Hon Cheung JA (giving the judgment of the Court):
上訴法庭法官張澤祐頒發上訴法庭判案理由書：

Appeal against sentence
刑期上訴

The Applicant is the second defendant (D2) in the case. He and three other co-defendants were charged with various counts of “Conspiracy to deal with property known or believed to represent the proceeds of an indictable offence”, contrary to sections 159A and 159C of the Crimes Ordinance, Cap. 200 and sections 25(1) and (3) of the Organized and Serious Crimes Ordinance, Cap. 455. Those charges are commonly known as “money laundering” charges.
申請人是案件的第2被告人。申請人與同案的另外三名被告人分別被控多項「串謀處理已知道或相信為可公訴罪行的得益的財物」罪，違反《刑事罪行條例》（香港法例第200章）第159A及159C及《有組織及嚴重罪行條例》（香港法例第455章）第25(1) 及 (3) 條。有關控罪俗稱為「洗黑錢」罪。

D2 was found guilty of the second charge after trial by Deputy District Court Judge Johnny Chan and was sentenced to 3 years and 9 months’ imprisonment. He made an application for leave to appeal against sentence. After hearing, this Court allows his application for leave to appeal against sentence, and treating the application as the formal appeal, we vary the sentence to one of 3 years and 5 months’ imprisonment. The reasons for the decision are set out below.
第2被告人經審訊後被區域法院暫委法官陳仲衡裁定第2項控罪罪名成立及被判3年9個月監禁。他就刑期提出上訴許可申請。本庭在聆訊後批准刑期上訴許可申請，視申請為正式上訴及將刑期更改為3年5個月監禁。以下是本庭的判案理由。

The charge
控罪

The particulars of the charge are that from 4 June 2008 to 16 August 2008 in Hong Kong, D2, D3, and D4 knowing or having reasonable grounds to believe that a property, namely the deposit of HK$ 2,585,564.74 in an account with the Standard Chartered Bank (Hong Kong) Ltd (Account number 959-2-0693009-9), in whole or in part, directly or indirectly represents the proceeds of an indictable offence, conspired with each other and with a person called ‘Lo Chiu’ and some other unknown persons, to deal with the property.
控罪的詳情指第2、3與4被告人於2008年6月4日至2008年8月16日期間在香港，一同串謀和與一名別名叫「老趙」的人士及其他身分不詳的人士一同串謀，在明知或有合理理由相信某項財產，即渣打銀行有限公司帳戶(號碼959-2-0693009-9)內的一筆港幣2,585,564.74元的款項，全部或部分、直接或間接代表任何人從可公訴罪行的得益的情況下仍處理該筆財產。

The facts
案情

The facts of the case are that a Singaporean woman received notification from a company that she had won a sizeable lottery in Singaporean currency. But before she could claim the lottery payment, she had to pay processing fees. Between 2 May and 16 July 2008, she accordingly deposited money on thirteen occasions into a bank account in Singapore and remitted money into nine bank accounts in Hong Kong, the total amount being Singaporean dollars 990,000. However she never received any lottery payment. The remittances into those nine bank accounts in Hong Kong included one deposit into D1’s account with the Standard Chartered Bank (‘Charge 1’), three deposits into D2’s account with the Standard Chartered Bank (‘Charge 2’), and one deposit into D3’s account with the Standard Chartered Bank (‘Charge 3’). The woman then reported the fraud to the Singapore police.
案情顯示一名星加坡的女子接到一間公司的通知，說她中了抽獎，可獲得一筆大額的星加坡幣的獎金，但她需要先支付手續費才可領取該筆獎金。她於是在2008年5月2日至2008年7月16日期間先後13次將一筆星加坡幣990,000元的款項分別存入星加坡的一個銀行戶口及匯到香港的9個銀行戶口內，但這女子從未收取過任何獎金。匯入香港的9個銀行戶口的各筆款項包括一筆匯入第1被告人的渣打銀行戶口的款項（‘控 罪 1’）、三筆匯入第2被告人的渣打銀行戶口的款項（‘控 罪 2’）、及一筆匯入第3被告人的渣打銀行戶口（‘控 罪 3’）。這名女士於是向星加坡警方報案被人欺騙。

D2 came to Hong Kong from Taiwan with D3 on 4 June 2008. On the next day, they went to the Standard Chartered Bank, each setting up a wealth management account with $9,000. They claimed to the bank staff that they were wholesalers working for a company called ‘山珍海味’ (which literally means delicacies from land and sea). D1 and D4 came to Hong Kong from Taiwan on 21 June 2008. They later set up their respective accounts with another bank. They claimed to the bank staff that they were wholesalers working for a business establishment called ‘山珍海味’ (which literally means delicacies from land and sea). All four defendants are Taiwanese residents and since their arrival in Hong Kong, they often travelled together between Hong Kong and the Mainland.
第2被告人於2008年6月4日與第3被告人從台灣來港，翌日兩人在渣打銀行各自以$9,000開設一個理財戶口。他們向銀行職員報稱是批發商，任職於一間名為「山珍海味」的公司。第1及第4被告人於2008年6月21日從台灣來港。之後兩人分別在另一間銀行開設戶口，他們向銀行職員報稱是批發商，任職的商號名為「山珍海味」。四名被告人都是台灣居民，自抵港後他們經常一起穿梭內地與香港。

On 14 August 2008, D2 was intercepted by an immigration officer at the Lo Wu Immigration Building when he was on his way to the Mainland. He was later arrested by a police officer for the offence of ‘money laundering’. D2 said under caution that ‘I am a tourist here and the account is for my friends in Singapore to remit money here for use’. A while later D2 said, also under caution, that ‘I was merely directed by someone else. The person who directed me to launder black money is called ‘Lo Chiu’. I know he lives on the 5th floor in Fa Yuen Street Building. I don’t remember the address but I can take you there.’ Later D2 took the police officer to Fa Yuen Street and pointed at one of the flats to be the residence of ‘Lo Chiu’. He then took the officer to a flat in Shanghai Street. The officer opened the door to the flat with a key provided by D2 and entered the premises where D3 and D4 were found. The officer arrested D3 and D4 for the same offence. The officer found inside the flat the bank passbooks, notebooks and name cards belonging to D2, D3 and D4.
第2被告人於2008年8月14日於羅湖出入境大樓正預備前往內地時被入境處職員截停，其後警員以「洗黑錢」罪名拘捕他。第2被告人在警誡下說：「我是嚟旅行的，嗰戶口係我於星加坡的朋友匯錢過嚟用嘅」。稍後，第2被告人在警誡下稱「我都係受人指使，指使我冼黑錢嘅人叫『老趙』，我知佢住花園街大廈五樓，地址我唔記得，但係我可以帶你去」。之後，第二被告人帶警員到花園街，指出其中一個單位是「老趙」的住所，然後再帶警員到上海街一個單位。警員以第2被告人的一支鎖匙開啟該單位的門並進入單位，發現第3及第4被告人在單位內。警員以相同罪名拘捕第3及第4被告人。警員在上址發現第2、3及4被告人的銀行存摺、記事簿及卡片。

Under caution, D2 said in a video-recorded interview that:
第2被告人在警誡錄影會面記錄中說：

He saw a recruitment advertisement in the newspaper in Taiwan which says that staff are needed to work in Hong Kong and the monthly pay will be several hundred thousand Taiwanese dollars. He thought the job was well paid so he contacted the employer over the phone to arrange an interview in Taichung.
他是從台灣報章上看見招工廣告，廣告表示招聘員工到香港工作，月薪數十萬台幣，他認為這是豐厚薪酬的工作，他於是透過電話聯絡僱主於台中面試。

He did not know the nature of the job but only that he would know after arrival in Hong Kong.
他不知道工作的性質，只知道來港後便會知曉。

He used to be a bus driver in Taiwan and had various other jobs including working in a car cleaning company and selling slippers in beaches.
他過往曾在台灣從事巴士司機、洗車店及於沙灘販賣拖鞋等不同工作。

When he arrived in Hong Kong, his employer took his passport away and said that it would be returned to him after he had worked for two months. He was told that his wages would be paid to him at that time.
到港後他的僱主便取去他的護照，說護照會於兩個月工作後歸還給他，他的工資亦會於當時支付給他。

As his employer did not pay him any wages, he resigned from the job and intended to return to Taiwan. But when he was returning to Taiwan, he had to visit his friends in the Mainland and was then arrested by the police.
他其後因僱主沒有給他工錢而辭職，打算返回台灣。但卻於返回台灣時要到內地探望朋友而被警員拘捕。

Although he had doubts about the job, he accepted it because he was in need of money.
他雖懷疑他的工作，但因等錢用，故此亦接受。

When he was in Hong Kong, he was received by a Lo Chiu who lived in Fa Yuen Street. Lo Chiu took him to open various accounts with the Standard Chartered Bank, HSBC and the Bank of China.
他在香港時是由一名居於花園街的老趙接待，老趙並帶到渣打銀行、滙豐銀行及中國銀行開立不同的帳戶。

He acted upon instructions to withdraw large sums of money from the accounts, involving a total amount of HK$1,000,000 from three different branches of the Standard Chartered Bank on three separate occasions on 13 July 2008.
他曾按指示從帳戶內提取多筆大額款項，包括於2008年7月13日分別三次從三間不同的渣打銀行分別提取合共100萬港元。

On 16 and 17 July, he withdrew altogether HK$800,000 and HK$150,000 respectively. He handed all the money to Lo Chiu.
他於7月16日及17日先後提取80萬元及15萬港元，他將所有款項交給老趙。

He had asked Lo Chiu why so much cash was required to purchase sea delicacies, but Lo Chiu answered that the money was used to buy property.’
他曾詢問老趙為何要那麼多現金購買海味，但老趙表示錢是用來買房子的。」

Sentencing by Deputy Judge Chan
陳法官的量刑

Deputy Judge Chan took 4 years imprisonment as the sentencing starting point and reduced it by 2 months because D2 was a first offender. A further reduction of 1 month was granted to D2 on account of his admission of the prosecution case at the trial which saved the court’s time. That resulted in a total sentence of 45 months’ (i.e. 3 years and 9 months’) imprisonment.
陳法官以4年為量刑基準，在扣減了第2被告人因初犯所獲得的兩個月刑期減免及因在審訊時同意控方案情，減省法庭時間而獲得的額外1個月的刑期減免後，總刑期為45個月（即3年9個月）監禁。

Sentencing principles
量刑原則

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:
由於處理公訴罪行得益的財產這類案件會涉及不同的案情，故此法庭沒有定下量刑指引。但以下各點是量刑的參考因素：

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.
(1)涉案的金額是重要的考慮因素，而非被告人本身在這次交易所獲得的利益。

(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.
(2)控罪的罪責是協助、支持及鼓勵有關的公訴罪行，故此被告人的參與程度及涉及「洗黑錢」的次數是有關連的因素。

(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 pre se when determining the sentence of the dealing offence.
(3)處理公訴罪行得益的財產控罪與有關的公訴罪行不一定有直接關係，但若果有關的公訴罪行是可以確認的，那麼法庭是可以在處理控罪時考慮有關公訴罪行本身的刑期。

(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.
(4)若案件涉及國際跨境成分，法庭可採用較嚴峻的刑期，以免香港作為國際金融及銀行中心的形像受損。

(5)The length of time the offence lasted.
(5) 涉案的時間。

Precedents adduced by D2 was represented by Counsel Mr. Wong Hay Yiu who adduced a number of authorities to argue that the sentence imposed in the present case was excessive:
第2被告人引用的案例代表第2被告人的王熙曜大律師引用多宗案例指本案的刑期過重：

(1) In HKSAR v. Xu Xia Li & Another (CACC 109/2005), one of the defendants in the case was convicted of an offence of dealing with that property, namely $11,000,000.00, which represented the proceeds of an indictable offence. The original sentence of 3 years’ imprisonment was reduced to 2 years and 9 months by the Court of Appeal.
(1)HKSAR v. Xu Xia Li & Another (許厦禮[譯音]及另一人) CACC 109/2005，其中一名被告被裁定處理 $11,000,000.00的公訴罪行得益財產罪名成立。原本刑期為3年監禁，上訴法庭更改為2年9個月監禁。

(2)In HKSAR v. Javid Kamran (CACC 400/2004), the defendant pleaded guilty to two counts of trafficking in dangerous drugs and one count of money laundering. He admitted that he used his bank accounts to launder the proceeds from drug trafficking activities for a period as long as 18 months, involving an amount of over HK$1,000,000. The Court of Appeal considered that the starting point of 4 years’ imprisonment adopted by the trial judge was manifestly excessive and reduced it to 3 years. The sentence finally imposed was 2 years’ imprisonment.
(2)HKSAR v. Javid Kamran, CACC 400/2004。被告人承認兩項販毒及一項洗黑錢罪。被告人承認他利用他的銀行戶口作為清洗販運毒品得來的得益，犯案時間長達18個月，涉及超過1,000,000港元。上訴法庭認為原審法官以4年為量刑基準是明顯過重，將量刑基準更改為 3 年監禁。最終刑期是2年監禁。

(3)In HKSAR v. Chow Ying Ki (CACC 378/2004), the appellant was convicted after trial of one count of money laundering. The amount involved was about HK$3,000,000 and the crime lasted for 9 months. The Court of Appeal was of the view that although the starting point of 4 years’ imprisonment was on the high side, it was not manifestly excessive. The sentence finally imposed was 4 years’ imprisonment.
(3)HKSAR v. Chow Ying Ki, CACC 378/2004。上訴人經審訊後被裁定一項洗黑錢罪。涉案款額約港幣3,000,000元，犯案時間長達9個月。上訴法庭認為4年量刑基準雖屬較高，但並不是明顯過重，最終刑期是4年監禁。

(4) In HKSAR v. Yam Kong Lai [2008] 5 HKLRD 384, the appellant was convicted after trial of one count of money laundering. As an investment consultant, he knew that a client had an inactive fixed deposit account with US$520,000 (approximately HK$4,000,000) in it and that the client had disappeared. In the course of the offence, he forged the signature of the client and withdrew money from the client’s account via a circuitous route. He first transferred the money from the fixed deposit account to the bank account of a law firm in Singapore before he transferred the same to the bank account of a trading company in Hong Kong. He then transferred the money from the trading company’s bank account to his personal bank account and then withdrew the money. The Court of Appeal reduced the sentence of 5 years’ imprisonment to 4 years.
(4)HKSAR v. Yam Kong Lai [2008] 5 HKLRD 384。上訴人經審訊後被裁定一項洗黑錢罪罪名成立。他是一名投資顧問，他知道某客戶有一個不活躍的定期戶口，內有US$520,000美元(大約HK$4,000,000)，而該客戶已經失蹤。上訴人犯案過程涉及偽冒客戶的簽名，並以迂迴的途徑取走該客戶銀行戶口內的金錢，他先把定期存款內的款項轉帳到星加坡的一間律師行的銀行戶口內，再轉帳到香港的一間貿易行的銀行戶口內，然後從貿易行的銀行戶口轉帳到自己的個人銀行戶口內，之後提取了該筆款項。上訴法庭把刑期由5年監禁減為4年監禁。

(5)In HKSAR v. Zhan Jian Fu (CACC 258/2007), a Taiwanese woman was defrauded of approximately $2,000,000 by the appellant. The appellant pleaded guilty to two counts of ‘money laundering’ which involved a total sum of HK$2,000,000. He was a mainlander who came to Hong Kong in November 2005 and set up accounts with two banks. Between February and April 2006, a sum of HK$2,000,000 was remitted into the defendant’s accounts from Taiwan. The Appellant withdrew money from the accounts from time to time. He claimed that he was persuaded by someone to set up the abovementioned accounts and acted upon someone’s directions to withdraw money from the accounts from time to time. The Court of Appeal held that it was appropriate to adopt 3 years’ imprisonment as the respective starting points of the charges. Having considered the totality of sentence, the Court of Appeal held that 8 months of the first charge and 2 years of the second charge should be served consecutively, so the sentence was 32 months’ imprisonment.
(5)HKSAR v. Zhan Jian Fu, CACC 258/2007。一名台灣女子被上訴人騙取了約$2,000,000的款項。上訴人承認兩項「洗黑錢」罪，涉及的金額共約2,000,000港元，上訴人是內地人。在2005年11月來港及在兩間銀行開設了戶口。2006年2 月至4月期間，有一筆2,000,000港元的款項從台灣匯入被告人的戶口內。上訴人不時提取該戶口內的金錢。他聲稱是被人游說開設上述戶口，並受人指使不時在該戶口提取金錢。上訴法庭認為每項控罪以3年為量刑基準是合適的。考慮到整體刑期後，上訴法庭裁定第一項控罪的8個月監禁刑期與第二項控罪的2年監禁刑期分期執行，即32個月監禁。

(6)In HKSAR v. Lee Ka Ki (CACC 148/2007), the appellant was convicted after trial of two counts of money laundering, and was sentenced respectively to 4 years’ and 5 years’ imprisonment, to be served concurrently. In 2003 and 2004, the appellant opened a number of accounts with two banks in Hong Kong. Between 27 August 2003 and 26 February 2005, a number of deposits, totaling HK$570,000, were made into one of the accounts. And between 8 October 2004 and 3 June 2005, some other deposits in the total amount of HK$11,000,000 were made into another bank account. But shortly afterwards, that sum of money was withdrawn or transferred into other bank accounts. The appellant claimed that he set up those accounts in order to receive illegal bets on behalf of others, and that he would be paid $8,000 per month as remuneration. The Court of Appeal held that the overall sentence of 5 years’ imprisonment was manifestly excessive, and the appropriate term should be one of 3 years’ imprisonment.
(6)HKSAR v. Lee Ka Ki, CACC 148/2007。上訴人經審訊後被裁定兩項洗黑洗錢罪罪名成立，分別被判入獄4年及5年，同期執行。在2003年和2004年，上訴人分別在香港的兩間銀行開設了多個銀行戶口。2003年8月27日至2005年2月26日期間，一筆達HK$570,000的款項被多次分別存入其中一個戶口，而在2004年10月8日至2005年6月3日期間，另一筆共HK$11,000,000的款項被存入另一個銀行戶口內，但該筆款項不久就被人提取或轉帳到其他銀行戶口。上訴人聲稱他開設上述戶口是用作替人收受非法賭注，每月可獲8,000元的報酬。上訴法庭認為總刑期為5年監禁是明顯過重，適當的的刑期應為3年監禁。

(7)In HKSAR v. Chen Szu Ming (CACC 270/2005), the appellant pleaded guilty to three counts of money laundering. That case involved what the Court of Appeal described as ‘a sophisticated money laundering scheme’ which took months of elaborate planning and preparation. The amount involved was HK$17,000,000. The starting point was 5 years and the appellant was sentenced to 40 months’ imprisonment, to be served concurrently.
(7)HKSAR v. Chen Szu Ming, CACC 270/2005。上訴人承認三項洗黑錢罪。該案涉及一項被上訴庭形容為「計劃精密洗黑錢方案」，並經過多個月的周詳準備計劃，涉案款額為HK$17,000,000。該案的量刑基準是5年，上訴人被判40個月監禁，同期執行。

(8)In HKSAR v. Fan Shek Hung (CACC 393/2006), the appellant was convicted after trial of one count of money laundering and a sentence of 6 and a half years was imposed on him. The case involved defrauding the purchaser in a property transaction of the deposit in the sum of $31,000,000. Although the appellant was only involved in the fraud of $15,000,000, the Court of Appeal came to the view that it was an orchestrated fraudulent scheme and the appellant should therefore be sentenced for money laundering, rather than for the indictable offence underlying the money laundering activities. The Court of Appeal held that the starting point of imprisonment for 6 and a half years was manifestly excessive and reduced it to 5 years and 8 months.
(8)香港特別行政區對范石洪, CACC 393/2006。上訴人經審訊後被裁定一項洗黑錢罪罪名成立及被判入獄6年半。案件涉及詐騙樓宇買家$31,000,000的按金，雖然上訴人只牽涉其中的$15,000,000，但上訴法庭考慮到該案涉及周詳的詐騙計劃，認為上訴人是應該就洗黑錢罪被判刑，而不是就洗黑錢背後的可公訴罪行被判罰，因此認為6年半監禁的起點明顯是過高，遂將之減為5年8個月監禁。

(9)In HKSAR v. Wang Yu Hsin (CACC 173/2009), international and cross-regional scams were perpetuated by an international fraud syndicate on victims who were mostly mainlanders studying and living overseas. The modus operandi of the syndicate was that it phoned the victims in the names of different companies, misinforming them that they had won a sizeable lottery at the lucky draw held by the companies. The victims had to pay various advance fees, such as administrative fees and tax, before they could receive the lottery payment. The victims acted upon the instructions and made deposits into bank accounts in Hong Kong. They later found out that they had been cheated. Between February and July 2008, members of the syndicate lured people in many countries to remit money into the designated bank accounts in Hong Kong, and the total amount involved was HK$11,600,000. There were ten defendants in the case and a total of 58 charges, all being money laundering charges except one theft charge, were laid respectively against them. The three appellants were D7, D8 and D9 in the original trial. D7 was the wife of the key figure of the fraud syndicate. She was sentenced to 5 years and 6 months’ imprisonment on Charge 47, which was a money laundering charge with no specific amount stated. D1 and D2 were co-defendants of the same charge and as they had pleaded guilty to other charges, Charge 47 was kept in the court’s file. In respect of Charge 1 that D1 and D2 were convicted of, the facts were that D1 set up eight bank accounts within half a month since March 2008 and made use of six of them to deal with HK$5,000,000 in proceeds of crime. D2 set up ten bank accounts between February and April 2008 and made use of six of them to deal with HK$6,500,000 in proceeds of crime. The starting point for D1 and D2 was 4 years’ imprisonment. The Court of Appeal took the view that the sentence passed on D7 should not be higher than that, so the term of 5 years and a half was reduced to 4 years. As for D8, he pleaded guilty to five counts of money laundering involving a sum of HK$600,000. D9 pleaded guilty to one count of money laundering involving HK$900,000. Regarding the sentences on the two of them, the Court of Appeal was of the view that a starting point of 3 years’ imprisonment, as adopted by the court, was sufficient to reflect the full range of factors such as that the case involved an international syndicate, the charges were perpetrated by the defendants over a wide geographical region and the amount of money laundered.
(9)香港特別行政區對王語忻, CACC 173/2009。案件涉及跨國跨地區的國際行騙集團，受害人大部分都是在海外求學及居住的內地人。行騙手法是以不同公司的名義致電受害人，訛稱他們在其公司所舉辦的抽獎活動中贏得巨獎，受害人須預先繳付各項行政費用及稅款後才可領取獎金。受害人依其指示將款項存入指定的香港銀行戶口內，之後發覺被騙。在2008年2月至7月期間，集團成員誘騙分佈多個國家的人士將款項匯入香港指定的銀行戶口內，涉款共愈HK$11,600,000。該案共有10名被告。他們分別被控共58項罪行，除一項盜竊罪外，其餘的都是洗黑錢罪。三名上訴人分別是原審時的第7、8及9被告。第7被告是詐騙集團核心人物的妻子。第7被告被判第47項洗黑錢罪的控罪，該控罪沒有指明涉案的金額數目，第7被告被判5年半監禁。第1及2被告是該控罪的同犯，由於他們承認其他控罪，法庭因此將第47項控罪存檔。就第1及2被告被判罪名成立的第一項控罪而言，第1被告涉及在2008年3月起的個半月時間內，開設了8個銀行戶口，並利用其中的6個月戶口來處理HK$5,000,000的黑錢。而第2被告則在2008年2月至4月期間，開設了10個銀行戶口，並利用其中的6個戶口來處理HK$6,500,000的黑錢。第1及2被告的量刑起點為4年監禁。上訴法庭認為第7被告的刑期不應比他們高，因此將刑期由5年半監禁減至4 年監禁。至於第8被告，他承認5項洗黑錢罪，涉及的款項達HK$600,000。而第9被告則承認一項洗黑錢罪，涉及款額達HK$900,000。至於兩人的刑期，上訴法庭認為法庭以3年監禁作為量刑基準已充分反映出案件涉及跨國集團、他們及控罪所涉及的地區廣泛性和金額等因素。

Position of the Respondent
答辯人的立場

Mr. Robert Lee, Senior Public Prosecutor, submitted on behalf of the Respondent that there were aggravating factors in the present case because it involved money laundering activities perpetrated by an international fraud syndicate after elaborate planning, and that D2 was a member of the syndicate.
代表答辯人的李鏡鏞高級檢控官指出本案存有加刑理由,原因是案件涉及一個跨國犯罪集團經周詳策劃所作出的洗黑錢活動，而第2被告人是該犯罪集團的其中一份子。

Further, Mr. Lee submitted that the starting point of 4 years’ imprisonment adopted by Deputy Judge Chan had been adopted in Chow Ying Kai and Wang Yu Hsin, as well as in HKSAR v. Mak Shing (CACC 322/2001). In the latter case, the appellant was convicted after trial of three counts of money laundering and was sentenced to 4 years’ imprisonment in respect of each count, to be served concurrently. The amount involved was $15,000,000 which represented monies from thefts in the Mainland China. The Court of Appeal was of the view that the term of 4 years was an appropriate one, but in view of the legal arguments involved at the time of trial, the sentence was reduced by 1 year.
另外，李律師指陳法官所採用的4年監禁量刑基準除了採用於Chow Ying Kai 及王語忻一案外，亦曾採用於HKSAR v. Mak Shing, CACC 322/2001一案，在該案上訴人經審訊後被裁定三項洗黑錢罪罪名成立，每項控罪的刑期為4年監禁，同期執行，涉案款額達$15,000,000，有關款項是在中國內地偷竊得來的金錢，上訴法庭認為4年監禁的量刑基準是適當的，但由於審訊時涉及法律爭議，故此扣減1年監禁的刑期。

Mr. Lee also adduced the following two cases:
李律師亦提出以下兩宗案例：

In HKSAR v. Abayomi Bamidele Fayomi (CACC 159/2009), the appellant was charged with three counts of money laundering. An amount of HK$1,243,261.78 was involved and it represented the proceeds of a deception case. The Court of Appeal agreed that the starting point of 3 years and 6 months’ imprisonment was appropriate.
HKSAR v. Abayomi Bamidele Fayomi (CACC 159/2009)，上訴人被控三項洗黑錢控罪，涉案金額是HK$1,243,261.78，該筆金錢是一宗詐騙罪的收益。上訴法庭同意3年6個月監禁為量刑基準是適當的。

In HKSAR v. Jain Nikhil & Anor (CACC 405/2006), two appellants were charged with two counts of conspiracy to money launder and one count of using forged passports, and the amount involved was HK$3,900,000. The Court of Appeal held that a starting point of 5 years’ imprisonment was appropriate for the money laundering charges.
HKSAR v. Jain Nikhil and Another (CACC 405/2006)，兩名上訴人被控兩項串謀洗黑錢罪及一項行使假護照罪，涉案金額是HK$3,900,000。上訴法庭認為洗黑錢罪的5年監禁量刑基準是適當的。

List of authorities
案例一覽

The amounts involved and the sentence of the various cases adduced by the Counsel on behalf of both parties are listed as follows:
兩位律師所提出的案件的涉案金額及刑期可見於下表：

The view of this Court
本庭的意見

We agree that in the circumstances of the present case, a more severe sentence should be imposed.
本庭同意本案的背景需要採用較嚴峻的量刑：

This case involved cross border criminal activities. The Appellant is a Taiwan resident who came to Hong Kong to set up local bank accounts with the view to receive overseas deposits from fraud cases. As remarked in the precedents, such acts of the offenders will tarnish the reputation of Hong Kong as an international finance and banking hub.
本案涉及跨境犯罪因素，上訴人是台灣居民，在進入香港後開設本地銀行戶口，用以接收來自詐騙案的海外存款。正如案例所說犯案者的有關行為是會損害香港國際金融及銀行中心的形象。

The case involved well-organized illegal activities with elaborate planning. To a certain extent, D2 had knowledge of the involvement of criminal activities in the case and the source of the monies. D2 was arranged to come to Hong Kong from Taiwan with other defendants. While in Hong Kong, D2 and other defendants were arranged to stay in a rented apartment and were received by a man called ‘Lo Chiu’. D2 opened three bank accounts in Hong Kong and falsely claimed to the bank staff that he was a wholesaler. When the police searched the apartment rented by D2 and another person, they found inside it the name cards of the Applicant, on which the words of ‘山珍海味食物公司’ （which literally mean a food company of delicacies from land and sea） and its address were printed. The money involved in this case amounted to $25,800,000 and the money laundering activities were carried out over a period of two months.
案件涉及有組織性及周詳計劃的犯罪活動。第2被告對涉案罪行的參與程度和對款項的來源有一定的知情度。第2被告人被安排與其他被告人由台灣到香港。在香港期間，第2被告人與其他被告人被安排在租住單位居住，並由一名叫「老趙」的男子接待。第2被告人在香港開設了三個銀行戶口，並對銀行職員訛稱他是批發商。警方在第2被告人與另一名人士租賃的單位內搜到申請人的卡片，上面寫着「山珍海味食物公司」及其地址。涉案款項達$25,800,000，而洗黑錢活動長達兩個月。

According to the Admitted Facts, D2 told the police under caution that his accounts were set up to receive remittances from a Singaporean friend. He also said that a person called ‘Lo Chiu’ directed him to launder the money.
根據雙方同意的案情，第2被告人在警誡下說他的戶口是用作接收他一名星加坡朋友的匯款。他亦說是一名叫「老趙」的人士指使他洗黑錢的。

However, this Court must also take into account the amount involved. D2 personally dealt with approximately $2,500,000 in proceeds of crime. In accordance with the above authorities, admittedly the courts have adopted the same starting point of only 4 years as in the present case, and some courts have even adopted one that is less than 4 years, despite the involvement of greater amounts in many of those cases. This Court is of the view that the appropriate sentencing starting point should be one of 3 years and 6 months, and reducing it by 1 month on account of D2’s admission of the facts, the final sentence imposed is one of 3 years and 5 months’ imprisonment.
但本庭同時仍須考慮涉案金額。第2被告人本身所處理的黑錢約$2,500,000。根據上述的案例，的確是有多宗案件所涉及的款項雖比本案多，但法庭只是採用與本案相同的4年量刑基準，有些甚至採用低於4年的基準。本庭認為本案適當的量刑基準應為3年6個月監禁，在扣減第2被告人因同意案件的1個月減免後，最終刑期定為3年5個月監禁。

Mr Wong Hay Yiu, instructed by Messrs. Lo, Wong & Tsui, for the Applicant.
答辯人：由律政司高級檢控官李鏡鏞代表。

Mr Robert Lee, Senior Public Prosecutor of the Department of Justice, for the Respondent.
申請人：由盧王徐律師事務所轉聘王熙曜大律師代表。