Background facts
背景事實

The respondent (Ngai Fung-sin) was born on the Mainland.  She came to Hong Kong in 1989 and reunited with her parents.  She is married and has two daughters, who are respectively nine and six years old.
答辯人（倪鳳仙）國內出生，在1989年來港和父母團聚。答辯人已婚，並有兩名女兒，年齡分別約9歲和6歲。

On 12 December 2005 the respondent opened an account at the Bank of China (Hong Kong) (“the account’).  She was the sole signatory of the account.  Before 17 January 2011, no Canadian dollar had ever been deposited into or withdrawn from the account.
2005年12月12日，答辯人在香港中國銀行開設了一帳戶（該帳戶），是該帳戶的唯一簽署人。在2011年1月17日前，該帳戶沒有任何加拿大元的支存。

Between 17 and 21 January 2011, five sums of money in Canadian currency, totalling CAD$243,869.23, were transferred through the internet from an account held by two foreigners at the Hong Kong and Shanghai Banking Corporation Limited (Canada) into the account.  On 24 January 2011, the Hong Kong and Shanghai Banking Corporation Limited (Canada) informed the Hong Kong and Shanghai Banking Corporation Limited (Hong Kong) that these five internet transfers were done without authorization and that the holders of the account at the Hong Kong and Shanghai Banking Corporation Limited (Canada) did not know the respondent.
2011年1月17日至21日，有五筆總額為243,869.23加元的匯款由兩名外籍人士的加拿大匯豐銀行帳戶，經互聯網存入該帳戶。2011年1月24日，加拿大匯豐銀行知會香港匯豐銀行，指上述五筆轉帳存款未經授權，而該加拿大匯豐銀行帳戶的持有人亦不認識答辯人。

Between 18 and 22 January 2011 the respondent made six withdrawals from the account at three different branches of the Bank of China (Hong Kong).  The total amount withdrawn was HK$1,906,800, leaving only about CAD $140 in the account.
在2011年1月18日至22日期間，答辯人在香港中國銀行三間不同分行，共六次從該帳戶提取了共1,906,800港元，令該帳戶的結餘減至約140加元。

Each time after the respondent withdrew money from the account she returned to the Mainland on the same day.  After she left Hong Kong on 26 January 2011 she did not come back until 30 December 2011.
答辯人每次從該帳戶提款後都會在同日返回內地。她在2011年1月26日離開香港後，便沒有再返港，直至2011年12月30日。

Since the police had been informed of this matter, upon the respondent’s return to Hong Kong on 30 December 2011 she was intercepted and arrested at the Lo Wu Control Point.
由於事件已知會警方，當答辯人在2011年12月30日返港時，在羅湖管制站被截停及拘捕。

The result of these events was that the respondent was charged with one count of the offence of dealing with property known or reasonably believed to represent proceeds of an indictable offence, which is commonly known as the “money laundering” offence.
事件導致答辯人被控一項處理已知道或有合理理由相信為代表「從可公訴罪行的得益的財產」罪，俗稱“洗黑錢”罪。

The respondent pleaded not guilty and was tried before District Judge Gary Lam (“the trial judge”).
答辯人否認控罪，並在區域法院法官林嘉欣（原審法官）席前受審。

On 4 January 2013 the trial judge found the respondent guilty and on 18 January 2013 sentenced her to 10 months’ imprisonment (“the sentence”).
2013年1月4日，原審法官裁定答辯人罪名成立，並於2013年1月18日判她入獄10個月（該判刑）。

On 23 January 2013 the respondent applied for leave to appeal against her conviction, but on 15 February 2013 she notified the court that she abandoned her application, so her application for leave to appeal against conviction was dismissed.
2013年1月23日，答辯人提出上訴許可申請，要求獲准就定罪上訴，但她在2013年2月15日通知法庭，表示放棄申請，因此答辯人針對定罪的上訴許可申請已被撤銷。

On 1 February 2013 the applicant (Secretary for Justice) took the view that the sentence was so lenient that a reasonable judge, applying his mind to all relevant factors, would not reasonably consider to be within the appropriate range of sentences; and therefore applied to this Court under section 81A of the Criminal Procedure Ordinance, Cap. 221 Laws of Hong Kong, for the review of the sentence.  Leave was granted by the Chief Judge of the High Court on 6 February 2013 for the applicant to proceed with the application.
2013年2月1日，申請人（律政司司長）認為該判刑過輕，是一名合理法官在考慮過全部有關因素後，不會合理地認為是屬於恰當的判刑範圍之內，故根據香港法例第221章《刑事訴訟程序條例》第81A條提出申請，要求上訴法庭覆核該判刑。申請人提出的刑期覆核申請在2013年2月6日獲高等法院首席法官發出許可，准許進行。

On 8 May 2013 the respondent stated by way of affidavit that she abandoned her application for leave to appeal against conviction only because she was ignorant of Hong Kong law, but that recently she was informed by her family members that there was fresh evidence and statement which could prove that she did not have any intention to commit the offence and that she was made use of by some people without her knowing anything about it which resulted in her being convicted and sentenced of the offence.  She asserted that she did not want to give up her pursuit of the truth just because of her oversight.  She emphasized that if she had a conviction record, the future of her daughters would be adversely affected and that therefore she decided to resume her application for leave to appeal against conviction in order that justice would be done.
2013年5月8日，答辯人以誓章形式表示她因為不熟識香港法例，故在2013年2月15日放棄其針對定罪的上訴許可申請，但她近期獲家人告知有新證據及證詞證明她並無任何犯罪意圖，而她更是在毫不知情下被他人利用，以致被定罪及判刑。答辯人指自己不希望因疏忽而放棄對真理的追求，她強調如自己有刑事犯罪記錄，女兒的前途會受影響，故決定恢復她針對定罪的上訴許可申請，以便能討回公道。

The content of the respondent’s affidavit was regarded as her application to the court for treating the Notice of Abandonment of her appeal as a nullity and for restoring her application for leave to appeal against conviction.
答辯人的誓章內容被視為她要求法庭將她放棄上訴的通知當作無效，並恢復她針對定罪的上訴許可申請。

Therefore, we were required to deal with the respondent’s application for restoring her application for leave to appeal and the applicant’s application for review of the sentence.
因此，本庭要處理答辯人要求法庭恢復其上訴許可的申請及申請人提出的刑期覆核申請。

After the hearing, we dismissed the respondent’s application but granted the applicant’s application for review of the sentence, and we increased the respondent’s sentence from ten months to two years.  The reasons for our judgment are set out below.
經聆訊後，本庭駁回答辯人的申請，但批准申請人的覆核刑期申請。本庭將答辯人的刑期由10個月上調至2年，以下是本庭的判案理由。

Grounds of the respondent’s application for treating the abandonment of her application as a nullity
答辯人要求法庭視其放棄申請無效的理據

In her affidavit the respondent explained that after the sentence was passed she was put in jail and could not extensively seek advice from professionals whom she trusted as to the details and procedures of her appeal, so that gradually she slacked off in her search for justice, with the result that she abandoned her application for leave to appeal.
在其誓章，答辯人力稱自己在判刑後在監獄無法廣泛地向她信賴的專業人士諮詢上訴詳情及程序，令她逐漸怠慢了對公義的追求，並因此放棄上訴許可申請。

The respondent stated that having thought over this matter again and again and after she learnt from her family members that there was fresh evidence which could prove that she had no intention to commit the offence, that she had been made use of and that she was wrongly sent to jail because she, out of kindness, wanted to help a friend, she decided to resume her application for leave to appeal in order that her conviction would be quashed and justice would be done.  She averred that her abandonment of the appeal was only an indication that she was reconciled to the reality and that she treated what happened as a lesson she should learnt, but it did not mean that she admitted she was guilty.
答辯人指經反覆思量及在家人告知有證據證明她無犯罪意圖，是遭人利用及因善心幫助朋友而冤屈入獄後，決定重新提出上訴許可申請，以推翻定罪及取回公道。她表示放棄上訴只是接受事實，當事件是一個教訓，而非承認有罪。

The respondent had abandoned her application for leave to appeal and accordingly the Court of Appeal had dismissed her application.  The well established legal principle is that the court has no jurisdiction to deal with afresh a person’s application for leave to appeal unless the person’s abandonment of that application is treated as a nullity.  The court has repeatedly stressed that the person has to adduce sufficient evidence to show that the abandonment of his application was not the result of an informed decision, i.e. his mind did not go with the act of the abandonment, before he could convince the court to treat the abandonment as a nullity.
答辯人放棄了上訴許可申請，而上訴法庭亦因此已撤銷了該申請。根據確立的法律原則，一名上訴人放棄上訴申請的行為須被視為無效，法庭才有司法管轄權重新處理其上訴許可申請。法庭亦多次強調要說服法庭視放棄申請的行為無效，上訴人必須提出足夠的證據證明他是在不知情的情況下作出放棄行為，即其意願和其放棄行為是不相稱的。

In HKSAR v Law Sui Kei [2007] 3 HKLRD 114 the Court of Appeal expounded on the legal principle about treating a Notice of Abandonment as a nullity as follows:
上訴法庭在香港特別行政區訴羅水基 [2007] 3 HKLRD 114一案中就如何視放棄通知書為無效的法律原則作出以下的闡釋：

“(1)The right of appeal is conferred by statute.  Once an (appeal) applicant has abandoned an appeal, which has accordingly been dismissed, the Court of Appeal does not have any inherent jurisdiction to entertain the reopening of the appeal unless the act of the abandonment is treated as a nullity, or the matter is referred to the Chief Executive under section 83P of the Criminal Procedure Ordinance. Only under the following circumstance may the court treat an applicant’s act of abandonment of an appeal as a nullity: the act of abandonment was not the result of the applicant’s deliberate and informed decision, in other words, the mind of the applicant did not go with his act of abandonment.
“(1)上訴權是由法規賦予的。（上訴）申請人一旦放棄上訴，以致上訴被撤銷，除非該放棄行為被視作無效，或是該事按《刑事訴訟程序條例》第83P條給轉交行政長官，否則上訴法庭並沒有固有司法管轄權重新處理上訴。法庭只可以在以下的情況才會視申請人放棄上訴的行為是無效的：申請人不是在知情的情況下刻意決定作出該放棄行為，即申請人的意願跟該放棄行為互不相稱。

(2)Whether an applicant’s act of abandonment will be regarded as a nullity depends on his understanding of the effect or consequences of the document he was signing or, perhaps, misapprehending the effect of an appeal were he to persist.  If the erroneous advice relied upon by the applicant relates to the nature or effect of the act of abandonment, the Notice of Abandonment will be regarded as a nullity.  If the applicant who, properly informed, knew the nature and effect of the document he was signing and, with that knowledge, deliberately signed the document, it will be hard pressed to show that that act is a nullity.”
(2)申請人放棄上訴的行為可否被視作無效是關乎申請人對於他所簽署的文件的效用或後果是否了解，或者對於他假若堅持上訴的結果是否有所誤解。如果申請人所依賴的錯誤意見，與該放棄行為的性質或效果有關，則該放棄通知書會被視作無效。若申請人在恰當了解有關情況下，知道他所簽署的是什麼文件，亦知道他所簽署的文件的效用，而他在這種知情的情況下，刻意簽署該文件，那他要證明該放棄行為為無效將會非常困難。”

This principle was reaffirmed by the Court of Appeal in HKSAR v Ooi Lim Khoon [2011] 5 HKLRD 100.  The Court of Appeal further held that in considering whether an appellant’s abandonment of his appeal was a nullity, the court’s concern was whether the abandonment of the appeal was the result of a deliberate and informed decision, and that the court did not enquire into the prospects of success of the appeal.
上述原則在HKSAR v Ooi Lim Khoon [2011] 5 HKLRD 100案，再次獲上訴法庭確認。上訴法庭更裁定考慮一名上訴人放棄上訴的決定是否無效時，法庭要關注的只是上訴人放棄上訴的決定是否刻意及經考慮後才作出的，而非上訴成功機會的強弱。

The respondent obviously was aware of the consequence which the abandonment of her application for [leave to] appeal would lead to.  When she signed the Notice of Abandonment of her appeal she knew the nature of the Notice and certainly understood its effect.  She also stated that she decided to abandon her application for [leave to] appeal against conviction only after careful consideration.  It was only subsequently for some reason she changed her mind and hoped that she would be granted leave at her renewed attempt to appeal.  The appellant’s decision to abandon her appeal was a deliberate decision made after she had considered the matter, and was a decision that accorded with her intention.
答辯人顯然知悉她放棄上訴申請會衍生的結果。她在簽署放棄上訴通知書時也知悉該份通知書的性質，亦必然知悉該份通知書的效用。她更表明是經過深思熟慮後才決定撤銷上訴定罪申請。答辯人只是事後因某種原因改變主意，希望再獲批准提出上訴。答辯人放棄上訴的決定是刻意及經考慮後才作出的決定，亦是符合其意願的決定。

In these circumstances the respondent’s application did not comply with the principle laid down in Law Sui Kei.  This Court does not have jurisdiction to reopen the appeal which she hoped to lodge.
在這情況下，答辯人的申請不符合上述羅水基案定下的原則，本庭沒有管轄權重新處理她希望提出的上訴。

Furthermore, looking at the background of this case and taking into account the respondent’s manner of dealing with the large amounts of money of dubious origin in the account, it could be said that the argument that she was just misled by her good friend and that when she was dealing with the money she had no reasonable grounds to believe that it was “black money” was plainly unconvincing.
再者，以事件的背景而言，及考慮到答辯人處理該帳戶內大筆不明來歷的款額之方法，有關她只是誤信好友並在處理該筆巨額款項時，沒有合理理由相信該筆款項是“黑錢”的說法根本不具任何說服力。

Therefore, we rejected the respondent’s application for treating the Notice of Abandonment of her appeal as a nullity.  We only dealt with the applicant’s application for review of the sentence.
因此，本庭不批准答辯人要求法庭將其放棄上訴通知書視為無效的申請。本庭只處理申請人的覆核刑期申請。

Mitigating factors submitted by respondent
答辯人的求情理由

At the trial the respondent explained that she committed the offence because in her mind what she intended to do was just to help her friend and she thought that what she was asked to do would cause her no sweat at all.
原審時，答辯人指自己犯案，原因是一心幫朋友，以為只是舉手之勞。

The respondent stated that she was a good friend of Madam Chen Yan [transliteration of 陳雁], who was a Mainlander, and that at the request of Madam Chen she let Madam Chen use the account for receiving a sum of remittance in Canadian currency.  It turned out that within five days five sums of remittance, totalling CAD$243,869.23 were paid into the account.  The respondent further said that she had acted upon Madam Chen’s instructions on a number of occasions to withdraw cash and had taken a total of HK$1,906,800 to the Mainland, which she gave to Madam Chen.
答辯人表示她是內地人陳雁女士的好朋友，而她亦是應陳女士的要求，將該帳戶借予陳女士來接收一筆加元匯款。結果該帳戶在5天內接收了五筆總額為243,869.23加元的匯款。答辯人更指自己應陳女士的要求多次提取現金，把共1,906,800港元帶回內地給陳女士。

The respondent maintained that she did what she did out of kindness but was made use of by her friend.  She asserted that in this incident she not only did not gain any benefit, but she had spent time and had suffered financial loss in the form of traffic expense, though it was small in amount.  At the trial, the respondent’s legal representative repeatedly submitted that she had two young daughters who needed her care and attention, and asked the court to temper justice with mercy by giving her a lighter-than-usual sentence.  Her legal representative urged the court that the circumstances of this case, in particular the family condition of the respondent, were such that it was open to the court to deal with her with compassion and leniency.
答辯人力稱自己是好心，但遭朋友利用。她表示自己在事件中不但沒有得益，更要付出時間和小量交通費之金錢損失。原審時，代表答辯人的律師更多番強調答辯人有兩名年幼女兒要她照顧，故要求法庭法外施恩，判處答辯人較輕的判刑。該律師力稱本案的情況，特別是答辯人的家庭情況，容許法庭以憐恤之心及寬大方法處置答辯人。

Trial judge’s reasons for sentence
原審法官的判刑理由

Before passing sentence, the trial judge called for a welfare report on the two daughters of the respondent.  The trial judge said that the respondent’s mother-in-law could come to Hong Kong from the Mainland to help her take care of her daughters and that the respondent’s mother, if necessary, could also help her in that matter.
原審法官判刑前，有索閱答辯人兩名女兒的福利報告。原審法官指出答辯人的家姑可以由內地來港，協助照顧她的兩名女兒，而答辯人的母親在有需要時，也可協助照顧該兩名女兒。

The trial judge emphasized the serious nature of the offence of “money laundering” and pointed out that according to the sentencing guideline set in HKSAR v Hsu Yu Yi [2010] HKLRD 536, if the “black money” involved was between $1,000,000 to $2,000,000 the starting point should be in the order of three years’ imprisonment.
原審法官強調“洗黑錢”罪行的嚴重性，亦指出根據香港特別行政區訴許有益 [2010] 5 HKLRD 536案定下的量刑原則，如涉案“黑錢”的金額是100至200萬元，量刑基準應約為3年監禁。

The trial judge said that besides the $1,900,000, cross-border criminal activities were also involved in this case.
原審法官指出案件除了涉及190萬元外，亦涉及跨境犯罪。

Having said that, the trial judge went on to say, ‘The defendant is a first time offender.  She explained that she just wanted to help a good friend.  The “money laundering” activities were parts of one single, isolated incident.  The defendant wrongly reposed her trust in her good friend.  The wrong she did was failure to make enquiries, not knowingly breaking the law.’
但原審法官指出：“被告初犯；聲稱幫助好朋友；「洗錢」活動屬單一獨立事件；被告人錯信好友，錯在「不聞不問」而非明知故犯。”

Finally, the trial judge made the following comments:
原審法官最終有以下評論：

‘   As regards the term of imprisonment, the defendant is indeed different from the offenders in the usual “money laundering” cases who sold their accounts to some people or gave some people the use of their accounts. I can exercise my discretion and give her a shorter sentence.  In my view, the appropriate starting point is 10 months’ imprisonment.  Since the defendant is convicted after trial, she is not entitled to the one third discount given in the case of a guilty plea and, in the absence of any other mitigating factors capable of reducing the sentence, I sentence her to 10 months’ imprisonment.  I emphasize that the court has treated the defendant in a particularly lenient way and has imposed a prison term as short as possible.’
“刑期方面，被告人的確與一般「洗黑錢」案的「售賣戶口」或「借出戶口」罪犯有別，可酌情判處較短的刑期。本席認為，適當的量刑基準是10個月監禁。由於被告人經審訊後定罪，不能獲得「認罪」的三分一刑期扣減。同時，亦沒有其他減刑理由可將刑期縮短。因此，判刑是10個月監禁。本席強調，法庭已對被告人格外施恩，在刑期作出最大的寬減。”

Applicant’s grounds of review
申請人的覆核理由

Mr. Tam, Deputy Director of Public Prosecutions, for the applicant, submitted that the “black money” involved in this case was close to HK$2,000,000, which was transferred to the account on five separate occasions without the authorization of the owners.  Mr. Tam stressed that the respondent made six withdrawals within five days, withdrawing over HK$1,900,000 in cash and on the very same day she personally took the cash to the Mainland.
代表申請人的副刑事檢控專員譚耀豪指出案件涉及的“黑錢”近200萬港元，是未經擁有人授權而分五次轉入該帳戶。譚專員強調答辯人是在5天內，6次以現金提取超過190萬港元，並即日親自將現金帶返內地。

Mr. Tam submitted that the amount of “black money” involved was substantial, that the respondent had actively participated in the crime and that the case had an international dimension.
譚專員認為涉案“黑錢”數額大，答辯人亦有積極參與罪行，而罪行更涉及國際層面。

Mr. Tam emphasized that in cases of this nature in which the “black money” involved amounted to $2,000,000 or so, the sentence should not be less than two years and the appropriate starting point should be three years.
譚專員力稱同類及涉及約200萬元“黑錢”的案件，判刑不應少過2年，而適當的量刑基準更應是3年。

Mr. Tam contended that the trial judge should not have given the respondent an exceptionally lenient sentence just because she wrongly trusted her friend and the wrong she did was failure to make enquiries about the source of the “black money”.
譚專員認為原審法官不應因為答辯人是錯信朋友，及錯在對“黑錢”的來源「不聞不問」，而額外輕判答辯人。

Mr. Tam pressed the point that as far as the “money laundering” offence is concerned, the ‘defendant’s ignorance of the actual source of the “illicit money” is not necessarily a mitigating factor.  On the other hand, if there is evidence to prove that the money involved in the offence was actually “illicit money”, that it was derived from serious crimes and that the defendant was aware of its origin, that would be an aggravating factor.’
譚專員力稱在“洗黑錢”罪行，“被告人不知道「黑錢」的確實來源，亦不一定是減刑因素。反而言之，如有證據證明涉案金錢確是「黑錢」，源自嚴重罪行，而被告人知悉「黑錢」的來源，則是加重罪責因素”。

Mr. Tam considered that even if the respondent’s assertion that she had never received any reward for committing the offence was true, so that her culpability was lesser than that of the defendants in other cases of similar nature who had received a reward, the trial judge should not have drastically reduced the starting point from the appropriate term of three years to 10 months.
譚專員認為即使答辯人聲稱犯案並無收取報酬的說法屬實，以致其罪責較其他同類案件有收取報酬的被告人的罪責為輕，原審法官亦不應將適當的3年量刑基準大幅度減至10個月。

Mr. Tam submitted that there were three aggravating factors in the present case: (1) The amount of money was about $1,900,000; (2) The respondent not only gave the account to another person for that person to use, but also within a matter of five days, she, on six occasions, personally withdrew the money and took the cash to the Mainland, which demonstrated that she actively and personally participated in the “money laundering” activities; and (3) an international element existed in this case, because the “illicit/black money” had its origin in Canada but was remitted to Hong Kong and then taken to the Mainland by the respondent.  Mr. Tam added that the not guilty plea of the respondent showed that she was unremorseful.
譚專員強調本案有三項加重罪責因素：（一）數額約190萬元；（二）答辯人不僅借出該帳戶，更在5天內6次親自提款及將現金帶返內地，顯示她有積極及親自參與“洗黑錢”活動；及（三）案件涉及跨國因素，原因是“黑錢”源自加拿大，匯至香港及由答辯人帶返內地。譚專員亦指出答辯人不認罪，顯示她全無悔意。

Mr. Tam concluded that the original sentence of ten months’ imprisonment fell “outside the range of sentences which a judge, applying his mind to all the relevant factors, could reasonably consider appropriate”.
譚專員認為原判的10個月刑期“超出了法官經考慮所有有關因素後可合理地認為恰當的判刑範圍”。

Respondent’s position
答辯人的立場

Mr. Yip, counsel for the respondent, submitted that the sentence in a “money laundering” case had to be determined according to the circumstances of that particular case, and that the court should take into account other factors apart from the amount of money involved and the cross-border criminal activities in order to reach the appropriate sentence.  Mr. Yip emphasized that a close and profound relationship existed between the respondent and Madam Chen Yan and that in the respondent’s mind, what she intended to do was only to help Madam Chen but she was made use of by her and hence committed the offence.  Mr. Yip considered that these factors should be regarded as mitigating factors, and he cited HKSAR v Chiu Kit & Zhao Hongqing (CACC 210/2009) and HKSAR v Chan Wai Yan [2012] 4 HKLRD 189, 195 (paragraphs 22-24) to support his position.
代表答辯人的葉劍明大律師力稱“洗黑錢”案件的判刑，必須根據個別案件的情況而定，而法庭更要考慮涉案金額和跨境犯罪外的其他因素，作出適當的判刑。葉大律師強調答辯人和陳雁女士關係深厚，而答辯人只是一心幫助她及遭她利用而犯案。葉大律師認為上述因素應視為減刑理由，並援引HKSAR v Chiu Kit & Zhao Hongqing （CACC 210/2009）及香港特別行政區訴陳慧茵 [2012] 4 HKLRD 189，195（第22-24段）等案件支持其立場。

Mr. Yip also stressed that the respondent had no previous convictions and that she did not obtain any personal gains in this case.  He argued that the trial judge was reasonable in finding that the present case was different from the usual “money laundering” cases in which what the offenders did was selling their accounts to some people or giving some people the use of their accounts.  He said the trial judge’s taking into account of the condition of the respondent’s two daughters in passing sentence was an approach which struck a proper balance between compassion and justice, because only the respondent could properly take care of her two daughters.
葉大律師亦強調答辯人沒有刑事記錄，而在案件中亦沒有獲取個人利益。他認為原審法官合理地裁定本案和一般「洗黑錢」案的「售賣戶口」或「借出戶口」行為有別。而原審法官在判刑時將答辯人兩名女兒的情況考慮在內，更是情理兼備的處理方法，原因是只有答辯人才可以恰當地照顧該兩名女兒。

Discussion
討論

This Court has on many occasions repeated the warning that “money laundering” is a very serious crime.  One of the reasons is that in a modern society perpetrators of serious crimes are very often motivated by financial gains, so that to combat the crime of “money laundering” can be an effective measure against such serious crimes.
本庭屢次強調“洗黑錢”是十分嚴重的罪行，原因之一是近代社會，眾多嚴重罪行犯案者的動機都是為了獲取經濟得益，因此打擊“洗黑錢”罪行亦是打擊該類嚴重罪行的有效方法。

Generally speaking, the sentence passed in a “money laundering” case is primarily to reflect the amount of the “illicit/black money” involved.  Neither the fact that the “illicit/black money” was actually not derived from an indictable offence nor the defendant’s ignorance of the actual source of the “illicit/black money” is necessarily a valid mitigating factor.  On the other hand, if there is evidence which can prove from what serious crimes the “illicit/black money” was derived and if the defendant was aware of the origin of the “illicit/black money”, that would be an aggravating factor (see Secretary for Justice v Lau Man Ying [2012] 4 HKLRD 429 and HKSAR v Xu Xia Li & Anor [2004] 4 HKC16).  Based on the same rationale, the fact that the defendant of a “money laundering” case has not obtained any financial benefit is not a mitigating factor.
一般而言，“洗黑錢”罪行的判刑主要是反映“黑錢”的數額。涉案的“黑錢”事實上並非是源自可公訴罪行，或被告人不知道“黑錢”的確實來源不一定是有效的減刑因素。反之，如有證據證明“黑錢”源自甚麼嚴重罪行，而被告人知悉“黑錢”的來源，則這構成加重罪責的因素（見律政司司長訴劉文英 [2012] 4 HKLRD 429及HKSAR v Xu Xia Li & Anor [2004] 4 HKC16等案）。同樣道理，“洗黑錢”案件的被告人沒有經濟得益，並非減刑理由。

The respondent claimed that she wrongly believed her good friend and that her sole purpose of using her own bank account to receive the remittances was to help her friend.  She stressed that the help she gave to her friend caused her no sweat and that she obtained no benefit at all from what she did.
答辯人聲稱自己誤信好朋友，一心幫助朋友，利用自己的銀行帳戶接受匯款，答辯人更指她協助朋友的行為只是舉手之勞，而自己完全沒有獲得任何利益。

What the respondent said was nothing but her own one-sided version of the story.  Even on her own evidence, Madam Chen was just her friend, she should not have succumbed to the influence of her friend and committed the offence.  The principles laid down by this Court in Chiu Kit & Zhao Hongqing and Chan Wai Yan are not applicable to a relationship between friends, otherwise in any case of “money laundering” the defendant can say that he committed the offence because he was influenced by his friend and ask for leniency on this ground.  In a “money laundering” case, the sentence ‘should mainly reflect the amount of “black money” laundered and not the benefit obtained by the defendant or others.  The reason being that it is very difficult to prove the benefit concerned…’ (see paragraph 13 of the judgment of Secretary for Justice v Wan Kwok Keung, CAAR13/2010).
答辯人的說法只是她片面之詞，而即使根據她的說法，陳雁女士只是她的朋友，答辯人不應受朋友之影響而犯案。本庭在Chiu Kit & Zhao Hongqing及陳慧茵等案所定下的原則不適用於朋友之間的關係，否則任何“洗黑錢”案件，被告人都可以說成是受朋友影響而犯案，故應輕判。在“洗黑錢”案，“判刑應主要反映清洗‘黑錢’的數額，而非被告人或其他人的得益。原因是要證明有關得益，非常困難…”（見律政司司長訴雲國強CAAR13/2010案判案書第13段）。

We cannot overlook the fact that each time when money was remitted to the account the respondent would, shortly afterwards, withdrew most of the money in the form of cash and take it away from Hong Kong.  This showed that she definitely had reasonable grounds to believe that these sums of money came from some suspicious sources.
本庭不能忽視當有款項匯進該帳戶後，答辯人會在很短時間將大部分款項以現金提取及帶離香港，這顯示她必然有合理理由相信款項來歷不明。

The trial judge said that the culpability of the respondent was different from that of the offenders in the usual “money laundering” cases who sold their accounts to some people or gave some people the use of their accounts.  We do not understand what difference the trial judge was referring to.  If the trial judge compared the respondent’s conduct with the conduct of the offenders in the usual “money laundering” cases, namely selling their accounts to some people or giving some people the use of their accounts —— those offenders only sold their accounts or allowed some people to use their accounts for “money laundering” but they did not directly take part in dealing with the illicit/black money —— [he should have noticed that] the culpability of the respondent was more, not less, serious than that of those offenders.
原審法官指“答辯人”的罪行與一般「洗黑錢」案的「售賣戶口」或「借出戶口」的罪犯之罪行有別。本庭不理解原審法官所指的分別是甚麼。假若原審法官是將答辯人的行為和一般「洗黑錢」案的「售賣戶口」或「借出戶口」的罪犯的行為相比，即該些罪犯只是“售賣或借出戶口”給他人用作“洗黑錢”用途而沒有直接參與處理“黑錢”，則答辯人的罪行實較該些罪犯的罪行更為嚴重，而非較輕。

The respondent not only allowed other people to use the account to receive “illicit/black money” which came from a foreign country, but she also directly dealt with the “illicit/black money”, including withdrawing the money from the account and then taking it away from Hong Kong.  The fact that she did not gain any benefit was not a valid mitigating factor.
答辯人不但借出該帳戶給他人收取源自外國的“黑錢”，更直接處理“黑錢”，包括從該帳戶提取“黑錢”後再將“黑錢”帶離香港。答辯人沒有得益，並非有效的減刑理由。

We do not approve the trial judge’s passing an extremely lenient sentence on the respondent for the reason that she was different from the offenders in the usual “money laundering” cases who sold their accounts to some people or gave some people the use of their accounts.
本庭不同意原審法官以答辯人與一般「洗黑錢」案的「售賣戶口」或「借出戶口」的罪犯有別為理由，而酌情判處答辯人極輕的刑期。

In our view, actually there is an aggravating factor in this case in that the respondent personally dealt with the “illicit/black money” in the account, in particular she withdrew the money and shortly after that she took it away from Hong Kong.
本庭認為答辯人有份親自處理該帳戶內的“黑錢”，特別是在提取“黑錢”後很短時間內將“黑錢”帶離香港，更是加重罪責因素。

At the trial, it was submitted on behalf of the respondent that she had two young daughters who needed her care and attention.  The court was urged to take into account the effect of the respondent’s sentence on her daughters and to sentence her leniently and in a compassionate way.
原審時，代表答辯人的律師強調答辯人有兩名年輕女兒要她照顧，並要求法庭考慮答辯人的判刑對她女兒的影響，而格外施恩及施而憐恤的判刑。

It is certainly true that when passing sentence the court should not totally ignore the consequences which the defendant and his family would suffer as a result of the sentence, but in considering the sentence to be passed in respect of a serious crime, the court cannot pay too much attention to how the defendant and his family would be affected by the sentence and so sentence the defendant in an exceptionally compassionate manner; otherwise, a wrong message could be given which might encourage criminals to commit serious crimes.
當然判刑時，法庭不應完全不理會判刑對被告人及其家人的影響，但在處理嚴重罪行的判刑時，法庭不能太注重判刑對被告人及其家人的影響而施以特別憐恤的判刑，否則會給予錯誤的訊息，鼓勵罪犯干犯嚴重罪行。

“Money laundering” is a very serious crime, because it indirectly furthers the commission of serious crimes, especially international crimes; therefore, the court must deal with “money laundering” seriously in order to produce a deterrent effect.  As a matter of fact, the effective crackdown on “money laundering” can discourage the commission of other serious crimes.
“洗黑錢”罪行十分嚴重，原因是該罪行間接鼓勵嚴重罪行，特別是跨國罪行。因此法庭必需嚴苛對待“洗黑錢”罪行以收阻嚇作用。事實上，有效打擊“洗黑錢”罪行是可以威攝其他嚴重罪行的。

On the authority of Wan Kwok Keung, Hsu Yu Yi, HKSAR v Poon Lok Man (CACC 171/2012) and HKSAR v Zhan Jian Fu (CACC 258/2007), when the amount involved in the “money laundering” is $2,000,000 or so, the starting point is around three years’ imprisonment.
根據雲國強、許有益、香港特別行政區訴潘樂民（CACC 171/2012）和香港特別行政區訴詹劍富（CACC 258/2007）等案，如“洗黑錢”罪所涉及的金額約是200萬元，量刑基準約為3年監禁。

The “illicit/black money” involved in the present case was about $1,900,000.  The facts showed that what the respondent did was not limited to allowing the account to be used for “money laundering”; in addition to that she personally and actively dealt with the “illicit/black money”.  We cannot shut our eyes to the international element featured in this case, i.e. the “illicit/black money”, which had its origin in Canada, was remitted to Hong Kong and then taken to the Mainland by the respondent.
本案涉及約190萬元“黑錢”。案情顯示答辯人不但借出該帳戶用作“洗黑錢”用，更親自及積極地處理有關的“黑錢”。本庭亦不能忽視“黑錢”源自加拿大，在匯至香港後由答辯人帶返國內這“國際因素”。

In our judgment, even looking at this case from the angle most favourable to the respondent, the sentence which fits her should not have been less than imprisonment for two years and six months.  The original sentence of 10 months’ imprisonment was manifestly lighter than any of the sentences in the range of sentences which a reasonable judge would reasonably consider to be appropriate.
本庭認為即使以對答辯人最有利的角度來考慮案件，適用於答辯人的判刑都不應少於2年6個月監禁。原判的10個月判刑明顯是低於一名合理法官會合理地認為是恰當的判刑範圍內。

Taking into account the fact that this application was an application for review of sentence and that this matter had hung over the respondent’s head for a long time, we came to the conclusion that the appropriate sentence was two years’ imprisonment.
考慮到本申請是刑期覆核申請，而事件亦長時間困擾答辯人，本庭認為適當的判刑為2年監禁。

We granted the applicant’s application for review of sentence and increased the respondent’s sentence from 10 months’ imprisonment to two years imprisonment.
本庭批准申請人的覆核刑期申請，並將答辯人原被判的10個月監禁上調至2年監禁。