Hon Chu JA (giving the reasons for judgment of the Court):
由上訴法庭法官朱芬齡頒發上訴法庭判案理由書：

Background
背景

The appellant was charged with three counts of “dealing with property known or believed to represent proceeds of an indictable offence” (commonly known as “money laundering”), contrary to section 25(1) and (3) of the Organized and Serious Crimes Ordinance, Cap. 455.  The appellant pleaded not guilty to the charges.  On 31 December 2010, the appellant was convicted by District Judge Anthea Pang on Charges 1 and 2 and acquitted of Charge 3.  Having considered the background report, on 21 January 2011, Judge Pang sentenced the appellant to 2 years and 9 months’ imprisonment on each of Charges 1 and 2, to be served concurrently.
上訴人在區域法院被控三項「處理已知道或相信為代表從可公訴罪行的得益的財產」（俗稱「洗黑錢」）的罪行，違反《有組織及嚴重罪行條例》（香港法例第455章）第25(1)及(3)條。上訴人否認控罪。2010年12月31日，區域法院法官彭寶琴裁定上訴人第一項及第二項控罪罪名成立，第三項控罪則罪名不成立。在考慮其背景報告後，彭法官在2011年1月21日判處上訴人就第一項及第二項罪名各接受2年9個月的監禁，同期執行。

The appellant applied for leave to appeal conviction and sentence.  On 8 September 2011, Yeung VP dismissed her application for leave in respect of conviction but granted her leave to appeal sentence.
上訴人就定罪和刑期提出上訴許可申請。2011年9 月8日，上訴法庭副庭長楊振權駁回上訴人就定罪的上訴許可申請，但批准她就判刑提出上訴。

On 1 February 2012, we allowed the appellant’s appeal against sentence and reduced the term of sentence on both charges to 21 months which were to be served concurrently.  We now provide reasons for our judgment.
本庭在2012年2月1日批准上訴人的刑期上訴，把兩項控罪的刑期減為21個月，同時執行。本庭現就判決理由給予說明。

Facts of the case
本案的案情

In Charge 1, on which the appellant has been convicted, she was accused of having dealt with a total sum of $1,734,005 in her account with the Bank of China (“BOC account”) between 2 January and 17 May 2004.  In Charge 2, on which the appellant has also been convicted, she was accused of having dealt with a total sum of $1,504,196.76 in her account with the Hongkong and Shanghai Banking Corporation (“HSBC account”) between 17 May and 25 January 2008.
上訴人被判罪成的第一項控罪指上訴人在2004年1月2日至5月17日，處理一筆在其中國銀行戶口（“中國銀行戶口”）內總數是港幣1,734,005元的款項。上訴人被判罪成的第二項控罪則指上訴人在2004年5月17日至2008年1月25日的期間，處理一筆在其滙豐銀行戶口（“滙豐銀行戶口”）內總數是港幣1,504,196.76元的款項。

The appellant was the sole authorized signatory of the abovementioned two bank accounts.  The facts agreed by both the prosecution and the defence revealed that between 2 January and 17 May 2004, the BOC account had deposits totalling HK$1,734,005 and withdrawals totalling HK$1,744,344.  Four of the deposits, involving a total sum of HK$1,692,705, were made by transfer from Taiwan through several remittance agents, and after each of these deposits was made, the appellant withdrew the remittance in cash.  On the other hand, between 17 May 2004 and 25 January 2008, the HSBC account had deposits totalling HK$1,504,196.76 and withdrawals totalling HK$1,504,147.40.  Six of the deposits, involving a total sum of HK$709,296, were made by transfer from the Mainland through a remittance agent between 19 April and 9 May 2005.  On 11 May 2005, a further sum of HK$383,663 was deposited into that account.  After each of these deposits was made, the appellant withdrew the money in cash.
上訴人是上述兩個銀行戶口的唯一授權簽署人。控辯雙方同意的事實顯示，在2004年1月2日至5月17日的期間，中國銀行戶口共有港幣1,734,005元的存款和港幣1,744,344元的提款。其中有4筆合共港幣1,692,705元的款項從台灣經數個匯款代理轉賬存入。每次款項存入後，上訴人便以現金方式把匯款提取。另一方面，在2004年5月17 日至2008年1月25日的期間，滙豐銀行戶口共有港幣1,504,196.76元的存款及港幣1,504,147.40元的提款。其中有6筆合共港幣709,296元的款項，是從內地經由一名匯款代理在2005年4月19日至5月9日轉賬存入戶口。在2005 年5月11日，再有一筆港幣383,663元的款項存入該戶口。每次款項存入後，上訴人便以現金方式把款項提取。

The appellant did not dispute that she had dealt with the money in the BOC account and the HSBC account, including making withdrawals, but she denied knowing or having reasonable grounds to believe that the money concerned came from the proceeds of an indictable offence.
上訴人不爭議她曾處理上述中國銀行和滙豐銀行戶口內的款項，包括提取款項。但上訴人否認知道或有合理理由相信有關的款項是來自可公訴罪行的得益。

The appellant elected to give evidence.  Her testimony revealed that she got married in 1995 and had a son, but she and her ex-husband were separated in 1997.  After that she worked as a public relations hostess at a nightclub.  She became acquainted with a customer Mr Chan and they subsequently became cohabitees.  Mr Chan assumed responsibility for her and her son’s living expenses, and later the appellant also gave birth to two daughters for Mr Chan.
上訴人選擇作供自辯。上訴人的證供顯示她在1995年結婚，育有一子，但在1997年與前夫分居。她之後在夜總會出任公關，期間結織一名客人陳先生，並發展成為同居伴侶。陳先生同時提供她和兒子的生活費用。後來上訴人更為陳先生誕下兩名女兒。

The appellant said that Mr Chan had been engaged in mobile phone business.  In April 2004, Mr Chan requested to use her bank account to receive four remittances from Taiwan.  Mr Chan had no bank account at that time because he had previously incurred business debts, as a result of which his accounts were frozen, and since then he had not opened any other bank account.  Each time after a remittance had been deposited into the appellant’s BOC account, Mr Chan would accompany the appellant to withdraw the amount in cash.  Sometimes Mr Chan paid for the appellant’s living expenses out of the withdrawn sum, but apart from that, all the money was taken away by Mr Chan.
上訴人指陳先生從事手提電話買賣的生意。在2004年4月間，陳先生要求借用她的銀行戶口，以收取4 筆從台灣來的匯款。陳先生當時沒有銀行戶口，原因是之前做生意曾經欠債，戶口遭凍結，所以沒有再開設戶口。在每筆匯款存入上訴人的中國銀行戶口後，陳先生便陪同上訴人去提取現金。陳先生有時會從中支付上訴人的生活費，除此之外，所有的款項都由陳先生取走。

On 17 May 2004, the appellant withdrew all the money in the BOC account and had the HSBC account opened on the same day.  She claimed that she had “lent” the HSBC account to Mr Chan upon his request, for the purpose of transferring money related to his Taiwan business to Hong Kong.  Between 19 April and 9 May 2005, six sums of money were transferred to the HSBC account, and the appellant said that it was only upon her arrest that she came to know that those sums of money were in fact from Mainland China.  She also said in her testimony that each time after money had been remitted to her account, Mr Chan accompanied her to the bank to withdraw the money.
上訴人在2004年5月17日從中國銀行的戶口提走所有存款。同日她開設了滙豐銀行戶口。上訴人指稱她同樣是應陳先生的要求，借出滙豐銀行的戶口，以供他在台灣做生意的款項轉賬到香港。在2005年4月19 日至5月9日期間轉賬到滙豐銀行的6筆款項，上訴人稱她是在被捕後才知道它們其實是來自中國內地。上訴人的證供也指每次款項匯到她的戶口後，陳先生都會陪同她到銀行提取。

The appellant called Mr Chan as her witness.  Mr Chan admitted that on 3 March 2009 he was convicted before the Court of First Instance on one count of trafficking in dangerous drug and was serving the sentence therefor, although he had already lodged an appeal against the conviction.  Mr Chan said that he had been engaged in trading business, that the monies transferred to the appellant’s BOC account and HSBC account were loans relating to his mobile phone business in Taiwan, and that he did not know why there were six sums of remittance which came from Mainland China.  Mr Chan also said that when he asked the appellant to let him use her accounts, he had told her the purpose thereof was to receive loans in respect of his Taiwan business.
上訴人傳召了陳先生作證人。陳先生承認在2009 年3月3日在高等法院原訟庭被裁定一項「販運危險藥物」罪罪名成立，正在服刑之中，但他已就該定罪提出上訴。陳先生稱他做貿易生意，而轉賬至上訴人的中國銀行和滙豐銀行戶口的款項都是他在台灣做電話生意的貸款，他並不知道為何有6筆匯款是來自中國內地。陳先生也稱他向上訴人借用戶口時，曾告訴她是用來收取他在台灣做生意的貸款。

The trial judge ruled that neither the appellant nor Mr Chan was a veracious and reliable witness.  The judge did not accept that the monies transferred to the appellant’s accounts were related to Mr Chan’s telephone business in Taiwan.  She found that the appellant had reasonable grounds to believe that the monies referred to in Charges 1 and 2 represented the proceeds of an indictable offence.  She convicted the appellant on both charges accordingly.
原審法官裁斷上訴人和陳先生都不是誠實可靠的證人。原審法官拒絕接納他們指轉賬到上訴人戶口的款項，是陳先生在台灣經營電話生意的款項的說法。原審法官認為上訴人具有合理理由相信第一項及第二項控罪所指的款項代表從可公訴罪行的得益的財產。她因此裁定該兩項控罪罪名成立。

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

In passing sentence, the trial judge noted that “money laundering” was a serious offence and referred to the sentencing considerations set out in the case of HKSAR v Hsu Yu Yi [2010] 5 HKLRD 536.  The judge took into account the fact that the four remittances in Charge 1 spanned approximately half a month, that the six transfers from the Mainland out of the seven remittances in Charge 2 spanned the best part of a month, and that following the transfer of each remittance to the appellant’s account, she and Mr Chan went in person to the bank and withdrew the money in cash.  In light of these facts, the judge considered 3 years’ imprisonment the appropriate starting point for each charge.  Having regard to the appellant’s clear record and the need for her to take care of three children single-handedly, the judge reduced the term to 2 years 9 months.  In the end, the appellant was sentenced to 33 months’ imprisonment on each of Charges 1 and 2, with the two sentences to be served concurrently.
原審法官在判刑時，考慮到「洗黑錢」是嚴重罪行，及參考了香港特別行政區訴許有益 [2010] 5 HKLRD 536案中列出的量刑因素。有鑑於第一項控罪的4筆匯款的涉案時間約半個月，而第二項控罪的7筆匯款，其中6筆由內地轉賬的涉案時間約為大半個月，以及每次匯款轉到上訴人戶口後，上訴人都與陳先生親自到銀行以現金方式提取款項，原審法官認為每項控罪適當的量刑基準是3年監禁。經考慮上訴人過往沒有刑事定罪記錄，及需要獨力照顧三名子女，原審法官將3年的量刑基準下調至2年9個月。她因此判處上訴人第一項和第二項控罪各33個月監禁，兩項刑期同期執行。

Grounds of appeal
上訴理由

The appellant submitted that the sentence of 2 years 9 months’ imprisonment was manifestly excessive for the following reasons: (1) there was no evidence to show that she had obtained any benefit from dealing with the monies in question; (2) she had not dealt with the monies by means of complex schemes, and the offences were not meticulously planned; (3) she had cooperated with the police in their investigations and provided her personal financial documents; (4) she had agreed most of the facts at trial, which helped shorten the length of trial; and (5) she had been under tremendous stress throughout the period of more than 2 years from the commencement of police investigations in 2008 to her being convicted on 31 December 2010.
上訴人指2年9個月的刑期是明顯過重。她提出的理由包括：（1）沒有證據顯示她從處理涉案的款項中獲得利益；（2） 她沒有以複雜的程序去處理款項，亦並非經過精心策劃去犯案；（3）她在警方調查期間，與警方合作，提供了個人的財政文件；（4）在審訊時，她同意了大部分的案情，縮短了審訊的時間；及（5）自警方在2008年開始調查直至她在2010年12月31日被判罪名成立，期間長達2年多，令她備受困擾。

The appellant relied on the following cases in support of her grounds of appeal:
上訴人引述了下列案件以支持她的上訴理由：

(1)HKSAR v Lai Kam Yee Teresa [2010] 4 HKLRD 157;
（1）香港特別行政區訴賴錦儀 [2010] 4 HKLRD 157；

(2)HKSAR v Cheung Po Lin, DCCC 585/2009;
（2）香港特別行政區訴張寶蓮DCCC 585/2009；

(3)HKSAR v Li Wor Sang, DCCC 126 (sic)/2009; and
（3）香港特別行政區訴李和生DCCC 126/2009；及

(4)HKSAR v Leung Mei Yu Rebecca, DCCC 365/2009。
（4）香港特別行政區訴梁美如DCCC 365/2009。

The appellant submitted that Mr Chan was her two daughters’ father.  When Charges 1 and 2 took place, her elder daughter was already born.  In order to maintain her relationship with Mr Chan, the appellant acceded to his requests by “lending” him her accounts and assisting in withdrawing the monies.  The appellant said that her case was similar to that of the applicant in HKSAR v Lai Kam Yee Teresa, in that it was only for the children’s benefit that she acceded to Mr Chan’s requests and dealt with the monies in question.
上訴人提出陳先生是她兩名女兒的父親，在第一項和第二項控罪發生時，她的大女兒已出生。她為了維繫與陳先生的關係，所以每次都順從他的要求，借出戶口和協助提取款項。上訴人認為她的情況與香港特別行政區訴賴錦儀案中的申請人的情況相若，都是為著子女的利益才聽從陳先生的要求處理涉案款項。

Legal principles relating to sentencing
與量刑有關的法律原則

We have made it clear in many decided cases that “money laundering” is a serious offence as those who take part in laundering the money not only assist in dealing with and retaining the proceeds of illegal activities and attempt to legitimize the proceeds of criminal activities, but in effect also indirectly encourage criminal activities.  It is therefore necessary to deter “money laundering” offences: see HKSAR v Xu Xia Li & Anor [2004] 4 HKC 16; HKSAR v Javid Kamran, CACC 400/2004 (date of judgment: 12 April 2005) and Secretary for Justice v Wan Kwong Keung [2012] 1 HKLRD 197.
本庭在許多案件中都明確指出，「洗黑錢」是嚴重罪行，原因是參與清洗黑錢的人不但協助處理和保存非法活動的得益，並試圖使犯罪得益合法化，而且實際上也間接鼓勵罪犯進行非法活動，因此有必要阻嚇「洗黑錢」的罪行：參考HKSAR v Xu Xia Li & Anor [2004] 4 HKC 16；HKSAR v Javid Kamran，CACC 400/2004（判案書日期：2005年4 月12日）及律政司司長訴雲國強 [2012] 1 HKLRD 197。

No sentencing guidelines have been laid down for the offence of “money laundering” because the circumstances of the offence vary from case to case.  In general, the sentence should mainly reflect the amount of “black money” laundered and not the benefit obtained by the defendant or any other gain.  In HKSAR v Hsu Yu Yi [2010] 5 HKLRD 536, the Court of Appeal set out the following sentencing considerations (see paragraph 9 of the judgment):
由於每宗案件會涉及不同的情況，法庭沒有對「洗黑錢」的罪行訂下量刑指引。一般而言，判刑應主要反映清洗「黑錢」的數額，而非被告人或其他的得益。在香港特別行政區訴許有益 [2010] 5 HKLRD 536案，上訴法庭指出下列各點是量刑的參考因素（見判案書第9段）：

“(a)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.
「(a)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。

(b)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.
(b)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。

(c)The offence of dealing with the proceeds from an indictable offence does not necessarily have any direct correlation with the indictable offence in question. However, if the relevant indictable offence can be identified, the court may take into account the sentence imposed on the indictable offence per se when determining the sentence of the dealing offence.
(c)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。

(d)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.
(d)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。

(e)The length of time the offence lasted.”
(e)涉案的時間。」

In addition, if a defendant has committed an offence for the sake of maintaining the relationship with his/her close relatives or partner, or by reason of having been used by them, the court may consider exercising its discretion to give further discount to sentence: see HKSAR v Lai Kam Yee Teresa [2010] 4 HKLRD 157; HKSAR v Chiu Kit & Anor, CACC 210/2009 (date of judgment: 20 May 2010) and HKSAR v Leung Mei Yu Rebecca, DCCC 365/2009 (date of Reasons for Sentence: 20 May 2010).
此外，如果被告人干犯罪行是出於維繫與親人或伴侶的關係或是被他們利用，則法庭會考慮酌情給予額外的刑期扣減：見香港特別行政區訴賴錦儀 [2010] 4 HKLRD 157；HKSAR v Chiu Kit（趙潔）& Anor CACC 210/2009（判案書日期：2010年5月20日）及香港特別行政區訴梁美如DCCC 365/2009（判刑理由書日期：2010年5月20日）。

Reasons for decision of this Court
本庭判決理由

The appellant is now aged 36 and divorced.  From her relationships with her ex-husband and Mr Chan, she has three children who are aged 15, 12 and 5 respectively and all taken care of by her.  Prior to the present case, she had a clear record.  The appellant herself, her parents and her siblings have written letters seeking mitigation of the appellant’s sentence.
上訴人現時36歲，是一名離婚婦人，與前夫及陳先生共育有三名子女，年齡分別是15、12和5歲，都由上訴人照顧。在本案之前，她沒有干犯刑事罪行的記錄。她本人及其父母和姊弟們都撰寫了求情信件，希望減輕刑期。

The total amount of monies involved in Charges 1 and 2 was approximately HK$2.7 million.  The two offences spanned half a month and the best part of a month respectively, neither of which was particularly long.  The appellant went to the bank and withdrew the remittances in cash shortly after they had been transferred into her two bank accounts, and the monies were passed on to Mr Chan.  There was no evidence to indicate the indictable offence(s) from which the monies in question were derived.  Nor did the evidence show that the appellant had taken part in any offence relating to “black money”.
本案第一項及第二項控罪所涉的款項合共約270 萬港元。兩項控罪發生的時間不算長，分別是半個月和大半個月。上訴人在控罪涉及的匯款轉賬到她的兩個銀行戶口後不久，便到銀行以現金方式把款項提走，轉交陳先生。在案中沒有證據顯示涉案的款項是從甚麼公訴罪行衍生出來。案中的證據亦不顯示上訴人有參予和「黑錢」有關的罪行。

In light of the above circumstances, without more, the starting point of 3 years adopted by the trial judge for each charge could not be regarded as manifestly excessive.  However, there were special circumstances which distinguish the present case from other cases of the same type.
若單純以上述的情況而言，原審法官就每項控罪所採納的三年量刑起點不可以說是明顯過重。然而本案存在與其他同類案件不同的特別因素。

The appellant testified at trial that she and Mr Chan were intimate cohabitees at the material time and had given birth to two daughters.  It was only upon Mr Chan’s requests that she allowed him to use her bank accounts, and it was not for obtaining benefit that she assisted in dealing with the monies in question.  After being convicted, the appellant reiterated this point when she was interviewed by the probation officer and pointed out that she had assisted Mr Chan because he was her partner and her daughters’ father.
上訴人在審訊作供時指出，她當時與陳先生是關係親蜜的同居伴侶，兩人先後育有兩名女兒。她是應陳先生的要求借銀行戶口給他使用，而非為了圖利而協助處理涉案的款項。在定罪後，上訴人會見感化官時亦重申這個說法，並指出她協助陳先生是出於他是她的伴侶和女兒的父親。

In our view, it could be seen from the evidence that Mr Chan and the appellant were cohabitees and their intimate relationship had lasted quite a long time.  In addition, on the appellant’s description, Mr Chan had all along taken care of her, their two daughters as well as her son who was born of her previous marriage.  By the time she dealt with the monies in question, she and Mr Chan had already had a daughter.  In view of the above circumstances, there is a credible ring about the appellant’s statements that she was merely acceding to Mr Chan’s requests when she allowed him to use her personal bank accounts and assisted him in making the withdrawals in question, and that she did so for the sake of their relationship and with a view to maintaining such relationship so that her children would be taken care of.
本庭認為從本案的證據可見陳先生是上訴人的親蜜同居伴侶，而且他們的親蜜關係亦維持了頗長的時間。此外，按上訴人所述，陳先生一直以來都照顧她和兩名女兒以及她與前夫所生的兒子的生活。而當上訴人處理本案所涉的款項時，她已與陳先生育有一名女兒。縱觀上述這情況，上訴人指她是順從陳先生的要求借出私人銀行戶口和協助陳先生從戶口提取款項，是出於雙方的關係和維繫彼此的關係，及使子女的生活得到照顧，這些說法並非不可信。

In passing sentence, the trial judge did not take into account that the appellant had committed the offences on account of her relationship with Mr Chan.  This, in our view, is a relevant and important special factor which renders it appropriate to adopt 2 years’ imprisonment as the starting point for each of the two charges.  In view of the appellant’s clear record and the need for her to look after three children, we agree that it was proper for the trial judge to reduce the term by another 3 months as she had done.  It follows that the sentence for each charge should be 21 months’ imprisonment.
原審法官在量刑時，並沒有考慮到上訴人干犯罪行是出於與陳先生的關係。然而，本庭認為這是相關而且重要的特別因素，致使兩項控罪的適當量刑起點應是兩年監禁。有鑑於上訴人沒有刑事定罪記錄及她需要照顧3名子女，本庭同意原審法官給予額外3個月的刑期扣減是適當的做法。因此每項控罪的刑期應為21個月。

Conclusion
總結

For the above reasons, we have allowed the appellant’s appeal against sentence, and reduced the sentence for each of Charges 1 and 2 to 21 months’ imprisonment, with the sentences to be served concurrently.
基於上述理由，本庭批准上訴人就刑期提出的上訴，把第一項及第二項控罪的刑期減為21個月，同期執行。

Mr Edmond Lee, Senior Assistant Director of Public Prosecutions (Acting) of the Department of Justice, for the Respondent.
答辯人：由律政司署理高級助理刑事檢控專員李俊文代表。

The Appellant in person, present.
上訴人：無律師代表，親自出庭。