Hksar v Ng Man Yee

Judgment Date30 May 2014
Year2014
Judgement NumberCACC278/2013
Subject MatterCriminal Appeal
CourtCourt of Appeal (Hong Kong)
CACC278/2013 HKSAR v. NG MAN YEE

CACC 278/2013

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO CACC 278 OF 2013

(ON APPEAL FROM DCCC NO 1200 OF 2012)

____________

BETWEEN

HKSAR Respondent

and

NG MAN YEE (吳敏兒) Applicant

____________

Before: Hon Stock VP and McWalters J in Court
Date of Hearing: 8 April 2014
Date of Judgment: 30 May 2014

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JUDGMENT

______________

Hon McWalters J (giving the judgment of the Court):

Introduction

1. On 24 July 2013 the applicant was convicted after trial in the District Court by Judge Browne (“the judge”) of the offence of dealing with property known or reasonably believed to represent the proceeds of an indictable offence, contrary to section 25(1) and (3) of the Organized and Serious Crimes Ordinance, Cap 455. This offence, commonly known as money laundering, was alleged to have occurred between 6 May 2006 and 19 May 2012 during which period the applicant was alleged to have dealt with HK$77,984,090.31 Hong Kong currency in a bank account in his name knowing or have reasonable grounds to believe that this money directly or indirectly represented the proceeds of an indictable offence.

2. On 29 July 2013 the applicant was sentenced by the Judge to 5 years and 6 months’ imprisonment. The applicant applied for leave to appeal against sentence and at the hearing of his application we reserved our judgment which we said we would hand down at a later date. This we now do.

The Background to the Offence

3. The applicant had a relationship in Hong Kong with a woman named Connie Ng who subsequently moved to Taiwan. This woman bore his child in June 1993 before, in December of that year, taking up residence in Taiwan. This woman did not return to Hong Kong after the arrest of the applicant on 19 May 2012 and at the time of trial was a wanted person. We have been informed that since then she has returned and been arrested.

4. The applicant claimed that this woman asked him to open the account the subject of the charge as she wanted a bank account in Hong Kong in the name of someone she could trust. It was in these circumstances that the applicant came to open an account in his name for the use of another. He said that he agreed to do as this woman requested as she had assumed sole responsibility for the upbringing and education of their daughter and he felt that this was one of the few ways in which he could assist her.

5. Bank records in respect of this account (“A/C1”) showed that during the charge period the sum particularized in the charge was deposited into the account. Withdrawals from the account amounted to just over HK$77.3 million dollars. There were 230 deposits and 238 withdrawals and of these the applicant was personally responsible for seven. They were all transactions involving more than HK$1 million and totalled in value HK$16 million.

6. The applicant also allowed Connie Ng use of a second bank account in his name, a VISA account and a Hong Kong Jockey Club betting account. Transfers could be effected to and from the bank accounts by phone or internet but not for amounts in excess of HK$1 million. In respect of the second bank account there were, in the charge period, deposits of HK$29 million and withdrawals of just over HK$30 million. Between January 2007 and May 2012 there were 27 transfers from A/C1 to this account totalling HK$25,200,000. There were 14 transfers totalling HK$12,970,000 from this account to A/C1.

The Mitigation

7. The applicant is a person of clear record, and is 47 years of age. During the charge period the applicant was working as a jeweler with earnings rising to a maximum of HK$27,000 per month. He married in 2007 and has two children by his wife. His wife earned HK$40,000 to HK$50,000 per month as an accountant. As a result of his arrest he was dismissed from his employment and since that time has been unemployed.

8. It was submitted on his behalf that this offence of money laundering was at the lower end of the scale of seriousness as there was no evidence to suggest the nature of the predicate offence or that the applicant had any knowledge of what the predicate offence might be. Nor was there evidence of any benefit received by the applicant from his money laundering activity. It was said that there was no suggestion that he was living beyond his means and the evidence showed that he resided in a modest flat that was subject to a mortgage. The Court was urged to accept the applicant’s explanation that he became involved in this offence because of the moral obligation he felt to assist the mother of his daughter. It was also said that this was not a case where funds flowed into the bank account from overseas and there was, therefore, no or very minimal international element in the commission of this offence.

The Reasons for Sentence

9. After setting out the factual background to the offence and the mitigation that had been advanced on behalf of the applicant, the judge went on to address the legal principles relevant to sentencing for this offence. He noted that no sentencing tariff exists for it but that the offence is invariably treated seriously and substantial sentences of imprisonment are regularly imposed in respect of it. He reminded himself that the amount of money laundered will inevitably be relevant to sentence.

10. He referred to a passage from the judgment of Yeung JA (as he then was) in HKSAR v Javid Kamran CACC 400/2004; unreported, 12 April 2005, which emphasized the seriousness of money laundering as an offence and the role it played in assisting those committing the predicate offence. This passage also made the point that if the offence of money laundering could be successfully deterred, then that would prove an effective measure against crime generally.

11. The judge also referred to the case of HKSAR v Leung Wai Wah and Anor CACC 201/2011; unreported, 9 November 2011. From this case the judge quoted the following passage by Yeung VP at paragraph 24 of the judgment:

“From various cases cited to this court … it appears that the following factors are relevant to sentence in “money laundering” cases:

1. The amount of money laundered, which was described as the major consideration.

2. The nature of the offence that generated the “laundered money”.

3. The extent to which the offence assisted the underlying crime or hindered its detection.

4. The degree of sophistication of the offence.

5. The defendant’s participation, both in the underlying offence and in the “money laundering” activities.

6. The length of time that the offence lasted.

7. The benefit that the defendant had derived from the offence.

8. Whether there was an international element in the commission of the offence.”

12. In applying these principles the judge then said:

“24 The amount of money laundered in this case is substantial. The predicate offence has not been established. As offences of this type go, this was not a sophisticated offence. I was satisfied that the defendant was centrally involved in the money laundering offence. He controlled the account through which the funds were laundered and he alone was entitled to make transfers of HKD1 million or more. He personally handled the transfer of HKD16 million. The offence lasted a considerable period of time, namely 6 years. There was no evidence as to what benefit the defendant derived from the offence. There was no evidence of funds being laundered from abroad. I was sure that the defendant tried to mislead the court as to the true nature and extent of his dealings with Connie Ng.” [1]

The judge then said that after taking into account all the circumstances, in his view the appropriate sentence for this applicant was one of 5 years and 6 months’ imprisonment.

The Grounds of Appeal

13. There are four grounds of appeal. The first is that the judge erred in his approach to sentencing the applicant in that his starting point for sentence was inconsistent with that adopted in other money laundering cases prosecuted in the District Court and failed to take account of the limited sentencing jurisdiction of this Court. It is complained that the judge wrongly treated other cases cited to him as having been brought in the wrong court, yet the decision as to venue for trial is the sole prerogative of the Secretary for Justice. The second ground of appeal is allied to the first and adds nothing further to it.

14. His third ground of appeal is that given the personal circumstances of the applicant as to how he came to be involved in assisting Connie Ng and given that there was no evidence of what the predicate offence was and no international element to the commission of the money laundering offence, the sentence is manifestly excessive.

15. The fourth ground of appeal is that in all the circumstances the sentence imposed on the applicant is manifestly excessive.

Discussion

16. It is convenient to deal with the third ground of appeal first. It is concerned with whether the judge had proper regard to the factors affecting his assessment of the seriousness of this offence and the culpability of the applicant. From his discussion of the relevant case law in his Reasons for Sentence, it is clear that the judge was referred to and was aware of the factors relevant to these issues.

17. It is also apparent from the transcript of Mr Oderberg’s mitigation that all the points to which he referred us in the course of this appeal were advanced by him in considerable detail to the judge in the court below. But, insofar as their weight depended on an acceptance of the applicant’s account of his actions, it must be remembered that this was a sentence that was imposed after a trial in which the applicant gave evidence and was disbelieved. The judge, in fact, said:

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