HKSAR v. ACHHADA DILIP G

DCCC 85/2012

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 85 OF 2012

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REASONS FOR VERDICT

1.  The defendant is charged with 1 offence of "Fraud" (Charge 1) and 1 offence of "Money Laundering" (Charge 2). He pleaded not guilty to both charges.

The Prosecution Case

Charge 1

2.  JS Microelectronics Limited ("JS Micro") engages in the trading of electronic parts.  Its office is in Tsuen Wan and it has a branch across the border in Shenzhen.

3.  PW4 Mr. CHEN Feng-heng is the person in charge of the Hong Kong operation of JS Micro.  His title is Sales Manager and his superior is a Miss CHAN stationed in the mainland.

4.  On 7 July 2011, PW4 was instructed by Miss CHAN to proceed with the purchase of 70,200 pieces of Samsung SD cards[1] at a bargain price of US$195,156.  PW4 was told to contact an Indian person named Sailesh.

5.  PW3 Madam LEUNG Ka-wai (also known as Carrie) is a Sales Assistant of JS Micro.  She received instructions from PW4 about the purchase of Samsung SD cards from a company named Fortune Century Global ("FCG"), the contact person of which was someone named Sailesh.  PW3 has never met Sailesh in person, but has communicated with him by MSN.  She sent a Purchase Order (Exhibit P9) to Sailesh.  She then received the 1^st invoice (Exhibit P10) from FCG stipulating payment be made to FCG's account with the Bank of China ("BoC").  PW3 informed Sailesh that JS Micro does not have a BoC account.  She received a 2^nd invoice (Exhibit P11) stipulating payment be made to an HSBC account in the name of Linawati (PW9).

6.  PW1 Mr. SHU Hoi-ching is a staff member of JS Micro.  In June 2011, PW1 was asked by a mainland colleague to verify the background of FCG.  He was told to contact a salesman of FCG named Sailesh Kumar.  PW1 went to Sailesh's office in Yau Ma Tei to see him.  When they met, Sailesh gave PW1 a business card[2] (Exhibit P7).  They communicated in English.

7.  In the morning on 9 July 2011 (a Saturday), PW1 was taksed to inspect and take delivery of the SD cards.  PW1 and Sailesh met up in Shatin.  They went to the 19^th Floor of Metro Centre Phase I in Kowloon Bay.  Outside the office of a company named Great Union, Sailesh told PW1 that the goods (i.e. SD cards) were in that office.  Sailesh requested PW1 to transfer the entire sum of the purchase price before releasing the goods to him.  PW1 recalled that JS Micro had previous dealings with Great Union, he phoned PW4 informing him of the situation.  PW4 considered the company trustworthy and authorized payment for the goods.

8.  About noon, PW4 instructed PW3 to release payment.  PW4 then phoned PW2 Madam YEUNG Lai-ha (an accounting staff member of JS Micro), who was already standing by at the bank, to effect payment.  PW2 presented a transfer slip (pre-completed by PW3) to a bank teller.  The sum of US$195,156 was transferred from the HSBC account of JS Micro to the HSBC account of PW9 Linawati (see Exhibits P8, P3 and P1).

9.  Upon learning that payment had been effected, PW1 requested to see the goods.  Sailesh called his boss and handed the phone to PW1.  A female voice claiming to be Lina WONG told PW1 that only 44,800 SD cards were at Great Union.  For the rest of the SD cards, she would like Sailesh to release them to PW1 in one go.  She asked PW1 to let Sailesh go.

10.  PW1 asked his company driver to wait for the goods at Great Union.  At the same time, Sailesh and PW1 took the MTR to Tsim Sha Tsui to pick up the remaining SD cards.  Sailesh led PW1 to a shop on the 1^st Floor of Chung King Mansion and told him that the remaining SD cards were in that shop.  PW1 wanted to go inside but Sailesh refused, claiming that he did not want the vendor to meet the buyer.  Sailesh also told PW1 that Lina WONG had not yet completed the transfer of the money to the vendor; therefore, the other side had not yet released the goods.

11.  Whilst waiting for the release of the goods, Sailesh took PW1 around at Chung King Mansion.  On a few occasions, Sailesh indicated to PW1 that he would go away for 5 to 10 minutes to check on the goods.  PW1 did not allow Sailesh to leave since full payment had been made. Sailesh kept taking PW1 around.

12.  About 3:00 pm, Sailesh told PW1 that the goods would be ready at Alpha House[3] (across the street from Chung King Mansion).  Sailesh took PW1 to Flat F, 9^th Floor of Alpha House.  A lady there claimed to be Lina WONG.  PW1 asked her if she was Sailesh's boss and she said "yes".  PW1 said Lina looked Chinese and he spoke to her in Cantonese.

13.  At this point, Sailesh said he would go away for 10 minutes.  PW1 phoned PW4 telling him that the goods would soon be ready.  PW4 said he would drive to Tsim Sha Tsui to pick up the goods.  Ten minutes later, PW1 asked Lina where Sailesh was and when he would be back.  Lina called Sailesh and she told PW1 that Sailesh was counting the goods in front of K11.

14.  PW4 later arrived at Lina's office.  Lina told him that the goods had arrived and Sailesh was counting them.  The goods would be taken up to her office soon.  PW4 suggested that he should go down to K11 to help counting the goods and to take delivery.  PW4 left Lina's office and PW1 remained there.  About 10 minutes later, PW4 phoned PW1 telling him that there was no one counting goods at K11.  PW1 asked Lina to call Sailesh, but she could no longer reach him.  PW1 and Lina both went down to K11.  They did not see Sailesh in the vicinity.  They tried calling him but could not reach him.  PWs 1 and 4 felt cheated and made a report to the Police.

15.  According to their travel index records (Exhibits P4 and P26 respectively), the defendant left Hong Kong at 1544 hours on 9 July 2011 via the China Ferry Terminal in Tsim Sha Tsui; whereas his wife (Madam YEUNG Pui-yan)[4] left Hong Kong at 1804 hours on the same day also via the China Ferry Terminal.

16.  In an identification parade held at Tsim Sha Tsui Police Station on 16 November 2011, PW1 identified the defendant as Sailesh[5].

Charge 2

17.  PW5 Mr. Puri Vikas is the proprietor of Nishimoto Manufacturing Company, which engages in the trading of electronic parts.  In 2009, PW5 became acquainted with a person named Dilip on MSN.  Thereafter, they continued to have e-communication with each other.  PW5 has only met Dilip in person once in 2009.  It was a very brief encounter which lasted for 3 to 4 minutes.

18.  On 9 July 2011, whilst PW5 was in India, he received a phone call from Dilip.  PW5 asked Dilip to use MSN instead.  They then discussed the price of SD cards.  Dilip told PW5 that he was about to complete a deal in Hong Kong.  He asked PW5 to convert some US dollars into Hong Kong dollars for him.  PW5 quoted a conversion rate which Dilip accepted.  PW5 then gave his HSBC account number to Dilip.  Dilip told PW5 that he would transfer US$190,000 to PW5's account.    

19.  According to the evidence of PW9 Linawati, which I will summarize separately, and the bank records[6], a sum of US$190,000 was transferred from PW9's HSBC account to the HSBC account of Nishimoto Manufacturing Company (PW5's company).

20.  Later on the same day, PW5 received a call from Dilip saying that the money had been transferred.  PW5 verified the balance in his account through the internet.  PW5 then made arrangements with his currency exchanger friends in Hong Kong.  PW5 told Dilip to collect HK$1 million from one place and the remaining balance from another.

21.  PW7 YONG Kin-ching is the proprietor of Wealth Trader Company, which engages in currency exchange.  In 2009, he began to have business dealings with PW5.  PW7 calls PW5 "JV".  About 1:00 pm on 9 July 2011, PW7 received an email from PW5 requesting to exchange US$129,933 into Hong Kong currency with the cash to be collected by Achhada Dilip G of passport number J0996873 (see Exhibit P17).  As PW7 did not have enough cash in his shop, he called a fellow tradesman PW8 Mr. LAM Lee-loi, proprietor of G-Three Foreign Exchange situated at Middle Road, for help.  Arrangements were made for the customer to collect the cash from PW8.

22.  About 2:00 pm on 9 July 2011, an Indian/Pakistani male went to PW8's shop to collect the cash.  PW8 asked him how much he wanted and to produce his ID document.  The male replied HK$1 million and 10 thousand and produced a passport bearing number J0996873 in the name of Achhada Dilip G.  PW8 checked the photo in the passport against the male's face and made a copy of the passport.  PW8 counted the cash in front of the male and asked him to sign on a copy of his passport (Exhibit P18).  PW8 has also stamped Exhibit P18 with his company chop.

23.  It is not in dispute that at 1508 hours on 9 July 2011, the defendant collected US$60,000 cash from Moneychangers (HK) Limited situated at Shop No.11, G/F, Chung King Mansion, 36-44 Nathan Road, Tsim Sha Tsui (see Exhibit P20).

Evidence of PW9

24.  PW9 Linawati (also known as Lina WONG) came to Hong Kong from Indonesia in 2001.  In mid-2011, PW9 started a small trading business named Fortune Century Global.  Its office is situated at Flat F, 9^th Floor, Alpha House, 27-33 Nathan Road, Tsim Sha Tsui.

25.  About the same time, PW9 became acquainted with a male named S. Kumar on MSN.  She discussed with him how they could cooperate and do business together.  Kumar claimed that he has many customers in India. However, PW9 had not decided on this matter.  Later on, they met in person and exchanged phone numbers.  In court, PW9 identified the defendant as S. Kumar. [7]

26.  In early July 2011, the defendant went to PW9's office to discuss a business deal.  He told PW9 that someone was going to buy goods from him and asked her for a bank account number.  PW9 told him the number of her company's BoC account, but the defendant said the other party uses HSBC.  On 6 July 2011, PW9 gave him the number of her personal HSBC account.

27.  PW9 said she has never authorized the defendant to print any business card of her company.  In fact, she has never printed any business card for herself.  PW9 also denied having issued any invoice to JS Micro (including Exhibits P10 and P11).

28.  On 9 July 2011, upon checking her HSBC account, PW9 discovered that a sum of US$190,000 odd was deposited into that account.  She immediately questioned the defendant.  The defendant asked her to transfer the sum to another HSBC account, which is in the name of a company.  PW9 did so at 12:37 pm and obtained a receipt (Exhibit P19).  The remaining sum of US$5,000 odd was left in PW9's account.

29.  In the afternoon on 9 July 2011, the defendant went to PW9's office with a Chinese male, whom the defendant said was a buyer. The defendant asked the Chinese male to wait in PW9's office and left.  The Chinese male asked PW9 where the goods were and PW9 replied she did not know. PW9 phoned the defendant and he said he went to get the goods.  The Chinese male kept asking where the goods were and PW9 kept calling the defendant.  Eventually, the defendant told PW9 that he was downstairs counting the goods.  PW9 relayed the same to the Chinese male.  About  4:30 pm, PW9 tried to call the defendant, but his number could not be connected.

Defence Case

30.  The defendant elected to give evidence but did not call any defence witness.

31.  The defendant said he was born in India.  He first came to Hong Kong in 2000.  In November 2007, the defendant became a torture claimant and is allowed to remain in Hong Kong on the strength of his recognizance paper (Exhibit P30).

32.  The defendant claimed he met PW9 in 2007 and they became intimate in 2008.  Their intimate relationship continued until April 2010 when he got married (see Exhibit D1). The defendant and his wife have a daughter born in Hong Kong on 6 September 2011 (see Exhibit D2).  He claimed that they also have a son who was born in May 2010.

33.  The defendant denied having perpetrated any fraud against JS Micro.  He denied having possessed or printed Exhibit P7 (the business card).  He did not issue any invoice to JS Micro either.  He did not take any person to PW9's office on 9 July 2011.  He has never used the name S. Kumar or Sailesh Kumar.  He gave an uneventful account of what he did at home in the morning on 9 July 2011 and how he ended up at Chung King Mansion for Indian food about 1:15 to 1:30 pm.  He also denied having collected the HK$1 million odd at PW8's shop.

34.  Regarding his collecting of US$60,000 cash from Moneychangers (HK) Limited at Chung King Mansion, the defendant gave this explanation.  In the evening on 8 July 2011, PW9 invited him to her home in Sham Shui Po telling him that she had some work for him.  PW9 told the defendant that her partner received a big order that day.  PW9 then gave the defendant a mobile phone with a SIM card telling him that her partner would call him.

35.  About 3:00 pm on 9 July 2011, as the defendant was about to go to PW9's office, he received a call from a male asking him to go to the gate of Chung King Mansion.  The defendant has never met PW9's partner before.

36.  At the gate of Chung King Mansion, a male asked the defendant to pick up some money at a shop.  The defendant did not want to do so and the male asked him to speak to PW9 on the phone.  PW9 explained to the defendant that she had to pay her supplier, but she was busy that day and none of her people had passports (they only had "papers").  She had already given the defendant's name and passport number to the shop.  She begged the defendant for his help.  The defendant agreed.  He went to the shop to collect the money and gave them all to the male waiting for him outside Chung King Mansion.

37.  Finally, the defendant gave a detailed account of his spur of the moment trip to Macau with his wife in the afternoon on 9 July 2011.   Shortly after reaching Macau, he discovered that his mother was very ill in India.  About 7:00 pm, he bought a round-trip plane ticket to India from a travel agent in Macau at the price of $4,000.

38.  As revealed in his passport (Exhibit P5), the defendant arrived at Delhi on 10 July 2011. [8]   He left Delhi on 7 August 2011 and entered China on 9 August.[9]   He left China on 16 August and landed at Delhi on 17 August.[10] He left Delhi again on 30 September and landed at Hong Kong on 1 October.[11]

Assessment and Analysis of Evidence

39.  The burden of proof is on the Prosecution to prove each element of each offence beyond reasonable doubt.

40.  I have carefully assessed the evidence of all prosecution witnesses and observed their demeanour in the witness box.  I find all of them honest and reliable. The evidence against the defendant is cogent, reliable and overwhelming.

41.  Defence counsel Mr. Mackay criticized the identification evidence of PW1 as well as the quality of the ID Parade.  Mr. Mackay submitted that PW1 attended the ID Parade some 4 months after the incident.  The identification made by PW1 could have been a mistaken one.  Furthermore, as PW12 has recorded on p.6 of the Identification Parade Book (Exhibit P23), after having been identified, the defendant made a complaint that the line-up comprised of all Pakistani actors and he was the only Indian.

42.  As a juror, I accept PW1's identification evidence without reservation.  He has met Sailesh once in June 2011 and has spent at least half a day with Sailesh on 9 July 2011.  I have not a single doubt that the defendant is Sailesh.

43.  Regarding the attack on the Identification Parade line-up, PW12 said he was satisfied that the line-up contained a range of South Asians with similar appearance, height and built.  PW12 readily admitted that he could not tell the difference between Indians and Pakistanis amongst a group of South Asians.  In my view, it is common sense.  The difference in physical appearance between Indians and Pakistanis, if any, would not be obvious to an ordinary local Chinese person like PW1.  The line-up was a fair one and no prejudice was caused to the defendant.

44.  Mr. Mackay also criticized the credibility of PW9.  I accept that the evidence tends to show that she might well be a perpetrator of the fraud.  However, such a possibility, even if true, does not exonerate the defendant.  The logic is simple: PW9 might be a perpetrator does not imply that the defendant is clean. The evidence against the defendant is so overwhelming and is independent of PW9's evidence.  In my view, the strength of the Prosecution evidence would not be any less even without her evidence.

45.  PW5 has printed out copies of the emails and documents which he received from Dilip.  He produced them as Exhibit P14 to P16.  The fact that PW5 had received from Dilip a promotional leaflet of the defendant's wife's company King Reach International Limited[12] (Exhibit P14) as well as a copy of the defendant's wife's Hong Kong ID card (Exhibit P15), it leaves me with no doubt that Dilip is the defendant. 

46.  Furthermore, the defendant having requested PW5 to help him exchange the US$190,000 in PW9's bank account into Hong Kong currency leaves me with no doubt that he, if not being the sole fraudster, has at least played a significant role in the fraud against JS Micro.

47.  I need not say much about the defendant's evidence or the contents of his 2 video interviews (Exhibits P24 and P25).  I agree with prosecuting counsel Mr. Polson that his evidence is the most audacious lie imaginable.  His evidence is ridiculous, nonsensical and unbelievable.  I do not wish to dignify his pathetic story by analyzing it.

48.  Any reasonable juror who has heard the defendant's account of how and why he collected the US$60,000 for PW9's partner would have no difficulty in rejecting his evidence.  Needless to say, despite being a torture claimant, he decided to return to India for his sick mother on a spur of the moment without any careful planning.  Yet, he also managed to enter and leave his home country safely 4 times within a period of 3 months.

49.  As a juror, I am satisfied beyond reasonable doubt that the Prosecution has proved both charges against the defendant.  Accordingly, I find him guilty of Charges 1 and 2.

50.  In this case, the Prosecution called a total of 17 witnesses.  PWs 11 and 13 to 16 (namely DPC 59117, DPC 1072, Hindi interpreter SINGH Sharanjit, DPC 3530 and English interpreter PANG Chi-yuen) were called for the purpose of the alternative procedure.  After playing the discs of the defendant's 2 video interviews[13] (Exhibits P24 and P25)in court, Mr. Mackay withdrew his objections against the production of both discs.  The 2 video interviews and their respective transcripts were then admitted into the evidence.  In other words, the time and resources spent on examining these 5 witnesses were completely wasted.

51.  Moreover, Mr. Mackay had no cross-examination for PWs 2, 3, 5, 6, 7, 8, 16 and 17.  I do not know why counsel for both sides did not deal with their evidence by way of admitted facts or under section 65B of the Criminal Procedure Ordinance (Cap.221).  Court time, judiciary manpower and public funds are too precious to waste.