A A
B B
DCCC 630/2021, 38, 39, 99 & 340/2022 (Consolidated)
C
[2024] HKDC 489 C
D D
IN THE DISTRICT COURT OF THE
E HONG KONG SPECIAL ADMINISTRATIVE REGION E
CRIMINAL CASE NOS 630 OF 2021, 38, 39, 99 & 340 OF 2022
F F
G -------------------------------- G
HKSAR
H H
v
I CHIU WING HUNG (D4) I
--------------------------------
J J
K Before: His Honour Judge Tam K
Date: 22 March 2024
L L
Present: Miss Choi Chung Jing, Juno, Public Prosecutor, for HKSAR
M Mr Ng Yiu Hang, Henry, instructed by Mike So, Joseph Lau M
& Co, assigned by the Director of Legal Aid, for the 4th
N N
defendant
O Offences: [14] & [15] Dealing with property known or believed to O
represent proceeds of an indictable offence（處理已知道或
P P
相信為代表從可公訴罪行的得益的財產） - D4
Q Q
[17] Failing to surrender to custody without reasonable
R cause（無合理因由而沒有按照法庭的指定歸押） - D4 R
S S
T T
U U
V V
-2-
A A
B B
--------------------------------------
C REASONS FOR SENTENCE C
--------------------------------------
D D
E 1. D4 Chiu Wing Hung pleaded guilty before me to 2 charges E
(Charges 14 and 15) of Dealing with property known or believed to
F F
represent proceeds of an indictable offence, contrary to section 25(1) and
G (3) of the Organized and Serious Crimes Ordinance, Cap 455; and one G
charge (Charge 17) of Failing to surrender to custody without reasonable
H H
cause, contrary to section 9L(1) and (3) of the Criminal Procedure
I Ordinance, Cap 221, on an Amended Consolidated Charge Sheet dated 25 I
August 2023 involving 4 other defendants and 14 other charges not
J J
directed against D4.
K K
2. The other defendants and charges have been dealt with
L L
separately before another judge; Reasons for Sentence (in Chinese) dated
M 23 June 2023 under the same consolidated case numbers refers. M
N N
3. Particulars of Charge 14 are that D4, between about 11 June
O 2020 and about 15 June 2020, both dates inclusive, in Hong Kong, knowing O
or having reasonable grounds to believe that property, namely a total sum
P P
of $351,000 Hong Kong currency in the bank account held in the name of
Q D4 with the Hongkong and Shanghai Banking Corporation Limited of Q
account number 661-426783-833, in whole or in part directly or indirectly
R R
represented the proceeds of an indicatable offence, dealt with the said
S property. S
T T
U U
V V
-3-
A A
B B
4. Particulars of Charge 15 are that D4, between about 23 June
C 2020 and about 24 June 2020, both dates inclusive, in Hong Kong, knowing C
or having reasonable grounds to believe that property, namely a total sum
D D
of $320,000 Hong Kong currency in the bank account held in the name of
E D4 with the Bank of China (Hong Kong) Limited of account number 012- E
607-1-015979-4, in whole or in part directly or indirectly represented the
F F
proceeds of an indictable offence, dealt with the said property.
G G
5. Particulars of Charge 17 are that D4, on 29 May 2023, in
H H
Hong Kong, being a person admitted to bail, without reasonable cause,
I failed to surrender to custody as had been appointed by a court. I
J J
Facts admitted by D4
K K
6. One or more loan scam syndicate(s) recruited D4 as stooge
L L
bank account holder. D4’s two bank accounts at respectively HSBC
M (Account A - Charge 14 involving $351,000) and BOC (Account B - M
Charge 15 involving $320,000) were used to receive crime proceeds which
N N
were then swiftly withdrawn.
O O
7. Under Charge 14 relating to Account A, the victims of the
P P
loan scam were CHUI, NG, LO, CHAN, CHOW and HUNG.
Q Q
8. Under Charge 15 relating to Account B, the victims of the
R R
loan scam were ZHENG, MA and LEE.
S S
T T
U U
V V
-4-
A A
B B
Account A (Charge 14)
C C
9. Account A was a HKD account opened on 8 June 2020 by D4
D D
in his name. D4 was the sole signatory. Account A was closed on 9
E November 2020. E
F F
10. Shortly after the account opening date, temporary depository
G patterns were observed in Account A, as shown below: G
H H
Date Deposit Withdrawal Balance Remarks
I 11/6/2020 HK$20,000.00 HK$20,000.10 From NG I
HK$10,000.00 HK$30,000.10 From NG
J J
HK$20,000.00 HK$50,000.10 From CHUI
K K
HK$20,000.00 HK$30,000.10 ATM Cash
Withdrawal
L L
HK$30,000.00 HK$0.10 Counter
M Withdrawal by M
D4
N 12/6/2020 HK$100,000.00 HK$100,000.10 From LO N
O HK$50,000.00 HK$150,000.10 From CHAN O
HK$30,000.00 HK$180,000.10
P P
HK$20,000.00 HK$200,000.10 From CHOW
Q Q
HK$20,000.00 HK$220,000.10 From CHAN
R HK$50,000.00 HK$270,000.10 From HUNG R
S HK$20,000.00 HK$290,000.10 S
HK$250,000.00 HK$40,000.10 Counter
T Withdrawal by T
D4
U U
V V
-5-
A A
B B
Date Deposit Withdrawal Balance Remarks
C 12/6/2020 HK$20,000.00 HK$20,000.10 ATM Cash C
Withdrawal
D HK$20,000.00 HK$0.10 ATM Cash D
Withdrawal
E E
13/6/2020 HK$10,000.00 HK$10,000.10 From CHAN
F 15/6/2020 HK$1,000.00 HK$11,000.10 F
G HK$11,000.00 HK$0.10 Transfer to G
Account B
H Total: HK$351,000.00 HK$351,000.00 H
I I
Account B (Charge 15)
J J
K 11. Account B was a HKD account opened on 17 June 2010 by K
D4 in his name. D4 was the sole signatory.
L L
M 12. Temporary depository patterns were observed in Account B, M
as shown below:
N N
O Date Deposit Withdrawal Balance Remarks O
23/6/2020 HK$120,000.00 HK$120,000.00
P P
HK$40,000.00 HK$160,000.00
Q Q
HK$160,000.00 HK$0.00 Counter
Withdrawal
R by D4 R
S 24/6/2020 HK$100,000.00 HK$100,000.00 From MA S
HK$30,000.00 HK$130,000.00 From LEE
T T
U U
V V
-6-
A A
B B
Date Deposit Withdrawal Balance Remarks
C 24/6/2020 HK$30,000.00 HK$160,000.00 From C
ZHENG
D HK$160,000.00 HK$0.00 Counter D
Withdrawal
E by D4 E
Total: HK$320,000.00 HK$320,000.00
F F
G G
13. The transactions above were significant transactions and were
H out of the usual activity pattern in the account (where deposits and H
withdrawals were normally in hundreds and thousands of dollars only, and
I I
occasionally tens of thousands, but not hundreds of thousands).
J J
Arrest and Caution
K K
L 14. On 20 February 2021, D4 was arrested. Upon search, one L
mobile phone was found on his person. Under caution, D4 admitted the
M M
following at video-recorded interviews:
N N
(a) He lived in a public rental housing estate; from
O O
February to November 2020, he worked at various jobs,
P earning around HK$7,000 to HK$8,000 per month; he P
is currently unemployed; he did not have other sources
Q Q
of income;
R R
(b) He met a male called Sam in March 2020;
S S
T (c) He opened Account A for payroll purposes; in around T
mid-June 2020, he lent Account A’s ATM card to Sam;
U U
V V
-7-
A A
B B
Sam wanted to borrow the account because he was
C bankrupt; afterwards, Sam disappeared; Account A had C
internet banking; he knew there were transactions in
D D
Account A but did not pay attention to them; in around
E July 2020, he found that Account A was frozen; E
therefore, he closed Account A; and
F F
G (d) He opened Account B for payroll purposes; in late June G
2020, he lent Account B’s ATM card to Sam as Sam
H H
had lost his own ATM card; Sam said he would give it
I back to him; afterwards, Sam disappeared; he did not I
report the loss of this ATM card; he received bank
J J
statements for Account B but he did not look at them
K and threw them away. K
L L
15. At the material time, D4 did not own any companies,
M properties, vehicles or vessels in Hong Kong. M
N N
16. D4 had not filed any tax returns since 2015.
O O
Failing to Surrender to Custody (Charge 17)
P P
Q 17. On 6 September 2022, D4 was granted court bail upon his Q
indication of guilty plea for the present case. Plea and sentence was fixed
R R
for 29 May 2023.
S S
18. On 29 May 2023, D4 failed to appear in the District Court for
T T
plea and sentence. A warrant of arrest was issued against him.
U U
V V
-8-
A A
B B
C 19. On 26 July 2023, D4 was re-arrested after a stop and search C
by PC21476. D4’s wanted status was unveiled upon enquiry of D4’s
D D
identity with the Control Centre.
E E
20. D4 now admits that, at the material time, he did not have any
F F
lawful excuse or reasonable cause for failing to surrender to custody as had
G been appointed by the court. G
H H
Criminal record
I I
21. D4 has 5 previous convictions, none similar.
J J
K Antecedents K
L L
22. D4 is aged almost 37 (33 at the time of the money laundering
M offences), educated to F3 level, unemployed at the time of arrest. D4 lived M
in public housing in Tin Shui Wai.
N N
O Mitigation O
P P
23. Mr Henry Ng of counsel assigned by the Director of Legal
Q Aid mitigated on behalf of D4. The following is a summary of the Q
mitigation submissions.
R R
S 24. Under Charge 14 – Account A, it was D4 who on 11 June S
2020 who withdrew $20,000 via ATM; it was also D4 who on 12 June
T T
U U
V V
-9-
A A
B B
2020 withdrew $20,000 twice via ATM. It was also D4 who on 15 June
C 2020 transferred $11,000 to Account B. C
D D
25. D4 became married in 2013. His wife is 32 years old. Their
E daughter is 10 years old. Wife and daughter are living in Shanghai. Wife E
is working as a promoter in a hotel.
F F
G 26. D4’s parents are about 60 years old. He has two young G
siblings. His last job was as a casual site worker earning about $15,000 a
H H
month. He was unemployed at the time of the money laundering offences.
I I
27. D4 indicated his guilty pleas to the money laundering charges
J J
as soon as possible before he jumped bail. Although no one knew if D4
K would still plead guilty upon re-arrest, Mr Ng still asked the court to K
exercise its discretion to give D4 the full 1/3 discount in sentence in light
L L
of the fact that only a short period of absconding was involved.
M M
28. D4 came to know a friend called “Sam” through playing
N N
basketball together. Sam often treated D4 to meals. D4 helped Sam out
O by lending to him the two subject bank accounts. Sam told him that O
someone would deposit money into the two bank accounts. Sam then
P P
instructed him to withdraw the money and handed it to Sam in full.
Q Q
29. Under Charge 14 – Account A, on 11 June 2020, Sam and D4
R R
walked to the bank together. Sam did not enter. D4 went in on instructions
S of Sam. After withdrawing a total of $50,000, D4 passed the same to Sam S
outside the bank. Sam gave $1,000 to D4 as reward. On 12 June 2020, in
T T
a similar fashion, Sam passed $290,000 to Sam outside the bank. Sam
U U
V V
- 10 -
A A
B B
again gave $1,000 to D4 as reward. On 15 June 2020, Sam instructed D4
C to go to the bank and transfer $11,000 into D4’s BOC account (Account C
B). D4 did so. Sam did not give any reward to D4 on this occasion.
D D
E 30. Under Charge 15 – Account B, on 23 June 2020, Sam and D4 E
went to the bank together. Sam did not enter. D4 withdrew $160,000 and
F F
passed the same to Sam outside the bank. Sam gave $1,000 to D4 as
G reward. On 24 June 2020, in a similar fashion, Sam passed $160,000 to G
Sam outside the bank. Sam again gave $1,000 to D4 as reward.
H H
I 31. D4 did all that for Sam for friendship’s sake rather than for I
the nominal reward.
J J
K 32. Moreover, D4 had no knowledge of the source of money that K
had been deposited into his bank accounts. He however had reasonable
L L
grounds to believe that the cash was black money.
M M
33. The maximum penalty for money laundering is a fine of $5M
N N
and imprisonment for 14 years.
O O
34. There are no sentencing guidelines for the offence. Generally
P P
speaking, the main sentencing factor is the amount of black money; but the
Q amount is neither the only nor the most important consideration. Q
R R
35. In HKSAR v Hsu Yu Yi [2010] 5 HKLRD 545, the Court of
S Appeal stressed again the fact-specific nature of the offence regarding S
sentence. However, the amount of the money being laundered is a major
T T
sentencing consideration. In paragraph 9 thereof, Cheung JA stated:
U U
V V
- 11 -
A A
B B
“9. There are no sentencing guidelines for the offence of
C C
dealing with the proceeds from an indictable offence because the
facts vary from case to case. However the following factors are
D to be taken into account when determining sentence: D
(a) It is the amount of money involved that is a major
E consideration and not the amount of benefit received by E
a defendant in the transaction.
F F
(b) The culpability of the offence lies in the
assistance, support and encouragement offered to the
G commission of an indictable offence. So a defendant’s G
level of participation and the number of occasions on
H
which he is involved in the “money laundering” H
activities are relevant factors to be considered.
I (c) The offence of dealing with the proceeds from an I
indictable offence does not necessarily have any direct
correlation with the indictable offence in question.
J J
However if the relevant indictable offence can be
identified, the court may take into account the sentence
K imposed on the indictable offence per se when K
determining the sentence of the dealing offence.
L (d) If the case has an international element involving L
activities carried out across different regions, the court
M may impose a more severe sentence. This is to protect M
Hong Kong’s reputation as an international finance and
banking hub from being tarnished.
N N
(e) The length of time the offence lasted.”
O O
36. In Secretary for Justice v Wan Kwok Keung [2012] 1 HKLRD
P P
201, Yeung JA (as Yeung VP then was) observed that:
Q Q
“12. “Money laundering” is a serious offence for not only
R does it encourage criminal activities indirectly, but also attempts R
to legitimise the proceeds of crime. In order to crack down on
serious crimes and to prevent offenders from getting financial
S gains, it is necessary to deter the commission of “money S
laundering” offences (see Court of Appeal in HKSAR v Javid
T
Kamran (unrep., CACC 400/2004, [2005] HKEC 80), HKSAR v T
Xu Xia Li [2004] 4 HKC 16).
U U
V V
- 12 -
A A
B 13. Generally, the sentence for a “money laundering” B
offence should mainly reflect the amount of “black money”
C laundered and not the benefit obtained by the defendant or C
others. The reason being that it is very difficult to prove the
benefit concerned, and in most “money laundering” cases, there
D may not be evidence to show from what indictable offence the D
“black money” is in fact derived. Of course if there is
E
information to prove that the “black money” originated from E
serious crimes, including drug trafficking, kidnap and blackmail,
illegal human trafficking and other organised crimes etc, or the
F defendant’s benefit is huge, then the sentence should be adjusted F
upward.
G G
14. This Court has, in a number of other similar cases, also
listed other factors relevant to the sentence to be imposed
H including the number of offences, the length of time the offence H
lasted, the degree to which the defendant participated in the
offence involving “black money” and whether or not it was an
I organised and sophisticated crime etc. I
J 15. In HKSAR v Hsu Yu Yi [2010] 5 HKLRD 545, Cheung J
JA set out the amounts of money involved and the sentences
passed in a number of “money laundering” cases. The
K sentencing starting point is 3 years or so where the “black K
money” involved is between $1 million and $2 million; 4 years
or so where it is between $3 million and $6 million; and could
L L
be over 5 years where it is above $10 million.”
M M
37. In HKSAR v Boma [2012] 2 HKLRD 33, the Court of Appeal
N emphasized that “the question of the amount of money laundered is not the N
be-all and end-all of a case, but is a significant feature”. The Court went
O O
on to elaborate on the other relevant factors to be considered (at paragraph
P 40 of the judgment): P
Q Q
(1) The nature of the predicate offence for generating
R “black money” and the sentence to be imposed; R
S S
(2) Whether the defendant knew what the predicate offence
T was; T
U U
V V
- 13 -
A A
B B
(3) Whether there is an international element;
C C
(4) Whether the offence of “money laundering” involves
D D
elaborate steps, schemes or fraudulent means;
E E
(5) Whether there is a criminal syndicate;
F F
G (6) The number of transactions and the length of time G
during which the offences were committed;
H H
I (7) Whether the defendant continued to launder money I
after knowing the nature of the predicate offence; and
J J
K (8) The role and remuneration of the defendant. K
L L
38. Mr Ng then referred to the Reasons for Sentence (per Deputy
M Judge D Cheung) of the other defendants under the same case numbers M
with neutral citation number [2023] HKDC 886 (in Chinese). There, D2
N N
and D5 each pleaded guilty to one charge of money laundering.
O O
39. D2 was concerned with deposits made between about 29 and
P P
30 June 2020; the total amount involved was $295,000. D2 had two
Q previous convictions none similar. Q
R R
40. D5 was concerned with deposits made between about 23 and
S 24 June 2020 (6 deposits and 5 withdrawals); the total amount involved S
was $313,800. D5 had 11 previous convictions none similar.
T T
U U
V V
- 14 -
A A
B B
41. Deputy Judge D Cheung was of the view that the appropriate
C starting point for the charges should be 12 months’ imprisonment. C
D D
42. Back to D4, under Charge 14, the amount was $351,000; the
E transactions involved only 4 days and occurred within 5 days. There were E
12 deposits and 6 withdrawals.
F F
G 43. Under Charge 15, the amount was $320,000; the transactions G
involved only 2 consecutive days. There were 5 deposits and 2
H H
withdrawals.
I I
44. There is no evidence D4 knew the source of the money. He
J J
was naïve and foolish. He did not commit the offences for a long time.
K The modus operandi was not complicated or sophisticated. He was not a K
member of the criminal syndicate perpetrating the predicate loan scam.
L L
There was no international dimension. His role was merely a stooge bank
M account holder who received and withdrew crime proceeds. He was a first- M
time offender of this type of offence.
N N
O 45. In light of the above, Mr Ng asked for a starting point of 12- O
15 months’ imprisonment for each of Charges 14 and 15. Mr Ng asked the
P P
court to apply totality and make part of the sentences run concurrently.
Q Q
46. Regarding failure to surrender to custody, D4 was afraid to
R R
face punishment for Charges 14 and 15. He was foolish by absconding.
S His only mitigating factor is the plea of guilty. S
T T
U U
V V
- 15 -
A A
B B
47. The maximum sentence is 12 months’ imprisonment. There
C are no sentencing guidelines. C
D D
48. In considering the appropriate starting point, the court should
E have regard to the following factors: E
F F
(a) The underlying offence of the charge to which the
G defendant was originally facing; G
H H
(b) The length of time the defendant has been absconding;
I and I
J J
(c) The effect of the defendant’s absconding on the judicial
K process. K
L L
49. D4 absconded for just under 2 months, which was not a long
M time. It is admitted that D4 did not surrender himself but was re-arrested M
on being intercepted on the street.
N N
O 50. It was submitted that the judicial process was not seriously O
delayed. On 29 May 2023, the court continued to deal with the other
P P
defendants either for plea & sentence or for trial.
Q Q
51. Mr Ng referred to a District Court sentencing case (in
R R
Chinese), namely HKSAR v Ng Kai Shing (transliteration) (D2) & Anor,
S DCCC 337 & 538/2022, at paras 70-75. S
T T
U U
V V
- 16 -
A A
B B
52. Mr Ng asked the court to consider a starting point of 3-6
C months’ imprisonment and to order the sentence to run consecutively to C
the sentences on Charges 14 and 15.
D D
E 53. D4’s wife is starting divorce proceedings against D4. D4 is E
saddened about this. He promises to turn over a new leaf. He hopes to fly
F F
over to Shanghai to see his wife and daughter as soon as possible. A lenient
G sentence is asked for. G
H H
Sentence
I I
54. Money laundering is a serious offence. It is the oil that
J J
enables the engine of the predicate offence to run smoothly and efficiently.
K An immediate term of imprisonment must be imposed to deter would-be K
offenders.
L L
M 55. In sentencing D4, I have borne in mind the level of sentences M
and the reasons therefor imposed on D2, D3 and D5 under the same case
N N
numbers.
O O
56. On the money laundering charges, I shall take a global
P P
approach. The two charges involved a total sum of $671,000. On the
Q amount alone, I think it right to adopt as an initial starting point 24 months’ Q
imprisonment. With the aggravating factors of receiving a reward of
R R
$4,000 and the use of more than one bank account, I shall enhance that
S starting point by 4 months to arrive at a final starting point of 28 months’ S
imprisonment.
T T
U U
V V
- 17 -
A A
B B
57. To Charges 14-15, D4 pleaded guilty not at the earliest
C opportunity. I cannot give him the full 1/3 discount (see HKSAR v Au Chun C
Foo, CACC 125/2023). All things considered, I will give D4 a discount of
D D
25%.
E E
58. Individually and notionally, on Charge 14, I shall adopt a
F F
starting point of 14 months’ imprisonment; and on Charge 15, I shall adopt
G a starting point of 16 months’ imprisonment. This has taken into account G
the aggravating factors aforesaid.
H H
I 59. On Charge 17, taking into account all circumstances I
especially the likely sentences of the offences from which D4 tried to
J J
evade, I will adopt a starting point of 4 ½ months’ imprisonment. D4 has
K pleaded guilty in good time. He shall be entitled to the full 1/3 discount. K
L L
60. There are no other mitigating factors of weight to justify any
M further reduction in sentence. M
N N
61. In principle, the sentence on Charge 17 ought to be served
O wholly consecutively to the sentences on Charges 14-15. However, I shall O
still take into account the principle of totality before determining the final
P P
aggregate sentence.
Q Q
(D4, please stand)
R R
S 62. On Charge 14, the sentence is 10 months and 15 days’ S
imprisonment.
T T
U U
V V
- 18 -
A A
B B
63. On Charge 15, the sentence is 12 months’ imprisonment.
C C
64. On Charge 17, the sentence is 3 months’ imprisonment.
D D
E 65. I order that 9 months of the sentence on Charge 14, and 2 E
months of the sentence on Charge 17, are each to run consecutively to the
F F
sentence on Charge 15. The aggregate sentence is therefore 23 months’
G imprisonment. G
H H
I I
( Isaac Tam )
J District Judge J
K K
L L
M M
N N
O O
P P
Q Q
R R
S S
T T
U U
V V
A A
B B
DCCC 630/2021, 38, 39, 99 & 340/2022 (Consolidated)
C
[2024] HKDC 489 C
D D
IN THE DISTRICT COURT OF THE
E HONG KONG SPECIAL ADMINISTRATIVE REGION E
CRIMINAL CASE NOS 630 OF 2021, 38, 39, 99 & 340 OF 2022
F F
G -------------------------------- G
HKSAR
H H
v
I CHIU WING HUNG (D4) I
--------------------------------
J J
K Before: His Honour Judge Tam K
Date: 22 March 2024
L L
Present: Miss Choi Chung Jing, Juno, Public Prosecutor, for HKSAR
M Mr Ng Yiu Hang, Henry, instructed by Mike So, Joseph Lau M
& Co, assigned by the Director of Legal Aid, for the 4th
N N
defendant
O Offences: [14] & [15] Dealing with property known or believed to O
represent proceeds of an indictable offence（處理已知道或
P P
相信為代表從可公訴罪行的得益的財產） - D4
Q Q
[17] Failing to surrender to custody without reasonable
R cause（無合理因由而沒有按照法庭的指定歸押） - D4 R
S S
T T
U U
V V
-2-
A A
B B
--------------------------------------
C REASONS FOR SENTENCE C
--------------------------------------
D D
E 1. D4 Chiu Wing Hung pleaded guilty before me to 2 charges E
(Charges 14 and 15) of Dealing with property known or believed to
F F
represent proceeds of an indictable offence, contrary to section 25(1) and
G (3) of the Organized and Serious Crimes Ordinance, Cap 455; and one G
charge (Charge 17) of Failing to surrender to custody without reasonable
H H
cause, contrary to section 9L(1) and (3) of the Criminal Procedure
I Ordinance, Cap 221, on an Amended Consolidated Charge Sheet dated 25 I
August 2023 involving 4 other defendants and 14 other charges not
J J
directed against D4.
K K
2. The other defendants and charges have been dealt with
L L
separately before another judge; Reasons for Sentence (in Chinese) dated
M 23 June 2023 under the same consolidated case numbers refers. M
N N
3. Particulars of Charge 14 are that D4, between about 11 June
O 2020 and about 15 June 2020, both dates inclusive, in Hong Kong, knowing O
or having reasonable grounds to believe that property, namely a total sum
P P
of $351,000 Hong Kong currency in the bank account held in the name of
Q D4 with the Hongkong and Shanghai Banking Corporation Limited of Q
account number 661-426783-833, in whole or in part directly or indirectly
R R
represented the proceeds of an indicatable offence, dealt with the said
S property. S
T T
U U
V V
-3-
A A
B B
4. Particulars of Charge 15 are that D4, between about 23 June
C 2020 and about 24 June 2020, both dates inclusive, in Hong Kong, knowing C
or having reasonable grounds to believe that property, namely a total sum
D D
of $320,000 Hong Kong currency in the bank account held in the name of
E D4 with the Bank of China (Hong Kong) Limited of account number 012- E
607-1-015979-4, in whole or in part directly or indirectly represented the
F F
proceeds of an indictable offence, dealt with the said property.
G G
5. Particulars of Charge 17 are that D4, on 29 May 2023, in
H H
Hong Kong, being a person admitted to bail, without reasonable cause,
I failed to surrender to custody as had been appointed by a court. I
J J
Facts admitted by D4
K K
6. One or more loan scam syndicate(s) recruited D4 as stooge
L L
bank account holder. D4’s two bank accounts at respectively HSBC
M (Account A - Charge 14 involving $351,000) and BOC (Account B - M
Charge 15 involving $320,000) were used to receive crime proceeds which
N N
were then swiftly withdrawn.
O O
7. Under Charge 14 relating to Account A, the victims of the
P P
loan scam were CHUI, NG, LO, CHAN, CHOW and HUNG.
Q Q
8. Under Charge 15 relating to Account B, the victims of the
R R
loan scam were ZHENG, MA and LEE.
S S
T T
U U
V V
-4-
A A
B B
Account A (Charge 14)
C C
9. Account A was a HKD account opened on 8 June 2020 by D4
D D
in his name. D4 was the sole signatory. Account A was closed on 9
E November 2020. E
F F
10. Shortly after the account opening date, temporary depository
G patterns were observed in Account A, as shown below: G
H H
Date Deposit Withdrawal Balance Remarks
I 11/6/2020 HK$20,000.00 HK$20,000.10 From NG I
HK$10,000.00 HK$30,000.10 From NG
J J
HK$20,000.00 HK$50,000.10 From CHUI
K K
HK$20,000.00 HK$30,000.10 ATM Cash
Withdrawal
L L
HK$30,000.00 HK$0.10 Counter
M Withdrawal by M
D4
N 12/6/2020 HK$100,000.00 HK$100,000.10 From LO N
O HK$50,000.00 HK$150,000.10 From CHAN O
HK$30,000.00 HK$180,000.10
P P
HK$20,000.00 HK$200,000.10 From CHOW
Q Q
HK$20,000.00 HK$220,000.10 From CHAN
R HK$50,000.00 HK$270,000.10 From HUNG R
S HK$20,000.00 HK$290,000.10 S
HK$250,000.00 HK$40,000.10 Counter
T Withdrawal by T
D4
U U
V V
-5-
A A
B B
Date Deposit Withdrawal Balance Remarks
C 12/6/2020 HK$20,000.00 HK$20,000.10 ATM Cash C
Withdrawal
D HK$20,000.00 HK$0.10 ATM Cash D
Withdrawal
E E
13/6/2020 HK$10,000.00 HK$10,000.10 From CHAN
F 15/6/2020 HK$1,000.00 HK$11,000.10 F
G HK$11,000.00 HK$0.10 Transfer to G
Account B
H Total: HK$351,000.00 HK$351,000.00 H
I I
Account B (Charge 15)
J J
K 11. Account B was a HKD account opened on 17 June 2010 by K
D4 in his name. D4 was the sole signatory.
L L
M 12. Temporary depository patterns were observed in Account B, M
as shown below:
N N
O Date Deposit Withdrawal Balance Remarks O
23/6/2020 HK$120,000.00 HK$120,000.00
P P
HK$40,000.00 HK$160,000.00
Q Q
HK$160,000.00 HK$0.00 Counter
Withdrawal
R by D4 R
S 24/6/2020 HK$100,000.00 HK$100,000.00 From MA S
HK$30,000.00 HK$130,000.00 From LEE
T T
U U
V V
-6-
A A
B B
Date Deposit Withdrawal Balance Remarks
C 24/6/2020 HK$30,000.00 HK$160,000.00 From C
ZHENG
D HK$160,000.00 HK$0.00 Counter D
Withdrawal
E by D4 E
Total: HK$320,000.00 HK$320,000.00
F F
G G
13. The transactions above were significant transactions and were
H out of the usual activity pattern in the account (where deposits and H
withdrawals were normally in hundreds and thousands of dollars only, and
I I
occasionally tens of thousands, but not hundreds of thousands).
J J
Arrest and Caution
K K
L 14. On 20 February 2021, D4 was arrested. Upon search, one L
mobile phone was found on his person. Under caution, D4 admitted the
M M
following at video-recorded interviews:
N N
(a) He lived in a public rental housing estate; from
O O
February to November 2020, he worked at various jobs,
P earning around HK$7,000 to HK$8,000 per month; he P
is currently unemployed; he did not have other sources
Q Q
of income;
R R
(b) He met a male called Sam in March 2020;
S S
T (c) He opened Account A for payroll purposes; in around T
mid-June 2020, he lent Account A’s ATM card to Sam;
U U
V V
-7-
A A
B B
Sam wanted to borrow the account because he was
C bankrupt; afterwards, Sam disappeared; Account A had C
internet banking; he knew there were transactions in
D D
Account A but did not pay attention to them; in around
E July 2020, he found that Account A was frozen; E
therefore, he closed Account A; and
F F
G (d) He opened Account B for payroll purposes; in late June G
2020, he lent Account B’s ATM card to Sam as Sam
H H
had lost his own ATM card; Sam said he would give it
I back to him; afterwards, Sam disappeared; he did not I
report the loss of this ATM card; he received bank
J J
statements for Account B but he did not look at them
K and threw them away. K
L L
15. At the material time, D4 did not own any companies,
M properties, vehicles or vessels in Hong Kong. M
N N
16. D4 had not filed any tax returns since 2015.
O O
Failing to Surrender to Custody (Charge 17)
P P
Q 17. On 6 September 2022, D4 was granted court bail upon his Q
indication of guilty plea for the present case. Plea and sentence was fixed
R R
for 29 May 2023.
S S
18. On 29 May 2023, D4 failed to appear in the District Court for
T T
plea and sentence. A warrant of arrest was issued against him.
U U
V V
-8-
A A
B B
C 19. On 26 July 2023, D4 was re-arrested after a stop and search C
by PC21476. D4’s wanted status was unveiled upon enquiry of D4’s
D D
identity with the Control Centre.
E E
20. D4 now admits that, at the material time, he did not have any
F F
lawful excuse or reasonable cause for failing to surrender to custody as had
G been appointed by the court. G
H H
Criminal record
I I
21. D4 has 5 previous convictions, none similar.
J J
K Antecedents K
L L
22. D4 is aged almost 37 (33 at the time of the money laundering
M offences), educated to F3 level, unemployed at the time of arrest. D4 lived M
in public housing in Tin Shui Wai.
N N
O Mitigation O
P P
23. Mr Henry Ng of counsel assigned by the Director of Legal
Q Aid mitigated on behalf of D4. The following is a summary of the Q
mitigation submissions.
R R
S 24. Under Charge 14 – Account A, it was D4 who on 11 June S
2020 who withdrew $20,000 via ATM; it was also D4 who on 12 June
T T
U U
V V
-9-
A A
B B
2020 withdrew $20,000 twice via ATM. It was also D4 who on 15 June
C 2020 transferred $11,000 to Account B. C
D D
25. D4 became married in 2013. His wife is 32 years old. Their
E daughter is 10 years old. Wife and daughter are living in Shanghai. Wife E
is working as a promoter in a hotel.
F F
G 26. D4’s parents are about 60 years old. He has two young G
siblings. His last job was as a casual site worker earning about $15,000 a
H H
month. He was unemployed at the time of the money laundering offences.
I I
27. D4 indicated his guilty pleas to the money laundering charges
J J
as soon as possible before he jumped bail. Although no one knew if D4
K would still plead guilty upon re-arrest, Mr Ng still asked the court to K
exercise its discretion to give D4 the full 1/3 discount in sentence in light
L L
of the fact that only a short period of absconding was involved.
M M
28. D4 came to know a friend called “Sam” through playing
N N
basketball together. Sam often treated D4 to meals. D4 helped Sam out
O by lending to him the two subject bank accounts. Sam told him that O
someone would deposit money into the two bank accounts. Sam then
P P
instructed him to withdraw the money and handed it to Sam in full.
Q Q
29. Under Charge 14 – Account A, on 11 June 2020, Sam and D4
R R
walked to the bank together. Sam did not enter. D4 went in on instructions
S of Sam. After withdrawing a total of $50,000, D4 passed the same to Sam S
outside the bank. Sam gave $1,000 to D4 as reward. On 12 June 2020, in
T T
a similar fashion, Sam passed $290,000 to Sam outside the bank. Sam
U U
V V
- 10 -
A A
B B
again gave $1,000 to D4 as reward. On 15 June 2020, Sam instructed D4
C to go to the bank and transfer $11,000 into D4’s BOC account (Account C
B). D4 did so. Sam did not give any reward to D4 on this occasion.
D D
E 30. Under Charge 15 – Account B, on 23 June 2020, Sam and D4 E
went to the bank together. Sam did not enter. D4 withdrew $160,000 and
F F
passed the same to Sam outside the bank. Sam gave $1,000 to D4 as
G reward. On 24 June 2020, in a similar fashion, Sam passed $160,000 to G
Sam outside the bank. Sam again gave $1,000 to D4 as reward.
H H
I 31. D4 did all that for Sam for friendship’s sake rather than for I
the nominal reward.
J J
K 32. Moreover, D4 had no knowledge of the source of money that K
had been deposited into his bank accounts. He however had reasonable
L L
grounds to believe that the cash was black money.
M M
33. The maximum penalty for money laundering is a fine of $5M
N N
and imprisonment for 14 years.
O O
34. There are no sentencing guidelines for the offence. Generally
P P
speaking, the main sentencing factor is the amount of black money; but the
Q amount is neither the only nor the most important consideration. Q
R R
35. In HKSAR v Hsu Yu Yi [2010] 5 HKLRD 545, the Court of
S Appeal stressed again the fact-specific nature of the offence regarding S
sentence. However, the amount of the money being laundered is a major
T T
sentencing consideration. In paragraph 9 thereof, Cheung JA stated:
U U
V V
- 11 -
A A
B B
“9. There are no sentencing guidelines for the offence of
C C
dealing with the proceeds from an indictable offence because the
facts vary from case to case. However the following factors are
D to be taken into account when determining sentence: D
(a) It is the amount of money involved that is a major
E consideration and not the amount of benefit received by E
a defendant in the transaction.
F F
(b) The culpability of the offence lies in the
assistance, support and encouragement offered to the
G commission of an indictable offence. So a defendant’s G
level of participation and the number of occasions on
H
which he is involved in the “money laundering” H
activities are relevant factors to be considered.
I (c) The offence of dealing with the proceeds from an I
indictable offence does not necessarily have any direct
correlation with the indictable offence in question.
J J
However if the relevant indictable offence can be
identified, the court may take into account the sentence
K imposed on the indictable offence per se when K
determining the sentence of the dealing offence.
L (d) If the case has an international element involving L
activities carried out across different regions, the court
M may impose a more severe sentence. This is to protect M
Hong Kong’s reputation as an international finance and
banking hub from being tarnished.
N N
(e) The length of time the offence lasted.”
O O
36. In Secretary for Justice v Wan Kwok Keung [2012] 1 HKLRD
P P
201, Yeung JA (as Yeung VP then was) observed that:
Q Q
“12. “Money laundering” is a serious offence for not only
R does it encourage criminal activities indirectly, but also attempts R
to legitimise the proceeds of crime. In order to crack down on
serious crimes and to prevent offenders from getting financial
S gains, it is necessary to deter the commission of “money S
laundering” offences (see Court of Appeal in HKSAR v Javid
T
Kamran (unrep., CACC 400/2004, [2005] HKEC 80), HKSAR v T
Xu Xia Li [2004] 4 HKC 16).
U U
V V
- 12 -
A A
B 13. Generally, the sentence for a “money laundering” B
offence should mainly reflect the amount of “black money”
C laundered and not the benefit obtained by the defendant or C
others. The reason being that it is very difficult to prove the
benefit concerned, and in most “money laundering” cases, there
D may not be evidence to show from what indictable offence the D
“black money” is in fact derived. Of course if there is
E
information to prove that the “black money” originated from E
serious crimes, including drug trafficking, kidnap and blackmail,
illegal human trafficking and other organised crimes etc, or the
F defendant’s benefit is huge, then the sentence should be adjusted F
upward.
G G
14. This Court has, in a number of other similar cases, also
listed other factors relevant to the sentence to be imposed
H including the number of offences, the length of time the offence H
lasted, the degree to which the defendant participated in the
offence involving “black money” and whether or not it was an
I organised and sophisticated crime etc. I
J 15. In HKSAR v Hsu Yu Yi [2010] 5 HKLRD 545, Cheung J
JA set out the amounts of money involved and the sentences
passed in a number of “money laundering” cases. The
K sentencing starting point is 3 years or so where the “black K
money” involved is between $1 million and $2 million; 4 years
or so where it is between $3 million and $6 million; and could
L L
be over 5 years where it is above $10 million.”
M M
37. In HKSAR v Boma [2012] 2 HKLRD 33, the Court of Appeal
N emphasized that “the question of the amount of money laundered is not the N
be-all and end-all of a case, but is a significant feature”. The Court went
O O
on to elaborate on the other relevant factors to be considered (at paragraph
P 40 of the judgment): P
Q Q
(1) The nature of the predicate offence for generating
R “black money” and the sentence to be imposed; R
S S
(2) Whether the defendant knew what the predicate offence
T was; T
U U
V V
- 13 -
A A
B B
(3) Whether there is an international element;
C C
(4) Whether the offence of “money laundering” involves
D D
elaborate steps, schemes or fraudulent means;
E E
(5) Whether there is a criminal syndicate;
F F
G (6) The number of transactions and the length of time G
during which the offences were committed;
H H
I (7) Whether the defendant continued to launder money I
after knowing the nature of the predicate offence; and
J J
K (8) The role and remuneration of the defendant. K
L L
38. Mr Ng then referred to the Reasons for Sentence (per Deputy
M Judge D Cheung) of the other defendants under the same case numbers M
with neutral citation number [2023] HKDC 886 (in Chinese). There, D2
N N
and D5 each pleaded guilty to one charge of money laundering.
O O
39. D2 was concerned with deposits made between about 29 and
P P
30 June 2020; the total amount involved was $295,000. D2 had two
Q previous convictions none similar. Q
R R
40. D5 was concerned with deposits made between about 23 and
S 24 June 2020 (6 deposits and 5 withdrawals); the total amount involved S
was $313,800. D5 had 11 previous convictions none similar.
T T
U U
V V
- 14 -
A A
B B
41. Deputy Judge D Cheung was of the view that the appropriate
C starting point for the charges should be 12 months’ imprisonment. C
D D
42. Back to D4, under Charge 14, the amount was $351,000; the
E transactions involved only 4 days and occurred within 5 days. There were E
12 deposits and 6 withdrawals.
F F
G 43. Under Charge 15, the amount was $320,000; the transactions G
involved only 2 consecutive days. There were 5 deposits and 2
H H
withdrawals.
I I
44. There is no evidence D4 knew the source of the money. He
J J
was naïve and foolish. He did not commit the offences for a long time.
K The modus operandi was not complicated or sophisticated. He was not a K
member of the criminal syndicate perpetrating the predicate loan scam.
L L
There was no international dimension. His role was merely a stooge bank
M account holder who received and withdrew crime proceeds. He was a first- M
time offender of this type of offence.
N N
O 45. In light of the above, Mr Ng asked for a starting point of 12- O
15 months’ imprisonment for each of Charges 14 and 15. Mr Ng asked the
P P
court to apply totality and make part of the sentences run concurrently.
Q Q
46. Regarding failure to surrender to custody, D4 was afraid to
R R
face punishment for Charges 14 and 15. He was foolish by absconding.
S His only mitigating factor is the plea of guilty. S
T T
U U
V V
- 15 -
A A
B B
47. The maximum sentence is 12 months’ imprisonment. There
C are no sentencing guidelines. C
D D
48. In considering the appropriate starting point, the court should
E have regard to the following factors: E
F F
(a) The underlying offence of the charge to which the
G defendant was originally facing; G
H H
(b) The length of time the defendant has been absconding;
I and I
J J
(c) The effect of the defendant’s absconding on the judicial
K process. K
L L
49. D4 absconded for just under 2 months, which was not a long
M time. It is admitted that D4 did not surrender himself but was re-arrested M
on being intercepted on the street.
N N
O 50. It was submitted that the judicial process was not seriously O
delayed. On 29 May 2023, the court continued to deal with the other
P P
defendants either for plea & sentence or for trial.
Q Q
51. Mr Ng referred to a District Court sentencing case (in
R R
Chinese), namely HKSAR v Ng Kai Shing (transliteration) (D2) & Anor,
S DCCC 337 & 538/2022, at paras 70-75. S
T T
U U
V V
- 16 -
A A
B B
52. Mr Ng asked the court to consider a starting point of 3-6
C months’ imprisonment and to order the sentence to run consecutively to C
the sentences on Charges 14 and 15.
D D
E 53. D4’s wife is starting divorce proceedings against D4. D4 is E
saddened about this. He promises to turn over a new leaf. He hopes to fly
F F
over to Shanghai to see his wife and daughter as soon as possible. A lenient
G sentence is asked for. G
H H
Sentence
I I
54. Money laundering is a serious offence. It is the oil that
J J
enables the engine of the predicate offence to run smoothly and efficiently.
K An immediate term of imprisonment must be imposed to deter would-be K
offenders.
L L
M 55. In sentencing D4, I have borne in mind the level of sentences M
and the reasons therefor imposed on D2, D3 and D5 under the same case
N N
numbers.
O O
56. On the money laundering charges, I shall take a global
P P
approach. The two charges involved a total sum of $671,000. On the
Q amount alone, I think it right to adopt as an initial starting point 24 months’ Q
imprisonment. With the aggravating factors of receiving a reward of
R R
$4,000 and the use of more than one bank account, I shall enhance that
S starting point by 4 months to arrive at a final starting point of 28 months’ S
imprisonment.
T T
U U
V V
- 17 -
A A
B B
57. To Charges 14-15, D4 pleaded guilty not at the earliest
C opportunity. I cannot give him the full 1/3 discount (see HKSAR v Au Chun C
Foo, CACC 125/2023). All things considered, I will give D4 a discount of
D D
25%.
E E
58. Individually and notionally, on Charge 14, I shall adopt a
F F
starting point of 14 months’ imprisonment; and on Charge 15, I shall adopt
G a starting point of 16 months’ imprisonment. This has taken into account G
the aggravating factors aforesaid.
H H
I 59. On Charge 17, taking into account all circumstances I
especially the likely sentences of the offences from which D4 tried to
J J
evade, I will adopt a starting point of 4 ½ months’ imprisonment. D4 has
K pleaded guilty in good time. He shall be entitled to the full 1/3 discount. K
L L
60. There are no other mitigating factors of weight to justify any
M further reduction in sentence. M
N N
61. In principle, the sentence on Charge 17 ought to be served
O wholly consecutively to the sentences on Charges 14-15. However, I shall O
still take into account the principle of totality before determining the final
P P
aggregate sentence.
Q Q
(D4, please stand)
R R
S 62. On Charge 14, the sentence is 10 months and 15 days’ S
imprisonment.
T T
U U
V V
- 18 -
A A
B B
63. On Charge 15, the sentence is 12 months’ imprisonment.
C C
64. On Charge 17, the sentence is 3 months’ imprisonment.
D D
E 65. I order that 9 months of the sentence on Charge 14, and 2 E
months of the sentence on Charge 17, are each to run consecutively to the
F F
sentence on Charge 15. The aggregate sentence is therefore 23 months’
G imprisonment. G
H H
I I
( Isaac Tam )
J District Judge J
K K
L L
M M
N N
O O
P P
Q Q
R R
S S
T T
U U
V V