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CAAR 6/2016
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF APPEAL
APPLICATION FOR REVIEW NO. 6 OF 2016
(On Appeal From DCCC NO. 378 OF 2014)
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BETWEEN
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SECRETARY FOR JUSTICE |
Applicant |
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and |
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SIU YUN YEE (邵潤儀) |
Respondent
(3rd Defendant)
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| Before:Hon Lunn VP, Macrae and Pang JJA in Court |
| Date of Hearing: 12 May 2017 |
| Date of Judgment: 12 May 2017 |
| Date of Reasons for Judgment: 17 May 2017 |
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REASONS FOR JUDGMENT
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Hon Lunn VP (giving the Reasons for Judgment of the Court) :
1. With the leave of Cheung CJHC, granted on 23 December 2016, pursuant to section 81A of the Criminal Procedure Ordinance, Cap. 221, the Secretary for Justice appealed against the sentence of 7 months’ imprisonment, suspended for two years, imposed on the respondent on 1 December 2016 by Deputy District Judge Bina Chainrai, following the respondent’s conviction on her plea of guilty to a charge (Charge 5) of dealing with property known or 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. We allowed the appeal, quashed the sentence imposed by the judge and, in its place, imposed a sentence of 8 months’ imprisonment. We said that we would give our reasons in due course. That, we do now.
2. Charge 5 averred that, on and between 16 November 2009 and 18 August 2011, the respondent dealt with $630,000 in cash, knowing or having reasonable grounds to believe that it, in whole or in part, and directly or indirectly, represented the proceeds of an indictable offence.
The facts
3. On 16 January 2013, police officers arrested the respondent for gambling in an unlicensed gambling establishment at the Cockloft, Shop No. 2, Nos. 2-8A Yi Pei Square, Tsuen Wan (“the premises”), which premises were then being operated as an unlicensed gambling establishment by Lam Hing Wan, the 1st defendant. The respondent, together with the 1st defendant and Lee Ming, the 2nd defendant, were together with 17 other persons who were playing mahjong at electronic mahjong tables. $2,550, 12 sets of mahjong tiles, gambling chips and 10 business logbooks were found on the premises. Also, there were 10 CCTV cameras, two of which provided surveillance of the entrances, and three LCD display screens located in the premises. Numerous bank books in the name of the 1st defendant were found in a drawer in a bed in the bedroom of the premises. One of the bank books related to an account in the name of the 1st defendant with HSBC into which the respondent had made a total of five deposits in cash on and between 16 November 2009 and 18 August 2011 to a total of $630,000.
4. Having been re-arrested on 23 January 2013 for the offence of dealing in property, namely $630,000 deposited into the bank account of the 1st defendant, knowing or having reasonable grounds to believe that it was the proceeds of an indictable offence, under caution the respondent said “Ah sir, I don’t know what the money was.”
5. In the course of two subsequent video-recorded interviews conducted of her that day and on 26 February 2013, having been confronted with the deposit receipts made out in her name and bearing her identity card number evidencing the payment into the 1st defendant’s bank account of the total of $630,000, the respondent admitted, inter alia, that:
(a) she was unemployed and dependent on CSSA;
(b) she had known the 1st defendant for 3 or 4 years;
(c) she played mahjong in the 1st defendant’s gambling establishment, which she knew was unlicensed, around once a month;
(d) at the request of the 1st defendant, she deposited into his HSBC bank account a total of $630,000 in cash on five separate occasions: namely,
$100,000 on 16 November 2009;
$120,000 on 11 June 2010;
$100,000 on 12 June 2010;
$110,000 on 1 December 2010; and
$200,000 on 18 August 2011;
(e) in order to make those deposits, the 1st defendant had provided her with a piece of paper on which was written the details of his bank account; after making each deposit, she gave the receipt to the 1st defendant;
(f) she “guessed” that the cash which she had deposited into that account came from commissions from playing mahjong or his winnings from the playing mahjong in his gambling establishment and said “maybe” the 1st defendant was the “boss” of the gambling establishment because he was always “sitting there”; and
(g) she received no monetary gain for making those deposits.
6. In pleading guilty to the charge, the respondent accepted that, in dealing with the monies the subject of Charge 5, she knew or had reasonable grounds to believe that she was dealing with the proceeds of an indictable offence.
7. The respondent and the 2nd defendant having pleaded guilty to Charge 5 and Charge 4 respectively on 17 October 2016, the judge adjourned sentencing pending the trial of the 1st defendant on three other counts of dealing with property knowing or having reasonable grounds to believe that it was the proceeds of an indictable offence, namely Charges 1, 2 and 3. In doing so, the judge extended the bail of the respondent On 15 November 2016, having convicted the 1st defendant and delivered her reasons for verdict, the judge received mitigation on behalf of the respondent. Then, the judge ordered the preparation of a background report on the respondent, remanded the respondent in custody and adjourned sentence. Having considered that report and having received further mitigation on behalf of the respondent on 29 November 2016, the judge imposed sentence on the respondent on 1 December 2016.
Mitigation
8. In mitigation advanced on behalf of the respondent, the judge was invited to note that she was a divorcee aged 58 years who was responsible for the care of her 16-year-old son, who suffered from reading and writing disabilities. It was submitted that the respondent had derived no monetary gain and played a relatively passive role in the offence.
9. In approaching the task of sentencing, Ms Nam invited the judge to have regard to the judgments of this Court in HKSAR v Boma [2012] HKLRD 33 and HKSAR v Hsu Yu Yi [2010] 5 HKLRD 545. In inviting the judge to impose a suspended sentence of imprisonment, Ms Nam referred to the reasons for sentence in HKSAR v Shum Kin Wing & Others [1], in which District Court Judge Sham imposed a sentence of 20 months’ imprisonment, suspended for 30 months, on a defendant who had pleaded guilty to an offence of dealing with $1,200,000, knowing or having reasonable grounds to believe that it was the proceeds of an indictable offence. She received the money into her own bank account at the request of her husband. In suspending the sentence of imprisonment, the judge found that she had played “a minor role in the offence, that she was to a considerable extent under the influence of her husband.” It is to be noted that District Court Judge Sham stated incorrectly that in the Secretary for Justice v Wan Kwok Keung this Court saidof the offence of “money laundering” that “when the money was between $1,000,000 and $2,000,000, the starting point should be 2 years’ imprisonment.” [2] Rather, as is noted subsequently, Yeung JA said that in those circumstances the starting point should be “3 years or so” imprisonment.
Reasons for Sentence
10. In her reasons for sentence, the judge did not refer to the reasons for sentence articulated by District Court Judge Sham in HKSAR v Shum Kin Wing. On the other hand, she did list the judgments of this Court, relevant to sentencing for this offence, to which her attention had been drawn by the prosecution.[3] Of the principles relevant to sentencing for the offence of dealing with property, knowing or having reasonable grounds to believe that it was proceeds of an indictable offence, the judge cited a passage from the judgment of this Court delivered by Cheung JA in HKSAR v Hsu Yu Yi:[4]
“ Sentencing Principles
9. There are no sentencing guidelines for the offence of dealing with the proceeds from an indictable offence because the facts vary from case to case. However, the following factors are to be taken into account when determining sentence:
(1) It is the amount of money involved that is a major consideration and not the amount of benefit received by a defendant in the transaction.
(2) The culpability of the offence lies in the assistance, support and encouragement offered to the commission of an indictable offence. So a defendant’s level of participation and the number of occasions on which he is involved in the ‘money laundering’ activities are relevant factors to be considered.
(3) The offence of dealing with the proceeds from an indictable offence does not necessarily have any direct correlation with the indictable offence in question. However, if the relevant indictable offence can be identified, the court may take into account the sentence imposed on the indictable offence per se when determining the sentence of the dealing offence.
(4) If the case has an international element involving activities carried out across different regions, the court may impose a more severe sentence. This is to protect Hong Kong’s reputation as an international finance and banking hub from being tarnished.
(5) The length of time the offence lasted.”
11. Of the significance of the fact that the defendant derived no benefit from the commission of the offence, the judge noted:[5]
“ In Secretary for Justice v. Ngai Fung Sin Apple [2013] 5 HKLRD 104, the Court of Appeal held that in money laundering cases, the sentence passed was...
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