HKSAR v LEE CHUNG FAI AND ANOTHER

DCCC 490/2021

[2023] HKDC 925

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 490 OF 2021

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REASONS FOR VERDICT

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Introduction

1.  There are originally three defendants in this case (D1-D3)  involving four charges of “Conspiracy for an agent to accept advantage”, contrary to sections 9(1)(a)  and 12(1)  of the Prevention of Bribery Ordinance, Cap 201 and sections 159A and 159C of the Crimes Ordinance, Cap 200.

2.  D1 pleaded guilty to three of the four charges (Charge 2-4)  but pleaded not guilty to Charge 1. D2 and D3 pleaded not guilty to their respective charge of Charge 3 and Charge 4. As a result of plea bargaining, the prosecution was contended to leave Charge 1 in the court file and not to proceed against D1 on this charge without the leave of the court.

3.  The present trial concerns the conspiratorial agreement between D1 and D2 (Charge 3)  and D1 and D3 (Charge 4)  on one hand and LE DO Trang Nha (“Le Do or Mimi”)  on the other hand, for D2 and D3, each as an agent or employee of Cathay Pacific Airways Limited (“CPA”), to accept an advantage to nominate Marc Alexandre Dambrines (Charge 3)  and Mariah Adams Ernst (Charge 4)  each as the travelling companion of D2 and D3 under the Companion Travel Scheme of CPA.

The prosecution case

4.  CPA is an airline company based in Hong Kong. At all material times, D1-3 were employees of CPA. D1(also known as Kelly)  was a Flight Purser whereas D2 (also known as Freddy)  and D3 (also known as Melbi)  were Flight Attendants.

CPA’s Companion Travel Scheme

5.  At all material times, D1-3 were single employees of CPA. Under the “Cathay Leisure Travel Policy” (“the Policy”), single employees were eligible to enjoy the benefits under the “Companion Travel Scheme” (“the Scheme”).

6.  Under the Scheme, a single CPA employee may nominate a partner, sibling, family member or a friend known to him/her to be his/her travelling companion. The travelling companion nomination is to be made through CPA’s intranet named “IntraCX”. The nomination of a companion could be made during the first six months of an employee’s employment with CPA, but the nominated companion will not have access to the travel benefits until the said employee completes the six-month continuous service with CPA and becomes eligible to such benefits.

7.  In order to book the concessionary tickets under the Scheme, employees of CPA had to log in “IntraCX” using their own usernames and passwords, and ticket applications shall be made only by the employees. For tickets of CPA, Dragon Airline (“KA”)  and a few airlines in “Oneworld Travel”, the relevant charges including the ticket fare and all applicable tax would be deducted from the employees’ payroll accounts under the ticketing system called “iflySTAFF”.

8.  Under the Scheme, if the nominated companion uses any ticket acquired under the Concessional Travel Policy other than for recreation or leisure travel purposes or is found to have paid or procured the payment of any consideration to the employee for such travel, the employee and all persons eligible through the employee may lose all concessional travel benefits permanently. The employee may have to reimburse CPA with the full applicable fare for the journeys and he or she may be subject to CPA’s disciplinary action.

CPA’s Code of Conduct and Anti-Bribery Policy

9.  At all material times, employees of CPA are prohibited from soliciting and/or accepting any advantage from any person for selling their travelling companion nomination to the latter or any other persons. CPA would not have approved any travelling companion nomination and/or issued the flight tickets at concessionary rate under the Scheme if CPA knew of any acceptance of advantages for selling the travelling companion nomination to others. The sale of travelling companion nomination under the Scheme is a clear violation of the Policy and also the Anti-Bribery Policy, and it may cause monetary losses to CPA and damage to CPA’s reputation, brand image and integrity.

10.  If employees of CPA were found having “sold” a companion nomination to a third party or allowing their companion to use the benefit for business purposes or other misuses, including “the sale of tickets to non-eligible persons”, “the use of rebated tickets by anyone who is not eligible for such tickets and acceptance of any advantage for use of CX ID travel by a third party nominated as a companion over and above the cost of the flight used”, etc., they will lose access to all travel benefits under the Policy. They may have to reimburse CPA with the full applicable fare for the journeys made in breach of the Policy. Summary dismissal from CPA may also be included.

11.  At all material times, CPA prohibits its employees to pass the password of his or her “IntraCX” account to anyone.

12.  At all material times, the Code and the Anti-Bribery Policy have been made available for access by all employees of CPA who had access to” IntraCX”, including D1-D3.

D2-3’s travelling companion nomination records

13.  The two sets Admitted Facts (Exhibit P1 & P1A)  produced in the trial sets out the travelling companion nomination records of D2 and D3 as well as the number of companion flight tickets issued to their nominated companions during the periods covered by Charge 3 and 4.

14.  On 3 January 2019, D2 nominated Mr. Marc Alexandre DAMBRINES (“Dambrines”)  as his travelling companion of 2019 under the Scheme.

15.  Between 19 March 2019 and 31 December 2019, a total of 23 companion flight tickets of CPA and KA were issued to Dambrines. The lowest commercial fare for those 23 companion flight tickets were Hong Kong Dollar (“HKD”)  $439,310 whereas the total amount of the companion flight tickets was HKD $26,600. The price difference was HKD $412,710.

16.  On 23 January 2019, D3 nominated Madam Mariah Adams ERNST (“Ernst”)  as her travelling companion of 2019 under the Scheme.

17.  Between 15 February 2019 and 11 May 2019, a total of 6 companion flight tickets of CPA were issued to Ernst. The lowest commercial fare for those 6 companion flight tickets were HKD $121,810, whereas the total amount of the companion flight tickets was HKD $8,230. The price difference was HKD $113,580. Apart from CPA, a sector of AA (American Airlines)  ticket and a sector of Iberia (Iberia Airlines)  ticket were issued to Ernst and the concessionary fare of these tickets charged were United States Dollar (“USD”)  $27.51 and Euro €102.38 respectively.

18.  Copies of the records of the travelling companion nominations made by D2-3 are produced as Exhibits P12 and P13 respectively.

19.  Copies of the records of the companion flight tickets issued to Dambrines and Ernst are produced as Exhibits P14 and P15 respectively.

Subscriber records of D1-3’s phone numbers

20.  Also produced were the computer certificates of the subscriber records of the phone number 9586 7219 (“D1’s number”), 6653 0088 (“D2’s number”)  and 6096 8133 (D3’s number”). It was admitted that at all material times, these numbers were solely used by D1, D2 and D3 respectively.

WhatsApp records extracted from D1’s phone

21.  D1’s iPhone (Exhibit P18)  was seized by an investigator of the Independent Commission Against Corruption (“ICAC”)  after her arrest. Data from her iPhone were later extracted by the ICAC and WhatsApp conversations (including messages, images and attachments)  between D1’s number with the number 84 1265360056 under the username of “Memi Ledo” together with WhatsApp conversations between D1’s number and D2’s number and D3’s number were discovered (Exhibit P26A). A copy of the WhatsApp conversation extraction report between D1’s number and D2’s number is produced as Exhibit P19 and a copy of the WhatsApp conversation extraction report between D1’s number and D3’s number is produced as Exhibit P20. The certified English translation of certain pages is produced as Exhibit P19A and Exhibit P20A.

22.  It is not disputed that the above WhatsApp conversations extraction reports are true and accurate in showing the contents of those three sets of WhatsApp conversations records as found in D1’s phone.

Caution of D2 and D3

23.  Both D2 and D3 were cautioned by ICAC investigators for the present case after their arrest on 26 September 2019.

24.  According to P1, D2 attended an interview with the ICAC investigators voluntarily between 0815 and 0935 on 26 September 2019 in the ICAC Headquarters and the interview was video recorded. The master disk of the said interview was produced as Exhibit P21 and the copy of the transcript Exhibit P21A, with the certified English translation as Exhibit P21B.

25.  According to P1, D3 attended an interview with the ICAC investigators voluntarily between 0744 and 0855 on 26 September 2019 in ICAC Headquarters and the interview was video recorded. The master disk of the said interview was produced as Exhibit P22 and the copy of the transcript Exhibit P22A, with the certified English translation as Exhibit P22B.

Bank Transfers and Records

26.  According to P1, it is admitted that Madam KAN Suk Yee is the mother of D1.

27.  On 8 January 2019, a transaction of USD $5,000 was debited from an account with the HSBC Bank USA NA and a sum of HKD $39,024.50 (after currency exchange)  with payment details “FOR MARIAH ERNST” was deposited into a Passbook Savings Personal Account with HSBC held in the name of D1’s mother (Kan’s HSBC Account).

28.  On 16 January 2019, D1 transferred HKD $27,300 to D3 from D1’s Account in HSBC to D3’s Account in Hang Seng Bank (“HSB”)  by way of Automated Teller Machine (“ATM”)  transfer. Banker’s Affirmation of HSBC and HSB are produced as Exhibits P23 and P24 respectively.

29.  Based on the above, apart from the Admitted Facts, the evidence of the prosecution case in the present trial against D2 in Charge 3 and D3 in Charge 4 mainly consists of the following: -

(i)    the direct testimony of D1 who testified for prosecution as PW1;

(ii)   the WhatsApp conversations records extracted from D1’s iPhone;

(iii)  the video-recorded interviews of D3 and D4; and

(iv)  the bank transfer records as mentioned.

D1(PW1)’s testimony

30.  After pleading guilty to Charge 2-4, D1 agreed the summary of facts in court and was duly convicted of the three charges. She offered assistance to the prosecution and came forward as PW1 to testify against her two ex-colleagues in CPA, the co-defendants and the alleged co-conspirators in both Charge 3 and 4.

31.  PW1 joined CPA in 2008 as a Flight Attendant and was later promoted in 2018 to Flight Pursuer. In 2018 and 2019, PW1 nominated Madam LE DO Trang Nah (“Le Do” also known as “Mimi”)  through IntraCX as her travelling companion. She also provided her username and password of IntraCX for Le Do to login herself to the system and buy flight tickets.

32.  PW1 acquainted Le Do through another colleague in CPA called Yuna. Yuna met Le Do quite frequently and when Le Do came to Hong Kong, she would always bring nice clothings designed by her for Yuna. PW1 started to follow Le Do on her Instagram and they would talk about travel and fashion. Yuna later gave Le Do’s contact to PW1 so to have discussions on selling PW1’s companion quota. Prior to that, PW1 had not met with Le Do.

33.  In both 2018 and 2019, Le Do paid D1 a total of USD $2,600 and $1,500 for the nomination to be her travel companion under the Scheme.

Charge 3 (Against D2)

34.  Le Do mentioned to PW1 that her friends were also interested in being nominated as travel companions in order to buy the concessionary flight tickets. At first, PW1 did not take the initiative to find other staff. Eventually, PW1 introduced D2 and D3 to Le Do for the purpose of selling their companion nominations.

35.  PW1 first came to know D2 in a racecourse event in mid-2018 before D2 even became a CPA Flight Attendant. They started to follow each other on Instagram from which PW1 later learned that D2 had successfully joined CPA as a Flight Attendant.

36.  In around Christmas in 2018, PW1 was in London during a flight duty, and she noticed on Instagram that D2 was also there at the time and they arranged to meet up. During their meeting, D2 mentioned to PW1 that he had recently broke up with his girlfriend and since his salary was quite low as a junior staff, he was looking for part-time job or other ways to earn more money. PW1 then brought up the subject of selling travelling companion nomination under the Scheme to which D2 said he had heard of it and asked PW1 if it was alright to do so. PW1 lied to PW2 by saying that she was aware that many people sell their nominations but was not sure if that was okay despite the fact that she had at that time already sold her nomination. D2 then asked PW1 if she knew anyone willing to purchase a companion nomination and PW1 told D2 she could pass him the information later. PW1 said she might also have mentioned the market price of HKD $15,000 for the sale of the companion nomination.

37.  After returning to the hotel on that night, on 17 December 2018, PW1 immediately informed Le Do on WhatsApp that a potential seller was available. Le Do informed PW1 that her friend was willing to offer USD $9,000 to buy the companion nomination, in which USD $5,000 was for the seller and that the remaining USD $4,000 was to be evenly split between D1 and herself.

38.  Eventually on 19 December 2018, PW1 provided the phone number of Le Do to D2 on WhatsApp for them to discuss the potential deal. As PW1 found the price of USD $9,000 too high, she did not want to get involved and left it to them to discuss the matter.

39.  On 20 December 2018, PW1 sent out a message to D2 on WhatsApp that once he listed (meaning once he had made the nomination), the nominated person was willing to give D2 (a Diamond emoji), which meant money, according to PW1.

40.  On 3 January 2019, after learning the news from Le Do, PW1 congratulated D2 on WhatsApp for the deal. In reply, D2 told PW1 that he would transfer 10% of what he sold (his sale proceeds from selling the nomination)  to her. As said, on the very same day, Dambrines was registered as the nominated travelling companion of D2 under the Scheme.

41.  On 4 January 2019, PW1, upon receiving enquiry from Le Do, asked D2 about his probation and if that was the reason why D2 could not issue a ticket for Dambrines right away at that time. D2 informed PW1 that he would only pass his probation on 27 January 2019.

42.  On 3 April 2019, D2 thanked PW1 again for introducing Le Do to him and told PW1 that he would give her 10% of what he sold to her. PW1 said in court that she understood he was talking about the nomination but according to her, she never received any such amount from D2 at all.

43.  On 28 May 2019, PW1 sent a message to D2 to ask how it was going with Le Do because Le Do had not cleared all her tickets fares and she therefore wanted to know if the same was happening to D2.

44.  PW1 said on 19 June 2019, D2 told her that he had received the whole sum for selling the companion nomination from Le Do but he had not received any money for the ticket fares. The way they agreed to settle the ticket fares was for Dambrines to pay up in advance a sum of money as top-up money for future ticket fare reduction, like the way an Octopus card operates to have top-up value in advance. However, Dambrines used up and exceeded the top-up money for the ticket fares.

Charge 4 (Against D3)

45.  PW1 knew D3 as her younger sister’s schoolmate since they were young. In early July 2018, PW1 and D3 met each other again when they were working on the same flight to Rome and they exchanged phone numbers and since then, they kept in touch via WhatsApp.

46.  On 3 January 2019, D3 asked PW1 on WhatsApp if she was interested in selling her companion nomination under the Scheme for HKD $15,000. In reply, PW1 told D3 that her non-local friends offered to pay a higher price at USD $3,500. D3 said she was interested. At that time, PW1 did not want to disclose too much to D3 so she said she was still negotiating with Le Do. At about the same time, PW1 informed Le Do on WhatsApp that D3 was interested in selling her travelling companion nomination for USD $3,500. Le Do then suggested selling D3’s nomination to her friend at USD $5,000 and D1 could keep the balance of USD $1,500.

47.  On the next day, 4 January 2019, PW1 met with D3 and Le Do in a Vietnamese restaurant in Sheung Wan. They had discussions on how to buy and sell the companion quota, how the tickets to be issued and how to settle payment for the ticket fares as well as the login password. Le Do wanted to have the password of D3’s IntraCX account as the term of the deal but D3 had reservation at that time. In the end, Le Do suggested a deadline for D3 to consider whether to give out the password or not in selling her travelling companion nomination.

48.  Between 5 and 8 January 2019, PW1 provided the name, address and HSBC bank account number of her mother’s account (Kan’s HSBC account)  to Le Do for the purpose of transferring of money in relation to D3’s selling of her nomination. Le Do arranged to transfer in advance USD $5,000 to Kan’s HSBC account which included the money to be received by D3 and D1. The money would be released to D3 on condition that D3 agreed to provide her password to Le Do in selling her nomination. If not, the money would be returned to Le Do. PW1 said she provided her mother’s bank account to Le Do for the money transfer as she owed money to her mother.

49.  On 10 January 2019, after enquiring further on the amount of money to be received for the selling of the travelling companion nomination, D3 told PW1 that she agreed to do it. Soon afterwards, Le Do told PW1 that since D3 agreed to the sale, the money can be paid to D3 and PW1 could keep USD $1,500 out of the sum transferred to her.

50.  On 11 January 2019, D3 told PW1 that she was “going to nominate her now” and she asked if the money was still with PW1. PW1 said she had the money and will transfer to D3’s bank account. D3 then sent through WhatsApp a screen shot of her IntraCX website showing the nomination details and she also sent an image of her bank card with the Hang Seng Bank Limited (“HSB”)  to PW1 for the purpose of transferring to her the money for selling her nomination.

51.  On 16 January 2019, PW1 transferred HKD $27,300 (approximately the equivalent of USD $3,500)  from PW1’s HSBC account to D3’s HSB account.

52.  A week later, on 23 January 2019, Madam Mariah Adams ERNST was registered as the nominated travelling companion of D3 under the Scheme.

Cautioned Interviews of D2 and D3

53.  In paragraphs 43-44 of its closing submission, prosecution has succinctly highlighted the relevant statements made by D2 and D3 during the cautioned video-recorded interviews. No inaccuracy in this summary was brought to my attention and I just adopt the summary as follows: -

“43. In his video-recorded interview (Exhibits P21, P21a & P21b), D2 stated inter alia the following: -

(1)  D2 was a cabin crew of CPA and he joined the company on 27 July 2018.

(2)  D2 has heard of the company’s Leisure Travel Policy, and he can nominate a travel companion. He nominated Dambrines as his companion.

(3)  He knew that CPA does not allow employees to sell the companion nomination. He knew CPA does not allow the giving away of the personal password of the booking account to others.

(4)  D2 came to know Dambrines roughly after January 2019 through his friend PW1 and another friend Mimi. PW1 introduced Dambrines to him as PW1 wanted to know if D2’s “flight ticket” could be given to Dambrines.

(5)  Both PW1 and Mimi did discuss with him individually in person during separate meals in Hong Kong about the companionship arrangement. The way they asked was the same as the Whatsapp record that he had with them. They said they will give him an amount for the deduction of ticket fare. The amount to give D2 was about HK$20,000 odd if exchanged from USD 2,000-3,000 into equivalent HKD. At the end, he agreed to give his companion ticket to their friend, and he told this to PW1.

(6)  He also agreed to the amount for deduction, which was given to him through Mimi in cash in USD (about HK$20,000)  at a Starbucks in Hong Kong Island.

(7)  After agreeing to the arrangement, he obtained visa information from Dambrines to be registered in the system. Later, D2 gave away his account password to Dambrines to let him buy tickets on his own. D2 requested Dambrines for HK$4-5,000 more as the deduction went over the original amount.

(8)  He had thought about keeping unused money from the first amount if Dambrines did not get it back as appreciation money, but he did not think how much he could keep.

(9)  Showing Exhibit P19 (Whatsapp record between PW1 and D2), at counter 37, PW1 congratulating D2 on the deal. D2 explained that the deal means nominating Dambrines. At #38, D2 said he would transfer 10% to PW1, and D2 explained that he wanted to appreciate PW1.

(10)  At #87 of P19, D2 told PW1 to give her 10% of the sale proceeds. D2 explained that “sale” did not mean sale, and it meant if D2 has any money left over from Dambrines, D2 would give 10% of the left over money to PW1. Although he used the word “sell”, it was not a sale. He could not explain why he used the word “sell”.

44. In her video-recorded interview (Exhibits P22, P22a & P22b), D3 stated inter alia the followings: -

(1)  D3 Joined CPA in March 2015 as Flight Attendant. She knew of the company’s companion travel scheme and the restrictions in it, including the companionship cannot be sold to others.

(2)  She knew PW1 as primary schoolmate’s elder sister. She knew Le Do as a designer through PW1.

(3)  D3 nominated Ernst Mariah Adams from the beginning of 2019, and Mariah’s brother’s girlfriend was Mimi. She knew Mariah through Mimi. She had not seen Mariah, but only communicated on Whatsapp.

(4)  Mimi provided Mariah’s contact to D3 and Mariah’s passport details. She changed phone a few months ago, so she did not have Mariah's number anymore. She does not find it necessary.

(5)  Mariah did not book an air ticket anymore. She knew it because CPA asked D3 to change password regularly and Mariah did not ask her to book a ticket for her.

(6)  Mariah used to know D3’s login name and password, but she did not ask for a new password. Mariah did use the companionship to buy tickets before.

(7)  Showing Exhibit P20 (Whatsapp record between PW1 and D3)  to D3, regarding the discussion on selling companion spot, D3 claimed to have forgotten what she had said, but she said she did not sell the companionship to Mariah.

(8)  When asked about the HKD27,300 transferred to D3’s account from PW1, D3 claimed that the money received was for Mariah’s ticket fare. D3 thought it was discussing nominating a male, but she did not know who that was, so she did not sell it out to the unknown male. She eventually nominated Mariah because she knew Mimi. The money kept by D3 was for the flight tickets. Mimi would periodically send her money for ticket fare.”

The defence case

54.  At the close of the prosecution case, counsels for D2 and D3 made no half-time submission. I ruled that there was a case to answer for D2 and D3 in respect of Charge 3 and Charge 4.

55.  D2 elected to give evidence but D3 elected not to give evidence. Neither of the two defendants called any witness to testify for them.

D2’s testimony

56.  In its closing submission, the prosecution again gave a detailed summary of D2’s testimony in the trial to which the defence did not object during the reply. I shall largely adopt the summary in the following paragraphs.

57.  D2 first met PW1 in 2018 at a racecourse event. Later around Christmas in December 2018, they met in London again when he had his flight duty to London. PW1 was also in London at the time, so they arranged to meet up at a wine bar in Covent Garden. They had a meal together and they discussed work matters. During the meal, D2 said PW1 also told him ways to make money, including helping others to buy parallel import goods, and making money from buying and selling inflight duty-free commodities to passengers. PW1 told him that there would be a discount if there is a large purchase of inflight duty-free commodities. PW1 suggested that if a cabin crew knows of a particular item that many passengers are interested to buy, then that cabin crew could buy a larger quantity of that item in advance to enjoy the discount and when the passengers make purchase of that item, the cabin crew may give no or little discount to the passenger so to earn the difference in price.

58.  D2 said PW1 also asked him if he knew about the Scheme but nothing about selling the companion nomination was discussed between them. D2 said he did not receive USD $5,000 for selling his companion nomination, and he did not agree or conspire with PW1 to do so.

59.  Regarding his WhatsApp conversation with PW1 (Exhibit P19A), D2 made the following explanation: -

(1)  PW1 told him at #5 in P19A that she did not want to get involved between “you two”. D2 explained that the matter herein referred to how to have transactions for inflight duty-free commodities; “He is willing to do what you want” refers to Le Do.

(2)  At #15 in P19A, D2 said there are two point here: the majority is concerning duty free commodities. The second point is that Le Do is a Vietnamese fashion designer, so that the second point talks about whether or not D2 could become Le Do’s fashion model. D2 claimed that he had an ambition whilst in CPA, as he volunteered to be CPA’s model team.

(3)  At #17-#18 in P19A, the money transfers mentioned there referred to the inflight duty-free commodities transactions. D2 further explained that Le Do was aware of the existence of such a transaction, so Le Do told him that she would buy different cosmetic and skin care products on the plane, so D2 makes purchases for Le Do.

(4)  At #28 in P19A, D2 was discussing with PW1 about D2 meeting Le Do to see if he could become Le Do’s fashion model. The “friend” mentioned in the message referred to “Marc” (i.e. Dambrines).

(5)  At #37-#38 in P19A, PW1 congratulated D2 because D2 had reached an agreement with Le Do to become her fashion model. As to the second part of the message in #38 in P19A, the reference of “10%” referred to paying PW1 10% of the money earned in the transactions in inflight duty-free goods so to thank PW1 for introducing Le Do to D2.

(6)  At #47-#55 in P1, D2 said that he had no idea why PW1 was so nervous, as he had not passed probation and could not nominate anyone. He wanted to nominate Dambrines all along. D2 further explained that his probation was extended due to his mistake at work, but he did not want to tell PW1 about it so he only said 27/01 being the date of the end of the probation.

(7)  At #86-#87 in P19A, D2 thanked PW1 for introducing Le DO to him, and D2 said he had found another “villager” for Le Do. D2 explained that “Villager” meant a male CPA employee like him being interested in male. As to the second message, D2 again wanted to express gratitude to PW1 so he talked about giving 10% of the duty-free commodities sales profits to PW1.

(8)  At #114-123 in P19A, D2 complained to PW1 about Dambrines using his companionship to buy concessionary tickets but without paying D2 back the ticket fares in time. D2 said the relationship with Dambrines at that time was complicated.

(9)  At #126-#140 in P19A, D2 said that Dambrines had paid for the previous flight tickets but other times he had not paid. D2 said that it was Le Do who paid for Dambrines, as D2 sometimes could not reach Dambrines, but Le Do and Dambrines were business partners so D2 trusted Le Do.

60.  D2 further disclosed that in fact he knew and had met Dambrines despite he concealed their relationship in his cautioned interview with the ICAC. D2 considered Dambrines to be his boyfriend, and he still kept Dambrines in contact after this incident. Dambrines is French and he was based in Hong Kong in 2018-2019 but now he lived in Canada and France.

61.  D2 produced certain Whatsapp messages between 4/6/2020 and 1/2/2023 that he had with the user “Marc”, which D2 said was Dambrines (Exhibit D1). D2 referred to the messages in D1 to show that he had friendly chats with him and even met with Dambrines in a hotel café for breakfast while he visited Hong Kong.

62.  D2 also explained his answers given in the cautioned interview with ICAC (Exhibit P21B): -

(1)  At #275-#282, D2 said he did not know why PW1 asked him before as to whether anyone wanted his flight ticket (i.e. companionship).

(2)  At #292, #307-#308, the reference of “$20,000” meant to be the amount to be deducted from when a flight was taken by Dambrines. This amount worked like the stored up value in an Octopus card. D2 said he knew of Dambrines before PW1 told him.

(3)  At #318-#326, D2 meant that he could “free out” his companionship and would not receive money for the nomination.

(4)  At #381-#382, D2 said he in fact had met Dambrines before the interview, and it was not the truth when he said otherwise in the interview.

(5)  At #489 and #516, D2 said that Le Do had given him cash in USD at a coffee shop in Hong Kong. That money was given to pay for the air ticket fare on behalf of Dambrines as a top-up deposit.

(6)  At #578, #610 and #655, D2 said that he had helped Dambrines to do a lot of things, so if there was any residual money left, he would consider the money to be a token of appreciation.

(7)  At #859, D2 confirmed that he had changed his phone.

Submissions from both sides

(I)  The Prosecution submission

63.  The prosecution submits that PW1 is an honest and truthful witness. The evidence she gave in court tallied with the instant WhatsApp conversation records she had with Le Do, D2 and D3. She also frankly admitted of certain instances in her statements given during the cautioned interview where she had not been entirely truthful.

64.  On the other hand, it is submitted by the prosecution that D2 is not a credible witness whose evidence given in court should not be relied upon. In particular, D2’s version in court of how he encountered Dambrines and how they gradually developed into an intimate relationship is not credible and unbelievable. In relation to D2’s claim of deals on inflight duty free goods, the prosecution submits that the business operation suggested by D2 is just an excuse to seek to explain his assertions in the conversation with PW1. The business operation explained by D3 in his testimony is just so risky and involves too much of a guessing work on what airline passengers would like to purchase in advance and is hence simply unreasonable and implausible to put into practice.

65.  In relation to D2’s another assertion in court that he had become Le Do’s fashion model, the prosecution again submits that it is so unbelievable. According to D2 under cross-examination, since 2018, he had only a handful of photos being taken with Le Do’s fashion clothings and no video was ever taken. No such photos are produced by D2 in the trial. It is also remarkable that there was nothing mentioned in his WhatsApp conversation with PW1 about his modelling work with Le Do. The prosecution submits that this is yet another excuse which D2 sought to explain away the conversation he had with PW1. D2 was trying to explain the reason why PW1 congratulated him on the deal was not referring to his nominating Dambrines as his travel companion but rather for becoming Le Do’s fashion model.

66.  As for D3’s involvement, the prosecution submits that the exculpatory version in her cautioned interview is untrue or unbelievable. Firstly, it is clear from P20A that it was D3 who initiated the discussion over the selling of travel companion nomination. After learning from PW1 that Le Do was offering to buy the nomination for USD $3,500, D3 indicated her interest immediately and even went out to have a face-to-face dinner meeting with PW1 and Le Do the next day to further discuss the matter.

67.  Secondly, despite her reservation of disclosing the password of her IntraCX account, in P20A, D3 finally agreed to proceed with the sale knowing full well that PW1 had already obtained the money from Le Do and the nominee would be Ernst, the sister of Le Do’s boyfriend.

68.  Thirdly, what D3 said in her cautioned interview was that she admitted to have nominated Ernst but she did not receive any money for the nomination and the HKD $27,300 received was only for the ticket fare deduction. The prosecution questioned why D3 would nominate Ernst whom she did not even know or has not met before. Also, according to the booking records, by the time when D3 was arrested in September 2019, Ernst has only used a total of HKD $9,681 to buy 6 concessionary flight tickets in D3’s IntraCX account and it was unreasonable for Ernst to pay as much as HKD $27,300 to D3 in one go well in advance. D3 said in the interview that she had to change and did change her password as per the instruction of CPA but Ernst never asked her for the new password ever since she had changed her password. It begs the question that if the money was really paid to D2 for deducting ticket fares as explained by D3, why Ernst did not ask D3 for the new password to book flights or ask for a refund of the unused deposit when she can no longer have access to the IntraCX booking system?

(II)  D2’s submission

69.  It was D2’s testimony that in relation to Charge 3, there was no financial relationship (USD $5,000)  and he did not engage in a conspiracy with PW1 to sell his nomination to a third party without the authority of his principal and as Dambrines was his boyfriend, he was therefore entitled under the Scheme to nominate him as his travel companion.

70.  It is submitted that D3 had concealed the fact that he knew Dambrines in the cautioned interview because they were in fact in a romantic relationship together. Embarrassed about this non-traditional sexual preferences, D2 did not want to disclose such information to ICAC at the time of the interview.

71.  Counsel for D2 relies on Exhibit D1 produced by D2 in court which are screen shots of WhatsApp conversations between D2 and Dambrines and it went to support the fact that they repeatedly met up in a hotel, a bar and had breakfast in a hotel restaurant.

72.  There is nothing from the prosecution case to challenge D2’s case as to his relationship with Dambrines. It is submitted that even their relationship was only one of friendship, the nomination still would not be a breach of the Code of CPA and D2 was simply exercising his right under the Scheme. It is submitted that the prosecution is unable to prove beyond a reasonable doubt that they were not partners or friends before the nomination.

73.  With regards to the sum received by D2, it is submitted that these were not proceeds from the sale of nomination. This sum was for the ticket fares issued by Dambrines and for other things such as purchase of duty-free and overseas goods for Dambrines.

74.  Concerning the credibility of PW1, it is submitted that she has a vested interest in assisting the prosecution by going along with whatever allegation they may bring as ultimately she may be viewed favourably at her sentencing.

75.  Furthermore, under cross-examination, PW1 admitted to lying in her first and second video-recorded interview.

76.  All in all, it is submitted that D2 neither had the mens rea of conspiracy to accept an advantage, nor the actus reus, as D2 did not receive any advantage for the sale of the nomination.

(III)  D3’s submission

77.  Counsel for D3 submits that the prosecution case relies heavily on PW1’s testimony and yet under cross-examination, PW1 agreed that she had lied to, feigned on or concealed from D2 and D3 or ICAC on various issues so much so that she is a persistent liar insofar she can benefit from the lie. It is said that she apparently testified against D2 and D3 with a view to gain sentencing discount for herself.

78.  As Le Do is not in this trial, it is also emphasized that there is no direct evidence as to what arrangement, if any, has been made between D3 and Le Do.

79.  When it was first discussed between PW1 and D3 about the selling of her nomination on 3 January 2019, PW1 first told D3 that they would sell to Mimi’s boyfriend, Brian Adams.

80.  In D3’s cautioned interview, she stated that she has nominated Madam Mariah Adams ERNST as her travel companion for 2019. D3 has not met Ernst and believed she was the younger sister of Brian Adams. PW1 has been cross-examined as to the possibility of Ernst not being the younger sister of Brian Adams but PW1 disagreed despite she has neither met this sister nor know her name at the time of the offence.

81.  Counsel for D3 also relied on P20A where, on 8 January 2019, D3 told D1 on WhatsApp that “I found her another pass.”

82.  PW1 suggested that this message meant D3 and her other friend would both sell their nominations to Le Do’s acquaintance. It is submitted however that there exists a possibility that Le Do has made separate agreement with this friend about selling of nomination and D3’s purported agreement with PW1 and Le Do has fallen through.

83.  It is further suggested that it is also possible that the HKD $27,300 was to reimburse the flights booked by Ernst as mentioned by D3 in her cautioned interview. It is said that Ernst was a frequent flyer who only flew business class. According to the booking record, Exhibit P14, in the first 3 months of her booking, Ernst has already booked 6 sets of business class tickets amounting to HKD $8,230 so it was likely that her booking in the whole year would be even more than HKD $27,300.

A  Consideration of the submissions

Issue of the charges

84.  The issue in both Charge 3 and Charge 4 is whether D2 and D3 conspired with PW1 and/or LE Do to sell his/her travelling companion nomination to a third party, i.e. Dambrines/Ernst, for the sum of USD $5,000/USD $3,500. This is against the Code of Conduct and Anti-Bribery Policy of CPA and is clearly prohibited.

85.  The prosecution must prove beyond a reasonable doubt the following elements: -

(1)  the offer, solicitation or acceptance;

(2)  this was done without lawful authority or reasonable excuse;

(3)  of an advantage;

(4)  by or to an agent;

(5)  as an inducement to, reward for, or otherwise on account of;

(6)  the doing of an act by the agent in relation to his principal’s affairs or business.

Directions

86.  I reminded myself that the prosecution is required to prove each and every ingredient of each offence against each defendant beyond reasonable doubt. The defendants have nothing to prove. No adverse inference could be drawn against D3 for electing to remain silent.

87.  The clear records of both defendants are relevant to the issues of propensity and credibility as regards what they said when interviewed and what D2 said in court.

88.  I reminded myself that I have to separately consider the evidence for and against each defendant and in respect of each charge.

89.  I also reminded myself that if I reject the exculpatory statements made by defendants when interviewed or what D2 said in evidence it does not mean the defendant is guilty of any of the offence. I must consider the evidence I do accept and decide if that establishes the guilt of either defendant to the required standard on any of the charges.

90.  I reminded myself that, where the prosecution relies on circumstantial evidence, I can only draw an adverse inference from facts proved beyond reasonable doubt and such an inference must be the only inference that can be reasonable drawn from such facts and it must be an irresistible inference

The Law

91.  The statutory provisions on “conspiracy for an agent to accept advantage” are provided under sections 9(1)(a)  and 12(1)  of the Prevention of Bribery Ordinance (“POBO”), Cap 201 and sections 159A and 159C of the Crimes Ordinance, Cap 200.

92.  Sections 9(1)(a)  of POBO, Cap 201 stipulates that: -

“9. Corrupt transactions with agents

(1)  Any agent who, without lawful authority or reasonable excuse, solicits or accepts any advantage as an inducement to or reward for or otherwise on account of his—

(a)  doing or forbearing to do, or having done or forborne to do, any act in relation to his principal’s affairs or business; or

(b)  showing or forbearing to show, or having shown or forborne to show, favour or disfavour to any person in relation to his principal’s affairs or business,

shall be guilty of an offence.”

93.  Section 2 of the POBO, Cap 201 provides the definition of “advantage” and “agent” as follows: -

“advantage (利益)  means—

(a)  any gift, loan, fee, reward or commission consisting of money or of any valuable security or of other property or interest in property of any description;

(b)  any office, employment or contract;

(c)  any payment, release, discharge or liquidation of any loan, obligation or other liability, whether in whole or in part;

(d)  any other service, or favour (other than entertainment), including protection from any penalty or disability incurred or apprehended or from any action or proceedings of a disciplinary, civil or criminal nature, whether or not already instituted;

(e)  the exercise or forbearance from the exercise of any right or any power or duty; and

(f)  any offer, undertaking or promise, whether conditional or unconditional, of any advantage within the meaning of any of the preceding paragraphs (a), (b), (c), (d)  and (e),

but does not include an election donation within the meaning of the Elections (Corrupt and Illegal Conduct)  Ordinance (Cap. 554), particulars of which are included in an election return in accordance with that Ordinance;

agent (代理人)  includes a public servant and any person employed by or acting for another.”

94.  The elements of an offence under sub-section 9(1)  or (2)  of the POBO, Cap 201 are as follows (see Archbold Hong Kong 2023 at para 35-67: -

(a)  that there exists a principal / agent relationship;

(b)  that there be a solicitation or acceptance by an agent or an offer to him that comes within the definition of those terms in sections 2(2)(a)  - (c)  of the POBO;

(c)  of an advantage within the definition of that word in section 2(1)  of the POBO;

(d)  that the solicitation, acceptance or offer of the advantage be as an inducement to, reward for or otherwise on account of;

(e)  that agent conducting himself in relation to his principal’s affairs or business, by either:

(i)    doing or forbearing to do an act in relation to his principal’s affairs or business; or

(ii)   showing or forbearing to show favour or disfavour to any person in relation to his principal’s affairs or business.

95.  In Chan Chi Wan Stephen v Secretary for Justice [2017] 20 HKCFAR 98, the Court of Appeal summarised the position of section 9 of the POBO, Cap 201 as follows: -

“66. There are variants of section 9 offences differing according to whether they are committed by the agent soliciting or accepting the advantage or by the person offering the same; and whether the act or forbearance is contemplated or already performed.

67. The mens rea requirements of knowledge, belief and intention adhere in their appropriately adapted forms to the essential actus reus ingredients of each of these variants, applied independently to each person allegedly involved in the transaction.

68. The reference in section 9 to the agent’s act or forbearance being “in relation to his principal’s affairs or business” is properly construed to mean that the agent’s act or forbearance must be aimed at and intended to influence or affect the principal’s affairs or business in a manner that undermines the integrity of the agency relationship by injuring the bond of trust and loyalty between principal and agent.

69. In offering cases, the prosecution must prove that the offeror intended that the advantage would be accepted as an inducement or reward for or otherwise on account of the agent’s act or forbearance which is aimed at and intended to influence or affect the principal’s affairs or business.

70. In soliciting or accepting cases, the prosecution must prove that the accused agent knew or believed that the advantage was provided as an inducement or reward or otherwise on account of his actual or contemplated act or forbearance as conduct aimed at or intended to influence or affect the principal’s affairs or business.”

96.  The mens rea requirement of the offence highlights that “it is the acceptance by the agent of the advantage offered, knowing that the advantage offered to him has the prohibited character or believing that it has such a character, that attracts criminal liability.” (see Archbold Hong Kong 2023, para 35-67A)

97.  The Crimes Ordinance, Cap 200, Part X11A, replaced common law conspiracy with a statutory offence. The statutory offence of conspiracy is provided under s 159A: -

“159A. -

(1)  Subject to the following provisions of this Part, if a person agrees with any other person or persons that a course of conduct shall be pursued which, if the agreement is carried out in accordance with their intentions, either—

(a)  will necessarily amount to or involve the commission of any offence or offences by one or more of the parties to the agreement; or

(b)  would do so but for the existence of facts which render the commission of the offence or any of the offences impossible,

he is guilty of conspiracy to commit the offence or the offences in question.”

98.  The actus reus of conspiracy is the physical acts of the conspirators by words, gestures or conduct that signify a concluded agreement between two or more of them for the commission of crime or crimes. Once the agreement is formed, the crime is complete. (see Archbold Hong Kong 2023, para 36-4)

99.  Mens Rea is an essential element in a conspiracy only in that there must be an intention to be a party to an agreement to do an unlawful act. (see Archbold Hong Kong 2023, para 36-12)

Analysis of the evidence

100.  In this case, there is no dispute that there exists an agent and principal relationship between the two defendants and CPA. There is also no dispute that the sale of travelling companion nomination under the Scheme by an employee of CPA is a clear violation of the Code of Conduct and also the Anti-Bribery Policy of CPA, and it may cause monetary losses to CPA and damage to CPA’s reputation, brand image and integrity. It is also not in dispute that D2 and D3, as employees of CPA, were aware of those restrictions over the selling of travel companion nomination and there was no lawful authority or reasonable excuse for them to accept the stipulated sum in the charge from a third party buyer. As said, it is the acceptance by the accused agent of the advantage offered, knowing that the advantage offered to him/her has the prohibited character or believing that it has such a character, that attracts criminal liability. Under such circumstances, once the payment and acceptance of the advantage is proved, it would not be difficult to infer that D2 and D3 both knew or believed that the advantage was provided as an inducement or reward or otherwise on account of his/her actual or contemplated act or forbearance as conduct aimed at or intended to influence or affect the principal’s affairs or business.

101.  As rightly submitted by the prosecution, the only issue in dispute is whether D2 or D3 did in fact agree and conspire with PW1 and Le Do to accept an advantage with a prohibited character, namely, for the purpose of nominating another person as a travelling companion under the Scheme of the CPA.

Charge 3

102.  In this charge, the prosecution relies on the testimony of PW1, the WhatsApp messages between PW1 and D2 (P19A)  and the WhatsApp messages between PW1 and Le Do (P26A)  as well as the Admitted Facts(P1). In my judgment, the case against D2 is simple and straightforward. An in-depth study of the content of the messages as recorded in P19A and P26A would instantly reveal the overall picture of the discussions and negotiations between the co-conspirators named in this charge over the selling of D2’s nomination to Dambrines for the sum of approximately USD $5,000.

103.  At the beginning of this trial, the prosecution has already clarified that they do not rely on the co-conspirator’s rule in adducing the WhatsApp conversation PW1 had with Le Do (P26A), as the prosecution is not relying on those messages to prove the truth of the content asserted, particularly the responses made by Le Do in the absence of D2 and D3. As such the rule against hearsay is not engaged.

104.  In its closing submission, the prosecution made it clear that they are adducing P26A through the evidential route enunciated in Ahern v The Queen [1988] 165 CLR 87 as approved in Oei Hengky Wiryo v HKSAR (No 2) [2007] 10 HKCFAR 98, which permits the admission of “acts or declarations of one alleged conspirator made outside the presence of the others provided such evidence is not led to prove against the others the truth of any assertion or implied assertion made by the actor or the maker of the statement”. As such, P26A is relent and circumstantial evidence to prove there was a conspiracy between the alleged parties. In fact, inferences may properly be drawn from those messages both to prove facts in issue or to provide a factual foundation for inferring facts in issue. Viewed properly, this use is not a hearsay use of statements and is separate from the co-conspirator’s rule. (see Archbold Hong Kong 2023, para. 36-10)

105.  The credibility of PW1 has been subjected to severe attacks by counsels for both defendants. The fact that it has been suggested by both defence counsels that PW1 hopes to secure a discount on sentence by giving false evidence against both of the defendants in this case does not mean that she is not telling the truth. The fact that PW1 has confessed during cross-examination that she has not been entirely truthful in her answers and responses when she was interviewed by the ICAC investigator is in my view only natural and normal. It is for the court to decide whether she is telling the truth or not as a prosecution witness after being convicted and that is a matter of which the court must take particular care. In this trial, obviously I shall assess PW1’s evidence very cautiously against the conversation records she had with D2 and D3 on one hand and with Le Do on the other hand to see if the contents of the conversations and her testimony are indeed coherent and consistent. I shall also take into account all the evidence before me and I shall endeavor to use logic and common sense and deciding whether, despite her position as a co-conspirator in both charges, PW1 is telling the truth or not.

106.  PW1 testified about meeting D2 in London around Christmas 2018 and during their conversation, she brought up the subject of selling travel companion nomination to D2 to which D2 has expressed his interest. Pursuant to their conversations, at the same night when PW1 returned to the hotel, she informed Le Do on WhatsApp about D2’s interest in selling the nomination. Le Do’s response was very positive and made an offer to D2 through PW1 immediately. Her evidence on this part is wholly consistent with her WhatsApp conversation record with Le Do on 17/12/2018 during which the selling price of USD $5,000 was also mentioned. (see #875-#880 at P26A): -

#875 PW1: ‘Hi Mimi. I’ve just met a colleague who may be available to sell his companionship for a year. He requests the price same or little less than mine. See if your friend still interested in it.’

#876 Le Do: ‘Babe we can sell it for more than 9k he can have 5 and you and I can have 2 each. What do you think’

#877 PW1: ‘Haha I may have breakfast with him later. Let me see if he’s ok with 14k or not I know he will be happy with 15k during our talk.’

#878 Le Do: ‘No I am talking about usd baby.’

#879 PW1: ‘How should I tell him? 9k for him is hkd?’

#880 Le Do: ‘Just tell him you can sell 9k usd he can have 5k usd and 4k you keep. It’s win win for all of us.

107.  One can see that the foundation of the agreement to sell D2’s nomination had already been laid. The terms and details of the agreement obviously had to be further discussed and worked out and further solid discussions between PW1 and D2 was held on 19/12/2018 via WhatsApp. (see #4-#30 at P19A): -

#4 PW1: ‘Hi Freddy’

#5 PW1: ‘I think it’s better to talk in phone or face to face about the whole situation. He’s willing to do what you want. But the point is I don't want to get involved in between you two.’

#10 D2: ‘No problem ah! Thousand of thanks! I am ready ga la’

#11 PW1: ‘Since I don’t want to get involved, anytime if you are ready, could you contact my friend, Mimi. She is Vietnamese, the designer of MO hotel’

#12 PW1: Attachments:

Mimi Ledo

Phone +84 126 536 0056

#13PW1: ‘She’s friendly and easygoing’

#14 D2: ‘Sure’

#15 D2: ‘But before I just wanna know more detail about the transaction of it.’

#16 D2: ‘I think I need to call you in advance’

#17 PW1: ‘They want to transfer all to my acc first. That’s why I said no and don’t wanna get involved’

#18 PW1: ‘Will transfer to Mimi first and then all by cash to us. Which will be the best way’

#19 D2: ‘This should be the best way or mini transfer to us separately’

#20 PW1: ‘I prefer cash no record’

#21 PW1: ‘You may decide what you like them to do’

#22 D2: ‘Cash should be better. A big amount to me’

#23 PW1: ‘Right. She did give me half and half not all at once’

#24 D2: ‘Then I contact mimi then should do the similar way of yours’

#25 D2: ‘See how much can bargain’

#26 PW1 ‘Sure’

#27 D2: ‘I already have a talk with mimi she is really friendly’.

#28 D2: ‘I will meet her about the deal next week. And I am gonna find what I need from her frd asap like personal information to complete the quota’

#29 PW1: ‘Yes. He is willing to give you (Diamond emoji)  as soon as you have listed.’

#30 PW1: ‘Hope you all have a good chat. I will meet her after you.’”

108.  In furtherance of the proposed agreement, one can see from P19A that PW1 had sent the contact details of Le Do to D2 at #12 after D2 intimated at #10 that he was “ready” (for the deal)  and it is clear at #13 and #27 that D2 had really took the opportunity and contacted Le Do to discuss the details of the selling of his nomination. There was also the planned meeting between Le Do and D2 on the following week about the “deal” mentioned at #28. From what D2 had told PW1 in this conversation, one can readily infer that he had already reached an agreement between Le Do to sell his nomination so much so that D2 said he was going to obtain whatever personal information from the buyer (friend of Le Do)  in order “to complete the (nomination)  quota” (see #28). In reply, PW1 also reassured D2 that once the buyer was listed (i.e. nominated), he is willing to give him “diamond”. According to PW1’s testimony in court, what she meant here by a diamond emoji was “cash” or “money”.

109.  I have carefully considered the evidence of PW1 and have the advantage of seeing and hearing her giving evidence in court. She strikes me as an honest and credible witness whose evidence is straight forward and is wholly consistent with the independent and contemporaneous WhatsApp messages at P19A and P26A. To me, PW1 was just getting the guilt off her chest and following her consciences when she testified against her former colleagues and while it may be true that she turned prosecution’s evidence for a reduced sentence, she had not exaggerated or falsely implicated the defendants.

110.  D2, on the other hand, is so incredible and is just making up his evidence as he went along. Apart from reiterating that he did not receive any advantage for the nomination of his travel companion and he already knew the nominated person personally and even have romantic relationship with him, D2 did not and could not explain the above damning messages between PW1 during his testimony. The reply by D2 in #22 in P19A: “Cash should be better. A big amount to me” and the following discussions between D2 and PW1 about how the cash should be transferred to them separately (see #19 in P19A)  instead of transferring the whole sum to PW1 as well as PW1’s assertion to D2 that the money will be first transferred to Le Do and then all by cash to them (see #18 in P19A)  all clearly reflect or indicate the discussion or even the existence of a conspiratorial agreement of buying and selling of the travel companion nomination involving D2, PW1, Le Do and the buyer. Since it is admitted in P1 that Dambrines was later registered as the nominated companion by D2 on 3/1/2019 (see para. 23 of P1), an irresistible inference can be drawn that the buyer must be Dambrines although his name was never mentioned in their conversation records.

111.  In the following two days on 21/12/2018, It can be seen that Le Do spoke to PW1 again via WhatsApp (see #67-#70 at P26A)  about the deal or transaction again.

#67 Spoke to Fred (D2)

#68 I’ll take care of everything

#69 I pick up cash and give to him

#70 He doesn’t want to meet my friend either

112.  Apart from the truth of the content of these conversation records, the above entries of discussion between PW1 and Le Do is a clear reflection or indication of the fact that Le Do had actively engaged in the making of the deal and the fact that she mentioned the progress of the deal to PW1 also goes to support PW1’s testimony that Le Do was planning to split the remaining USD $4,000 with PW1 in the event that the deal was completed and D2 had successfully made the nomination.

113.  In my judgment, the most telling piece of prosecution evidence against D2 is the WhatsApp messages on 3/1/2019 (#37-#39 at P19A)  between PW1 and D2: -

#37 PW1: ‘Freddy. Congratulations to the deal. I still haven’t met Mimi yet but she shared her happiness to me.”

#38 D2: ‘Yes!!!!! Thanks a lot for that. She still asking for another id. So see I can find someone can trust with lol. Once he can issue ticket I then transfer the 10% to you’

#39 PW1: ‘Good to see everyone is happy’

114.  As said, D2 nominated Dambrines to be his travel companion on 3/1/2019. According to P19A, at 22:17 in the evening of the same day, PW1 congratulated D2 on WhatsApp on the deal. According to P26A, just 24 minutes earlier, at 21:53, PW1 asked to chat with Le Do on the phone to which she agreed. And just a short moments later at 22:08 and 22:09, PW1 expressed to Le Do on the WhatsApp her feelings: “Thank you so much” (see #977 at P26A)  and “This is such good news” (see #978 at P26A). Reading all these WhatsApp messages together, the overall picture is so abundantly clear. Apparently, PW1 learned from Le Do after chatting with her on the phone the news that D2 had finally nominated Dambrines. PW1 then immediately congratulated D2 on the deal by messaging him. D2 responded by expressing thanks to PW1. What is more, he told PW1 that once Dambrines can issue the flight tickets, he would then transfer the 10% to her.

115.  From the above messages, D2’s testimony in court that the 10% that he mentioned was not about the money he received from the nomination but rather was about the profit derived from the sale of duty free goods on the flights which PW1 had taught him cannot be true. At #38 in P19A, D2 told PW1 explicitly that “Once he can issue ticket I then transfer the 10% to you.” Here, the promise by D2 to pay to PW1 the 10% is therefore premised or conditional upon the time when Dambrines can start booking the flights as a nominated travel companion and issue the concessionary flight tickets. The 10% rebate or commission, as it were, to PW1 is clearly a token of thanks from D2 for PW1’s introduction of him to Le Do so that he can receive approximately USD $5,000 (“a big amount to me!” see #22 at P19A), for his nomination of Dambrines for 2019. As to why Dambrines could not issue the flight tickets starting on 3/1/2019 right away, it was only because D2 had not yet completed his probation and Dambrines had to wait until 27/1/2019. (see #47-#49 at P19A).

116.  In court, under cross-examination, D2 was asked about his message to PW1 in #87 at P19A on 3/4/2019: -

“Let me treat you a meal someday, and give you the 10% (what)  I sold.”

117.  D2 maintained in court that in this message, the 10% was also about the profits of selling duty free goods on the flights. Apparently, this explanation was strained and this 10% of what he sold (in #87 at P19A)  was also consistent with his earlier promise to PW1 that he promised to transfer to PW1 on 3/1/2019 upon issuing of the flight tickets (in #38 at P19A). The percentage of payment mentioned by D2 in two occasions is the same and obviously D2 was just repeating his earlier promise to PW1 here. According to PW1, despite of what D2 had repeatedly promised, she has never received any money from D2 at all. According to what D2 had told PW1 in his message, however, he had already received the money for the nomination. In his message to PW1 on 19/6/2019, D2 already confirmed that Le Do has already settled the outstanding amount for his nomination. “Mimi gave me the money for the pass.” (see #132 at P19A)

118.  In the subsequent months following the nominations, D2 complained to PW1 about the late settlement of ticket fares by Dambrines and that the monies he received as deposit or top-up value was insufficient to cover the issuing of the flight tickets. If Dambrines was really D2’s boyfriend as he asserted in his testimony, there was no good reason why D2 could not turn to his boyfriend directly for solution of the problem or settlement of the outstanding amount but instead went back to ask PW1 about what happened. There was simply no need for D2 to share his problem with PW1 if she had nothing to do with his nomination. The prosecution is right to query why D2 needed to obtain passport information from Le Do according to the messages. D2’s explanation in court that he thought it was not courteous for him to ask Dambrines directly for his personal information was strange and unreasonable. It goes to show that the relationship between Dambrines and D2 was not that intimate and close as he said in court after all.

119.  As to Exhibit D1 produced by D2, it only shows that they might be friends to each other but given the messages between D2 and PW1 in P19A and PW1 and Le Do in P26A as referred, the nomination of Dambrines by D2 on 3/1/2019 could only happened as a result of the introduction by PW1 and the direct negotiation between D2 and Le Do. The date of the nomination of Dambrines by D2 was the same date when PW1 congratulated D2 on the deal. This is an very odd coincidence. The only and reasonable inference must be the nomination was as a result of the deal reached by selling of the 2019 nomination quota by D2 to Dambrines. As rightly submitted by the prosecution, Exhibit D1 only shows their conversations on WhatsApp in mid-2020 onwards and thus had no bearing on the relationship status between D2 and Dambrines at the time of the nomination. Furthermore, I also agree that the content of the messages only show that they were acquainted with each other. I would not rule out the possibility that they might become friends after the deal but I cannot see any intimate expressions used in those WhatsApp messages to indicate or reflect any romantic relationship between the two, past or present. In any event, what D2 was trying to say in court was that although he had already seen Dambrines in Lan Kwai Fong as early as October/November 2018 by chance, he admitted that he still did not know him yet. When asked by the prosecution as to when he really started the relationship with Dambrines or when did he first exchange phone numbers with each other, D2 was unable to give details to these matters. In my judgment, the assertion by D2 that he and Dambrines were lovers and he just nominated him out of affection without any monetary consideration is only a self-serving statement which was totally inconsistent with his WhatsApp messages in P19A as mentioned. No doubt it was just an attempt by the defence to capitalize the fact that there were or might be some social contacts between the two men after the deal and what is more, Dambrines was not present in his trial but it was all red-herrings.

120.  As to D2’s version of making money out of selling inflight duty free goods, PW1 had categorically denied under cross-examination that she had ever mentioned to D2 this topic or method at all. The prosecution submits that such business model is implausible and the running of this kind of business is too risky. In my mind, if one reads the relevant messages in P19A carefully, the 10% mentioned by D2 to PW1 was clearly about the deal to sell his nomination and in return, D2 promised to pay to PW1 10% of his money received for the nomination. Now by saying the “10%” was about inflight duty-free commodities, D2 had totally forgot what he said to PW1 in #38 in P19A that “Once he can issue ticket I then transfer the 10% to you.” D2 made no attempt to explain in court why he said these words to PW1 if the 10% was about duty free goods sale and had nothing to do with the nomination or the issue of flight tickets.

121.  I totally agree with the prosecution that the business of reselling the duty free goods to passengers was highly risky and impractical. It just involves too much of a speculation on what duty free commodity and the numbers of the commodity that would be wanted by the passengers in a particular flight in advance. It would also be strange, to say the least, for an airline passenger to even contemplate to buy duty free goods from a flight attendant privately and not from the airline company directly without any benefit or discount. Since it is a private sale, the transaction can only be done by cash only. The flight attendant cannot do the transaction with a passenger’s credit card which will be also be so inconvenient nowadays. The flight attendant obviously is not in a position to issue any valid receipt to the passenger as proof of sale. No doubt, this part of D2’s evidence was fabricated. It was only his last ditched attempt to try to explain away the 10% rebate or commission which he had offered to PW1 in consideration of his nomination reward.

122.  The same fabrication applies to D2 when he testified that he became Le Do’s fashion model during 2019. Nowhere in his WhatsApp messages with PW1 has mentioned anything about modelling for Le Do. Nor was the WhatsApp messages between PW1 and Le Do. The whole purpose of this assertion was again in my judgment a desperate attempt by D2 to explain why PW1 congratulated him on the WhatsApp message. As said, one only needs to read the above messages in P19A and P26A in context and one will not fail to realize almost instantly that PW1 was congratulating D2 for no other reason than on his nomination of Dambrines and thus completing the deal. For D2 now to say that PW1 was congratulating him instead on becoming Le Do’s fashion model is odd to say the least and completely out of the context of their discussions during the time as well as totally twisting the meaning of the sentence.

123.  In fact, during the video recorded interview with the ICAC investigators (P21B), D2 made no attempt in hiding his intention to receive money for the nomination. When he was also asked by the ICAC investigator about the 10% he said he would transfer to PW1 if the ticket was issued, he answered in #791 at P21B: -

“What does (that)  mean, that is, if there’s money to be pocketed, then ten percent, like this. That is, I hoped, hoped, would hope, could give, that is, give her back ten per cent, or to thank her, like this.”

And in the following answer in #795 at P21B, D2 further admitted: -

“(i)  hoped so, that is, whether or not there was (any money to be pocketed), it did not matter. (I)  hoped that there was.”

Obviously, from the above answers, the 10% has nothing to do with the sale of duty free goods at all and D2 even admitted that “the reason that (I)  could pocket (the money)  was that (I)  was able to help him.” (see #801 at P21B)  and when the ICAC investigator asked D2 who was him and how did he help, D2 freely admitted in #805 at P21B : “Helped Marc. Brought him convenience in getting flight tickets issued. That is, helped him, helped him to fly” We can see that under caution, it is clear that D2 has already admitted his expectation of pocketing money out of the nomination of Dambrines.

124.  At #806 of P21B, the ICAC investigator also asked D2 what did he meant when he wrote the message “Let me treat you a meal someday, and give you the 10% (what)  I sold.” to PW1 at #87 at P19A. D2 replied at #809 of P21B clearly that “I hoped to thank her, like that, thank her for introducing someone to me.” But when D2 was further asked to explain what he meant by “pay you back ten percent of (the amount)  I sold ”, D2 answered in #815 at P21B: -

“By sold, I meant that I gave her the flight ticket fare. No, I gave her the flight ticket quota, yes. Then if there’s any money to be pocketed, (I would)  give her ten percent.”

125.  But in the answers followed, D2 try to retract his admissions by emphasizing that although he used the word “sold” but he was actually not selling (at #819 at P21B)  and when he was asked why did he use the word sold by the ICAC investigator, D2 was apparently at a loss and was unable to give a credible explanation. All he could say is: -

“You ask me; I don’t know how to explain (it)  to you.”

126.  Based on the above analysis, the prosecution evidence against D2 in Charge 3 is overwhelming. The WhatsApp messages in P19A sent by D2 to PW1 clearly points to the existence of the conspiratorial agreement with Le Do and PW1 to sell his nomination to Dambrines. The WhatsApp messages between PW1 and Le Do provide further background information on the purpose, nature and circumstances of their discussions for the court to infer the unlawful agreement among all these co-conspirators to sell the nomination. As already admitted by the defence, the sale of the nomination of travel companion under the Scheme is clearly of prohibited character contrary to the CPA Codes of Conduct and Anti-bribe policy. The defence and explanation proffered by D2 in this trial are total fabrications and are hereby rejected without any hesitation.

Charge 4

127.  In this charge, the prosecution relies on the testimony of PW1, the WhatsApp conversation between PW1 and D3 (P20A)  and the WhatsApp conversation between PW1 and Le Do (P26A)  as well as the Admitted Facts. Similarly, an in-depth study of the content of the conversations as recorded in P20A and P26A would instantly reveal an overall picture of the discussions and negotiations between the co-conspirators named in this charge over the selling of D3’s nomination to Ernst for the sum of approximately USD $3,500.

128.  As early as 8/2/2018, Le Do already asked PW1 if she could find a companion pass (i.e. nomination)  for a friend of Le Do, and if so they and the person selling the companion pass could each get USD $3,500. According to PW1, she did not ask others but she just politely replied that she had asked but without any fruitful response.

“(#448 at P26A)  Le Do: ‘A good friend of mine (not my bf)  is willing to compensate you 3500, whoever you find for her the compagnion pass 3500 and me 3500 Let me know darling. This is extra cash... for your shopping and travels’”

129.  On 3/1/2019, Le Do was in Hong Kong PW1 was in Macau and in the afternoon during their WhatApp conversations, PW1 had arranged to meet her up in Sheung Wan on the next day. In the same afternoon, D3 contacted PW1 and sent the following message to her:

“(#60-61 at P20A)  D3: ‘Kelly Do U wanna sell ur companion apot?’”

130.  PW1 replied and asked for the offer. D3 replied HKD $15,000 and PW1 indicated that her friends offered a higher price USD $3,500 but she was not sure whether to sell (see #74 at P20A). PW1 then told D3 that there were three people offering to buy and D3 asked if they were trustworthy (see #84 at P20A). PW1 then mentioned that there was a girl who always wanted to buy and D3 indicated that she was interested in selling her companion nomination: -

“(#90 at P20A)  D3: ‘I am interested ah. 3500 usd is a lot right?’

131.  On learning D3’s intention to sell, PW1 immediately sent a message to Le Do that a crew member was interested to sell her nomination for USD $3,500 and asked who was the buyer. Le Do said that would be her boyfriend and suggested to PW1 that the nomination could be sold for USD $5,000 and PW1 could keep USD $1,500. (see #965-#968 and #972 in P20A)

132.  PW1 then said to D3 that she was going to sell her nomination to Le Do and D3 could sell hers to Le Do’s boyfriend. At #134 in P20A, D3 said: -

“Ok lets do it tgt (together)  then”

133.  Arrangement has been made for a dinner meeting with PW1, Le Do and D3 in Sheung Wan on 4/1/2019, the next evening. At the same time, PW1 informed Le Do that D3 would like to do the nomination adding that she need to settle the credit card bill soon (see #983-#985 in P20A).

134.  It is clear from the above messages that it was D3 who initiated to offer to sell her nomination. PW1 just rode on her offer and went back to Le Do for further details of the terms and the identity of the buyer. After learning of the offer in the sum of USD $3,500, D3 has already expressed interest to complete the deal and not knowing PW1 has already sold her nomination to Le Do at that time, D3 asked PW1 to sell the nomination together with her.

135.  According to PW1’s evidence, during their dinner meeting, they had discussions on how to buy and sell the companion quota, how the tickets to be issued and how to settle payment for the ticket fares, as well as the login password. Le Do wanted to have the password of D3’s IntraCX account but D3 did not want to disclose and give it away at that time. In the end, Le Do gave D3 time to consider the matter on whether to reveal the password or not in selling her travelling companion nomination.

136.  On the following day on 5/1/2019, pursuant to their discussion, PW1 already sent to Le Do the details of her mother’s HSBC bank account for the deposit of USD $3,500 (see #1035 in P26A). In #1036 in P26A, PW1 told Le Do: -

“Once we receive deposit or full amount, I will monitor Melbi do it and give me the password.”

137.  In the evening of 5/1/2019, PW1 was chatting with D3 again on WhatsApp. It could be seen that by that time, D3 already knew the buyer would either be Le Do’s boyfriend of the sister of Le Do’s boyfriend. (see #247 in P20A)  and finally D3 told PW1 that she trusted Le Do and agreed to reveal her password. (see #260 in P20A)

138.  On 7/1/2019, PW1 asked Le Do for updates in deciding who should be the nominee of D3. Le Do then sent out a screen capture of conversation with Le Do’s boyfriend (Francis Brain)  (#1062 in P26A), showing the sister of Francis Brain to be “Mariah”, who would be sending the money the following day. On the same day, D3 asked PW1 again if she could do the booking of flights instead of giving the password to the nominee. After discussing with Le Do, PW1 told D3 that it would not be possible (see #274 in P20A): -

“No it can’t be possible. They always travel and it’s really impossible to ask for booking if there’s any changes or emergencies. Without logging in 24 hours, I think no one would pay that much for a companionship standby at the counter with unknown timing reply. I think we’ve all agreed to the rules during last meeting. No chance to keep it process if can’t log in to the ace to book and check loading by self If you have more questions on it Please contact Mimi directly. For me, she’s using my acc now.”

139.  Between 7/1/2019 and 10/1/2019, according to P20A, PW1 was on flying duty to Johannesburg while D3 was still pondering whether to give away the password. On 8/1/2019, D3 received a call from Le Do and she learned that the money for selling the nomination had been transferred to PW1 in the meantime (see #284 in P20A). PW1 told D3 to take time to consider the matter as she could not force her. On 9/1/2019, Le Do told PW1 that as she did not hear any reply from D3, she wanted to return the money to her boyfriend’s sister and she did not want to push D3. On the next day, PW1 wrote a message to D3 asking what was her decision. D3 indicated that she did not know if she could trust them if they were not meeting her. PW1 did not push D3 and told her just to follow her heart. Finally, D3 told PW1 on the message that she texted Le Do and said yes already (see #365 in P20A). At around the same time, Le Do also confirmed the same with PW1 and said she could keep the extra USD $1,500.

140.  On 13/1/2019, D3 texted a message to PW1 telling her that she was “going to nominate her now” (see #402 in P20A)  and in the next two messages, D3 told PW1 that she would send her a screenshot about the nomination and asked her to transfer the money to her HSB account (see #407 in P20A). D3 also sent screen shot of a conversation with Le Do, where Le Do said D3 could take the money first and D3 said she would let PW1 decide. D3 than sent a photo of her HSB bank card to PW1 and asked PW1 to decide if the money for the selling of nomination could be released. (see #419-#420 in P20A)

141.  On 16/1/2019, PW1 sent to D3 another screen shot of the deposit slip (HKD $27,300)  to D3’s HSB account. (see #460 in P20A)

142.  On 22/1/2019, PW1 asked D3 if she had settled the deal with Le Do’s friend regarding the sale of D3’s nomination. D3 said she just got the passport details, and she would make the travel companion nomination on the next day. (see #489-#495 in P20A)

143.  On 23/01/2019, D3 said to PW1 that she had nominated “the girl”, i.e. Ernst, but Ernst had not replied (see #496-#516 in P20A).

144.  On 27/03/2019, PW1 and D3 again discussed about how their companions settling the top-up ticket fare money issue. PW1 said her companion had settled the “3,500” fee but not the deposit for the ticket fare. (see #552-#605 in P20A)

145.  According to the Admitted Facts (P1), all the above WhatsApp conversations found in PW1’s phone, including all messages, images and attachments, were completely, properly and accurately produced in the form of extraction reports without being tampered by anyone with addition, alternation or deletion. P20A and P26A were therefore true and accurate in showing the contents of the relevant WhatsApp conversations as found in PW1’s phone.

146.  As said, I found PW1 an honest and credible witness on whose evidence I can rely. The same finding on her demeanor and testimony in Charge 3 equally applies to Charge 4 despite the criticisms by the counsel for D3. What PW1 had testified in court against D3 is again well supported by the content of those WhatsApp messages mentioned in the above paragraphs. By reading the two extraction reports and the relevant messages together, the whole picture comes to light and the course of discussions, negotiations, holding-backs and final confirmation among D3, PW1 and Le Do was vividly revealed. The sale and purchase of D3’s nomination was also completed without any doubt by the nomination of Ernst by D3 in the IntraCx system and the payment of HKD $27,300 by PW1 to D3’s HSB account. The sum is an equivalent of USD $3,500 which is exactly the sum offered by Le Do to D3 (USD $3,500 x 7.8)  through PW1 in day 1 as well as the course of their discussion. According to the Admitted Facts (P1), the sum was first transmitted from a HSBC USA account for Mariah Ernst to PW1’s mother account in Hong Kong HSBC. This arrangement was requested by PW1 as seen in P26A. The sum transferred to PW1’s mother was USD $5,000 and according to what Le Do had agreed with PW1, PW1 was allowed to keep the extra USD $1,500 for herself after the payment to D3 upon completion of the deal. The nomination of Ernst by D3 was on 23/1/2019 and the payment of HKD $27,300 was deposited by PW1 into D3’s account on 16/1/2019.

147.  Based on the WhatsApp messages cited, it is not difficult to infer that the nomination of Ernst by D3 was pursuant to the conspiratorial agreement with PW1 and Le Do and in consideration of approximately USD $3,500 received from Ernst. As said, the nomination was prohibitive in character and was contrary to the Policy and Scheme of CPA, causing loss and damage to the reputation of the company.

148.  As of her right, D3 elected not to give evidence in this trial. Apart from the exculpatory statements she had made during video recorded interview, it means that there is nothing from D3 to undermine, contradict or explain the evidence put before the court by the prosecution.

149.  As can be seen, D3’s statement to the ICAC investigators during interview (P22B)  contains both incriminating parts and explanations. I must consider the whole of the statement in deciding where the truth lies. As always, the incriminating parts are likely to be true for why else would she have made them. As for the exculpatory parts, there is less weight to be attached, for they were not made on oath, have not been repeated on oath, and have not been tested by cross-examination.

150.  At #134 in P22B, D3 admitted to have nominated Ernst Mariah Adams as her travel companion under the Scheme in early 2019. D3 told the ICAC investigator that Ernst is the sister of Le Do’s boyfriend and she just got to know her through Le Do (see #144 in P22B). D3 said she nominated her boyfriend in the year before but as they have broken up, she had no one to nominate and at the request of Le Do, she gave the nomination to Ernst who was the sister of Le Do’s boyfriend (see #184 in P22B). D3 said she chatted with Ernst on WhatsApp and she sent her personal particulars (see #178 in P22B)  to register the nomination. D3 admitted that she has provided her login name and password to Ernst to book the flights by herself (see #193 in P22B)  but ever since she has changed her password, Ernst did not ask her for the new password so D3 said Ernest was no longer booking the flight as her nominee.

151.  D3 told the ICAC investigators that she has changed her mobile phone so she did not keep the WhatsApp conversation records with PW1 and Ernst. When D3 was later confronted with P20A, the WhatsApp record with PW1 by the ICAC investigator, she denied discussing with PW1 over the selling of her nomination (see #256 in P22B). When D3 was referred to HKD $27,300 she had received from PW1 in her HSB account, she explained that the amount was for her to purchase tickets for Ernst (see #266 in P22B). The ICAC investigator referred to the discussions between PW1 and D3 over the selling of the nomination. In response, D3 admitted that there was a man who was willing to offer to buy the nomination and there was such a discussion but as she did not know the man who was interested to buy the nomination and she had not chatted with him in private, she did not sell to him in the end (see #340 in P22B).

152.  From all the exchanges between D3 and the ICAC investigator, she was obviously making up the excuse as she went along. Before she was shown P26A, she freely told the investigator she had chatted with Ernst and Ernst provided her the personal particulars before the nomination which was of course contrary to what PW1 had told her. At #286 in P20A, PW1 told D3: “Yes, I asked her to provide details and money if she’s ready.” In fact, at #490 in P20A, D3 told PW1 “I nominated the girl and she hasn’t replied me.”. At #542 , D3 told PW1 that “she never talked to me directly.” And at #543 : “Only thru Mimi”.

153.  Clearly, one can see from these D3’s messages to PW1 that she did not chat with Ernst at all before or even after the nomination and she only obtained the personal details through PW1 or Le Do and not from Ernst directly. D3 was obviously lying during the interview in the ICAC and she was trying to paint a picture to the investigator that all along she treated Ernst as her personal friend so she decided to give her the nomination for free. However, if that was really the case, she could not explain away the money transferred by PW1 into her HSB account. According to the Admitted Facts (P1), the banking transfer records and the testimony of PW1, there is no doubt that the money was originated from the USD $5,000 transmitted firstly by an USA HSBC account for Mariah Ernst to a local HSBC account (PW1’s mother’s account)  as nominated by PW1. The balance of USD $1,500 was subsequently kept by PW1 according to the agreement with Le Do. Under such circumstances, D3’s explanation that the HKD $27,300 was just payment in advance to cover the ticket fares was completely untenable. It would be again an odd coincidence when the sum transferred by PW1 to D3 was exactly the equivalent of approximately USD $3,500 which was the same amount mentioned by PW1, Le Do and of course D3 in their negotiation over the selling of D3’s nomination. As an admitted fact, the sum was transferred by PW1 to D3 on 16/1/2019, D3 finally nominated Ernst a week later and she informed PW1 on the same day. Based on the direct evidence from PW1 who I found as an honest and credible witness, as well as the circumstantial evidence from the relevant banking and nomination records as admitted, the evidence against D3 is just compelling and overwhelming.

154.  In the final submission, counsel for D3 could only say very little for her case. She submitted that it was at least possible that the sum of HKD $27,300 was for the purpose of issuing flight tickets based on the fact that Ernst only booked business class tickets and she was a frequent flyer. For the reasons stated above, the sum HKD $27,300 just represented USD $3,500 which was exactly the consideration agreed by all parties in the conspiratorial agreement to sell D3’s nomination. This submission was therefore far-fetched and was not supported by any evidence and was only a mere suggestion without any basis. If that was the case, as rightly pointed out by the prosecution, by the time D3’s was interviewed on 26/9/2019 by the ICAC, there was at the time still an unused balance of HKD $17,619 kept by D3 and as D3 had said she had already changed the password as directed by CPA, there was no good reason why Ernst would not ask for the new password from D3 or a refund if she had no plan to fly anymore in the remainder of 2019. The only logical and reasonable explanation is the sum of HKD $27,300 was paid to D3 for the consideration of the selling of her nomination and it had nothing to do with the purchase of the flight tickets.

155.  It is further submitted by D3’s counsel that there exists a possibility that Le Do has made separate agreement with another friend of D3 about selling of nomination and D3’s purported agreement with PW1 and Le Do has fallen through. This submission was just based on a simple message sent by D3 to PW1 at #272 in P20A: “I found her another pass”.

156.  In my judgment, it was a wild guess without any logic and reason. If one reads the whole conversation records at P20A and P26A with care, there is nothing to indicate that the agreement has indeed fallen through. Despite some initial hesitations and reluctance on the part of D3 to give out her password, the agreement was carried out after her due consideration for a few days, neither PW1 or Le Do has pushed her to give out her password. In the end, D3 decided to trust PW1 and Le Do on the matter even though she did not know or even chatted with Ernst. The agreement was executed and the payment was made and received accordingly as agreed in the first place.

Verdict

157.  Based on the above analysis, the two conspiratorial agreements between PW1, Le Do on the one hand and D2 (Charge 3)  as well as D3 (Charge 4)  to accept an advantage from Dambrines and Ernst respectively to nominate each of them as the travelling companion of D2 and D3 in 2019 under the Scheme are proved beyond reasonable doubt and both defendants are convicted accordingly.

158.  Charge 3- D2 guilty

159.  Charge 4- D3 guilty