Director of Public Prosecutions v Tang

[2019] VCC 1857

IN THE COUNTY COURT OF VICTORIA Revised
Not Restricted
Suitable for Publication

AT MELBOURNE
CRIMINAL JURISDICTION

CR 17-00508

DIRECTOR OF PUBLIC PROSECUTIONS

V

KIT TANG

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JUDGE:	HIS HONOUR JUDGE CAHILL
WHERE HELD:	Melbourne
DATE OF HEARING:	23 August 2019, 29 October 2019
DATE OF SENTENCE:	12 November 2019
CASE MAY BE CITED AS:	DPP v Tang
MEDIUM NEUTRAL CITATION:	[2019] VCC 1857

REASONS FOR SENTENCE
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Subject:                    Procure another person to deal with money that it is reasonable to
  suspect is the proceeds of crime
Catchwords:             Guilty plea – employee of sham export business which laundered
  $4,602,200 – Hong Kong national – came to Australia to work for
  business – delay in prosecution – impressive progress to reformation
  over 4 years
Legislation Cited:     Commonwealth Criminal Code
Cases Cited:            Wong v The Queen [2013] VSCA 52
Sentence:                 Total effective sentence of 3 years and 2 months imprisonment;
  minimum non-parole period of 2 years

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr S. Ginsbourg	Ms A. Hogan Director of Public Prosecutions
For the Accused	Mr A. Marshall	James Dowsley & Associates

HIS HONOUR: 

1Kit Lung Song Tang, you have pleaded guilty to five charges of procuring another person to deal with money that it is reasonable to suspect is the proceeds of crime contrary to s.400.9(1) of the Commonwealth Criminal Code.

2The maximum penalty for the offence is imprisonment for three years or 180 penalty units or both. 

3The circumstances of your offending are set out in the summary of prosecution opening.  They are agreed facts.

4During the period of your offending, between 23 June 2015 and 21 August 2015, you were employed as the manager of a company known as CC&B International Pty Ltd (‘CC&B’), which ostensibly operated a meat export business from offices in Sydney and Melbourne.  You worked at the Melbourne office.

5The business owners, Billy and Connie Leung employed you.  They spoke openly to you about the fact that CC&B's meat export operations were a sham. 

6You communicated with customers to arrange receipt of large sums of cash, totalling $4,602,200, and directed CC&B's staff Yuen Li and Mina Sun to receive and count the cash, issue an export meat supply invoice for it and then deposit the money into the CC&B bank account.  Li and Sun made 18 bank deposits at your direction.  They did not know or suspect that the issued invoices were false.  You on the other hand were aware the invoices were not genuine and you were careful not to be involved in the banking of the money.

7Li had been prosecuted for the same offending as you.  A jury acquitted him on 14 August 2019.  At his trial, I saw CCTV footage of you on 20 August 2015 walking from the CC&B Springvale office to the bank branch with Li who was carrying a bag of $106,000 in cash.  You left him to go into the bank alone to make the deposit. 

8You are a Hong Kong national.

9You had arrived in Australia from Hong Kong on 22 October 2014, on a student visa, to take up the position the Leungs had offered you.  You were paid a wage and lived in a townhouse near CC&B’s Springvale office which Billy Leung owned.  Li and Sun lived there too. 

10You were arrested at the townhouse on 27 August 2015. 

11When police interviewed you, you told them you had been working for Billy Leung, who you knew from Hong Kong, at CC&B as the human resources manager for the last eight months.

12You said you came to Australia on a student visa and were studying here as well.  You said the Leung's told you CC&B dealt in seafood and meat. You said they paid you $3,000 a month and provided you with accommodation in Melbourne.  You said customers brought money to the company and Li and Sun counted and banked it under a  'routine order from the boss', referring to Billy Leung.  You said Li and Sun banked the money, usually working together, and you would report the deposits to the Leungs when they had been made.

13When police suggested to you the business had not exported any goods and the money deposited was unlawfully obtained, you said you did not know how the business operated or whether the money was lawful or unlawful as the export part of the business was dealt with in the Sydney office and was, 'not your area'.  Your job, you said, was to manage the personnel. 

14You have admitted a criminal record in Hong Kong. 

15You have a prior conviction for drug trafficking in Hong Kong where on 4 September 1999 you were sentenced to imprisonment for 14 years and four months for drug trafficking.

16The Hong Kong Narcotics Bureau had arrested you on 24 September 1998.  You had 3.25 kilograms of No.4 heroin, that is heroin in its purest form, in your possession and you admitted the offence under caution. 

17You also have convictions for burglary and theft in 1991 for which you were released on probation and 14 December 2010 you were imprisoned for 21 months for using and possessing a false instrument.

18Your personal circumstances are set out in the report dated 10 October 2019 of Carla Ferrari, consultant psychologist, who assessed you on
19 September 2019. 

19You were born on 17 May 1977 in Hong Kong.  You are now aged 42 years.

20You are an only child. When you were 2 years old your mother left your father abruptly. You have had no contact with her since apart from a brief reconnection when you were 18 years old. You describe your father as abusive and a gambler.

21When you were 11 years old, he moved to China, where he lived with your step- mother and he had two more children.  He left you with a flat in Hong Kong where you had to support yourself.  You left school when you were 12 years old.  You collected and sold bottles and made handmade toys to survive.  You described yourself an entrepreneur, running cafes and bars and a removal company. 

22Before you came to Australia to work for CC&B, you had opened a bar which closed after two years because of financial problems. 

23You have no dependants.  You had married in Hong Kong in 2003.  You separated from your wife in 2012.  In 2014 you commenced another relationship which you continued by long distance when you came to Australia. 

24You told Ms Ferrari when you were 14 years old you began stealing to survive.  When you were 21, you were arrested with a large quantity of heroin and imprisoned for a lengthy term for drug trafficking. 

25You said your offending in 2010 arose from your unauthorised use of a credit card. 

26You described yourself as a social drinker and denied any history of illicit drug use. 

27In Ms Ferrari’s opinion your history of antisocial behaviour likely developed as a result of your deprived upbringing. 

28You told Ms Ferrari, you used the negative experiences of your childhood to motivate you to succeed and you generally maintain optimism.  You said you had been forced to close your bar in Hong Kong when it became unprofitable and you took the job Billy Leung offered you to make a fresh start.

29You have no history of mental illness and, while you have no current symptoms, in Ms Ferrari's opinion, you were likely suffering an adjustment disorder following the financial collapse of your bar in Hong Kong and that your symptoms will have continued for a short period while you adjusted to your isolation in a foreign country.  More, in her opinion, while there is no causal link between your mental state and your offending, it may have contributed to your offending insofar as the offer of employment allowed you to escape from your financial stressors in Hong Kong.

30To Ms Ferrari you expressed sincere remorse, shame and disappointment at your involvement in this offending. 

31On 27 August 2015, police charged you with various offences and you were remanded in custody.  Next day, you were released on bail.  Police did not oppose your bail application.  For the last 4 years, you have lived a law-abiding life and worked in the community. 

32Mr Marshall, who appeared on your behalf, told me while you were working for CC&B you borrowed money to start an app development business.  You have since repaid the money you borrowed and you also have worked for a fencing contractor to support yourself.

33As I said, you had formed a relationship with a woman in Hong Kong before you came to Australia and you continued the relationship long distance from here. About six months ago, you ended that relationship because you did not want your partner to be affected by your imminent imprisonment here. 

34In a very impressive letter to the court you wrote, since your arrest, you have finally matured and worked to become a stronger person.  You said previously you were selfish but getting a dog, a golden retriever, three years ago, has taught you about life and responsibility.

35You have a friend who supported you in court who will look after the dog for you now.  You sponsor an Ethiopian boy, Mudan, through Child Fund Australia.  You resigned your employment one week before your sentencing hearing and surrendered yourself into custody to prepare for your prison sentence which you accept is the inevitable consequence of your wrongdoing.  Your younger stepsister also wrote a letter to the court.  She confirmed your father was a drinker and gambler who treated you badly, differently from how he treated your stepbrother and her.

36She described you as kind-hearted and trusting.  When she came to Australia for a holiday, you took her skiing and taught her how to ski.  She is looking forward to your return to Hong Kong after your release from prison. 

37On 30 October 2019, Australian border force notified you that when you are released from custody you will be deported from Australia.  Mr Marshall told me you have already planned to set up a niche business buying and selling radiograms when you return to Hong Kong and you will have available to you your father's flat to live in.

38In written and oral submissions, he relied on the following factors in mitigation of penalty:

(a)   Your guilty plea for its utilitarian value and is evidence of your remorse;

(b)   The considerable delay in prosecution and sentencing;

(c)   Your isolation, as a foreign national, in prison;

(d)   Your disadvantaged background; and

(e)   Your good prospects of rehabilitation.

39Mr Ginsbourg, who appeared for the Crown, in written and oral submissions, submitted your offending is a serious example of an offence under s. 400.9 which requires condign punishment because you played an important role, which he described as middle management, in the Leungs’ money laundering operation which involved substantial sums of money and a significant number of transactions.

40He acknowledged you received modest reward for your involvement. 

41He submitted you were aware of the facts that made it reasonable to suspect the money was the proceeds of crime, that is, the moneys were not payments for meat supply and that I should reject what Ms Ferrari had said in her report, namely that you believed CC&B to be a meat exportation business. 

42He also submitted, because of your criminal record, specific deterrence should be given considerable weight and, for the same reason, your prospects of rehabilitation are poor.

43In oral submissions, he submitted your remorse is qualified by your late acceptance of responsibility for your actions.  He accepted your guilty plea has utilitarian value for which you are entitled to a significant sentencing benefit. 

44He also accepted that delay is a mitigating factor, although, in his submission, part of the delay was your fault insofar as you had maintained a denial of any wrongdoing until not long before your trial was listed in 2019, you had elected to have a contested committal which did not proceed and, in 2018, when the matter was first listed for trial, your solicitors had sought an adjournment to investigate the possibility of obtaining exculpatory evidence from Billy Leung in Hong Kong.

45Specifically, he disavowed as an aggravating factor that you came to Australia solely to work for CC&B. 

46He submitted your offending was comparable to the offending of Li Wong.[1]  Wong pleaded guilty to five charges of dealing with money, being $100,000 or more which was reasonably suspected of being the proceeds of crime, the same offence in respect of which you had pleaded guilty and other offending.

[1] Wong v The Queen [2013] VSCA 52.

47In relation to the dealing with money suspected of being proceeds of crime charges, Wong made 34 cash deposits across Australia to international currency exchange companies, totalling $6,297,187 over a five-month period.

48He received a commission of $30,000 for the deposits he made.  On each of the five counts, he was sentenced in this court to 20 months' imprisonment. With orders for cumulation his total effective sentence, for five offences, was four years and six months.  The sentencing judge fixed a minimum term of three years. 

49Wong had mitigating factors not available to you, namely, he made an early guilty plea and he had no prior convictions. He appealed his sentence on the grounds of manifest excess.

50The Court of Appeal dismissed the appeal.[2] Priest JA, with Tate JA and Vickery AJA agreeing, said the total effective sentence and minimum term were a proper reflection of Wong's substantial criminality. 

[2] Wong v The Queen [2013] VSCA 52.

51While the circumstances of Wong's offending and yours are broadly comparable, I find his offending was objectively more serious than yours because it involved a significantly larger sum of money, dealt with in a larger number of transactions, 34 compared to 18, and made over a longer period of time, five months compared to two months, across different states of Australia for which he received a larger financial reward.

52Mr Ginsbourg submitted a sentence of imprisonment is necessary for each charge. 

53He submitted a recognisance release order would be an inappropriate release mechanism having regard to the constraint on the court's power to make such an order. He submitted it is necessary for the court to impose a total effective sentence that attracts the requirement to fix a non-parole period. 

54Sentencing practices are one consideration in the sentencing process.  I have had regard to the decision in Wong v The Queen [2013] VSCA 52 and the other cases Mr Ginsbourg referred me to as a yardstick to guide the sentences I will impose.

55The maximum penalty for the offence, three years’ imprisonment, is another sentencing yard stick.  It shows Parliament's view of the gravity of the offence and is reserved for the worse category of cases.  Most sentences in fact fall substantially below the relevant maximum penalty. 

56I am also mindful of the statutory regime for dealing in proceeds of crime offences under the Commonwealth Criminal Code.  Under s.400.4, separate offences are created for offences which rely on proof of a state of mind that the money is proceeds of crime.

57Where belief that the money is proceeds of crime is an element of the offence, the maximum penalty is 20 years' imprisonment.  Where a person is reckless as to that fact, the maximum penalty is 10 years' imprisonment and where a person is negligent as to that fact, the maximum penalty is four years' imprisonment.  For the offence under s.400.9 for which you are to be sentenced  there is no element of belief, recklessness or negligence required to be proved.

58Having carefully considered all material before me and the submissions of both counsel I accept your offending is serious for the reasons the Crown advanced but it is not in the worst category of crimes of the type.

59I accept, while Leung may have told you CC&B exported meat and seafood and you may have believed it before you arrived in Australia, it is plain from communication between Billy Leung, and his sister Connie, and you that by the time your offending commenced you were aware the seafood and meat operation was a charade and, at the least, you turned a blind eye to the money laundering side of the business which you in effect oversaw in Melbourne. However, I must keep in mind you are not to be sentenced for one of the more serious offences of dealing with proceeds of crime which require a guilty state of mind as to the money dealt with.

60I accept your guilty plea has high utilitarian value and is evidence of some remorse.

61I also accept the lengthy delay, notwithstanding some of it is attributable to you, is a significant mitigating factor because you have taken impressive steps you have to reform yourself since you are charged. For the same reason, I am satisfied your prospects of rehabilitation are good and your isolation far from family and friends will make imprisonment more burdensome for you.

62I have moderated the individual sentences and the minimum term I would otherwise have imposed to take account of these mitigating factors.

63Also, because I am sentencing you for a number of offences, the totality principle applies and accordingly, I have moderated the individual sentences and the measure of cumulation between them to ensure the aggregate sentence reflects the overall criminality for which you are being sentenced.

64Please stand Mr Tang. 

65By this sentence I must denounce your conduct.  I must punish you and deter you and others from committing crimes of the same or similar kind.  I must also look to the protection of the community and also to your rehabilitation.

66Taking into account the circumstances of your offending and its effects, your personal circumstances and antecedents and endeavouring to produce a sentence which reflects and promotes the purposes of sentencing in a manner appropriate to you, I sentence you as follows:

(a)   on Charge 1, you are convicted and sentenced to 18 months' imprisonment which sentences to commence today. 

(b)   on Charge 2, you are convicted and sentenced to 18 months' imprisonment which sentences to commence on 12 May 2020. 

(c)   on Charge 3, you are convicted and sentenced to 18 months' imprisonment which sentence is to commence on 12 January 2021.

(d)   on charge 4, you are convicted and sentenced to 18 months imprisonment which sentence is to commence on 12 May 2021.

(e)   on charge 5, you are convicted and sentenced to 18 months imprisonment which sentence is to commence on 12 July 2021.

67Your total effective sentence is three years and two months' imprisonment which commences today.  I fix a minimum non-parole release period of two years.

68I declare you have already served 15 days of your sentence by way of presentence detention.

69I also declare, but for your plea of guilty, I would have imposed a total effective sentence of four years, three months' imprisonment and fixed a minimum term of three years.

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