CACC 171/2012


IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF APPEAL
CRIMINAL APPEAL NO. 171 OF 2012
(On Appeal From District Court Criminal Case No. 1383 of 2011)
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BETWEEN

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Before : Hon Cheung and Barma JJA in Court
Date of Hearing : 4 January 2013
Date of Judgment: 4 January 2013
Date of Reasons for Judgment: 15 January 2013



Hon Cheung JA (giving the reasons for judgment of the Court) : 
	The appellant pleaded guilty to three charges of dealing with property known or believed to represent proceeds of an indictable offence, contrary to sections 25(1) and (3) of the Organized and Serious Crimes Ordinance, Cap. 455 and was sentenced to imprisonment of 2 years and 8 months by H H Judge Douglas Yau.  The appellant was successful in his appeal against sentence before us and had his sentence reduced to 2 years’ imprisonment.  We now give reasons for our judgment.
Facts
	According to the summary of facts, between 20 October and 23 October 2009, two persons who resided in America and Taiwan, namely ‘PW1’ and ‘PW2’ were deceived by investment and lottery fraud and induced to remit funds into the Hong Kong bank accounts held in the name of the appellant.  The total amount involved in relation to the three charges was in the sum of HK$2,042,120.47.
	The appellant was the sole account signatory and account-holder of three personal saving bank accounts.
	On 20 October and 23 October 2009, PW2 was deceived to remit HK$547,969 and HK$618,835.31 into one of the appellant’s bank accounts (charge 3).  On 23 October 2009, PW1 was deceived to remit HK$355,251.90 and HK$520,064.26 into two of the appellant’s bank accounts (charges 1 and 2).
	The monies were then withdrawn in cash or ATM transfer within one to two days.
	The appellant was arrested on 12 December 2009.  Under caution, he stated that:
He met a male named ‘Ah Yung’ when gambling in Macau and he owed ‘Ah Yung’ debts;
He was requested by ‘Ah Yung’ to use his bank accounts to deal with certain remittances and he did so accordingly;
After the monies were deposited into his bank accounts, he withdrew the monies and passed them to ‘Ah Yung’;
He did not know PW1 and did not know the reason why he deposited monies into his bank accounts;
He was told that PW2 was a relative of ‘Ah Yung’ and the inward remittance of HK$618,835.31 was related to the construction business of ‘Ah Yung’;
Although he did not receive any rewards for lending his bank accounts to ‘Ah Yung’, ‘Ah Yung’ did not require him to pay the debt in the sum of about $50,000 to $60,000.
The sentence
	At the suggestion of the appellant’s lawyer (not Ms Flora Cheng who only appeared in this appeal), the Judge adopted a starting point of three years’ imprisonment for each of the charges, reduced it by one-third because of the plea and arrived at a sentence of two years’ imprisonment.  He ordered 8 months on charge 3 to be served consecutively to the sentences on charges 1 and 2 which are to be served concurrently and arrived at a total sentence of 2 years and 8 months’ imprisonment.
The Court’s approach
	In HKSAR v Boma Amaso [2012] 2 HKLRD 33 this Court (Stock VP, Cheung and Lunn JJA) maintained the view that because of the different circumstances that may arise in money laundering cases, it is not appropriate to provide a tariff of sentence.  Instead the sentence should be based on factors such as the nature of the predicate offence, knowledge of the offender, whether an international element is involved, the sophistication of the offence, whether an organised criminal syndicate is involved, the number of transactions and the length of the crime, the role of the offender and whether the offender continued with the offence after detection by the authorities or discovery by the offender of the nature of the offence.
	In considering the degree of culpability of the offender, the Court cited the example of the drug addict or petty crook who is paid a small sum to open an account and hand over its operation to another with no more participation and no more knowledge than that it is going to be used for some sort of crime and held that he ‘is much less culpable than an offender of a different sort not “used” in that way’.  


Our view
	The role played by the appellant in this case fits the example.  As the Judge said, he had no knowledge of the crime behind the proceeds and all that he did was to allow his bank accounts to be used for dealing with the money.  
	In this case the amount involved is slightly more than $2 million and the money was remitted within a four day period.  While the amount involved in the transaction is not a conclusive factor, it is nonetheless often an important factor to be considered.  Although this case has an international element because of the overseas fraud, we are of the view that the final sentence of 2 years and 8 months’ imprisonment is excessive.  This reflects a notional starting point of four years’ imprisonment which is usually adopted in cases involving far larger amounts (see, for example, HKSAR v. Lee Shun Fat (CACC 49/2012)).  In HKSAR v. Zhan Jian Fu (詹劍富) CACC 258/2007, a sentence of 2 years and 8 months’ imprisonment was upheld on appeal where the amount under the two charges was about $2 million.  But the aggravating feature in that case, apart from a similar overseas lottery fraud, is that the applicant there was a Mainlander who came to Hong Kong specifically to commit the crime by opening two bank accounts for the purpose of receiving the proceeds of fraud.  On that basis the 2 years and 8 months’ imprisonment was clearly justified.  
	In our view an overall sentence of two years’ imprisonment is appropriate in this case.  Although Ms Flora Cheng criticised the Judge for adopting an identical starting point for the three different sums, we had decided not to disturb the approach adopted by the Judge and had, instead, simply ordered the three sentences to be served concurrently to arrive at a global sentence of two years’ imprisonment.






Ms Peggy Lo, SPP of Department of Justice, for the respondent
Ms Flora Cheng, instructed by Director of Legal Aid, for the appellant
