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HKSAR v.
Chan Tong-kai（陳同佳）20190412
HCCC 407/2018
[2019] HKCFI 1151
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE
REGION
COURT OF FIRST INSTANCE
CRIMINAL CASE NO 407 OF 2018
________________
HKSAR
v.
CHAN
TONG KAI
________________
Before: Hon Anthea Pang J in Court
Date of Hearing: 12 April 2019
Date of Sentence: 29 April 2019
_______________________________
REASONS FOR SENTENCE
_______________________________
Background
1. On 31 December 2018, the
Accused pleaded guilty in the Eastern Magistrates’ Courts to 4 charges of
“dealing with property known or believed to represent proceeds of an indictable
offence”, in short, “money laundering” offence, contrary to sections 25(1) and
(3) of the Organized and Serious Crimes Ordinance, Cap. 455.
2. It is, however, to be noted
that while the Accused pleaded guilty to all 4 charges on that occasion, he did
not accept certain paragraphs of the summary of facts prepared by the
prosecution. Therefore, when the case
was committed to this court for sentence, there was an application by the
prosecution for a Newton Hearing to determine those disputed matters. Parties estimated that the Newton Hearing
would take about 5 days.
3. On 12 April 2019, having heard
both parties’ submissions and having considered all the relevant matters, I
ruled that there would not be a need to conduct any Newton Hearing since, in my
view, the disputed matters would not have any potentially significant effect on
the level of sentence to be imposed on the Accused. I shall come back to my reasoning on this
when I later deal with the applicable sentencing considerations. Suffice for me to say the established
principle is that if the disputes between the parties would not materially
affect the sentence, then no Newton Hearing would be required.
4. Following my ruling and upon
indication from the defence that they were ready to proceed with the case, the
Accused’s earlier pleas tendered at the magistrates’ courts were confirmed and,
with his admission of the amended summary of facts, he was formally convicted
of all four charges of money laundering.
Facts
Admitted
5. The amended summary prepared by
the prosecution did not only cover the events of the money laundering charges
but also the background facts leading to those offences.
6. Briefly, the Accused admitted
that he and his girlfriend “Poon” met in July 2017. One month later, they became lovers with
intimate relationship. In early December 2017, Poon was around 5 weeks
pregnant.
7. In the morning of 8 February
2018, the Accused and Poon departed HK for Taiwan. The Accused was the one who paid for the air
tickets and the hotel accommodation.
8. In the small hours of 17
February 2018, Poon’s mother received a WhatsApp message from Poon, saying that
she would return to HK later that night.
However, Poon then became out of touch.
On 5 March 2018, Poon’s mother made a missing person report to the
police. She had also found at her
residence a copy of the Accused’s Taiwan Entry and Exit Permit.
9. As for the Accused, he returned
from Taiwan to HK on the night of 17 February 2018. On 13 March 2018, he was interviewed by the
police. In the course of the interview, the Accused admitted that he had killed Poon in Taiwan. Therefore, he was
immediately arrested for the offence of murder and was cautioned.
10. Under caution, the Accused
disclosed that he had buried the body of Poon at a piece of grassland in
Taipei. The Accused also revealed
further particulars during the subsequent video-recorded interviews, including
his claim that he had an argument with Poon in the early hours of 17 February
2018 over how their luggage should be packed; as well as an assertion that they
later had another argument during which Poon had
told him that the baby belonged to her former boyfriend and that Poon had shown
him a video capturing Poon and a male having sex.
11. According to the Accused, feeling agitated at the time, he hit Poon’s head against
the wall and strangled her from behind with both hands. There followed a struggle with Poon on the
floor for about 10 minutes until Poon was dead. The Accused then put Poon’s body into a
suitcase and packed her personal belongings into four plastic bags.
12. The Accused, however, admitted
that he had kept Poon’s HSBC ATM card; digital camera and iPhone. The following morning, the Accused first
disposed of Poon’s belongings at different refuse collection points near the
hotel. He then took the suitcase with
Poon’s body and travelled by train to search for a place for disposal which he
eventually did at a park.
13. Concerning Poon’s properties
which he had taken away, the Accused admitted that he
had used Poon’s ATM card to withdraw TWD 20,000 cash in Taipei with a view to
buying some new clothes for himself.
However, he did not do so eventually.
14. When the Accused returned to
HK, he had brought with him the ATM card, the
camera, the phone and the cash of TWD 20,000. These are the properties the Accused dealt
with in respect of the first charge
and their total value was about HK$13,500.
15. In respect of the 2nd to the
4th charges, they respectively concerned the Accused’s use of Poon’s ATM card
to withdraw cash in HK. All three
instances were captured by the relevant CCTV footages.
16. Individually, on 19 February
2018, the Accused withdrew HK$10,500. Out of this sum, he deposited HK$10,300 into his Bank of
East Asia credit card account.
This is the subject matter of the 2nd
charge.
17. On 20 February 2018, the
Accused withdrew HK$8,500 and he then deposited the same amount into his DBS
credit card account. This is the subject
matter of the 3rd charge.
18. On 21 February 2018, the
Accused withdrew HK$200 from the bank by using Poon’s ATM card. This is the subject matter of the 4th charge.
The
Accused’s Background and Mitigation
19. The Accused was born in the
Mainland and is now aged 20. He has
obtained an Associate degree from the Hong Kong Polytechnic University and was
working part-time at the time of his arrest.
Prior to the commission of these offences, the Accused had a clear
record in Hong Kong.
20. Mr Ronny Leung for the Accused
confirmed those particulars and emphasized that the Accused pleaded guilty at
the committal stage and has been detained since March 2018. Other than these, Mr Leung did not put forth
any particular mitigation on behalf of the Accused.
Sentencing
Considerations
21. In setting out the relevant
sentencing considerations, it is convenient to first explain why I did not
consider a Newton Hearing to be necessary in this case.
22. As set out above, the charges
which were laid against the Accused are all money laundering charges. It is to
these money laundering charges that the Accused pleaded guilty. The mens rea
required for the money laundering offence is “knowing or having reasonable
grounds to believe that the properties dealt with represented the proceeds of
an indictable offence”. The actus reus is the act of dealing.
23. There is no tariff for this
type of offence because of the wide range of culpability involved. Therefore, although in the case of HKSAR v
Hsu Yu Yi [2010] 5 HKLRD 545, the court had, using the amounts dealt with as a
basis, tabularized a number of past cases to show the different sentences
passed, I have to bear in mind that the amount laundered is but just one of the
relevant factors to be taken into account in sentencing money laundering
offences.
24. The Court of Appeal, in HKSAR
v Boma Amaso [2012] 2 HKLRD 33, identified at paragraph 40 of the judgment some
of the significant features, although not an exhaustive list, for which the
court should look and take into account in sentencing money laundering
cases. They include the nature of the
predicate offence, if known, and the penalty available for the predicate
offence; any international dimension; the sophistication of the offence,
including the degree of planning; whether there is one transaction or many and
the length of time over which the offence was committed; whether the offender
continues to launder funds after he has discovered as a fact that the funds are
the proceeds of an offence or after he has discovered the nature of an offence
which is serious; and whether a benefit has been received and if so, the nature
and size of the benefit.
25. Therefore, if an offender was
aware of the predicate offence which generated the proceeds or if there was a
certain degree of planning involved, both are relevant factors to be taken into
account in the sentencing exercise.
Further, if the facts demand, and if the accused had full knowledge that
the proceeds arose from a serious crime, a more severe sentence may be called
for although the amount he dealt with was relatively small.
26. In this case, there is no
dispute that the properties dealt with by the Accused were derived from his own
criminal conduct. In the circumstances,
it is helpful to reiterate what Stock VP, as he then was, said in the case of
HKSAR v Chan Kim Chung, Nelson [2012] 2 HKLRD 263. In that case, the accused had been charged
with both the offence of blackmail and that of money laundering in respect of
the money he had obtained from the blackmail.
The following were the observations made by the court:
“12. The problem raised by this
ground of appeal stems from the fact that s. 25 of the Organized and Serious
Crimes Ordinance, Cap. 455, is broadly drafted so that it is capable of
including a wide range of conduct by the perpetrator of the predicate offence
some of which is beyond what most people think of as money laundering. …
13. What most people understand as money laundering, however, is where
the proceeds of crime are dealt with for a specific purpose, namely, to create
distance between the crime and the profits it generates so that no link between
the two can be detected. …This we shall refer to as a dealing with the proceeds
for a money laundering purpose.
14. When money laundering in this sense takes place then it should be
separately charged because it represents a course of criminal activity that is
clearly additional to the criminal acts that make up the predicate offence. ...
15. …
16. …
17. These considerations lead naturally to the approach which a court
should adopt in sentencing an offender who is guilty both of the predicate
offence and a connected s. 25 offence. The question for the purpose of sentence
of the s. 25 offence must always be whether its commission adds anything to the
culpability disclosed by commission of the predicate offence. If it does, then
that extra culpability must be reflected in the overall sentence imposed. If,
however, the s. 25 offence adds nothing, then an effective additional sentence
for the s. 25 offence should not be imposed, for doing so would in effect be to
punish the offender twice the same conduct.
18. …
19. …where the s. 25 offence evidences no more than the mere obtaining of
funds already reflected in the predicate offence, it is unlikely – unless the
prosecutor is able to show otherwise – that additional culpability is
demonstrated.”
27. In the present case, for
charge 1, I trust the offence of money laundering,
and not theft, was laid because the actus
reus of the theft actually took place in Taiwan, not in HK. In respect of charges 2-4, it might be that
money laundering was laid with theft as the alternative primarily because the
prosecution took the view that the predicate offence was murder or manslaughter and therefore, by dealing
with the deceased’s properties, the Accused had
done something additional to the killing.
28. I mention this because the
amended summary contained matters covering the killing, the theft and the money
laundering. I therefore find it
necessary to set out clearly whether I consider the money laundering charges to
have disclosed any additional culpability on the part of the Accused on top of
the predicate offence which I find, as I explain below, to have been one of
theft and not murder or manslaughter.
29. In this respect, if one
accepts that the predicate offence was theft, the facts clearly disclosed no
more than the mere obtaining of properties from the offence of theft, and not
anything additional.
30. This then brings us to the
question of the predicate offence which generated the proceeds, the subject
matters of the four charges in this case.
31. At the hearing on 12 April
2019, it was the prosecution’s primary contention that the predicate offence was
murder or manslaughter but was that correct?
32. As Ms Claudia Ko for the
prosecution acknowledged at that hearing, if there had just been the killing of
Poon and that her belongings had been left untouched by the Accused, there
could not have been any proceeds generated from the killing, nor any dealing
with proceeds by the Accused.
33. On the other hand, if there
had just been the taking away of the properties from Poon without the killing,
then when the Accused arrived in HK with those properties, he would still have
been liable to be charged with dealing with the proceeds generated by the
theft.
34. Similarly, the cash withdrawn
and dealt with by the Accused in HK all arose from the theft of Poon’s bank
deposits.
35. It is therefore clear that the
killing was not the predicate offence in this case but theft was. Without the theft, there was simply no basis
to frame any money laundering charge against the Accused.
36. Ms Ko, in the end, accepted
that it was the taking away of Poon’s properties and the withdrawal of money
from her bank deposits, the conduct of theft, which generated the proceeds in
question. She, however, submitted that
the killing, irrespective of where it took place, formed the necessary backdrop
to the money laundering charges and that the killing should be taken into
account in this sentencing exercise.
37. I shall come back to this
submission later. Suffice for me to say
that if the prosecution had appreciated that the predicate offence was theft
and not murder or manslaughter, it should have been clear that the disputed
paragraphs did not add anything to the factual matrix of the money laundering
offences because there was nothing in those disputed paragraphs which showed or
tended to show that the Accused had planned the theft or had planned to lure
Poon to Taiwan in order to take away her properties before his departure from
HK.
38. If there was such material in
those disputed paragraphs, it might be that the paragraphs would then be
relevant to this sentencing exercise because, in such circumstances, it could
be said that when the Accused dealt with the properties, he had the knowledge
that such properties arose from a planned predicate offence of theft committed
on a deceased person, not just an opportunistic theft.
39. Nonetheless, the above is
academic in the present case because, as accepted by the prosecution, such a
plan to steal was not the type of material covered in the disputed paragraphs.
40. It is for the above reasons
that I came to the conclusion that no Newton Hearing would be necessary. In this connection, I note that in the
original charge sheet, theft, and not any other offence, was pleaded as an
alternative charge in respect of the 2nd to the 4th charge of money
laundering. Therefore, it must have been
the view of the prosecution that the offence of theft was relevant to and
associated with the money laundering charges.
41. If this view had been
anchored, and if it had been appreciated that the predicate offence was one of
theft and not murder or manslaughter, I trust that the prosecution would not
only have dropped its contention for a Newton Hearing but might also have
considered it not necessary to bring the case to the Court of First Instance
because, on the material available, the killing was quite separate from the
thefts and it was the thefts which gave rise to the money laundering charges,
not the killing.
42. That said, it is understandable that great frustration and a genuine
sense of unfairness, to say the least, would be felt when an accused’s
admission about killing someone outside this jurisdiction could not be a basis
to bring a murder/manslaughter charge in HK. However, justice
equally demands that an accused is to be sentenced on the basis of the offences
with which he has been charged and of which he has been convicted, not on any
other offences or matters, albeit matters which may disclose much greater
criminality than the offences charged.
43. We
should never lose sight of the fact that no matter how likely an accused has
actually committed a most heinous crime, he is entitled to the full protection
of his rights associated with a fair trial.
If it were otherwise, it would mean short-circuiting our criminal
procedure and this affects not only the accused, but also the integrity of our
entire criminal justice system. These
are fundamental principles which should always be borne in mind.
44. Now, other than the disputed
paragraphs, there is full acceptance on the part of the defence that the
Accused knew that the properties he dealt with were proceeds arising from the
thefts he committed on the deceased whom, admittedly, he himself had killed.
45. This acknowledgment, in my
view, fully answers Ms Ko’s point about the killing being the backdrop to the
money laundering charges and this will, no doubt, be a factor which should be
taken into account when considering if the Accused had any knowledge, at the
time of the dealing, that the properties came from a serious offence.
46. In HKSAR v Zheng Liang Xin
CACC 507/1996, 18 July 1997 (unreported), the Court of Appeal, when refusing
the Applicant’s application for leave to appeal against his sentence of 2 years
imposed after a guilty plea in respect of a theft charge involving a necklace,
a bracelet, a ring and cash of about HK$3,400, which the Applicant committed
after killing the deceased, pointed out that, “It is sufficient for us to state
that ransacking a dead woman’s body for her possessions is a serious matter. We
think that the sentence imposed by the judge was within the appropriate
range. It was neither manifestly
excessive nor wrong in principle.”
Sentencing
in this Case
47. In the present case, the
Accused was charged with money laundering and not theft but the above case
illustrates that stealing from a deceased person whom an accused has killed is
a serious offence. In other words, the
predicate offence of which the Accused in this case was aware is a serious one.
48. This mental element, as
pointed out in Boma, is an aggravating factor to be taken into account in the
sentencing exercise.
49. Further, it is also not
disputed that the Accused took the properties in charge 1 all the way back from
Taiwan to Hong Kong. I therefore
consider that there is an international element in his dealing although we are
not talking about any international syndicate at work. Again, this is another aggravating factor.
50. As to the benefits the Accused
received, according to the amended summary, he was the only one who benefitted
from his dealings with the properties.
The cash, the camera and the mobile phone were all recovered from the
Accused’s residence.
51. Having considered all the
relevant matters, including the Accused’s knowledge of the serious nature of
the predicate offence; the international dimension involved, the benefit the
Accused obtained; the value of the properties; and the period over which the dealing
took place, I have come to the conclusion that a starting point of 39 months is
appropriate for charge 1.
52. In respect of the remaining
charges 2-4, although all concerned the withdrawals of money in HK by using
Poon’s ATM card, it is to be noted that the card was obtained from a theft
committed on the deceased and was brought all the way back from Taiwan to HK
which then made the withdrawals possible.
In addition, based on the facts admitted, the Accused was the only one
who benefitted from these dealings as the money withdrawn was either deposited
into his own credit card account or was for his own use. To recap, the money
involved in charge 2 was HK$10,500; charge 3 was HK$8,500; and charge 4 was
HK$200.
53. Thus, having considered all the
relevant matters, including the Accused’s knowledge of the relevant background
and the predicate offence; the benefit he obtained; and the amount of cash
laundered, I take the view that a starting point of 2½ years is appropriate for
charges 2 and 3. However, in view of the
very small amount of cash dealt with in charge 4, I consider that a starting
point of 1 year is appropriate.
54. The Accused pleaded guilty at
the committal stage. I would grant him the full one-third reduction in
sentence. Other than the plea, I do not
consider the Accused’s clear record and his other personal background to be
matters warranting any further reduction in this case.
55. Therefore, the sentences are
as follows:
- for charge 1, 39 months reduced by 1/3 is 26 months’ imprisonment;
- for charges 2 and 3, 2½ years reduced by 1/3 is 20 months’
imprisonment; and
- for charge 4, 1 year reduced by 1/3 is 8 months’ imprisonment.
56. These four charges, as they
are currently framed, are separate charges involving different properties and
separate acts of dealing which took place at different times. In principle, wholly consecutive sentences
could be imposed. However, having
considered the totality principle and that all four charges could be said to
have arisen from the same set of facts, I take the view that an overall
sentence of 29 months should sufficiently reflect the Accused’s criminality in
all these four charges.
57. To achieve this result, I
order that 3 months of the term of 20 months imposed in respect of charge 2 are
to run wholly consecutively to the 26 months for charge 1, the rest to run
concurrently. In respect of the terms for charge 3 and 4, they are to run
wholly concurrently with those imposed for charges 1 and 2, thus giving an
overall term of 29 months.
(Anthea Pang)
Judge of the Court of First Instance
High Court
Ms Claudia Ko, SPP of the Department of Justice, for HKSAR
Mr Ronny Leung, instructed by Messrs Yip, Tse & Tang, for the
Accused: Chan Tong-kai
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