HKSAR v. KWOK YIN YEUNG, LAP

DCCC 1010/2013

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 1010 OF 2013

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HKSAR
v
Kwok Yin-yeung, Lap
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Before: HH Judge S D’Almada Remedios

Date: 5 December 2013 at 12.17 pm

Present: Mr Karl Chu, PP of the DOJ, for HKSAR
Mr Stephen Fong, instructed by Wong, Kwan & Co, assigned by the Director of Legal Aid, for the defendant

Offence: (1) & (2) Dealing with property known or believed to represent proceeds of an 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)

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Reasons for Sentence

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1. Defendant, you have pleaded guilty to two charges of dealing with property believed to be represent proceeds of an indictable offence,contrary to Section 25(1) and (3) of the Organised and Serious Crimes Ordinance. These charges are commonly referred to as “money laundering”.

2. You have admitted between 7 August 2006 and 16 August 2010, you laundered $5,794,571.71 in respect of your savings account at theHang Seng Bank in Charge 1.

3. In Charge 2, in the Hang Seng Bank current account within that same period, you laundered a sum of $1,087,370.

4. You were the sole signatory of this Hang Seng Bank account. You had opened the account on 7 August 2006. Within this period, $5,981,509.71was deposited into the savings account and $5,983,348.93 was withdrawn in this period, leaving a nil balance. Over this period,there were a total of 1,293 transactions, including 512 deposits and 781 withdrawals. A total of 54 ATM cash withdrawals totalling$841,030 was made at various locations in Hong Kong when the travel index showed that you were out of Hong Kong.

5. In respect of the current account, seven ATM cash withdrawals totalling $106,500 were made at various locations in Hong Kong whenthe travel index showed that you went out of Hong Kong. You had signed cheques amounting to $1,088,318 with different payees. Inthis current account, $1,981,070 were deposited and withdrawn, leaving a nil balance on 16 August. Over that period, there had beena total of 169 transactions, including 81 deposits and 88 withdrawals. The monthly bank statements were sent to your residence andnone of them were returned.

6. It was confirmed by the bank there was no report of loss of the ATM card or replacement request for an ATM card in relation to yourbank account.

7. Between 2006 and 2010, you were at all material times employed as a casual worker by a number of hotels and the government. Youraverage salary was about $12,000-odd a month. You paid tax between those years of very small amounts of a few hundred dollars. Clearly, the monies that were going into your account far exceeded your income; approximately about 10 times of your annual income.

8. You did not own any property nor did you operate or own any company in Hong Kong. Although you maintained a Hong Kong Jockey Clubbetting account, this account did not have any transaction records between 2006 and 2010 and was not linked to your Hang Seng Bankaccount.

9. You have admitted in these two charges between the dates as particularised to having reasonable grounds to believe that the propertyin those two accounts totalling $6,881,941.71 were, in whole or in part, directly or indirectly represented proceeds of an indictableoffence and that you dealt with that property.

10. Defendant, your counsel, Mr Stephen Fong, has mitigated fully and thoroughly on your behalf.

11. You are 49 years of age and are of clear record. You are married and live with your mother in Hong Kong. Your mother is now elderlyat 75 and has some illnesses. Your wife is from China but has recently been granted a single-entry permit to Hong Kong. Your fatheris deceased and your brother and sisters are in Hong Kong and are all present here today, along with your wife and your brother-in-law.

12. Mr Fong has mitigated that this offence was wholly out of character. You have all along been a hardworking, responsible familyman and been gainfully employed by large hotel chains and lately in a large hospital in their restaurant business in Hong Kong.

13. Why then did you breach the law?

14. I am informed that the reason for you committing this offence is because you wanted to help a good friend of yours. You, therefore,opened this account and let him use your bank account for his own purposes. You had no idea what this account was to be used forand you did not yourself use this account, but assisted him in using this account by giving him the ATM card and code and, of course,signed cheques.

15. Why did you do this?

16. I am informed he was a long-term best friend of yours. He had cried on your shoulder to tell you that he had suffered great losses,owed the bank and financial institutions a lot of money and he had difficulty opening up a bank account in his own name. In fact,he specifically told you that he did not want to open a bank account in his own name and, therefore, asked you to open the accountto hide money away for him so no one would know about his funds.

17. Unfortunately, you foolishly agreed.

18. Although the bank accounts were sent to your house, you say you did not give these to your friend and threw them in the rubbishbin and took no notice at all of them.

19. This carried on for four years, until you were arrested for an offence of bookmaking in relation to these accounts in 2010. Theaccounts at that time you were arrested, I am informed by Mr Fong, had already a nil balance. You, therefore, closed the accounts.

20. You are, as is mitigated, very remorseful for committing this offence. It is a submitted that you gained no benefit by helpingyour friend. All along, you continued to work in your jobs in the restaurants in the hotels or at the hospital.

21. Your family have written various letters to the court, indicating what a good, hardworking man you are and that you show much supportand love to your family.

22. I am informed that your friend has informed you that he is very sorry for the trouble he has caused you. However, since about twomonths ago, you have lost contact with him.

23. The offence is a very serious one. It is an offence which calls for deterrence.

24. The most recent case of which the Court of Appeal has laid down factors to consider in sentencing is that laid down in HKSAR v a male known as Aboma Amaso, CACC 335/2010. There are no tariffs or guidelines for this offence.

25. The factor to be considered, firstly, is that this offence’s maximum penalty is one of 14 years’ imprisonment.

26. Your counsel, Mr Fong, has submitted to me a case of HKSAR v Li Sin Man, CACC 504/2012, and the date of the reasons for judgment was 14 November 2013, approximately two weeks ago. He brings to my attentionthis case, as in this case, the amount of money laundered was about $6 million in respect of two charges. The offences occurredover a period of 16 months, between 2009 and 2011. The predicate offence was not known and there was no evidence that the monieswere, in fact, the proceeds of an indictable offence. In that case, the court held that the defendant had reasonable grounds tobelieve that the monies were tainted by criminality.

27. Mr Fong submits those factors are similar to the present case. In that case, the court held that a 3-year starting point was appropriatefor an amount of approximately $6 million. He asks me to take into account a similar starting point.

28. I accept in this case, Defendant, that the prosecution do not know what the predicate offence is. There was no evidence that themonies were, in fact, the proceeds of an indictable offence.

29. You, however, had reasonable grounds to believe that the monies might be tainted by criminality.

30. You had openly allowed your friend to use this account, with your knowledge that you knew nothing of what was going on. You, inother words, were turning a blind eye to what was happening in that account.

31. The amounts laundered in total was approximately $6.8 million. I accept there was no international dimension in this case. Thereis no suggestion that the offences were committed by or on behalf of an organised criminal syndicate. Your role, as I said, wasto allow your friend to use this account and also to sign bank cheques. There is no evidence that you received any monetary benefit.

32. The difference between this case and the case of Li Sin Man is the fact that in this case the offence was committed over a period of four years, as opposed to 16 months. That is a more aggravatingfactor in that case.

33. There were, of course, in this case, numerous transactions, over 1,293 in the savings account and 169 in the current account duringthis period.

34. The criminality involved in the offence of money laundering is involving the encouragement and nourishment of crime in general,which is what you did by assisting your friend with full knowledge that he was hiding this money from authorities or doing somethingunsavoury.

35. Defendant, your strongest mitigating factor is your plea of guilty.

36. In respect of the submissions made by Mr Fong as to the delay in this case coming to trial, Mr Fong submits that you have enduredpressure and hardship from the date that you were first arrested.

37. You were originally arrested in July 2010 and released a year later in July 2011.

38. Mr Fong says you rightly believed that you were out of trouble and would not be re-arrested again and that, I am informed by boththe prosecution and Mr Fong, was for an offence of bookmaking.

39. You were re-arrested in October 2012 and charged in the following year, October 2013, for these present offences of money laundering.

40. Mr Fong submits that this is three years of hardship and pressure upon you and your family and your wife, who has since had a miscarriageand another problem with her pregnancy and should thus be given a further discount.

41. In Scook v R (2008) 185 A Crim R 164 at page 176, Buss JA sought to identify the guiding principles in relation to delay, although these were not intended to be exhaustiveor inflexible.

42. He identified seven factors as being of relevance.

43. First, he said delay is not of itself a mitigating factor. Delay will not ordinarily be a mitigating factor if it has been causedby difficulties in detecting, investigating or proving the offences committed by the offender and the period of the delay is reasonablein the circumstances.

44. In this case, it appears to me that the one year that was needed for investigation and in proving the offences for the bookmakingwas not a significant delay, as eventually, you were released from that charge.

45. I accept that no delay has been caused by your obstruction or lack of cooperation.

46. It appears to me from the facts that and what Mr Chu, the public prosecutor, has informed me, that you were arrested by anotherteam of police officers for this offence of money laundering. That was by the Financial Crime Unit.

47. From that date, the date of your arrest, which was in October 2012, there was a year after that to which you were then charged withthis offence. Again, I do not consider that delay of one year to be a delay.

48. Has the whole period of delay from 2010 to 2013 – that is, of three years – has resulted in stress upon you?

49. I accept that since the date of your first arrest to today when you have appeared in court being some three years that is quitea significant period of delay.

50. However, given the periods concerned, as I mentioned, the one year of your arrest for bookmaking and then releasing you was not,I consider, an undue delay and you were free for one year and re-arrested a year later. Again, the one year between arresting youfor this offence and bringing you and charging you only, I do not find to be an undue delay.

51. In those circumstances, I do not consider the delay from your first arrest to your appearance today to be a mitigating factor inthe circumstances.

52. Turning then to the two offence of money laundering. Taking into account the factors I have said earlier, had I convicted youafter trial, I would have imposed a sentence of 3½ years’ imprisonment in charge 1.

53. Giving you full credit for your plea of guilty, that sentence shall be reduced to one of 2 years and 4 months’ imprisonment.

54. On Charge 2, I would have taken a starting point of 2 years’ imprisonment after trial and reduce that term of one of 1 year 4month’ imprisonment.

55. I have taken into account the principle of totality and I consider 2 years 4 months to be appropriate sentence after taking intoaccount your plea of guilty. That is the total term of imprisonment to which you shall so serve, and the sentences shall run concurrentto each other.

(S. D’Almada Remedios)
District Judge