1 prevention of money laundering and terrorist financing 22 june 2005

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Prevention of Money Launderingand Terrorist Financing

22 June 2005

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Outline of our Legal Seminar

1. What is Money Laundering and Terrorist Financing

2. The Legislation on money laundering in Hong Kong

3. Basic policies to combat money laundering and terrorist financing

4. The general trend and development in anti-money laundering in other jurisdictions

(Break Time)

5. Guidelines for banking practice

6. Practices in other trades and industries

7. Case studies

8. Summary & Conclusion

9. Questions and Answers Session

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What is Money Laundering?

‘Money Laundering’ covers all procedures which change the identity of illegally obtained money so that it appears to have originated from a legitimate source.

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3 Stages of Money Laundering

Placement ( 使用 ) – physical disposal of dirty cash

Layering ( 分層 ) – series of transfers of funds to disguise the origin

Integration ( 混合 ) – use layered funds to purchase clean legitimate assets

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What is Terrorist Financing?

‘Terrorist Financing’ refers to the carrying out of transactions involving funds or property that are owned or controlled by terrorists or transactions that are linked to terrorist activities

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The legislation on Money Laundering and Terrorist Financing in Hong Kong

Drug Trafficking (Recovery of Proceeds) Ordinance (“DTROP”) (Cap. 405)第 405 章販毒 ( 追討得益 ) 條例

Organized and Serious Crimes Ordinance (“OSCO”) (Cap. 455)第 455 章有組織及嚴重罪行條例

United Nations (Anti-Terrorism Measures) Ordinance (“UNATMO”) (Cap. 575)第 575 章聯合國 ( 反恐怖主義措施 ) 條例

United Nations Sanctions (Afghanistan) Regulation under the United Nations Sanctions Ordinance (“UNSO”) (Cap. 537)第 537 章聯合國制裁條例

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Provisions for investigating suspected assets, freezing assets on arrest and confiscation of proceeds from drug trafficking

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S.25 specifies a criminal offence if a person commits an offence if he “deals with” property knowing or having reasonable grounds to believe it represents a person’s proceeds of drug trafficking

– Dealing includes: receiving or acquiring the property concealing or disguising the property disposing of or converting the property bringing the property into or removing it from HK using the property to borrow money, or as security

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– 處理” (dealing) ，就“販毒”的定義中、第 25條所提述的財產而言，包括 ─

(a) 收受或取得該財產

(b) 隱藏或掩飾該財產

(c) 處置或轉換該財產；

(d) 把該財產運入香港或調離香港；

(e) 以該財產借貸，或作擔保

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– Max penalty

on conviction upon indictment - HK$5,000,000 fine and imprisonment for 14 years

On summary conviction HK$500,000 fine and imprisonment for 3 years

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– In practice, it is likely to cover situations where one enters into/is otherwise concerned in an arrangement to facilitate the movement of the proceeds of drug trafficking/the obtaining of credit secured on those proceeds/assisting in the investment of those proceeds on behalf of that client

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S.25A(1) – imposes an obligation on a person who knows/suspe

cts that any property represents proceeds from drug trafficking to disclose such knowledge/ suspicion to an “authorized officer” ( 獲授權人 ).

– Max penalty HK$50,000 fine and imprisonment for

3 months

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– An authorized officer includes any police officer, any member of the Customs & Excise Department ( 海關 ). and Joint Financial Intelligence Unit (“JFIU”) ( 聯合財富情報組 )

– The JFIU has been established by and is operated by the Police and Customs & Excise Department. It functions as the local and international advisor on money laundering matters generally.

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JFIU contact details

Joint Financial Intelligence Unit ( 聯合財富情報組 ) 16/F, Arsenal House West Wing,Hong Kong Police Headquarters,Arsenal Street, Hong Kong

orGPO Box 6555Hong Kong Post Office, Hong Kong

Telephone : (852) 2866 3366 or (852) 2860 3404 Fax : (852) 2529 4013

Email : [email protected]

mailto:[email protected]

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S.25A(2) provides that if a person who has made the necessary disclosure under S.25A(1) does any act in contravention of S.25(1) and the disclosure relates to that act he does not commit an offence if

– the disclosure is made before he does that act and the act is done with the consent of an authorized officer or

– the disclosure is made after the person does the act and the disclosure is made on the person’s own initiative and as soon as it is reasonable for him to make it

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S.25(A)(3)– Disclosure made under the Ordinance shall not be

treated as a breach of any confidentiality obligations imposed by contract etc. Accordingly, no liability for damages will attach upon such disclosure

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S.25A(4) – Disclosure can be made by person in employment

to appropriate person in accordance with procedures made by employer. Such disclosure is equivalent to disclosure to an authorized officer

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S.25(A)(5)– Person who knows or suspects that a disclosure has been

made under S.25A(1) must not disclose to any other person any matter likely to prejudice any investigation. Otherwise, he commits an offence

– Max penalty on conviction upon indictment HK$500,000 fine and

imprisonment for 3 years.

On summary conviction HK$100,000 fine and imprisonment for 1 year

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S.26– No witness in any civil or criminal proceedings

shall be obliged to reveal the identity of the person making the disclosure except in proceedings for an offence under section 25, 25A and 26 of the DTROP, or where court takes the view that justice cannot be fully served without revealing the identity of the person making the disclosure

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S.25 – Extends the money laundering offence to cover th

e proceeds of all indictable offences in addition to drug trafficking

– Examples of indictable offences ( 可公訴罪行 ) include any crime or offence for which a magistrate is authorized or empowered or required to commit the accused person to prison for trial before the court e.g. theft, robbery, kidnapping

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S.3 to S.5 – An authorized officer may apply to court for

order requiring information material to be produced/ search warrant to be granted

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S.25, S.25A and S.26– modelled upon S.25, S.25A and S.26 of DTROP

– Reference to “drug trafficking” becomes reference to “indictable offences”

– Same penalties apply as in DTROP

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UNATMO is directed towards all terrorists.

UNATMO criminalizes the supply of funds and making funds or financial (or related) services available to terrorists or terrorist associates, permit terrorist property to be frozen and subsequently forfeited

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“Terrorist” means a person who commits, or attempts to commit, a terrorist act or who participates in or facilitates the commission of a terrorist act

“Terrorist associate” means an entity owned or controlled, directly or indirectly, by a terrorist

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“Terrorist act” is defined as the use or threat of action that would have the effect of:

– causing serious violence against a person

– causing serious damage to property

– endangering a person’s life

– creating a serious risk to the health or safety of the public or a section of the public

– seriously interfering with or seriously disrupting an electronic system or

– seriously interfering with or seriously disrupting an essential service, facility or system, whether public or private and

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– the use or threat is: intended to compel the Government or to intimidate

the public or a section of the public and made for the purpose of advancing a political,

religious or ideological cause

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“ 恐怖主義行為 ” 指(A) 導致針對人的嚴重暴力；

(B) 導致對財產的嚴重損害；

(C) 危害作出該行動的人以外的人的生命；

(D) 對公眾人士或部分公眾人士的健康或安全造成

嚴重危險；

(E) 嚴重干擾或嚴重擾亂電子系統的；或

(F) 嚴重干擾或嚴重擾亂基要服務、設施或系統

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A list of “terrorists” or “terrorist associates” is published in the Gazette from time to time pursuant to S.10 of the United Nations Sanctions (Afghanistan) Regulation and S.4 of the UNATMO

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S.12(1) requires a person to report his knowledge or suspicion of terrorist property to an authorized officer who includes a police officer, a member of C&E, Immigration and ICAC

Failure to disclose will constitute an offence and attracts a fine of HK$50,000 max. and 3-months imprisonment

Similar to DTROP and OSCO, disclosure pursuant to the UNATMO shall not be regarded as breach of confidentiality obligations imposed by contract etc.

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United Nations Sanctions (Afghanistan) Regulation under the United Nations Sanctions Ordinance (“UNSO”) (Cap. 537)第 537 章聯合國制裁條例

UNSO provides for a prohibition on making funds available to “designated” terrorists

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Basic policies to combat money laundering and terrorist financing

All relevant institutions should:

issue a statement of policies and procedures for dealing with money laundering and terrorist financing reflecting the current statutory and regulatory requirements

regularly review the policies and procedures on prevention of money laundering and terrorist financing to ensure their effectiveness

adopt customer acceptance policies and procedures which are sensitive to the risk of money laundering and terrorist financing

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conduct customer due diligence (“CDD”) depending on different types of customers, business relationships or transactions

ensure that the content of relevant industry Guidance Note is understood by all employees

promote employees’ awareness and vigilance to guard against money laundering and terrorist financing

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Policies should cover the following aspects: Communication of group policies on anti-money

laundering and terrorist financing Account opening and customer identification Maintenance of records Compliance with relevant legislation Co-operation with relevant law enforcement

authorities, including timely disclosure of information

Internal audit to ensure compliance with policies, procedures, and controls on anti-money laundering

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Systemic Approach to Identifying Suspicious Transactions recommended by JFIU

Step one: Recognition of a suspicious financial activity indicator or indicators

Step two: Appropriate questioning of the customer

Step three: Review of information already known about the customer in deciding if the apparently suspicious activity is to be expected from the customer

Step four: Consideration of Steps 1-3 above to make a subjective decision on whether the customer’s financial activity is genuinely suspicious or not

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Points to note on CDD

Client identification Take all necessary steps to establish true identity of client

– Individual/origin/background/profile

– Corporations identification of directors/searches/credit reference /iden

tification of shareholders

beware of companies with nominee shareholders and bearer shares/ownership structures/place of incorporation/nature of business and activities

Determine risk profile of customers - PEPs, casinos, NCCT’s (details of which can be found on FATF website)

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Client identification - to continue

– Examples of low risk customers include: financial institutions authorized and supervised by the

HKMA, the Securities and Futures Commission and the Office of the Commissioner of Insurance

public companies subject to regulatory disclosure requirements

– Trust accounts/Nominee accounts/Client accounts

– Reliance on intermediaries for CDD

– Periodic reviews of existing information

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Additional CDD measures – obtain self-declarations and comprehensive profile – information re source of funds– anticipated account activity etc.

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Record Keeping

Keep records to enable a sufficient audit trail to be followed

Keep records for at least such periods prescribed by the relevant industry regulators i.e. HKMA and other relevant legislation

For each account– beneficial owner– volume, origin and destination of funds flowing through t

he account – person giving instructions

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Record Keeping

For selected transactions – origin of the funds – form in which funds were transferred – person giving instructions – destination of funds

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Procedures for disclosures

Coordinate through a central point, say, senior compliance officer

Keep register of reports made to compliance department and to JFIU

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Education and Training

Put programmes in place for training staff on an ongoing basis

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The General trend and development in anti-money laundering and terrorist financing

The position in other jurisdictions: 1988 - UN Convention against Illicit Traffic in

Narcotic Drugs and Psychotropic Substance

1989 - Establishment of FATF 33 members, 31 countries governments and 20 observers - Forty Recommendations drawn up in 1990

1996 - Recommendations were revised (1st Revised) FATF endorsed by 130 countries

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1997 - DTROP S.25, UNSO – 8.9.97 Law Society - Money Laundering

Guidance Notes for Solicitors - cir 97-280(SD) DTROP and OSCO

2000 - OSCO– HKMA Guideline on Prevention of Money

Laundering

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2001 – September - 9.11 Event– October - expanding FATF mandate to

terrorist financing

2002 – UNATMO, DTROP Cap 405 (1.1. 2003)

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2003 – Financial Action Task Force (Revised) FATF

Forty Recommendations extending the effects to lawyers [Recognized by International Monetary Forum (IMF) and World Bank]

– Money Laundering Cir 03-428 (SD)

2004 - S25A DTROP– 22.10.2004 FATF further amendments

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2005– Law Society Money Laundering Cir 05-

291 (SD) 30.5.2005– Bill– OUR TALK ON 18 JUNE 2005

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Members of Financial Action Task Force

Argentina Australia Austria Belgium Brazil Canada Denmark European

Commission Finland France Germany

Greece Gulf

Cooperation Council

Hong Kong, China

Iceland Ireland Italy Japan Luxembourg Mexico

Netherlands New Zealand Norway Portugal Singapore Spain Sweden Switzerland Turkey United Kingdom United States

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Effect of the Laws/Regulations

Overview1. Drug Trafficking (Cap 405)

2. Organized and Serious Crimes (Cap 455)

3. United Nations (Anti-Terrorism Measures) Ordinance (Cap 575)

4. United Nations Sanctions (Afghanistan) Regulation under the UNSO (Cap 537)

Authorized Agent

S25A – 做臥底 , 可以透 - 不可露

S25A, S3 to 5 – Confidentiality or Professional Privilege

Other Indictible Offences in addition to drug trafficking S25

Drug Trafficking

[DTROP]S25

Terrorists and their Acts. Gazetted.

[UNATMO]

[UNSO]

S12(1)

[OSCO]Organized and Serious Crimes Ordinance in receipt of restraint Order or Property of a Reference of a defence under OSCO

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Guidelines for Banking Practices

Hong Kong Monetary Authority

Guidelines– Applies directly to all banking and

deposit taking activities in Hong Kong

carried out by authorized financial

institutions

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Hong Kong Monetary Authority Guidelines

– HKMA Guidelines Section 5.21 effectively pass the responsibility for the verification of customer identity and apparent legitimacy from the bank to the intermediary

– A know-your-customer policy and procedure (“KYC policy”) for financial institutions

– A sample of KYC Questionnaire for client is shown in the attached file.

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Examples of Suspicious Transactions

Unusually large cash deposits Substantial increases in cash deposits Individual or company whose account shows virtually

no normal banking or business related activities Fictitious information provided for account opening Back-to-back deposit/loan transaction with subsidiaries/

affiliates of overseas financial institutions in known drug trafficking areas

Investment management services requested by clients where source of funds is unclear or not consistent with the client’s apparent standing

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Building up of large balances, not consistent with known turnover of customer’s business, and subsequent transfer to accounts held overseas

Unexplained electronic fund transfers Changes in employee characteristics e.g. lavish life

styles Any dealing with an agent where identity of ultimate

beneficiary or counterparty is undisclosed Customers repay problem loans unexpectedly Request to borrow against assets where the origin of

the assets is not known

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The Securities Industry

Equally vulnerable to money laundering and terrorist financing

Likely to be used in “Layering” stage whereby cash can be transformed into various forms of assets such as securities, bonds, futures contracts etc

Securities are highly liquid and therefore prove attractive to money launderers

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SFC Guidance Note - April 2003

Provide comprehensive guidance to the securities industry in developing appropriate policies and procedures to combat money laundering and terrorist financing

For use primarily by corporations licensed under SFO and associated entities which are not authorized financial institutions

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Consultation paper on Proposed Revised Prevention of Money Laundering and Terrorist Financing Guidance Note (April 2005)

– To bring in line with new set of anti money laundering and anti terrorist financing recommendations issued by FATF in June 2003 and Oct 2004

– To provide guidance on areas of practical application e.g.identification of individual customers ,measures to mitigate risk posed by non face to face customers

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Examples of suspicious transactions

Large or unusual settlements of transactions in cash or bearer form

A client who deals with a broker only in cash rather than through banking channels

Requests by customers for investment management services where the amount of funds is not consistent with the customer’s apparent standing

FATF issued a paper in April 2002 on guidance for financial institutions in detecting terrorist financing

Gazette notices

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The Insurance Industry

Similar to the securities industry, the insurance industry has its own guidance note in Nov 2000 to guard against money laundering. The Guidance Note is supplemented by 2 further guidance notes published in June 2003.

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Insurance Industry Guidance Note

The Guidance Note and other supplements apply to all authorized insurers, insurance agents and insurance brokers carrying on a long-term business which are not financial institutions authorized by the HKMA

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Insurance Industry Guidance Note

The Guidance Note:– explains what is money laundering and terrorist

financing

– sets out the principal HK legislation governing these matters

– sets out policies and procedures in dealing with possible money laundering together with detailed guidance on customer verification and retention of records; and

– gives examples of suspicious transactions

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Purchase of large single-premium insurance policies and their subsequent rapid redemption

Request for early encashment of single premium policies, for cash or settlement to an individual third party

A money launderer may arrange with groups of people to assign any legitimate claims on their policies to be paid to money launderer

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Legal Industry

Law Society Guidance Notes For Solicitors (Circular 97-280 attached)

– Aware of the legislation– alert to any unusual circumstances– make further enquiries of their clients where

appropriate– Institute anti-money laundering procedures

appoint a compliance officer staff training establish internal reporting procedures establish record keeping procedures

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Law Society Guidance Notes For Solicitors

The Office Manual of K. C. Ho & Fong are in compliance to the Law Society Guidance Note. Extracts from our office manual are attached

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Case Study - Case 1

Based on:– HKMA Guidelines Section 5.21 states:

“Where the applicant for business who is acting on behalf of another person is an intermediary with which the financial institution has an established business relationship and where the institution is fully satisfied as to its reputation, conduct and good faith, it shall be reasonable for the institution to accept a written assurance from the applicant for business that evidence of the underlying principals has been obtained, recorded and retained, and that the applicant is satisfied as to the source of funds”

– The guidelines effectively pass the responsibility for the verification of customer identity and apparent legitimacy from the bank to the intermediary

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Case 1 ...

The caseMr. A, qualified

accountant Company B, subsidiary of major accounting firm

•Buy 2 shelf companies C and D – both registered in Western Samoa•No enquirers on beneficial owners of the shelf companies, relying on professional relationship with Mr. A•Open bank accounts in name of company C and company D with a bank in HK

Bank made no background enquiries due to its established professional relationship with Company B.

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Case 1 ...

The case

Transactions on Company C’s bank account

“Over HK$3 million cash deposit

“No identification on depositor “No withdrawals made ever

Origin of the funds•Over $90 million traced including the $3 million in the bank account of company C.•Beneficial owner of company C arrested in UK for dealing in proceeds of drug trafficking

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Case 1 ...

The caseTransactions on company D’s bank account Mr. F, beneficial owner of Co D used C$550K cash from another bank

(vis T/T – transaction cost HK$7,000)

- Bank account of co. D in HK (vis T/T in A$ - transaction HK$10,825)

- Bank in Western Samoa Mr. F also used another C$192K cash to buy US$140K worth of T/chq_____________________________________________________Origin of the funds… Mr. F arrested in Australia charged with conspiracy to traffi

c in dangerous drugs and dealing in the proceeds of drug trafficking

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Case 1

Indicators of money laundering in the case: Use of shelf companies and company formation agencies Inconsistent account activity with no normal business

transactions Account used as temporary repository (layering) Large cash deposits with no explanation as to source of

the money Uneconomical transactions Involvement of off-shore financial centre (Western

Samoa)

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Case Study - Case 2

Based on:– SFC Guidance Note on Money Laundering

(Section 4.5.4) expects staff of SFC regulated institutions to:

– “(know) enough about a customer’s business and financial circumstances to recognize that a transaction, or series of transactions, is unusual”

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Case 2 ...

The case Mr. Y $7M

draw cheque

on Co. X Bank 1Address : public housing unit

Occupation : not recorded

Business address: not recorded

$7M cashier order

Active trading of shares of company N

Company N’s shares price rose by 27% in 2 months

$1.6M cash deposit$17M cashier order

$15M cashier order$1.0M cash withdrawn$2M cash withdrawnCo. X

(controlled by Mr. P) Bank 2

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Case 2 ...

Mr. Y draw $7M cheque on Co. X

•Sudden large sums of money passing through the account•No information on Mr. Y’s business activity to explain source of funds•Unusual for low cost handling required to have big amount passing through the accounts in relatively short time

Bank 2

Bank 1

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Case 2 ...

Investigation by Police and SFC:

Mr. Y (member of triad society)

•Mr. P (Senior member of triad society)•Beneficial owner of Co.X•Major beneficiary of $1.6M profit generated from Mr. Y’s dealing in Co. N’s shares

NoteInsufficient evidence to substantiate criminal chargesHowever, strong suspicion that Mr. Y and Mr. P had conspired to “create false trading” in Co. N shares

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Case 2

Stock broker should have noticed and made a STR:

SFC Guidance Note 4.5.4:

– “Mr. Y’s account was opened specifically to deal in the shares of Co. N”

– “Little information on Mr. Y or his business to explain the trading of the shares with substantial turnover and frequency

– Investigated by JFIU but not prosecuted

– Reminded by JFIU to set up anti-money laundering systems and reporting procedures

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Summary and Conclusion

Note the following tips:

– Purpose of anti-money laundering and anti-terrorist financing legislation

against crimes

– Establish Internal Policy

– How to identify suspicious actsread the relevant industry guidance

carefully

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Summary and Conclusion

– More importantly talk to your supervisor/ manager about any suspicious acts/ transactions of clients

– Record / File Notes / Document Handling should be well-organized and preserved at Godown / Storage

– Good and sensible judgement

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Prevention of Money Laundering and Terrorist Financing

Any Questions?

Comments?

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Contacts of K. C. HO & FONG

Office address18th Floor, Henley Building, No. 5 Queen’s Road CentralTelephone : 2810 0707Fax : 2845 3650/2840 1308E-mail: [email protected]

Mr Junius Ho Partner Direct line: 2523 3846

Ms Anna Chong Consultant Direct line: 2180 8683 Miss Peggy Liu Consultant Direct line: 2185 777

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1 prevention of money laundering and terrorist financing 22 june 2005

Documents

confiscation of proceeds

antimoney laundering

terrorist activities

drug traffickingdealing

serious crimes ordinance

authorized officer

max penalty hk

yearson summary conviction