HKSAR v. FUENTES MA. ROCHEL CATAYOC

DCCC 1097/2024

[2026] HKDC 131

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 1097 OF 2024

------------------

------------------

-------------------------------------

REASONS FOR VERDICT

-------------------------------------

1.  The defendant faces a single charge of dealing with property known or believed to be the proceeds of an indictable offence and she has entered a plea of not guilty to that charge.  The charge itself alleges that in a bank account of which the defendant was the sole signatory, a total of $5,391,996.74 was dealt with between 20 March 2023 and 17 April 2023.

2.  The defence has been that the defendant unknowingly allowed her own Hong Kong ID card and an identity form of selfie to be taken with which the bank account was opened.  At that time, she was unaware that these items were being used to open a bank account in her name through which the tainted monies were channelled.

3.  The prosecution case was entirely established by way of Admitted Facts.  Three witnesses were tendered for cross‑examination. It was not disputed that the application to open the account or the relevant account was made by way of an online application on 19 March 2023 at around 1442 hours.  The account was in the defendant’s sole name.  The defendant’s Hong Kong Identity Card was provided together with her date of birth and a selfie, a self-taken photograph for facial recognition purposes which accompanied the application.  A mobile phone number and address were provided along with the username, a password for online banking, username using the name “Fuentes” which is the defendant’s surname.

4.  The account was operative between 20 March 2023 and 17 April 2023.  Totally there were deposits of HK$5,391,996.74 by way of 45 deposits.  There were a total of 227 withdrawals totalling $5,391,853.58 during that operative period.  The defendant throughout the time the account was operative worked as a domestic helper in Hong Kong.  She had monthly salary just below HK$5,000 and she was in Hong Kong during the operative period of the account.

5.  The prosecution also produced a video-recorded interview of the defendant taken on the day of her arrest on 26 January 2024 when she was departing Hong Kong.  Prosecution said that as a result of these facts, an irresistible inference could be drawn from the defendant’s opening of the account as a sole account holder and the defendant maintained control of the account and the transactions therein.

6.  Furthermore, as the deposits were made by persons with no obvious relationship to the defendant and the defendant’s financial position was clearly not commensurate with the large sums of monies flowing through the account within that short period, the defendant would have had no legitimate reason to receive such deposits and make such withdrawals. 

7.  The deposits and withdrawals themselves, the prosecution say, show mirroring patterns.  The operation of the account gave the defendant or would have given the defendant reasonable grounds to believe that the monies were tainted.

8.  The defence case was established by the defendant in person.  She gave evidence.  She is a person of clear record which is relevant to the consideration of her evidence.  At the material time of the offence she was employed as a domestic helper in Hong Kong.  She had worked in other locations such as the Middle East as a domestic helper prior to coming to Hong Kong.

9.  The defendant said she had come to know another helper in Hong Kong who had the name of Richael Mindaña.  They were friends, they were not really close.  They had known each another for about a year on 19 March 2023.  The defendant had suggested she wished to pawn an item of jewellery which she was wearing.  Richael had suggested that that was not necessary, that she knew a way that HK$400 could be earned simply by taking a selfie and Richael had taken the defendant to another place where a number of Filipinos were queuing.  They joined the queue.  Eventually the defendant had given her Hong Kong Identity Card to two Chinese men who had worn facemasks. These men had taken a copy of the Hong Kong Identity Card and took a selfie of the defendant, then she been given the $400. 

10.  She said no explanation had been given to her as to why the Hong Kong Identity Card and selfie had been required or used.  She thought everything was fine.  There was some suggestion it might have been used for gaming matters. 

11.  The defendant said she did not make any online applications or other application for the relevant Standard Chartered Bank account.  The mobile number and address and email address in the application were not hers.  She had been unaware of the operation of the account, as unaware of this matter until her arrest on 26 January 2024 and the defendant had maintained that denial when she was interviewed by the police.

12.  Also, as part of the defence there was cross‑examination of three witnesses who had been called at the request of the defence.  These witnesses include a representative of Standard Chartered Bank and also the police officers who had been involved in the investigation of the offences.  The cross‑examination dealt with the information that had been supplied in the application and the verification of such information by the bank and matters such as the non-seizure of the defendant’s mobile phone after arrest and the conduct of the initial investigation of the defendant.

13.  I did note that these matters appeared somewhat marginal to the case and in my view had no relevance to determining the central issue which was actually whether the defendant had herself submitted the application, what she knew at the time or could reasonably have known at the time of doing so.

14.  The legal requirement of this case is as follows:  The prosecution bring the case against the defendant, they are required to prove it beyond any reasonable doubt.  The prosecution has asked in this case for inferences to be drawn against the defendant from certain basic facts.  An inferred fact, like any other fact, must be proved beyond reasonable doubt.  The prosecution must prove the defendant dealt with the funds, dealing includes receiving or acquiring the funds into the account.  They seek to draw this as an inference from the fact that the account appeared to be under defendant’s control throughout the operative period of its operation.

15.  The prosecution must also prove the defendant had reasonable grounds to believe that the funds in the account were tainted.  The court must find the accused had grounds for believing and that those grounds be reasonable, that is anyone looking at those grounds objectively would so believe. 

16.  I note the case of HKSAR v Harjani Haresh Murlidhar [2019] 22 HKCFAR 446, the test for reasonable grounds to believe was as follows:-

i. What facts or circumstance including those personal to the defendant were known to the defendant that may have affected their belief as to whether the property was tainted; and

ii. Would any reasonable person who shared the defendant’s knowledge be bound to believe that the property was tainted.

iii. If the answer to question (ii) is yes, the defendant is guilty. If it is no, then the defendant is not guilty.

17.  The issue was as follows:  The defendant’s case is that she had no idea that her own Hong Kong Identity Card and selfie would be used to open a bank account with the Standard Chartered Bank and that she was ignorant as to the use to which the Hong Kong Identity Card and the selfie that was taken to open the account were put.  There is no dispute that she had given details of her own identity card and had given a selfie.

18.  It is said that this is supported that the defendant opened the account by the application itself, particularly by the contemporaneous nature of the selfie and the application.  I did note that parts of the application appear to be written in Chinese.  This is pointed out from the defence.  The defendant says this is a language which she neither speaks nor writes.  Also, that neither her address, email or mobile number are correctly stated in the account’s application.

19.  Now the prosecution themselves say the defendant’s evidence as to how she came or how her Hong Kong Identity Card and selfie came to be on the application form is a clear fabrication that should be rejected.  It is said to be a story designed to distance the defendant from the Standard Chartered Bank account when it is clear that the defendant, due to the timing shown on the account application, must have been present when the opening application was made and must have been aware of what use her Hong Kong Identity Card and selfie were being put to.  Therefore, thereafter of course she would have been the sole holder of the account and the inference from that fact can be drawn that she will be aware of the transactions carried out in the account or that the account would be used for the purposes of carrying out transactions with tainted monies.  The defence answer to this is that the defendant’s evidence is credible.

20.  She is of clear record.  This speaks to her propensity to commit any offence of this nature and the credibility of the evidence of which she has given.  It is said also the prosecution evidence cannot connect her with any operation of the account after 19 March 2023.  Part of the application is filled out in Chinese which she neither writes nor speaks.

21.  The defence say there is no mobile phone evidence, no computer evidence to show that she had any operation of the account.  In fact, the creation of the account appears to show the use of Chinese characters, that appears to be the only point to which the defendant has contact with the Standard Chartered Bank account that is created.  It is said that someone going to use a person’s identity for the setting up of her bank account to process tainted funds, that they would ensure that the person could not have knowledge or they may well interfere with the operation of the account.

22.  My conclusion on this evidence is as follows:  Having heard all the evidence, I did not find the evidence of the defence or the defendant herself to be credible.  I bore in mind her clear record but I considered that her account was not credible.  Her evidence about this friend, Richael Mindaña or whatever the name was, was deliberately vague. This person’s address, full name and contact details were vague or unknown. There had been no previous mention of this person by the defendant.

23.  In her evidence, the defendant had described how she had set up a bank account in Hong Kong with another Filipino bank or Philippine bank using her Hong Kong Identity Card, so she was clearly aware of the uses to which a Hong Kong Identity Card could be put. 

24.  Her description of the way her Hong Kong Identity Card and the selfie had been obtained, in my view, had fictional elements.  It appeared simply to be a narrative designed to give her maximum deniability as to the true purpose of her permitting her Hong Kong Identity Card and identity to be used to open such an account.

25.  Furthermore, it is clear that the application made and the taking of the selfie used in the application were contemporaneous, so the defendant was definitely present when the application made online was made and must have been aware of what was taking place.  I do not accept that this was, as she at one point said, for the creation of the gaming identity or the like. 

26.  The using of a Hong Kong ID card and the taking of a selfie to create an identity must be one that the defendant had been aware of and she must have been aware that the use of her identity was related to a bank account.  I also found that she was instrumental in setting up the online bank, including what appears to be the username and password used.

27.  It is proved that the defendant was the sole account holder with the application submitted in her name.  The application uses the defendant’s full name, her Hong Kong Identity Card number.  The application itself contains her place of birth and also the use of the username “Fuentes 1907” for online and mobile banking.  The defendant’s Hong Kong Identity Card and selfie were used to support the application and this must have been a photo taken by herself at the time.  As I have said earlier, the selfie application was contemporaneous as shown by the time stamp.  They would be submitted together. 

28.  I find for these facts the only possible and reasonable conclusion is the defendant was present and contracted the application herself.  Given that conclusion is reached that the defendant made the application for the account and effectively owned the account in her sole name, the only reasonable inference is that the defendant maintained control of the existence of the account and it would be used for transactions.

29.  I note the account was in operation from the day after the application was made.  The total of monies were received within a month after the opening of the account.  It must appear from this that any reasonable person in the defendant’s position would have been bound to believe the deposits into the account were tainted and this would have been the sole reason for the setting up of the account. 

30.  In my view, the defendant could have had no legitimate reason for acceptance of these tainted monies into the account. The defendant had control of the account.  The inference must be drawn that any reasonable person in the defendant’s position at the time would have been bound to believe that the deposits received by the Standard Chartered Bank were tainted.  Clearly, this finding of facts means that the charge against the defendant has been proved by the prosecution and I convict her of that charge.