HKSAR v. Chan Tong-kai（陳同佳）20190412 Taimocracy 翻譯 20191026

【縛雞之見】

我以為10/24有貼這篇，結果沒有。翻譯後補貼。

「香港政府訴陳同佳」判決文，沒有在香港終審法院網站找到。https://www.hkcfa.hk/en/work/cases/archive/index.html

以下是，來自WIKI的資料連結。

HKSAR v. Chan Tong-kai（陳同佳）20190412    Taimocracy翻譯 20191026

https://legalref.judiciary.hk/lrs/common/search/search_result_detail_frame.jsp?DIS=121602&QS=%2B&TP=RS

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  判決理由

_______________________________

Background  背景

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. 

318/5000

2018年12月31日，被告在東部地方法院對4項「以已知或據認為代表可公訴犯罪所得的財產進行交易」，即「洗錢」犯罪的指控，與違反第25（1）條，和（3）《有組織和嚴重犯罪條例》（第 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. 

但是要指出的是，儘管被告當時對所有四項指控均認罪，但他不接受控方准備的事實摘要的某些段落。因此，當案件提交本法院判決時，檢方提出了一項要求進行牛頓聽證會（譯註：目的在發現事實）的申請，以決定這些有爭議的事項。雙方估計牛頓聽證會大約需要5天。

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.

2019年4月12日，我在聽取了雙方陳述並考慮所有相關事項後，裁定沒有必要進行任何牛頓聽證會，因為我認為有爭議的事項，不會對對被告的判刑輕重有任何潛在的重大影響。當我稍後處理適用的量刑注意事項時，我將回到我的推理上。我要說的既定原則是，如果當事雙方之間的爭端不會對判決產生實質性影響，那麼就不需要進行牛頓聽證會了。

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. 

根據我的裁決，並在辯護方表示他們已準備好進行此案後，被告在地方法院的較早前提出的認罪得到了確認，在他接受了事實摘要的修正後，他被正式裁定全部四個洗錢指控罪名成立。

Facts Admitted  被承認的事實

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.

檢方撰寫經修訂的摘要，不僅涵蓋洗錢指控的事件，還涵蓋導致這些犯罪的背景事實。

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. 

簡短地說，被告承認他和女友潘於2017年7月相識。一個月後，他們成為了親密戀人。2017年12月上旬，潘懷孕了大約5週。

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. 

2018年2月8日上午，被告和潘離開香港前往台灣。被告支付機票和飯店住宿。

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.

在2018年2月17日的幾個小時中，潘母收到潘的WhatsApp消息，稱她將於當晚晚些時候返回香港。然而，潘失去了聯繫。潘母於2018年3月5日向警方報案。她還在自己的住所中找到了被告的台灣出入境許可證的副本。

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. 

至於被告，他於2018年2月17日晚上從台灣返回香港。2018年3月13日，他接受了警察的採訪。在面談過程中，被告承認他在台灣殺害潘。因此，他因謀殺罪被立即逮捕，並受到拘禁。

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.

在拘禁中，被告透露他已將潘的遺體埋在台北的一片草地上。 被告在隨後的錄影採訪中還透露了更多細節，包括他聲稱他於2018年2月17日凌晨與潘就行李的包裝方式發生了爭執；以及他們後來有另一種說法的主張，在此期間，潘告訴他那個孩子是她以前的男朋友的，潘給他看了一段錄像，記錄了潘和一個男性做愛。

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.

據被告稱，當時被激怒，他把潘的頭撞在牆上，用雙手從後面勒死了潘。隨後與潘在地板上掙扎了約10分鐘，直到潘死了。然後，被告將潘的屍體放到手提箱中，並將她的個人物品裝在四個塑料袋中。

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.

但是，被告承認他保留了潘恩的匯豐ATM卡；數位相機和iPhone。第二天早晨，被告首先在酒店附近的不同垃圾收集站處置了潘的財產。然後，他帶著潘的身體帶著手提箱，乘火車旅行，尋找一個最終要在公園處置的地方。

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.

關於他帶走的潘的財產，被告承認他曾使用潘的ATM卡在台北提取20,000新台幣的現金，目的是為自己購買一些新衣服。 但是，他最終沒有這樣做。

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.

當被告返回香港時，他攜帶了自動提款機卡，照相機，電話和20,000新台幣的現金。這些是被告針對第一筆指控處理的財產，總價值約為13,500港元。

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.

關於第二至第四項指控，他們分別與被告使用潘的ATM卡在香港提取現金有關。所有三個實例均有相關監視器影像紀錄。

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.

被告分別於2018年2月19日提取10,500港元。在這筆款項中，他將10,300港元存入了東亞銀行的信用卡帳戶。這是第二項指控的主題。

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.

被告於2018年2月20日提取港幣8,500港元，然後將相同數額存入他的星展銀行信用卡賬戶。這是第三項指控的主題。

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.

2018年2月21日，被告使用潘的ATM卡從銀行提取了200港元。這是第四項指控的主題。

The Accused’s Background and Mitigation  被告的背景和緩解措施

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.

被告出生於中國內地，現年20歲。他獲得香港理工大學副學士學位，在被捕時還在兼職。在犯下這些罪行之前，被告在香港有清白的記錄。

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.

被告代表人Ronny梁先生確認了這些細節，並強調說，被告在定罪階段認罪，自2018年3月以來一直被拘留。除此以外，梁先生沒有代表被告提出任何特別的減輕措施。

Sentencing Considerations  量刑因素

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.

在提出相關的量刑考慮時，首先要解釋一下為什麼我認為在這種情況下沒有必要進行牛頓聽證會。

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.

如上所述，對被告提出的指控都是洗錢指控。被告承認這些洗錢指控。洗錢犯罪所需要的精神是「知道或有合理的理由相信所處理的財產代表了可公訴罪行的收益」。行為是交易行為。

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.

由於涉及的罪責範圍很廣，因此這類罪行沒有關稅涉入。因此，儘管在HKSAR訴Hsu Yu Yi [2010] 5 HKLRD 545一案中，法院以處理的金額為基礎，將過去的一些案件製成表格，以顯示通過的不同判決，但我必須請大家注意，洗錢數額只是量刑洗錢罪時要考慮的相關因素之一。

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.

上訴法院在香港特別行政區訴Boma Amaso [2012] 2 HKLRD 33一案中，在判決第40段中確定了一些重要特徵，儘管不是詳盡無遺的清單，法院應在量刑洗錢時考慮，並考慮到這些重要特徵 案件。它們包括上游犯罪的性質（如果已知）以及對上游犯罪可用的罰款；任何國際層面；犯罪的複雜程度，包括計劃的程度；是否有一項交易或多項交易以及犯罪發生的時間長短；犯罪者在發現資金是犯罪所得之後，還是在發現嚴重犯罪性質之後，是否繼續洗錢；以及是否已收到利益，以及利益的性質和規模。

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.

因此，如果罪犯知道產生收益的上游犯罪，或者涉及一定程度的策劃，則這兩者都是在判決過程中要考慮的相關因素。此外，如果事實需要，並且如果被告充分了解，所得是由於嚴重犯罪而產生的，則儘管他處理的金額相對較小，但仍可判處更嚴厲的刑罰。

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:

在這種情況下，毫無疑問，被告處理的財產是其本人的犯罪行為引起的。在這種情況下，重申一下當時的股票副總裁在香港特別行政區訴陳金忠（Nelson）[2012] 2 HKLRD 263一案中所說的話是有幫助的。在那種情況下，被告被控兩項罪行 他從勒索中獲得的金錢涉及勒索和洗錢。以下是法院的意見：

“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.

在本案中，我認為就指控1而言，將洗錢罪定為洗錢罪，而不是盜竊罪，是因為偷竊行為實際上是在台灣而不是在香港發生的。關於第2-4項指控，可能是洗錢以盜竊罪作為替代，主要是因為檢方認為上游犯罪是謀殺或過失殺人罪，因此，通過處理死者的財產，被告已經做了。除了殺人之外，還有一些東西。

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.

我之所以提及這一點，是因為經修訂的摘要中包含了殺害，盜竊和洗錢等事項。因此，我認為有必要明確說明我是否認為洗錢指控是否已在被告罪行之外披露了被告一方的任何其他罪魁禍首，正如我在下文所述，我認為這是盜竊和盜竊罪之一，而非謀殺或誤殺。

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.

在這方面，如果人們承認上游犯罪是盜竊，那麼事實顯然只不過是從盜竊罪中獲取財產而已，而沒有其他任何東西。

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.

然後，這使我們想到上游犯罪的問題，該犯罪產生了收益，在這種情況下是四項指控的主題。

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?

在2019年4月12日的聽證會上，檢方的主要主張是上游犯罪是謀殺或過失殺人，但這是正確的嗎？

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.

正如控方的Claudia高女士在那次聽證會上所承認的那樣，如果只是殺害了潘，而被告沒有留下她的財產，那殺人就不會產生任何收益，也不會處理任何被告的收益。

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.

另一方面，如果只是從潘家手中奪走了這些財產而沒有將其殺害，那麼當被告帶著這些財產抵達香港時，他仍將有責任被起訴處理盜竊該財產所產生的收益。

34.  Similarly, the cash withdrawn and dealt with by the Accused in HK all arose from the theft of Poon’s bank deposits.

同樣，被告在香港提取和處理的現金全部來自潘（Poon）的銀行存款被盜。

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.

因此，很明顯，在這種情況下，殺人不是上游犯罪，而是盜竊。如果沒有盜竊，根本就沒有理由對被告進行洗錢指控。

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.

最終，高女士接受了潘的財產被搶走，以及從她的銀行存款中取錢，盜竊的行為，從而產生了相關收益。但是，她認為，無論發生在何處，謀殺都是洗錢指控的必要背景，在此判決過程中應考慮到謀殺。

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.

我將在稍後返回此提交。我可以說，如果控方了解上游犯罪是盜竊，而不是謀殺或過失殺人，那麼應該清楚地表明，有爭議的段落並未在洗錢犯罪的事實矩陣中增加任何內容，因為其中沒有任何內容。那些有爭議的段落顯示或傾向於表明被告曾計劃盜竊或曾打算誘使潘來台灣，以便在她離開香港之前將其財產帶走。

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.

如果這些有爭議的段落中包含此類材料，則可能是這些段落與該量刑活動有關，因為在這種情況下，可以說當被告處理這些財產時，他知道這些財產 這是由於計劃對死者實施的盜竊罪所致，而不僅僅是機會性盜竊。

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.

但是，以上內容在本案中是學術性的，因為如起訴方所接受，這種竊取計劃並非有爭議的段落所涵蓋的材料類型。

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.

基於以上原因，我得出的結論是不需要進行牛頓聽證會。在這方面，我注意到，在第二項至第四項洗錢指控中，最初的指控書中以盜竊罪而非其他任何罪行為由。因此，控方一定認為，盜竊罪與洗錢罪有關並與之有關。

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.

若確認此觀點，並承認上游犯罪是盜竊而不是謀殺或過失殺人之一，我相信，起訴方不僅會放棄對牛頓聽證會的爭論，而且可能會認為不將案件提交初審法院是必要的，因為在現有材料上，謀殺與盜竊是完全分開的，並且是盜竊，而非謀殺，才引起洗錢指控。

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.

亦即，可以理解的是，至少可以說，如果被告承認殺害該司法管轄區以外的人不能作為在香港提起謀殺/過失殺人罪指控的依據，那將會感到極大的挫敗感和真正的不公平感。但是，司法同樣要求被告基於被指控的罪行和已被定罪的罪行判處刑罰，而不是其他任何罪行或事項，儘管比起被指控的罪行，其犯罪可能更大。

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.

我們永遠都不應忽視這樣一個事實，即無論被告實際上有多麼可能犯下了最令人髮指的罪行，他都有資格充分保護與公正審判有關的權利。如果不這樣，那就意味著使我們的刑事訴訟程序短路，這不僅會影響被告，還會影響我們整個刑事司法系統的完整性。這些是必須牢記的基本原則。

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.

現在，除了有爭議的段落外，被告方都完全接受被告知道他所處理的財產是他對死者實施的盜竊所產生的收益，誠然，他本人已將其殺死。

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.

我認為，這一承認完全回答了高女士關於殺人是洗錢指控的背景的觀點，毫無疑問，這將成為考慮被告是否有任何知識的一個因素。在交易之時，這些財產是來自嚴重犯罪。

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.”

在1997年7月18日的香港特別行政區訴鄭良心CACC 507/1996案（未報告）中，上訴法院在駁回申請人針對涉及盜竊罪的認罪後被判處兩年有期徒刑的上訴請求 申請人殺死死者後所作出的項鍊，手鐲，戒指和現金約3,400港元，指出：「足以說明，對死者的屍體進行搜身是一件很重要的事情。我們認為法官判處的刑罰在適當範圍之內。從原則上講，這既不是明顯的過度，也不是錯誤的。」

Sentencing in this Case  本案判決

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.

在本案中，被告被指控洗錢而不是盜竊，但上述案件表明，從被告殺害的死者身上偷竊是嚴重罪行。換句話說，在此案中被告知道的上游犯罪是嚴重的犯罪。

48.  This mental element, as pointed out in Boma, is an aggravating factor to be taken into account in the sentencing exercise.

正如博馬所指出的那樣，這一心理因素是在量刑時要考慮的加重因素。

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.

此外，毫無疑問，被告從台灣一直到香港一路接管了負責財產1。因此，我認為，儘管我們不是在談論任何正在工作的國際集團，但在他的交易中有一個國際因素。同樣，這是另一個加劇因素。

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.

關於被告獲得的利益，根據修訂後的摘要，他是唯一從與財產打交道中受益的人。現金，相機和手機都從被告的住所中收回。

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.

考慮了所有相關事項，包括被告對上游犯罪的嚴重性質的了解；涉及的國際範圍，被告獲得的利益；屬性的值；以及交易的期限，我得出的結論是，指控1的起始時間為39個月為宜。

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.   

至於其餘的2-4項指控，雖然都涉及使用潘的ATM卡在香港提款，但要注意的是，該卡是從對死者的盜竊中獲得的，並從台灣到香港，這使得提款成為可能。此外，根據承認的事實，被告是唯一從這些交易中受益的人，因為提取的錢被存入了自己的信用卡帳戶或供自己使用。回顧一下，指控2涉及的金額為HK $ 10,500； 指控3為HK $ 8,500; 指控4為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.

因此，考慮了所有相關事項，包括被告對相關背景知識和上游犯罪的了解； 他獲得的利益； 以及洗錢的數量，我認為指控2和指控3的起點為2½年是適當的。但是，鑑於主管4處理的現金數量很少，我認為起點是 1年為宜。

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. 

被告在定罪階段認罪。 我將把他的刑期減少三分之一。 除了認罪之外，我認為被告的明確記錄和他的其他個人背景不會使案件進一步減少。

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.

因此，刑期如下：

-第1項指控的39個月減少1/3的徒刑為26個月的監禁；

-對於第2和第3項指控，將2½年減少1/3的徒刑為20個月監禁； 和

-對於指控4，將1年減少1/3的徒刑為8個月的監禁。

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.

按照目前的框架，這四項指控是分別涉及不同財產和在不同時間發生的不同交易行為的單獨指控。原則上可以判處連續的判刑。但是，考慮到總體原則，可以說這四項指控均來自同一組事實，我認為，總刑期29個月應充分反映這四項指控中被告的犯罪行為。

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.

為了達到這一結果，我命令對指控2施加的20個月的任期中的3個月將完全連續運行至對指控1的26個月，其餘時間同時進行。關於指控3和4的條款，它們應與指控1和2所適用的條款完全同時運行，因此總期限為29個月。

(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