HKSAR v. LAI KIN HANG ERWIN AND OTHERS

CACC 373 /2017

[2019] HKCA 547

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO 373 OF 2017

(ON APPEAL FROM DCCC NO 312 OF 2016)

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REASONS FOR JUDGMENT

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Hon Macrae VP and Hon Zervos JA (giving the Reasons for Judgment of the Court):

Introduction and history of proceedings

1.  These are applications for leave to appeal involving six applicants, whom we shall refer to individually by their trial designations as D1, D2, D3, D4, D5[1] and D8.  In the District Court proceedings, there were originally seventeen defendants.  The prosecution offered no evidence against six defendants,[2] leaving eleven defendants to stand trial on their pleas of not guilty before HH Judge CP Pang (“the judge”) on a re-amended charge sheet, which contained two charges as follows:

(i)  Conspiracy to defraud, contrary to Common Law and punishable under section 159C(6) of the Crimes Ordinance, Cap 200 (Charge 1) against D1, D3 to D9, D15 and D16; and

(ii)  Conspiracy to deal with property known or believed to represent proceeds of an indictable offence, contrary to section 25(1) and (3) of the Organized and Serious Crimes Ordinance, Cap 455 and sections 159A and 159C of the Crimes Ordinance, Cap 200 (Charge 2) against D1, D2 and D3 only.

2.  On 1 November 2017, the judge convicted D1, D3 to D8 and D16 of Charge 1, but acquitted D9 and D15; and convicted D1, D2 and D3 of Charge 2.  On 17 November 2017, he sentenced the defendants to terms of imprisonment ranging from 4 to 6 years.  In respect of the applicants with whom we are concerned, D1 and D3 were each sentenced to a total of 6 years’ imprisonment; D2 and D8 each to 4½ years’ imprisonment; and D4 and D5 each to 4 years’ imprisonment.

3.  By their Form XI Notices, all applicants originally applied for leave to appeal against both their convictions and sentences.  However, D3 and D8 subsequently formally abandoned their applications for leave in respect of sentence only, which were accordingly marked dismissed by this Court, pursuant to rule 39 of the Criminal Appeal Rules, Cap 221A.[3] Some 11 months after filing his Notice of Abandonment (Form VII), D8 nevertheless sought to reinstate his application for leave to appeal against sentence and to treat his earlier abandonment as a nullity. 

4.  D4,[4] D5[5] and D8[6] subsequently applied to a Single Judge of the Court of Appeal for bail pending appeal, which necessitated a total of four hearings before a Single Judge of this Court.  All applications were refused.

5.  Before us, the applicants were all legally represented, although D4 was represented by different counsel in respect of his applications for leave to appeal against conviction and sentence, legal aid having been granted in respect of conviction only. 

6.  It should also be pointed out that, whilst all applications should in the normal course have been heard and determined by a Single Judge, it was ordered[7] that it was a more expedient and prudent use of court time in this particular case for all applications for leave to be heard by the Court of Appeal at the same time as the hearing of the appeals, given (i) the number of applicants and counsel engaged; (ii) the number and nature of the grounds of appeal, some of which were pleaded as involving a pure question of law only, others mixed questions of law and fact, others pure matters of fact; and (iii) the voluminous appeal bundle which ran to more than 1,500 pages.

7.  On the second day of the appeal, we refused all applications for leave to appeal against conviction by the six applicants and dismissed their appeals, saying that we would hand down the reasons for our decision in due course.  D1, D2, D4 and D5 then applied to withdraw their applications for leave to appeal against sentence, while D8 applied to withdraw his application to treat his earlier abandonment as a nullity.  We granted the applications to withdraw, following which we formally dismissed their appeals against sentence as well.  This judgment is only concerned therefore with the applications for leave to appeal against conviction.

The prosecution case

Charge 1 – the general allegations

8.  By the particulars of Charge 1, it was averred that the named defendants had, between 27 March 2014 and 27 March 2015,[8] conspired with other unknown co-conspirators to defraud the clients of Wincades International Accounting Affairs Limited (“Wincades”), by dishonestly:-

“(a)  falsely representing that: -

(i)  Wincades was entrusted by a bank or a financial institution in Hong Kong to handle the loan arrangements of the clients of the said bank or financial institution;

(ii)  Wincades could assist the clients to obtain a mortgage loan or personal loan with terms and conditions more attractive to the clients; and

(iii)  consultancy fee would not be charged by or payable to Wincades, or those fee would be refunded to the clients unless the particular mortgage loan or personal loan anticipated by the clients was successfully obtained.

(b)  thereby causing and inducing those clients to pay consultancy fee to Wincades.”

9.  The prosecution alleged that Wincades had a relatively small office, part of which operated as a call centre,[9] from which Wincades’ operatives, posing as staff of banks or financial institutions, made cold calls to various individuals.  Most of these individuals owned properties that had been mortgaged to a bank or financial institution but had taken out a second mortgage without notice to the first mortgagee.  Some had also borrowed substantial personal or credit card loans.  Because of the high interest rates attaching to the second mortgage or personal loan, these individuals were in various degrees of financial difficulty.  By their dishonest conduct, designated operatives (namely D9, D15 and D16, who have not sought to appeal) successfully induced these individuals (“the victims”) to visit the office of Wincades for financial relief.

10.  Once they had arrived at the office, the victims were served by one of the salespersons (amongst whom were D4, D5 and D8), who falsely represented that Wincades could help them to obtain loans on attractive terms, thereby inducing each of them to enter into a “consultancy agreement”[10] with Wincades, pursuant to which Wincades would purportedly apply for loans on their behalf with a “consultancy fee” being payable on a “No-success-No-fee” basis.[11]

11.  The victims were required to pay the consultancy fee before the ultimate loan was obtained.  This was done by Wincades promptly obtaining a so-called “transitional loan” for the victims at a high rate of interest from a money lender recommended by Wincades; the high interest rate being said to be offset by the favourable interest rate which would attach to the ultimate loan.  Having paid the consultancy fee, the victims found it difficult to contact the persons responsible for their applications and realised that their applications were not being properly followed up and dealt with.  When the victims asked for a refund of the consultancy fee, various excuses were provided; most notably, that the victim had breached the consultancy agreement.

12.  One of the victims refused to pay the consultancy fee, since the amount of the ultimate loan was only half of what he had requested.  He was accused of breaching the consultancy agreement, following which nuisance calls were made to his home and debt collectors appeared to demand payment of the consultancy fee.  Another victim was threatened that a team of lawyers would pursue him.  Both consequently paid the consultancy fees. However, neither ever received any loan or the return of the consultancy fees.

13.  The thrust of the prosecution case was that Wincades had no genuine intention to honour their contractual obligations or repay the consultancy fee.  Accordingly, it was alleged that the consultancy agreement was a bait and/or smokescreen to induce the clients to fall for the scam.  One of the victims (PW36) did eventually obtain a loan, but found that its terms were not in line with what she had been promised.  She requested a refund of the consultancy fee of $160,000, which was refused.  She then filed a claim with the Small Claims Tribunal and the claim was later settled at $30,000.[12]

14.  At trial, the prosecution called 20 victims in respect of 18 individual cases to testify as to their common experience of being deceived by Wincades.  The details of the cases which are of particular concern to us may be summarised as follows:

15.  The prosecution from the outset, and consistently thereafter, alleged that it was a single global conspiracy to defraud.[14]

Charge 1 – allegations against D1, D2 and D3

16.  The prosecution relied on the Company Registry documents[15] which showed that D1 was the sole director and shareholder of Wincades from its inception on 27 March 2014 until he was replaced by D3 as director on 15 September 2014; with all shares[16] transferred from D1 to D3 on 23 September 2014.  There was no evidence showing the relationship of D2 with Wincades.[17]

17.  Wincades had an integrated bank account (“the Account”)[18] with Hang Seng Bank (“the Bank”).  D1 and D2 were the joint signatories to the Account from 22 April 2014 to 30 January 2015, whilst D3 became the sole signatory to the Account thereafter.[19]  In respect of all of their respective specimen signatures[20] given to the Bank, the prosecution alleged that they were the same as those on various cheques issued by Wincades throughout the material time.

18.  It was the prosecution case that D1, D2 and D3 had full control of Wincades (including the Account) and knowledge of Wincades’ fraudulent business.

Charge 1 – allegations against D4, D5 and D8

19.  D4, D5 and D8 were the salespersons who were alleged to have “conned” some of the victims into signing consultancy agreements and paying consultancy fees in the office of Wincades.  D4 and D5 were arrested on 27 March 2015, when the police raided the office of Wincades.[21]  The other applicants were subsequently arrested elsewhere.

20.  The prosecution relied on the identification evidence of the victims.  In respect of the particular defendants:

(i)  D4 had met PW4 and PW7 on different dates in December 2014, and PW9 on 7 March 2015.  He was identified by all three witnesses;[22]

(ii)  D5 had met PW11 on 25 and 27 March 2015.  PW11 identified D5 as the salesperson who induced her to sign the consultancy agreement;[23]

(iii)  D8 had met PW1 on 17 October 2014, and PW2 on 24 October 2014.  PW1 and PW2 identified D8 as the salesperson handling their cases.[24]

21.  The prosecution adduced the written statements of the staff members of HSBC, Hang Seng Bank, Bank of Communications, DBS Bank and Prime Credit,[25] under section 65B of the Criminal Procedure Ordinance, Cap 221, in order to show that Wincades was neither entrusted by, nor affiliated to, any of the banks or financial institutions that the operatives purported to represent.[26]

Charge 2 – the general allegations

22.  It was averred that D1, D2 and D3 had, between 22 April 2014 and 27 March 2015, conspired with other unknown co-conspirators to deal with various sums of money in the Account, knowing or having reasonable grounds to believe that such money, in whole or in part, directly or indirectly, represented the proceeds of an indictable offence.  The Account received some $5.7 million, of which some $2.8 million was related to the payments of victims concerned in the 18 cases mentioned in paragraph 14 of this judgment.

The defence case in summary

23.  On the general issue, whilst none of the applicants elected to testify themselves, D7 called 6 witnesses, all former clients of Wincades, five of whom had ultimately successfully obtained a loan through Wincades.[27]

24.  Although it was the prosecution case that D1, D2 and D3 were the director/shareholder/person-in-control of Wincades, all of the three defendants contended that they had no control or knowledge of Wincades’ activities.[28]  Accordingly, there was insufficient evidence to draw the irresistible inference of complicity in the charges averred against them.

25.  D4 disputed, amongst other things, the identification evidence against him by PW4 and PW7[29] (PW4’s identification evidence was nevertheless rejected by the judge).[30]

26.  D5 disputed PW11’s recollection of the events of 25 and 27 March 2015 as inaccurate and unreliable.[31]  It was further contended that D5 did not make any representation to PW11 that Wincades was affiliated with any banks or financial institutions at all.[32] 

27.  D8 prayed in aid the successful case of PW36, which had been handled by himself,[33] contending that Wincades was running a legitimate business.

The Reasons for Verdict

Charge 1

28.  The judge found that the fraudulent scheme was achieved by the defendants “step by step”:[34] it was “performed firstly by fraudulent cold calls”; and “[w]hen the victims approach Wincades as arranged, the salespersons continued the false representation”,[35] either expressly or by conduct.[36]  He found that the use of these steps as a means to obtain the consultancy fee was dishonest.[37]  He also found that the scheme was performed by “team work” and was a single global conspiracy to defraud as alleged by the prosecution.[38] 

29.  The judge found all particulars of Charge 1(a) proved.[39] Of particular (i), the judge said:[40]

“There is no evidence that Wincades was in any way entrusted by or related to any banks or financial institutions. To the contrary, there is evidence from the banks or financial institutions to confirm that Wincades was neither entrusted by nor affiliated in any way to their institutions. The representation of the callers in Room 2 that they were staff of banks or financial institutions was therefore false.”

30.  In relation to particulars (ii) and (iii), the judge found that Wincades was not running a genuine business, having identified a number of unusual practices[41] and the highly ambiguous and confusing content of the “consultancy agreement”.  For example, he found that:

(i)  The unclear meaning of the “six months” period in Clause 4 of the consultancy agreement enabled Wincades to “hold up inquiries for result and requests for repayment of the consultancy fee”.[42]  The Note below Clause 4 was widely drafted and, when read together with Clause 4a, placed clients in an extremely vulnerable position.  Overall, the agreement was drafted in ambiguous and confusing terms, which facilitated Wincades in providing excuses to allege a breach of the agreement on the part of their clients;[43]

(ii)  There was no evidence that Wincades endeavoured to process the loan applications;[44]

(iii)  Wincades had no genuine intention to help their clients to obtain loans on favourable terms at all;[45]

(iv)  The “No-Success-No-Fee” representation was false;[46]

(v)  The raid by the police was not an excuse for Wincades to decline repaying the consultancy fee to clients, since there was nothing to prevent Wincades from processing the loan applications after the raid.[47]

31.  In respect of the defence reliance upon the successful cases of PW36 and the other defence witnesses, whilst accepting all defence witnesses to be honest witnesses, the judge said that their successful applications for the loan “provides little assistance to the defence case”, explaining that “[i]f a conspiracy existed, it does not matter that some clients did eventually obtain the loan or suffered no actual loss”.[48]

32.  Regarding the specific involvement of D1 and D3, the judge held that, absent any evidence to the contrary, the Company Registry’s records, which he had ruled admissible,[49] were sufficient to prove that D1 and D3 were the directors and shareholders of Wincades[50] in succession.  Having regard to the standard procedure for opening an account in the Bank,[51] the judge found there was no evidence of the loss of identity cards; or of the use of forged identity cards when opening the Account; or any possibility of impersonation.[52]  Accordingly, he found that the specimen signatures were indeed the signatures of D1 and D3 (and D2).[53]  The judge went on to note the similarity between the signatures on the cheques issued by Wincades and the specimen signatures of D1 and D3,[54] and found that, absent any suggestion that the signatures on the cheques were forged,[55] such signatures must be inferred to be their signatures.[56] 

33.  Further, the judge alluded to the evidence that D1 and D3 handled cheques of various amounts issued by Wincades, which was a very small company, and concluded that they had each involved themselves in the affairs of Wincades at various levels.[57] The judge specifically acknowledged the facts and circumstances of HKSAR v Chan Ka Wai,[58]to which he had been referred but viewed them as very different from the present case.  Unlike the facts in Chan Ka Wai, there was other cogent evidence of complicity in addition to the documentary records at the Company Registry.[59]  Accordingly, the judge found both D1 and D3 to be parties to the conspiracy.

34.  As to the disputed identification of D4 by PW7, it is worth repeating the judge’s evaluation of the evidence relating to it:[60]

“94. As regards the identification of D4 in the identification parade by PW7 as the ‘Mr Lee’ he met in Wincades, PW7 accepted in cross-examination that initially he was not sure about his identification. However, he was sure later when he paid more attention.

95. Counsel for D4 submitted that PW7 conceded there was a possibility of mistaken identification. I do not agree. I think there was an ambiguity in the answer of PW7 during cross-examination. He clarified clearly later in re-examination by saying that he was sure that the person identified by him was the Mr Lee he met when he signed the consultancy agreement in December 2014.

96. I find the evidence of PW7 simple and reasonable. Having the opportunity of viewing the person claiming himself as Mr Lee in short distance and over a long period of time, PW7 had sufficient opportunity to see that person clearly. I accept PW7 is a credible and reliable witness. I am sure that the identification of D4 as Mr Lee was not mistaken.

97.   I noticed that D4’s surname is Lo, instead of Lee.  I also noticed defence exhibit D4-3, which is a letter issued by Inland Revenue Department to D4 concerning his tax information.  The letter says, according to information available to the Department, D4 received income from Wincades during the period from 1 March 2015 to 31 March 2015.  I do not find the Tax information kept by the Department cast any doubt on the correct identification by PW4.”

35.  In finding D4 a party to the conspiracy to defraud, the judge found that when he met PW7 on 29 December 2014, D4 had falsely represented to PW7 that the Bank often referred cases to Wincades.  He also found that D4 had overcharged PW7 by $34,000, which was purportedly the fee for the Housing Department.[61] The judge considered that D4 had acted in furtherance of the conspiracy by playing the role of a salesperson.[62]

36.  In finding D5 a party to the conspiracy to defraud, the judge considered that the failure of PW11 to remember minute details of the two meetings with D5 was reasonable and understandable, and did not impact on her credibility.[63] The judge also said that, by her conduct at those meetings, D5 had knowingly allowed the false representation made by the cold-caller to continue.[64]

37.  In finding D8 a party to the conspiracy to defraud, the judge held that D8 had induced PW1 to apply for a transitional loan by assuring PW1 that the ultimate loan would also be approved.  When PW1 subsequently believed that he had been deceived, D8 refused to refund the consultancy fee.[65] In PW2’s case, a transitional loan was obtained for him without his knowledge at all.[66]  The judge also inferred that D8 must have known of the fraudulent operation in Room 2,[67] having noted that “…the area of Wincades’ office was relatively small”.[68]

Charge 2

38.  Since both D1 and D3 were parties to the conspiracy to defraud, the judge found that both of them knew that the Account was dealing with the proceeds of crime.[69] Although there was no evidence pointing to D2’s actual relationship with Wincades, the judge inferred that by opening the Account and signing 18 cheques, he must have known of its fraudulent activities.  At the very least, he would have asked himself why he had been requested to open the Account and sign these cheques, some of which concerned significant amounts of money.[70] 

39.  The judge also found that D3 had become part of the conspiracy at the time he succeeded D1 as the sole director and shareholder of Wincades, since he allowed D1 and D2 to continue to control the Account for some 4 months until 30 January 2015.[71]

The grounds of appeal of D1, D2 and D3

40.  There is a common thread in the grounds of appeal put forward by Mr John Hemmings, on behalf of D1, and Mr HY Wong, on behalf of D2 and D3.  Essentially, in respect of each applicant, the point comes down to whether there was sufficient evidence to link the applicant with the conspiracy averred against him, assuming that a conspiracy existed.

41.  It is argued that the judge had reversed the onus of proof in finding, because there was no evidence to the contrary, that the applicants had signed the cheques concerned; and, by so finding, the judge himself assumed the role of an expert in the absence of expert evidence.

42.  Once the evidence of signing cheques was removed from the equation, the remaining evidence did not go beyond the Company Registry documents, from which it was not possible to draw the irresistible inference that D1, D2 and D3 were knowingly complicit in Wincades’ affairs: see Chan Ka Wai.

Consideration of the grounds of appeal of D1, D2 and D3  

43.  It was recognised, on D1’s behalf, that the evidence established, at least on a prima facie basis, that D1 was the sole director and shareholder of Wincades between 27 March and 15 September 2014.  It was also accepted, on D3’s behalf, that D3 then became the sole director of Wincades from 15 September 2014, and its sole shareholder on 23 September 2014, and that he remained so throughout the rest of the period of the alleged conspiracy.

44.  On 22 April 2014, D1 and D2 jointly applied to open the Account for Wincades with the Bank.  From 25 April 2014 to 30 January 2015, both applicants were the joint signatories to the Account.  D1 was also the authorized multi-channel banking user for Wincades during the same period. D3 became the sole authorized signatory of the Account on 30 January 2015.

45.  During the period from 25 April 2014 to 30 January 2015, 167 cheques drawn on the Account purportedly signed by D1 and D2 were issued, to a total value of no less than $2,205,320.  Of those cheques, 18 were singled out by the prosecution, with amounts varying from $2,940, drawn on 29 September 2014, to $112,800, drawn on 15 November 2014; suggesting, as the judge found, that each was involved in various levels of Wincades’ affairs.[72] More significantly, cheque number 15 in the sum of $50,000, drawn on 29 November 2014, was issued to settle a claim made by PW14 in the Small Claims Tribunal.

46.  The argument that there was no expert evidence that the signatures belonged to D1 and D2 was put forward and fully addressed by the judge.  With respect to the argument advanced on behalf of the applicants before us, the judge did not act as an expert to find that the signatures on the cheques were the same as those on the Account opening forms; nor did he reverse the onus of proof.  He could say, as we can see, and as the Bank no doubt would have believed when processing the cheques, that the signatures on them were plainly similar to those kept by the Bank.  In the absence of any suggestion of forgery, or anything else to undermine, contradict or explain this evidence, and given that both signatures appeared together on each cheque as was required by the Bank, the judge was entitled to infer that the signatures must have been placed on the cheques by D1 and D2 in managing Wincades’ affairs.

47.  In the case of D3, he became the sole authorized signatory as from 30 January 2015.  During the period from February to May 2015, 98 cheques drawn on the Account purportedly signed by D3 were issued to a total value of $1,401,968.  Of those cheques, five were singled out by the prosecution; three in amounts of $2,000 odd, two in the amounts of $56,000 and $57,000 odd.  Again, these amounts drawn on the account suggested a spread of activities at a time when only one signature was required on company cheques, namely that of D3.  In the absence of any suggestion of forgery, or anything else to undermine, contradict or explain this evidence, the judge was entitled to infer that D3 signed the cheques in managing Wincades’ affairs, at a time when he was its sole director and shareholder.

48.  It is not a reversal of the onus of proof to draw an obvious and irresistible inference from objective facts in the absence of any evidence or even suggestion which might upset or undermine it.  Nor did the judge draw any inference from the applicants’ silence on the issues of whether and why they should have signed these cheques and whether or not they were involved in the activities of Wincades: indeed, the judge expressly reminded himself not to draw any adverse inference from the exercise of their right of silence.[73]

49.  The evidence of the applicants’ signing of a considerable number and a wide spectrum of cheques to a significant value in respect of Wincades’ business was compelling evidence, in conjunction with the Company Registry documents, of the close involvement of each with the activities of Wincades; and sufficient to establish the complicity of each in the charges they respectively faced.  The evidence in Chan Ka Wai was far more limited.  There, the sole evidence against the appellant came from documents kept in the Companies Registry and the Court found that “[h]e did not control the company in any way and did not take part in its operation”.[74]  Here, the applicants clearly did. 

50.  It is particularly noteworthy in the case before us and worth repeating that one of the cheques issued by D1 and D2 on 29 November 2014, in the sum of $50,000, was in settlement of PW14’s claim before the Small Claims Tribunal.  It is unthinkable that the two signatories to this cheque would be ignorant of the background to such a claim and the reasons for the issuance of the cheque.

51.  There was a further telling piece of evidence linking D1 with the operation of Wincades.  In the red notebook, Exhibit P-F54-2, seized from the reception area of Wincades’ premises, and subsequently admitted into evidence by the judge, there is a page on which certain contact details appear.  Amongst them, is the following entry:

“Win老（deletion）板   Email: Erwinlaikinhang@gmail.com”,

which has been translated as:

“Email (address) of Win boss (deletion): Erwinlaikinhang@gmail.com”.

Whilst it may be debatable, and it is not necessary for present purposes to resolve the question, whether the Chinese characters were admissible evidence against D1 as proof that he was in fact the “boss” of Wincades.  The fact that D1’s personal Email address bearing his full Chinese and English name was recorded in a document, or more aptly an “operation manual”, kept in the company and used in furtherance of the conspiracy, shows D1’s obvious connection with the company, which is at variance with the defence contention that he had no knowledge or involvement in Wincades’ affairs.

52.  We were satisfied that there was more than sufficient evidence of D1, D2 and D3’s connection with Wincades’ activities to draw the irresistible inference of their complicity in the offences with which they were charged and accordingly refused leave to appeal against their convictions.

The grounds of appeal of D4, D5 and D8

53.  The other three applicants, D4, D5 and D8, were salespersons in the conspiratorial enterprise.  We will describe the grounds of appeal that each applicant advanced and then appropriately group them by issues because there is much in common between them.  We should point out that the issues raised by the applicants were also raised before the judge who addressed them in his reasons for verdict.

D4’s appeal

54.  D4 advanced five grounds of appeal.  The first ground complained that the judge had failed to consider that Charge 1 involved a series of smaller conspiracies to defraud instead of the one single global conspiracy alleged.  The second ground complained that the judge had wrongly ruled that D4 had a case to answer on Charge 1 and had failed to give reasons for his ruling.  The third ground complained that the judge had failed to consider the implication of the successful loan applications (of PW36, DW1, DW3, DW5 and DW6) when addressing the element of dishonesty in relation to Charge 1 and had failed to give adequate reasons why the successful loan applications did not assist the defence case.  The fourth ground complained that the judge had erred in accepting the identification of D4 by PW7, which he should have found was mistaken.  The fifth ground alleged that the conviction of D4 was unsafe and unsatisfactory.

D5’s appeal

55.  D5 advanced nine grounds of appeal which can be broadly grouped under three heads.  The first complaint was the judge erred in his findings leading to his conclusion that Wincades was not a legitimate business.  The second complaint was similar to the one raised by D4 that the judge failed to sufficiently consider the successful loan applications.  The third complaint was the evidence did not support the drawing of an inference against D5 that he was a party to the conspiracy.  D5 also alleged that the conviction was unsafe and unsatisfactory.

D8’s appeal

56.  D8 advanced four grounds of appeal.  The first two grounds can be grouped together, which essentially complained that the judge had erred in finding that D8 was a party to the conspiracy.  It was submitted that the judge had provided insufficient analysis of (i) how “the concerted effort to defraud” comprised of “a knowing act” by D8; (ii) the nexus between D8 and Room 2, and hence his knowledge of the operation of the room; and (iii) whether all persons at Wincades “shared a common motive to make cold calls to potential victims with a view to defraud them”.  The third ground was the judge did not sufficiently consider how it had been proven that D8 had defrauded the victims by the false representations as particularised in the charge that the victims would be assisted to obtain a mortgage loan or personal loan with favourable terms, that no consultancy fee would be charged by or payable to Wincades, and that the fee would be refunded to them unless the particular application for a mortgage loan or personal loan was successful.  It was also submitted the judge had omitted to consider whether D8 had honestly believed the representations to be true, and in this respect had failed to give sufficient weight to the fact that PW36’s loan application had been successful.  The fourth ground alleged that the conviction of D8 was unsafe and unsatisfactory.

57.  We propose to deal with the grounds of appeal of D4, D5 and D8 under the following headings: (i) the role of a salesperson in the conspiratorial enterprise; (ii) the single conspiracy; (iii) the legitimacy of Wincades; (iv) the successful loan applications; (v) the identification of D4; (vi) the finding that D5 was a party to the conspiracy; and (vii) the finding that D8 was a party to the conspiracy.

The role of a salesperson in the conspiratorial enterprise

58.  As one would expect in a conspiratorial enterprise, different conspirators may well play different roles in furtherance of their common objective.  In this case, the conspirators fell into three categories.  The first category were the persons who controlled Wincades and its accounts.  The second category were the cold callers who sought out potential victims for the fraudulent scheme.  The third category were the salespersons who arranged for the victims to sign a consultancy agreement and pay a “consultancy fee” to Wincades, which was usually done by arranging a “transitional loan” with a moneylender. 

59.  When the police raided the office of Wincades on 27 March 2015, they uncovered a small set of rooms where the operations of the conspiratorial enterprise took place.  The centrepiece of the office was Room 2, the call centre, which had been partitioned into 13 booths. Each booth had a desk and telephone where the cold callers would make their calls to potential victims.  On the desks of the booths were found an array of similar documents, consisting of telephone lists, online land search records and other miscellaneous documents in order for the cold callers to give the impression that they were familiar with the potential victim’s circumstances. Also found amongst the documents were “preamble scripts”, which were used by the cold callers as conversation templates with the potential victims. 

60.  It was apparent from the scripts the cold callers would pretend to be staff of the relevant bank or financial institution of the potential victims in order to give the impression that they spoke with authority so as to lure them to the office of Wincades.  When the police raided the office of Wincades, there were 10 cold callers operating in Room 2.

61.  When a victim visited the office of Wincades as arranged by the cold caller, he or she would be interviewed by a salesperson who would promise to apply for a loan at a very low interest rate.  The victim would sign a consultancy agreement which contained a term that a “consultancy fee” had to be paid to Wincades for the service of applying for a loan, but would not be charged if the loan application was unsuccessful.  However, the victim would be made to pay the “consultancy fee” before any loan was approved and this was usually done by a “transitional loan” at a very high interest rate from a moneylender which was arranged for the victim by Wincades.  On rare occasions, some of the victims would pay the “consultancy fee” in cash.

62.  As is apparent, the role played by a salesperson was at a critical stage of the conspiratorial enterprise, and vital to achieve the conspiratorial objective of having the victim part with a sum of money in the form of a “consultancy fee”.

The single conspiracy

63.  The prosecution at trial alleged that the defendants were party to “one single global conspiracy”, and this was evident from the different designated roles the conspirators played in concert to achieve the common criminal purpose of defrauding the clients of Wincades of the “consultancy fee”.  As we have already noted, a significant part of the prosecution case was based upon the evidence of 20 victims, who accounted for 18 cases, testifying about their dealings as clients of Wincades.

64.  The judge, having accepted the evidence of the victims, made the following findings:

“110. …

(1) they received cold calls from people who claimed themselves staff members of or entrusted by banks or financial institutions. The callers adopted tactics such as threatening with drastic action to be taken against the complainants or inducing them with attractive borrowing terms;

(2) the callers then referred the complainants to go to Wincades for assistance suggesting or hinting that Wincades was entrusted by or affiliated with their bank or financial institution;

(3) at the office of Wincades, the complainants were told by the salespersons that Wincades could assist them to obtain a loan with attractive terms. They were induced to sign a consultancy agreement whereby the complainants agreed to engage Wincades to apply for loans on their behalf and they would have to pay a consultancy fee;

(4) the complainants were promised that the consultancy fee would not be charged if their applications were unsuccessful;

(5) the complainants were then made to pay up the consultancy fees before the loan they applied for (the ultimate loan) was obtained. If they could not afford to pay the fees immediately, in most of the cases indeed, a ‘transitional loan’ at high interest rate would be obtained swiftly for the complainants. When the complainants obtained the transitional loan, they would be persuaded to use the transitional loan to pay up the consultancy fee by cash;

(6) after the complainants paid the consultancy fees, they then found it difficult to contact the person responsible for their applications, or were just told to wait, and their applications were not followed up in most of the cases;

(7) when the complainants asked for repayment of the consultancy fee for valid reasons, Wincades refused to repay. Only in some cases, when the complainants took legal action against it, Wincades agreed to settle by a sum much less than the fee the complainants had paid.”[75]

65.  The judge went on to explain that the evidence showed that the cold callers and the salespersons worked in tandem in their dealings with the victims and were welded to the same objective.  He found that the salespersons continued the false representation, initially made by the cold callers, that Wincades had the authority of a bank or financial institution to handle the loan arrangements of the victims. 

“114. The cold callers all referred the complainants to Wincades. The callers must be related to Wincades.

115. When the complainants went to Wincades, those who interviewed them never asked why the complainants would come to Wincades. They must know that the complainants approached Wincades as a result of the cold calls they received.

116. On the evidence before the court, the only reasonable inferences to be drawn are: Room 2 was operated as a call centre to contact potential clients by cold calls. The callers in this room falsely represented to the potential clients that they were staff of bank or financial institution. The complainants and the defence witnesses received cold calls from Room 2. It was through the operation of this call centre that clients were lured to approach Wincades, believing that the calls made to them were from banks or financial institutions and Wincades was entrusted or related to the banks or financial institutions.

117. I find that by their conduct the salespersons continued the false representation that Wincades had been entrusted by a bank or a financial institution to handle the loan arrangements of the complainants.

118. At the office of Wincades, the complainants were all promised that Wincades could assist them to obtain mortgage loan or personal loan with much favourable terms, or the consultancy fee would not be charged. The prosecution contends that it was a false representation to say that Wincades could assist the clients to obtain loans with terms and conditions more attractive to the clients. The No-Success-No-Fee promises was also false as Wincades had no intention to repay the consultancy fee.”[76]

66.  Relevantly, the judge found the evidence of the victims reflected “a pattern of consistent and persistent practice” at Wincades, and there was a single global conspiracy to defraud potential victims.

“162. Wincades was incorporated in Hong Kong on 27 March 2014. It opened an account with Hang Seng Bank on 22 April 2014. The practice of fraudulent calls by cold callers started in the same month (case of PW36). It continued in May 2014 (case of PW14) and went on until the police raid on 27 March 2015. The bank account received a total deposit of some $5.7 million (about $2.8 million was identified as payment of the complainants) during the charge period. In May 2015, the account only kept a balance of about $72,000.

163. In my judgment, the evidence of each of the complainants should not be viewed in isolation. Their evidence reflected a pattern of consistent and persistent practice of Wincades.

164. On the totality of the circumstantial evidence, I am satisfied beyond reasonable doubt that there was a scheme in Wincades to lure members of the public step by step to give them a substantial sum of money in the pretext of ‘consultancy fee’ for their service.

165. The scheme was performed firstly by fraudulent cold calls to make the victims believe that Wincades was entrusted by a bank or a financial institution to handle their loan arrangements. When the victims approached Wincades as arranged, the ‘salespersons’ continued the false representation of the status of Wincades and falsely represented that they could help the victims to obtain loans at much better terms. I find that Wincades did not care at all whether the victims could succeed. They did not intend to provide any genuine service to their clients. They had no intention to refund.

166. I find that the scheme was performed as a team work. I am sure that the means used in the scheme was dishonest. I am satisfied that there was a conspiracy to defraud in the charge period of Charge 1. It was a global single conspiracy to defraud.”[77]

67.  Mr Marco Li, for D4, contended that the evidence at its highest may have established a series of smaller conspiracies to defraud individual victims instead of the one single global conspiracy as found by the judge.  This submission had been made to the judge during the course of the trial and was rejected.

68.  Mr Li argued that the evidence did not allow the judge to find there was a larger scheme in existence at Wincades.  He submitted that the salespersons had been recruited by D1 and D3 and were not involved in the making of cold calls to the victims.  He contended that the evidence was that each salesperson was responsible for the individual case they handled, and they did not necessarily know, or were concerned about, what the other salespersons were doing.  He further submitted that there were instances of successful applications and therefore not every application was the subject of a fraud as alleged.  He argued that the evidence at its highest only established that there were individual conspiracies in relation to each victim, consisting of D1 and D3 together with the cold caller and the salesperson.

69.  In order to prove a criminal conspiracy, it is fundamental that the alleged conspirators should be acting in pursuance of a criminal purpose held in common between them.  The conspirators may join in the conspiracy at various times; any one of them may not know all the other parties, but only that there are other parties; and anyone may not know the full extent of the scheme to which he attaches himself; but each alleged conspirator must know that there is in existence or coming into existence a scheme which goes beyond the illegal act which he agrees to do and must attach himself to that scheme.[78]

70.  Whether this was a single conspiracy or separate conspiracies depended on whether the conspirators shared a common criminal purpose, and whether each conspirator knew that there was or would be a scheme which went beyond his or her own dealings.  If the common criminal purpose involves targeting a single victim, then that is the conspiracy that has to be proved against the alleged conspirators.  If on the other hand, the common criminal purpose involves targeting multiple victims then that is the conspiracy that has to be proved.  The conspirators can only be guilty of the conspiracy alleged against them and to which they have each agreed to be a party and which they intend to be carried out.

71.  The judge carefully addressed this issue and found on the evidence there was a single conspiracy.  He found that the conspirators worked as a team, performing different roles at different stages of the conspiratorial enterprise.  He found that they all shared a common criminal purpose to induce and defraud the clients of Wincades, and each of them knew there was a scheme which went beyond their own dealings.  As evidenced by their different roles, they were well aware that others were involved and that they were part of a process.  Whilst there were different clients, they were all victims of the one common criminal purpose.

72.  Where Mr Li’s submission fundamentally falls down is that each salesperson does not have to be involved, or even know about the cases handled by the other salespersons to be a party to a larger scheme. All that needs to be proven is that D4 agreed to be party to a larger scheme which he intended to be carried out.

73.  The judge found that a fraudulent scheme had been hatched in Wincades to lure a certain category of persons to pay a substantial sum of money to Wincades on the pretext of it being a “consultancy fee” for the service of securing a loan for them.  He found that the scheme was performed by cold calls to the victims deceiving them into believing Wincades as entrusted by banks or financial institutions to handle their loan arrangements.  When the victims attended Wincades as arranged by the cold callers, salespersons would continue the false representation of the status of Wincades and falsely represent to them that they could help them obtain loans on favourable terms.  In the meantime, the victims were required to pay a “consultancy fee”, which was usually arranged by Wincades through a moneylender at a very high interest rate. 

74.  The judge also found that the participants of the scheme did not care whether the victims could succeed in obtaining a loan and they did not intend to provide any genuine service to them.  More particularly, he found that there was no intention on the part of the participants to refund the “consultancy fee” as agreed, if the loan application was unsuccessful. 

75.  We are in no doubt it was open to the judge to find on the evidence that there was a single conspiracy involving the wholesale processing of potential victims by the conspirators in order to lure them to Wincades and defraud them by way of payment of a “consultancy fee”, which they would usually arrange through a money lender at a very high interest rate.  The fact that D4 was shown to have acted as the salesperson in relation to two of the victims did not define his criminality by reference to two separate individual conspiracies.  The question was whether D4 attached himself to a larger scheme, and clearly from the judge’s findings of the operation of Wincades and involvement of each of the conspirators, the judge concluded that he had.  The judge discussed the participation of the “salespersons” as follows:

“222. I now come to the participation of the ‘salespersons’. They all knew that their clients had to pay consultancy fee for the ‘service’ of Wincades. None of them asked the complainants they met why they came to Wincades. The inference to be drawn must be that they knew the complainants were induced to come by the fraudulent cold calls and the false representation about the relationship with banks or financial institutions. Some of them continued the false representation expressly. For those who did not make the false representation expressly, I find that by their silence and their conduct, they knowingly allowed the false representation to continue.

223. One important aspect of evidence is the operation of the call centre in Room 2. It is plain that the area of Wincades’ office was relatively small. It is hard to believe that D4-8 did not know the fraudulent operation in the room. It is not to be neglected that they all appeared to have the authority to deal with substantial sums of cash paid by the complainants.”[79]

76.  The judge was addressed on the issue of separate individual conspiracies when Mr Li made a no case submission on behalf of D4, and he found that there was a case to answer on the conspiracy charge.  In his reasons for verdict, the judge addressed the relevant legal principles in relation to the law of conspiracy and set out his findings of fact in concluding D4 and others were guilty of the conspiracy charge.  In any event, his reasons for rejecting the separate individual conspiracies were apparent from the circumstances, particularly the record of the proceedings, as it had been the subject of submissions and argument. 

77.  We can find no basis that the judge erred in either his analysis of the evidence or his findings of fact in reaching the conclusion that there was a single global conspiracy.

78.  We should add, at this juncture, the rejection of this ground of appeal substantially dispels any merit in the other grounds of appeal.

The legitimacy of Wincades

79.  Ms Monica Chow, for D5, argued that the judge was wrong to find the consultancy agreement used by Wincades had been drafted in “a very ambiguous and confusing style”, and that Wincades was not a legitimate company.  She noted that under the consultancy agreement, Wincades had 6 months to obtain a loan for the client, which in most of the cases had not yet expired when the police raided the offices of Wincades.  She questioned the judge’s comment that the meaning of the “six months” period in Clause 4 was unclear, although the judge did add that one interpretation of the clause by the defence was that Wincades had 6 months to process the application, and therefore any request for repayment of the consultancy fee could only be made 6 months after the signing of the consultancy agreement. However, it should be noted the judge discussed this matter in some detail:

“141. The unclear time limit for processing of the loan application could facilitate Wincades to hold up inquiries for result and requests for repayment of the consultancy fee.

142. The Note below Clause 4 is so widely drafted that the client must pay the consultancy fee for whatever reasons that he cannot proceed with the application. Read together with Clause 4a, the client would also be in breach if he is unable to submit within 7 days ‘all the necessary documents and the information deemed necessary by party B (Wincades). These draconian terms placed clients in an extremely vulnerable position to lose the fees they had paid.

143. The consultancy agreement drafted in such a confusing and ambiguous fashion facilitated Wincades to find excuses to allege breach on the part of their clients so that they could ask for payment and refuse repayment of the consultancy fee.”[80]

He went on to further explain that:

“146. I also do not believe that Wincades had intention to repay the consultancy fee.

147. Submission was made that unless and until the 6-month ‘time limit’ for Wincades to process the application was expired, it was only a speculation whether Wincades could succeed in obtaining the loan for clients, or whether it had intention to repay the consultancy fee. It was said that many of the instances relied on by the prosecution had not reached the time limit when Wincades was raided. It was because of the raid by the Police that Wincades was unable to honour the contract. I cannot agree with this agreement.

148. I do not think that the consultancy agreement, as the parties suggest, allows Wincades six months to process their client’s applications before they were required to repay the consultancy fee. In any case, as a matter of fact no complainants (except those who took legal action) after the expiry of the 6-month period have received their consultancy fee up to the trial.”[81]

80.  Ms Chow noted that some of the witnesses called (PW6, PW9 and PW36) when giving evidence about the agreement were not confused by the 6-month period in Clause 4.

81.  In explaining why he found the consultancy agreement ambiguous and confusing, the judge provided a detailed analysis of the consultancy agreement, noting in particular the amount of the loan to be obtained was not specified and it was unclear as to whether the loan was a reference to the transitional loan, or the ultimate loan or any other loan. The judge concluded that because of the confusing and ambiguous terms of the consultancy agreement, it provided Wincades with various excuses to allege a breach on the part of the clients so they could claim payment of the consultancy fee and refuse repayment of it. 

82.  We would certainly agree with the judge that the consultancy agreement was at times vague and ambiguous, but in any event the 6-month time period to process the loan application did not inoculate the conspiratorial object of defrauding the victims of a “consultancy fee”.  As the judge pointedly remarked, the clients were put in “an extremely vulnerable position” to lose the fees they had paid.

83.  Ms Chow also argued the judge erred in finding that there was no evidence Wincades endeavoured to process the loan applications, while the transitional loans were approved within days; that the representation by Wincades that they could assist clients to obtain loans with more favourable terms was false; and that the “No-success-No-fee” representation was false or that there was no intention to refund or not to charge the consultancy fees if the application was unsuccessful.  She specifically complained that the judge erred by comparing the processing of the “transitional loans” with a high interest rate with “a low interest loan”, dismissing the legitimacy of Wincades as evidenced by the successful applications obtained for PW36, DW1 to DW6, and rejecting the fact that the police raid of the offices of Wincades had brought to a premature end the contractual period which had not yet lapsed for a refund to be made.  She also pointed out there was evidence of refunds having been made to PW36 and DW1.

84.  Ms Chow by this submission essentially complained that the judge was wrong to find the object at Wincades was to secure payment of the “consultancy fee” and there was no intention to refund it if the loan application was unsuccessful.

85.  We have already highlighted the judge’s findings based on the evidence of the victims and of the operations at Wincades.  The evidence strongly supported the fact that the aim of the salespersons at Wincades was to secure payment of the “consultancy fee” which was keenly and promptly done in the vast majority of cases by arranging a high interest “transitional loan”.  The proposition that there was an agreed 6-month period to obtain a loan and that there were some successful loan applications did not disprove, as the judge found, the existence of the conspiracy.

86.  This submission further ignores the totality of the evidence, which was the basis on which the judge made the following concluding remarks:

“145. In my judgment, on the totality of the evidence, it is obvious that the true objective of Wincades was not to provide genuine service to assist their clients in obtaining the loans they wanted. The true objective was to obtain the consultancy fee from the clients. There was no genuine intention to help their clients to obtain loans on favourable terms. They did not care whether there were chances in their applications. In this sense, the representation that they could assist clients to obtain loans with more favourable terms was a false one.”[82]

87.  There is no substance to these complaints in relation to the judge’s findings of fact.

The successful loan applications

88.  It was a major plank of the defence case, both at trial and before this Court, that there were successful loan applications which undermined the element of dishonesty for a conspiracy to defraud and the concept of a single global conspiracy. 

Proving the object of the conspiracy

89.  The instances of a client successfully obtaining a loan did not disprove the existence of the alleged conspiracy.  However, we note that on the few occasions when it did happen, it was largely due to the efforts or particular circumstances of the client.  The issue for the judge to resolve was whether the individual conspirator had joined the conspiratorial agreement and agreed to give effect to the common object or purpose of it.

90.  The essence of the offence of conspiracy to defraud is the unlawful agreement to which the conspirators have joined with the intention to carry out its common object or purpose, and “it matters not how the participants individually intended to go ahout or actually went about defrauding the intended victims of their money.”[83]

91.  When addressing the participation of the individual defendants in the conspiracy to defraud, the judge reminded himself that:

“167. In order to prove a defendant has participated in the conspiracy, the prosecution must prove that he/she must have known what was proposed as the objective of the agreement and must have intended to carry out that objective into effect. He/she must have the intention to defraud. He/she is not guilty if he/she was not dishonest.”

92.  He also stressed that each alleged conspirator must know that there is in existence or coming into existence a scheme which goes beyond the illegal act which he agrees to do and must attach himself to that scheme.[84]

93.  The respondent accepted there were some cases in which the clients eventually obtained a loan as anticipated, but they were not “the norm”, and in some instances it was actually the client who had approached the financial institution to make the application for the “ultimate loan”.  The respondent also pointed out that the defence witnesses who were called to show that they succeeded in obtaining a loan, confirmed in their evidence that they had been the subject of cold calls, which lured them to the office of Wincades and that they paid an exorbitant “consultancy fee”. 

94.  The judge in his reasons for verdict referred to the successful cases of PW36 and the five defence witnesses, but noted their evidence in part supported the existence of the conspiracy and the fact that they were successful in obtaining a loan did not disprove the existence of it:

“157. I accept that all the defence witnesses are honest witnesses, though most of them only have a vague memory of the events during their applications. In my judgment, the success of their cases provides little assistance to the defence case. If a conspiracy existed, it does not alter that some clients did eventually obtained the loan or suffered no actual loss.

158. Their evidence on the contrary can confirm the general modus operandi used by the cold callers in inducing the potential clients to approach Wincades and how they were induced to sign the consultancy agreement and pay the consultancy fee. Their evidence cannot undermine the prosecution case.”[85]

Proving the element of dishonesty

95.  The argument advanced on behalf of the applicants, as we understand it, is that because there were successful loan applications the element of dishonesty of the alleged conspiracy could not be proved.

96.  Sir Anthony Mason NPJ in Mo Yuk Ping v HKSAR,[86] explained that the offence of conspiracy to defraud “is constituted by becoming a party to an agreement with another or others to use dishonest means: (a) with the purpose of causing economic loss to, or putting at risk the economic interests of, another; or (b) with the realization that the use of those means may cause such loss or put such interests at risk.”  He noted that the offence also extended to cases in which the dishonest means caused a person to act contrary to his public duty. 

97.  Of the element of dishonesty in the context of conspiracy to defraud, Sir Anthony Mason explained that “it is becoming a party to the agreement to use dishonest means that constitutes the material element of dishonesty.”  He noted that dishonesty involved a state of mind, and the agreement to use dishonest means are mainly cases of deceit or in other cases “a defendant may agree to do something which he knows he has no right to do or believes that he has no right to do or he agrees to do something which is dishonest and he knows or believes that it is dishonest.”

98.  Sir Anthony Mason further explained that conspiracy to defraud involved another state of mind - the intention or purpose of inflicting economic loss on another or the realisation that the action agreed upon will or may put the person’s economic interests at risk - which may well involve dishonesty.

99.  Although holding that the Ghosh two-stage test should be applied to determine whether the means agreed upon are dishonest, Sir Anthony Mason alluded to the criticisms of the test and to an alternative approach as discussed in Macleod v The Queen.[87] However, the alternative approach was not the subject of the decision since it had not been argued. 

100.  The Ghosh two-stage test is: (1) Was the defendant acting dishonestly according to the ordinary standards of reasonable and honest people; and (2) Must the defendant have realised that what he was doing was, by those standards, dishonest?

101.  We mention this matter because in the course of oral submissions our attention was drawn to the recent decision of the Supreme Court of the United Kingdom in Ivey v Genting Casinos UK Ltd (trading as Croxfords Club),[88]where it was said obiter dictum that the second limb of Ghosh did not correctly represent the law and that the objective test was preferred.  Ivey involved a civil claim made by a professional gambler for the sums which he had won at the casino, which alleged that he had cheated.  Notwithstanding that the Supreme Court had concluded dishonesty was not a legal element of cheating, it nevertheless went on to examine the test of dishonesty in Ghosh. 

102.  A challenge to the Ghosh two-stage test was not mounted before us and in the absence of argument it would not be appropriate to embark upon the question.

103.  In his reasons for verdict, the judge applied the Ghosh two-stage test, and went on to find that the scheme was performed as “team work” and the means used in the scheme were dishonest.  He explained the evidence of the victims should not be viewed in isolation and they reflected “a pattern of consistent and persistent practice” at Wincades. He was satisfied there was a scheme in Wincades to lure members of the public step-by-step to give them a substantial sum of money on the pretext of a “consultancy fee” for their service.  He found that the scheme was performed firstly by fraudulent cold calls to the victims that Wincades was entrusted by a bank or financial institution to handle their loan arrangements. Secondly, the salespersons continued the false representation of the status of Wincades and falsely represented they could help the victims to obtain loans at much better terms.  He also found that they did not care whether the victims could succeed and there was no intention to refund the “consultancy fee” in the event the loan application was unsuccessful.[89]

104.  As we have stated, we find no fault in the judge’s reasoning and agree the evidence overwhelmingly supported the alleged conspiracy.

The identification of D4

105.  Mr Li submitted that the judge was wrong to accept that D4 was the salesperson at Wincades who dealt with applications of victims. D4 was identified by three witnesses, including PW7, who dealt with him as a salesperson.[90]

106.  Mr Li pointed out that PW7 stated in his evidence he was initially not sure about his identification of D4.  However, he later said in his evidence he was sure about it.  The judge accepted his evidence and clearly took into account his extensive dealings with D4 in relation to his loan application.  On 29 December 2014, PW7 attended the office of Wincades and met D4.  Having signed a consultancy agreement at the behest of D4, PW7 paid D4 a “consultancy fee” in the sum of $94,000, but D4 only issued PW7 an invoice for $61,000.  D4 claimed that the balance of $34,000 was to be paid as a fee to the Housing Department, but this was proved to be false.[91] Notwithstanding PW7’s initial uncertainty, the judge was perfectly entitled to accept his identification of D4 as the salesperson with whom he dealt, in light of the nature and extent of their dealings with each other.

107.  Mr Li also pointed out that a document from the Inland Revenue Department recorded D4’s period of service at Wincades for the year of assessment for 2014/2015 was between 1 and 31 March 2015.  He submitted that the occasions D4 was identified by PW7 were outside the period of service as stated in this letter and therefore his evidence should have been rejected. When the judge addressed the issue of the identification of D4, he referred to the letter issued by the Inland Revenue Department, which he found did not cast any doubt on the identification of D4 by the witnesses.[92]  We agree.  It is merely an assertion of D4’s period of service for tax purposes.

108.  The judge was entitled to rely on the evidence of the testimony of PW7 who positively identified D4 and there is no substance to this point at all.

109.  It should also be noted that another victim, PW9, testified that on 7 March 2015 he attended the office of Wincades and met D4.  D4 gave PW9 a consultancy agreement to sign, which he did, and paid D4 a “consultancy fee” of $100,000.  Other evidence relating to D4 included CCTV footage on 27 March 2015 of him entering Room 2 and talking to cold callers, and the recovery of documents relating to PW9 and PW11 in the room where he was arrested.

The finding that D5 was a party to the conspiracy

110.  The argument advanced on behalf of D5 is that the adverse inferences the judge drew against the business of Wincades were not the only reasonable ones.  It was submitted that the representation that Wincades could assist clients in obtaining loans on favourable terms was not false as evidenced by the successful cases, nor was the representation of “No-success-No-fee” in relation to those applications which had not been processed within the 6-month contractual period because the police raid took place in most cases before the expiry of the 6-month period.  It was further submitted that the highest the case could be put was that false representations were made by the cold callers to the potential victims which prompted them to attend the office of Wincades, but this did not cause them to pay the “consultancy fee”. 

111.  The object of the conspiracy was to defraud clients of Wincades by causing and inducing them to pay a “consultancy fee” to Wincades.  That is what the conspirators set out to achieve, and that is what they did achieve as evidenced by the testimonies of the victims and the operation of the office of Wincades.

112.  It was contended that because D5’s conduct and interaction with PW11 took place just prior to the police raid and with 6 months of the consultancy period still remaining, it was not open to the judge to draw the only reasonable inference that D5 was a party to a conspiracy to defraud PW11 or any other clients of Wincades.  It was further contended that even if it was proved that Wincades never intended to honour the obligations under the consultancy agreement, it still had to be shown D5 knew this to be the case in order to be a party to the alleged conspiracy. 

113.  In concluding that D5 was a party to the conspiracy, the judge said:

“232. D5 was identified by PW11 as Miss Yau who induced her to sign the consultancy agreement. CCTV footages of 25 and 27 March 2015 showed the meetings between D5 and PW11. Documents relating to PW11 were seized inside Room 4 where she was arrested.

233. CCTV footage also showed she entered Room 2. She must know the operation in that room.

234. Counsel for D5 submitted that D5 did not make representation to PW11 that Wincades was affiliated with any banks. I find that by her conduct, she knowingly allowed the false representation made by the caller to continue.

235. She received $95,000 in cash from PW11. After a negotiation, she agreed to return a total of $50,000 to PW11.”[93]

114.  The judge concluded that he was sure D5 had knowledge of the scam and played the role of a “salesperson” to induce victims to sign the consultancy agreement and pay the consultancy fee.[94]

115.  On the basis of the evidence, it was clear D5 had joined the conspiracy that was fully underway at the time she was at Wincades.  She was familiar with the office and its operations and would inevitably know of the cold call centre, and the process employed to defraud the clients of Wincades, of which she was an integral part.

The finding that D8 was a party to the conspiracy

116.  Mr Jeremy Cheung, for D8, contended that the judge failed to explain how the prosecution established that D8 knew of the operation of Room 2 and had a connection with it.  He argued that the mere fact that D8 and others were all from Wincades was not sufficient to draw the only reasonable inference that each and every individual who operated within the office shared a common motive to make cold calls to potential victims with a view to defrauding them. 

117.  The judge did not simply rely on the mere presence of D8 and others in the office of Wincades.  Almost all of the victims and the defence witnesses testified of receiving cold calls and attending Wincades as a consequence of the representation that the persons who they were dealing with were entrusted by the bank or financial institution to handle their loan arrangements.  The cold call centre operated out of Room 2 and the judge, from the evidence of the victims and the operations of Wincades, drew the only reasonable inference that the salespersons were party to a larger scheme of defrauding the clients of Wincades of the “consultancy fee”.

118.  Two victims, PW1 and PW2, gave evidence about their dealings with D8 at Wincades.  This was described in the judge’s reasons for verdict as follows:

“254. On 17 October 2014, D8 persuaded PW1 to sign the consultancy agreement to pay the fee of $662,500. D8 said the application for the loan of $2.4 million would take 45-90 days to process. He made inducement that when the ‘pre-approved loan’ ($800,000 by way of 3rd mortgage) was approved, the $2.4 million ultimate loan would also be approved. After PW1 obtained the ‘pre-approved loan’, he handed over $640,000 in cash to D8 as consultancy fee, but only an ‘invoice’ was issued to PW1 as a receipt. Two days after he paid the fee, PW1 suspected that D8 was dishonest and did not wish to apply for the mortgage loan. He asked for repayment of the consultancy fee but D8 refused to pay.

255. PW2 on 24 October 2014 visited Wincades and met D7 and D8. D8 said they could try to get a mortgage for PW2 from HSBC or Hang Seng Bank. As a result, PW2 signed the consultancy agreement. A few days later, PW2 was shocked to learn that a ‘pre-approved’ loan had been obtained for him. He was told that this was a transitional loan pending approval of the ultimate loan. After he received this loan, he was accompanied by Wincades’ staff to go to Wincades’ office where he met D7 and D8 again. They took $150,000 cash from PW2 as consultancy fee and gave him an “invoice” as a receipt.”[95]

119.  The judge went on to note that D8 had been involved in making inquiries for PW36 whose loan application was successful. The judge rejected the suggestion that this cast doubt on whether D8 was dishonest because the successful outcome of this loan application neither negated the conspiratorial enterprise, nor D8’s participation in it.  The judge found D8 knew of the operation of Room 2 and had full knowledge of the fraudulent scheme, playing the role of a “salesperson”.[96]

120.  It is instructive to examine in greater detail the case of PW1, for which D8 was the salesperson.  PW1 applied for a loan of $2.4 million and paid an enormous “consultancy fee” of $640,000 after a “transitional loan” had been obtained for him of $800,000.  The “transitional loan” was obtained from a moneylender at an interest rate of 38.4% over 10 years. The “consultancy fee” of $640,000 represented about 27% of the sum of the ultimate loan of $2.4 million.  PW1 testified that his inquiries to Wincades were not being answered and he became suspicious.  He indicated that he did not wish to continue with the application and demanded repayment of the “consultancy fee” that he had paid.  D8 told him that the “consultancy fee” could not be refunded.

121.  The substantial sum of the “consultancy fee” and the high interest rate of the “transitional loan” cogently illustrates that what was being perpetrated on the victims was a far cry from the promise of securing an ultimate loan on favourable terms.

122.  We find no fault with the judge’s conclusion that D8 had knowledge of the scam and was a party to the conspiracy.[97]

Conclusion

123.  For the above reasons the applications for leave to appeal against conviction by D1, D2, D3, D4, D5 and D8 were each refused and their appeals dismissed.