounts when advised B
of their likely fraudulent nature by your ex-husband who is a
C C
policeman. This had led to your arrest.
D D
17. D3, you had done so in order to discharge your
E gambling debts of some TWD200,000 which is approximately E
HK$50,000. D3, you claim not to know D1 or D2.
F F
18. Turning now to individual defendants. Miss Cheng told
G G
me that you, D1, are 29 years of age and educated to the
equivalent of secondary level. In Taiwan you had undergone two
H H
years’ national service and then worked as an air-conditioning
I
technician until you became unemployed. You had gone to Hainan I
Island looking for work in the belief that the tourist industry
J would provide such employment. There you became the manager of a J
food shop earning about RMB6,000 per month. As I have previously
K mentioned, it was at the behest of your boss, Mr Lam, that you K
came to Hong Kong to open the accounts. Mr Lam provided the
L L
initial deposits of 10 to HK$20,000 per account plus your travel
and living expenses. Initially you had believed that they were
M M
for legitimate business deals. You were required to take the ATM
N cards, PIN numbers and documents back to Mr Lam. N
O 19. Finally you realised from information you gleaned from O
the computer that there was a problem and tried to phone the
P P
banks to stop the accounts. You were unable to do this. Mr Lam
became aware of your activity and dismissed you. Your
Q Q
explanation for your possession of the memory stick was this was
R information that you had come across which led you to believe R
that the accounts were fraudulent. In February of last year you
S came to Hong Kong and you were arrested. Miss Cheng added that S
you are a divorcee who, because of your incarceration, you lost
T T
contact with your daughter and your mother had died whilst you
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V V
A were in custody. She said you were truly remorseful for what you A
had done.
B B
20. Mr Kwan on your behalf, D2, told me you were 35,
C C
divorced with two children of 17 and 18. Your mother is 67 years
of age and resident in Taiwan, your father having died when you
D D
were 4. Up until the time of your arrest you had been employed
E as a saleslady earning about the equivalent of HK$5,000 in E
Taiwan. He emphasised that you had come to Hong Kong in an
F effort to put matters right. You had offered to assist the F
prosecution and had given a statement to that effect, but that
G G
was not required. Throughout you had been open and co-operative.
The amount of money passing through your accounts had been in
H H
the order of about HK$1.59 million or the equivalent.
I I
21. Mr Kwan referred me to the cases of HKSAR v Jain
J Nikhil CACC405/2006 and HKSAR v Zhan Jianfu CACC258/2007. The J
cases taken together, but especially Jain Nikhil, lay down the
K main considerations for imposing sentences for money laundering K
cases, and taken together he suggested a starting point of 3 to
L L
4 years to be appropriate.
M M
22. Mr Tse then entered mitigation on behalf of you, D3.
N He reminded me that you were guilty of Charges 12 to 17 N
inclusive. He told me that you were the owner of a small food
O stall in Taiwan and had a low income. You are 34 years of age, O
married with two young children. He referred to you as a “small
P P
tool”. He emphasised that your plea of guilty had saved
witnesses coming from overseas. He told me that you missed your
Q Q
family.
R R
23. The prosecution then referred me to two cases, HKSAR v
S Yeung Kin Chai CACC341/2008 and HKSAR v Leong Wai Keung S
CACC476/2003. I took all cases cited into account when
T T
considering the sentence. I turn now to the sentence.
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V V
A 24. These are serious examples of what is commonly called A
“money laundering”. I fully accept that none of you were or
B could be shown to have played any part in the fraudulent scheme B
which harvested the illicit funds but each of you were essential
C C
cogs in the processing of the money. Without foot soldiers there
would be no war. I do note that each of you is of clear record
D D
and each of you has been co-operative with the police. You have
E also assisted the court in your pleas of guilty by considerable E
saving of time. D2, I accept that you took positive steps to
F extricate yourself from the scheme and, indeed, that led to your F
arrest. I also note that you were prepared to assist the
G G
prosecution by giving information and evidence. D1, I also
accept that initially you acted you believe honestly and when
H H
you found out that something was wrong you too took steps to try
I
to close the accounts but you were naïve in the extreme. I
J 25. The approximate money laundered by the accounts held J
by each of you is as follows: D1, approximately the equivalent
K of HK$2½ million; D2, approximately HK$1.6 million; and D3, K
approximately HK$970,000. There is a clear international aspect
L L
to these offences. All funds came from targeted overseas persons
of Chinese ethnicity. You, D1, pleaded guilty to seven offences;
M M
you, D2, to four offences and you, D3, to six offences. All
N offences took place over a long time span. In mitigation, I do N
accept that D1 especially and you, D1, to some extent did try to
O stop the scheme and that you, D3, you were forced into the O
situation by your gambling debts. In respect of you, D3, your
P P
accounts harvested the least.
Q Q
26. Taking all factors into account I can find no reason
R to differentiate between the degree of criminality of any of R
you. You are all equally guilty. I have taken an overall view
S of the situation. Therefore, in each case I take a starting S
point of 3 years and 6 months which is 42 months. You are each
T T
entitled to one-third discount for your plea of guilty. That
will be applied. You will each, therefore, go to prison for a
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V V
A period of 2 years and 4 months on each offence that you have A
committed to run concurrently.
B B
C C
D D
E Tallentire E
District Judge
F F
G G
H H
I I
J J
K K
L L
M M
N N
O O
P P
Q Q
R R
S S
T T
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V V
A DCCC390/2009 A
IN THE DISTRICT COURT OF THE
B HONG KONG SPECIAL ADMINISTRATIVE REGION B
CRIMINAL CASE NO. 390 OF 2009
--------------------
C C
HKSAR
D D
v.
E Tsai Shih-ming (D1) E
Kao Chun-hua (D2)
Nien Chih-chiang (D3)
F F
--------------------
G G
Before: H H Judge Tallentire
Date: 12 January 2010 at 2.32 pm
H Present: Ms Margaret Yu, PP of the Department for Justice, for H
HKSAR
I
Ms Flora Cheng, instructed by S Y Chu & Co, assigned by I
the Department of Legal Aid, for the 1st defendant
Mr Jasper Kwan, instructed by Wong, Fung & Co, assigned
J by the Director of Legal Aid, for the 2nd defendant J
Mr Bruce Tse, instructed by Joseph C T Lee & Co.,
assigned by the Director of Legal Aid, for the 3rd
K defendant K
Offence: (1) to (3), (5) to (10), (12) to (14), (16) & (17)
L Dealing with property known or believed to represent L
proceeds of indictable offence (處理已知道或相信為代表從可
公訴罪行的得益的財產)
M (4), (11) & (15) Attempting to deal with property known M
or believed to represent proceeds of indictable offence
N (企圖處理已知道或相信為代表從可公訴罪行的得益的財產) N
(18) Possession of offensive weapon in a public place
(在公眾地方管有攻擊性武器)
O O
---------------------
P P
Reasons for Sentence
Q --------------------- Q
R R
1. Defendant 1, you pleaded guilty to six offences of
dealing with property known or believed to represent the
S S
proceeds of an indictable offence contrary to section 25(1) of
T
the Organised and Serious Crimes Ordinance Cap.455 and one T
offence of attempting to commit the same contrary to that
U U
CRT31/12.1.2010/STW 1 DCCC390/2009/Sentence
V V
A section of that Cap. under section 159G of the Crimes Ordinance A
Cap.200.
B B
2. D2, you pleaded guilty to three offences dealing with
C C
property and one offence of attempting to do so contrary to the
citations above.
D D
E 3. D3, you pleaded guilty to the five offences of dealing E
with property, one attempting to do so again contrary to the
F same sections as mentioned above. Additionally, and purely for F
the record, you pleaded not guilty to a single offence of
G G
possession of an offensive weapon in a public place contrary to
section 33(1) of the Public Order Ordinance Cap.245 and that
H H
charge was dismissed on an offer of no evidence by the
I
prosecution. I
J 4. You each admitted the brief facts for the offences for J
which you pleaded guilty and I convicted you. Those facts were
K as follows. K
L L
5. Overseas Chinese people were contacted by email or
telephone, the senders purporting to be from the Hong Kong
M M
Jockey Club. The senders claimed the recipients had won
N lotteries or horse races. They were to pay advance fees before N
their winnings would be sent to them. They were to deposit the
O fees to the bank accounts of D1, D2 or D3 who were the holders O
of Taiwanese passports.
P P
6. D1, you arrived in Hong Kong from the Mainland on
Q Q
2 January 2008. You opened a bank account with HSBC and another
R with the Bank of East Asia. Between 2 January 2008 and R
6 February 2009 a total of HK$1,082,765.72, HK$71,491.45 and
S US$27,524.48 were deposited in addition to the initial deposit S
into the Hong Kong and Shanghai Bank. That is Charge 5. Between
T T
4 January 2008 and 6 February 2009 a total of HK$486,317.88 in
addition to the initial deposit was deposited into the BEA
U U
CRT31/12.1.2010/STW 2 DCCC390/2009/Sentence
V V
A account, Charge 6. D1, you left Hong Kong to go to the Mainland A
on 7 January 2008 and returned on 13 January. You opened two
B bank accounts at Citibank, two accounts at Standard Chartered B
Bank and one account with the Hang Seng Bank.
C C
7. Between 14 January 2008 and 6 February 2009,
D D
HK$230,102.87 in addition to the initial deposit was deposited
E into Citibank, Charge 1. Between 14 January 2008 and 6 February E
2009, $43,230.82 and US$26,066.54 other than the additional
F deposit was deposited into the second Citibank account which is F
Charge 2. Between 14 January 2008 and 6 February 2009, HK$60,040
G G
other than the initial deposit was deposited into the Standard
and Chartered account, Charge 3. Between 14 January 2008 and
H H
6 February 2009 other than the initial deposit, nothing was
I
deposited in the Standard Chartered account which is Charge 4. I
Between 14 January 2008 and 9 August 2008, HK$121,067.51 other
J than the initial deposit was deposited into the Hang Seng J
account which is Charge 7.
K K
8. On 16 January 2008, D1, you left Hong Kong for the
L L
Mainland arriving back on 22 January. On 27 January you departed
once again.
M M
N 9. On 31 March 2008, D2, you arrived from Taiwan. You N
opened a bank account with the Hong Kong and Shanghai Bank and
O three with Citibank. Between 31 March 2008 and 23 August 2008, O
HK$119,395.29 and US$11,752.69 other than the initial deposit
P P
was deposited into the Hong Kong and Shanghai Bank account which
is Charge 8. Between 1 April 2008 and 3 October 2008,
Q Q
HK$691,256.04 other than the initial deposit was deposited to
R one of the Citibank accounts, Charge 9. Between 1 April 2008 and R
3 October 2009, US$84,578.88 and 1,003.45 Euros, 200,000 Yen and
S CAD963.31 other than the initial deposit was deposited into the S
other Citibank account, Charge 10. Between 1 April 2008 and
T T
3 October 2008, other than the initial deposit nothing was
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CRT31/12.1.2010/STW 3 DCCC390/2009/Sentence
V V
A deposited into the third Citibank account, Charge 11. D2, you A
left Hong Kong on 2 April 2008.
B B
10. On 10 April 2008, D1, you arrived from Taiwan and left
C C
that same day for the Mainland. You arrived back on 15 July
2008. On 16 July 2008, you D2 and you D3 arrived from Taiwan.
D D
D3, you opened an account with the Hong Kong and Shanghai Bank,
E two with Citibank, and one with Standard Chartered Bank and one E
with Hang Seng Bank. On 18 July 2008 all three of you defendants
F left Hong Kong. Between 15 July 2008 and 28 December 2008, F
HK$$365,500.27 and US$32,809.88 other than the initial deposit
G G
was deposited into the Hong Kong and Shanghai Bank account,
Charge 12. Between 15 July 2008 and 17 January 2009, other than
H H
the initial deposit HK$282,716.13 was deposited into the
I
Citibank account, Charge 13. Between 15 July 2008 and 17 January I
2009, US$36,492.82 other than the initial deposited was
J deposited into the other Citibank account, Charge 14. Between J
15 July 2008 and 17 January 2009, other than the initial deposit
K nothing was deposited into the Standard and Chartered Bank K
account, Charge 15. Between 15 July 2008 and 1 November 2008,
L L
other than the initial deposit HK$15,000 was deposited into the
Hang Seng account, Charge 16.
M M
N 11. On 20 July 2008, D1, you arrived from the Mainland and N
returned on 24 July 2008.
O O
12. On 1 October 2008, D2, you arrived and were arrested
P P
when you tried to depart on 2 October.
Q Q
13. On 28 October 2008, D3, you arrived from Taiwan and
R opened another Hang Seng account the next day. Between R
29 October 2008 and 25 December 2008, HK$9,947.78 and US$599.78
S other than the initial deposit was deposited to that Hang Seng S
Bank account, Charge 17. On 29 October 2008, D3, you left Hong
T T
Kong for Taiwan. You returned on 16 January 2009 and you were
arrested.
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CRT31/12.1.2010/STW 4 DCCC390/2009/Sentence
V V
A A
14. On 5 February 2009, D1, you were arrested on your
B return from the Mainland. In your possession were five mobile B
phones, seven SIM cards and a thumb drive which had an
C C
electronic document bearing the logos “The Hong Kong Government”
and “The Hong Kong Jockey Club”. They were false and identical
D D
to those sent overseas. Other electronic documents were also
E found with script identical to the overseas communications. They E
contain details of bank accounts of D2 and D3. All deposits to
F the accounts of D1, D2 and D3 were made from overseas. Once a F
deposit was made it was either withdrawn in whole in Taiwan or
G G
by repeated withdrawals on the same day in Shenzhen. Under
caution, D2, you said that around March 2008 D3 had told you to
H H
come to Hong Kong to open bank accounts. You received TWD6,000
I
for each. This was later reduced to 5,000. On each occasion you I
opened an account you gave the passbook to two persons in Hong
J Kong. You said D3 told you that the accounts were for overseas J
workers in Taiwan for tax purposes. The ATM cards and statements
K were sent to you in Taiwan and you gave them to D3. D3, you told K
police that a male in Taiwan told you to come to Hong Kong and
L L
open bank accounts for which your gambling debts would be wiped
off.
M M
N 15. Each of you are of hitherto clear record. Miss Cheng N
on behalf of you, D1; Mr Kwan on behalf of you D2, and Mr Tse on
O behalf of you, D3, entered mitigation. The mitigation common to O
all you three defendants was as follows. All of you are of clear
P P
records and had pleaded guilty. None of you knew or were
involved in fraudulent schemes which allowed those responsible
Q Q
to collect funds. All three of you had simply opened bank
R accounts and surrendered them for use. D1, you had done so in R
the course of your employment as the manager of a shop in the
S Mainland. You had been told to do so by your boss, Mr Lam, and S
initially believed that it was for tax purposes.
T T
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CRT31/12.1.2010/STW 5 DCCC390/2009/Sentence
V V
A 16. D2, you also believed that you were assisting in tax A
matters and opened bank accounts for a reward of TWD5,000 each.
B You had come to Hong Kong to close those accounts when advised B
of their likely fraudulent nature by your ex-husband who is a
C C
policeman. This had led to your arrest.
D D
17. D3, you had done so in order to discharge your
E gambling debts of some TWD200,000 which is approximately E
HK$50,000. D3, you claim not to know D1 or D2.
F F
18. Turning now to individual defendants. Miss Cheng told
G G
me that you, D1, are 29 years of age and educated to the
equivalent of secondary level. In Taiwan you had undergone two
H H
years’ national service and then worked as an air-conditioning
I
technician until you became unemployed. You had gone to Hainan I
Island looking for work in the belief that the tourist industry
J would provide such employment. There you became the manager of a J
food shop earning about RMB6,000 per month. As I have previously
K mentioned, it was at the behest of your boss, Mr Lam, that you K
came to Hong Kong to open the accounts. Mr Lam provided the
L L
initial deposits of 10 to HK$20,000 per account plus your travel
and living expenses. Initially you had believed that they were
M M
for legitimate business deals. You were required to take the ATM
N cards, PIN numbers and documents back to Mr Lam. N
O 19. Finally you realised from information you gleaned from O
the computer that there was a problem and tried to phone the
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banks to stop the accounts. You were unable to do this. Mr Lam
became aware of your activity and dismissed you. Your
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explanation for your possession of the memory stick was this was
R information that you had come across which led you to believe R
that the accounts were fraudulent. In February of last year you
S came to Hong Kong and you were arrested. Miss Cheng added that S
you are a divorcee who, because of your incarceration, you lost
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contact with your daughter and your mother had died whilst you
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A were in custody. She said you were truly remorseful for what you A
had done.
B B
20. Mr Kwan on your behalf, D2, told me you were 35,
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divorced with two children of 17 and 18. Your mother is 67 years
of age and resident in Taiwan, your father having died when you
D D
were 4. Up until the time of your arrest you had been employed
E as a saleslady earning about the equivalent of HK$5,000 in E
Taiwan. He emphasised that you had come to Hong Kong in an
F effort to put matters right. You had offered to assist the F
prosecution and had given a statement to that effect, but that
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was not required. Throughout you had been open and co-operative.
The amount of money passing through your accounts had been in
H H
the order of about HK$1.59 million or the equivalent.
I I
21. Mr Kwan referred me to the cases of HKSAR v Jain
J Nikhil CACC405/2006 and HKSAR v Zhan Jianfu CACC258/2007. The J
cases taken together, but especially Jain Nikhil, lay down the
K main considerations for imposing sentences for money laundering K
cases, and taken together he suggested a starting point of 3 to
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4 years to be appropriate.
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22. Mr Tse then entered mitigation on behalf of you, D3.
N He reminded me that you were guilty of Charges 12 to 17 N
inclusive. He told me that you were the owner of a small food
O stall in Taiwan and had a low income. You are 34 years of age, O
married with two young children. He referred to you as a “small
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tool”. He emphasised that your plea of guilty had saved
witnesses coming from overseas. He told me that you missed your
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family.
R R
23. The prosecution then referred me to two cases, HKSAR v
S Yeung Kin Chai CACC341/2008 and HKSAR v Leong Wai Keung S
CACC476/2003. I took all cases cited into account when
T T
considering the sentence. I turn now to the sentence.
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A 24. These are serious examples of what is commonly called A
“money laundering”. I fully accept that none of you were or
B could be shown to have played any part in the fraudulent scheme B
which harvested the illicit funds but each of you were essential
C C
cogs in the processing of the money. Without foot soldiers there
would be no war. I do note that each of you is of clear record
D D
and each of you has been co-operative with the police. You have
E also assisted the court in your pleas of guilty by considerable E
saving of time. D2, I accept that you took positive steps to
F extricate yourself from the scheme and, indeed, that led to your F
arrest. I also note that you were prepared to assist the
G G
prosecution by giving information and evidence. D1, I also
accept that initially you acted you believe honestly and when
H H
you found out that something was wrong you too took steps to try
I
to close the accounts but you were naïve in the extreme. I
J 25. The approximate money laundered by the accounts held J
by each of you is as follows: D1, approximately the equivalent
K of HK$2½ million; D2, approximately HK$1.6 million; and D3, K
approximately HK$970,000. There is a clear international aspect
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to these offences. All funds came from targeted overseas persons
of Chinese ethnicity. You, D1, pleaded guilty to seven offences;
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you, D2, to four offences and you, D3, to six offences. All
N offences took place over a long time span. In mitigation, I do N
accept that D1 especially and you, D1, to some extent did try to
O stop the scheme and that you, D3, you were forced into the O
situation by your gambling debts. In respect of you, D3, your
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accounts harvested the least.
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26. Taking all factors into account I can find no reason
R to differentiate between the degree of criminality of any of R
you. You are all equally guilty. I have taken an overall view
S of the situation. Therefore, in each case I take a starting S
point of 3 years and 6 months which is 42 months. You are each
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entitled to one-third discount for your plea of guilty. That
will be applied. You will each, therefore, go to prison for a
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A period of 2 years and 4 months on each offence that you have A
committed to run concurrently.
B B
C C
D D
E Tallentire E
District Judge
F F
G G
H H
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J J
K K
L L
M M
N N
O O
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R R
S S
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