HKSAR v. LEUNG NGA SZE

DCCC 275/2017

[2018] HKDC 1176

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 275 OF 2017

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Reasons for Verdict

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1.  The defendant faces three charges of fraud. My determination is that she will be convicted of all three charges. My reasons are as follows.

2.  The defendant was employed by a company called Markwin to manage artistes in the entertainment industry.  She was authorised to negotiate and sign contracts on behalf of the artistes.

3.  One of the artistes was a Mr Julian Cheung, known by the stage name of Chi Lam.

4.  The prosecution say the defendant falsified Mr Cheung’s earnings on two contracts and one invoice to make it appear that he in fact earned less money under the contract than was actually the case, although the actual sum earned under the contract was paid to Markwin.

5.  The defendant said that she was able to take the difference in earnings for herself from another account of her own in the mainland.  The defendant now denies this and says that she has no knowledge of the false documents or responsibility for them.

6.  I will deal with the background to the three charges.  The artiste management company Markwin was a subsidiary of a listed company, HMV, formerly China 3D.  Mr Stephen Shiu, PW1, was the chairman of HMV - as I said, formerly China 3D - and he was also proprietor of Markwin. Mr Julian Cheung Chi Lam, PW2, was an artiste managed by Markwin.  The defendant was the general manager of Markwin responsible for PW2.  The fees earned by PW2’s contracts would be divided between Markwin and PW2.  Markwin would obtain 12 per cent and PW2 88 per cent.  PW2’s contract with Markwin guaranteed that he would earn 10 million per year over 3 years.

7.  Markwin had its own accounting department.  The head of that department at the material time was a Miss Sophie Mak, who was a certified accountant.

8.  The defendant was the person solely responsible for negotiating and signing contracts on behalf of Markwin for PW2’s performances, appearances and product endorsements.  Where the clients were in the mainland, payments would be made to Markwin via the defendant.  China clients would pay into the defendant’s personal mainland bank account.

9.  Charge 1 is the Ogawa contract and the uncovering of the fraud.  In March 2014, a company called Ogawa wanted to engage PW2 to act as a product ambassador.  Eventually, after negotiation with the defendant, they agreed a fee of 4.8 million.  This figure was incorporated into a contract signed by both parties.  Ogawa acted through an agent, Faster Advertising.

10.  Markwin’s accounting record, however, contained a different copy of the agreement whereby the stated endorsement fee was 3.88 million; that is, 3,880,000.  Ogawa in fact through Faster paid the total, 4.8 million, under the agreement.

11.  PW2 evidenced that he defendant had informed him that the endorsement fee was 3.88 million.  He said the copy of the contract sent to him, PW2, by the defendant contained that figure.  Both PW1 and PW2 had said in their evidence their approval was required for the final negotiated figure for the endorsement.

12.  In September 2014, PW2 went to Kuala Lumpur to perform in what is called The Crazy Hours Concert.  Ogawa was involved in supporting PW2, so he met with their representatives, who were concerned as to what they perceived to be the restricting of their access to him.  They also mentioned they were paying him over 4 million for the product endorsement fee.  PW2 realised that this did not accord with what he had been told about the fee by the defendant, so he contacted PW1 to try to resolve the matter.

13.  In early September PW1 tried to discover what Ogawa said about the endorsement fee.  PW1 eventually discovered that the endorsement fee was 4.8 million, which contradicted the amount in the contract held by Markwin.  The defendant had negotiated that contract, so he sought an explanation from her.  On 15 September, PW1 and PW2 met at Markwin’s office to conduct a telephone conference with a representative of Faster Advertising, who knew about the Ogawa contract.

14.  It was confirmed that the fee was 4.8 million.  The defendant was called in to explain.  The defendant did not immediately offer an explanation, but later that evening PW1 evidenced that the defendant had told him that she had stolen or taken the difference between the two contract amounts.  Later that evening she sent a WhatsApp to PWs 1 and 2 apologising for her actions and saying she would return the money.  In fact, on 18 September 2014 the defendant, through her husband’s account, paid 920,000 into PW2’s bank account.  PW2 remitted this money to Markwin.

15.  As far as the 2nd and 3rd charges are concerned, Markwin then initiated an internal inquiry into contracts negotiated by the defendant.  Two further instances were found whereby the contractual amounts differed from the amounts actually received.

16.  Firstly, in respect of Charge 2, Procter & Gamble entered into an agreement with Markwin to engage PW2 as a product ambassador for a fee of $2 million.  The copy of the contract in Markwin’s accounting record showed the fee to be 1.6 million.  Only 1.6 million has been received.  Some time in September 2014 the defendant told Miss Wong of Strategic, Procter’s agent, that they only actually needed to pay 1.6 million.

17.  In respect of Charge 3, this concerned an agreement reached via WhatsApp whereby Adidas entered into an agreement with Markwin to engage PW2 for $300,000.  An invoice with the defendant’s signature was received and the full amount was paid by Adidas.  However, Markwin’s own accounting record showed that only $200,000 had been received, and the invoice stated that the fee was only 200,000.  Markwin’s accounting record showed that the Adidas invoice was purportedly paid by cheques issued from the defendant’s own personal HSBC account.

18.  I will deal with the defendant’s position.  The defendant in evidence said that she had no idea about false contracts found in Markwin’s accounting office.  She denied making any admissions to PW1.  She denied it was she who had falsified documents or stolen any money.  She admitted sending the WhatsApp, but said that it related to an admission to poor performance in her job only.  The money she paid to PW2 was done at PW1’s direction and had no relation to a perceived shortfall on the Ogawa contract. It represented the balance left on the mainland account which was repaid after PW1 dismissed her.

19.  It can be seen from this that a primary issue of credibility exists, particularly that relating to the evidence of PW1, PW2 and the defendant.  A more detailed examination of the evidence showed that the prosecution case consisted of, viva voce, the live evidence of PW1 and PW2, together with that of the company’s accountant and clerk.  There was evidence from Mr Ong from Ogawa and Miss Wong from Procter & Gamble.  It was read into the record and Miss Wong was, however, cross‑examined.  There was also agreed evidence as to the genuine and false Ogawa and Procter & Gamble contracts and genuine and false Adidas invoices.  Relevant cheques and banking records were produced by agreement.  Thus the genuine prices on the two contracts and invoices were agreed, as were the false contracts; as were details of the defendant’s employment and arrangements between her, Markwin and PW2.

20.  The statement of Mr Ong on Charge 1 detailed the conduct of the negotiation and outcome whereby PW2’s product endorsement services were obtained for a sum of 4.8 million.  He also evidenced that the payment of these moneys was at the direction of the defendant and was by way of cheques to Markwin.  In particular, the money was paid in two tranches of 2.4 million.  In respect of the second tranche, the defendant directed that this tranche be paid by three cheques, two of 740,000 and one of 920,000. No explanation of this was given by the defendant.  The final cheque for 920,000 was recorded in Markwin’s accounting record as “Being received for onscreen advertising from Polly RMB761,000”.

21.  The false contract of 3.88 million was held by Markwin in its accounting office.  It was the only copy of the agreement held by them.  PW2 said that the defendant had sent him by WhatsApp a copy of this contract which contained a fee of 3.88 million and had also told him that figure.  That was why he was shocked when Ogawa mentioned a figure of 4 million to him, and that is why he mentioned the matter to PW1.

22.  The amount paid to PW2 was from the defendant’s husband’s bank account and was $920,000 which PW2 considered to be the shortfall on the Ogawa contract.  It was in respect of this contract that PW1 said he had challenged the defendant resulting in her oral admission to him and the receipt from her of the WhatsApp that evening.

23.  On Charge 2 with Procter & Gamble, details of the contract, its negotiation and payment were provided in the statement of Miss Wong.  The contract was for product endorsement and was in a total of $2 million.  The negotiations were conducted with the defendant, who agreed and signed the contract.  Payment was to be by three instalments.  The first two instalments of $1,600,000 were paid according to the agreement. Procter did not receive any payment advice for the third instalment payment whilst the defendant worked for Markwin.  In fact, Miss Wong evidenced that the defendant told her it was not necessary for the third instalment to be paid. The third instalment was finally paid after the defendant had left Markwin.

24.  PW2 said the defendant had told him the contract amount was 1.6 million.  In the accounts department of Markwin there was a false contract with a fee of 1.6 million signed by the defendant.

Charge 3 and Adidas

25.  By way of exchange of WhatsApp messages Miss Lee of Adidas entered into an agreement with the defendant for PW2’s services for a sum of $300,000.  On 24 January 2014, an invoice for that sum signed by the defendant was sent to Adidas and was settled by way of cheque.  PW2 said he had been told by the defendant the contract fee was 200,000.  Markwin’s accounting record showed a false invoice in relation to this transaction for the sum of $200,000.

26.  In fact, on 7 February 2014, a cheque drawn on the defendant’s personal banking account with HSBC was used to credit Markwin with $200,000.  In Markwin’s accounting record this cheque was represented as “Chi Lam received Adidas Hong Kong”.  The cheque received from Miss Lee of Adidas for 300,000 was represented in the accounting record as being from an unrelated mainland contract.

PW1’s Evidence

27.  PW1 outlined the defendant’s work role and her negotiating competence in respect of contracts.  He stated she had full autonomy except she had to revert to him before reaching agreement in respect of price, date and job nature.  He confirmed that his company did not have a China bank account, so that artistes’ earnings in China were paid into the defendant’s personal bank account in China.

28.  The case was uncovered when PW2 returned from Malaysia and uttered his concerns about the fee under the Ogawa contract.  PW1 made inquiries to try to get the original contract from Ogawa.

29.  Eventually, on 15 September, a conference call was arranged with an Ogawa representative at PW1’s office.  PW2 was present.  The call confirmed the contract fee was 4.8 million and the sum had been paid to Markwin.  PW1 already knew the contract held by his department was for 3.88 million.  He called the defendant into explain.  At that time she said, “There is no reason.  Let me check it out.”

30.  Later that evening he called the defendant.  He asked her to tell him the truth.  She said, “The money was taken away by me,” and promised to deposit 920,000 the next day.  She explained what she had done, saying she took money from mainland jobs whilst reducing the figure on some contracts, that the money taken from Ogawa was from some mainland jobs.  She promised to return the money the next day.  She sent a WhatsApp apologising and accepting responsibility in the WhatsApp produced as P21.

31.  She said, amongst other things, “I have committed the biggest wrongdoing.  I really know I have done wrong.  I know I have made a big mistake.  There is nothing that can be done to compensate.  I have destroyed your trust in me.”  This was later printed out and signed by the defendant in the presence of a lawyer.  The defendant also paid $920,000 to PW2, the money coming from her husband’s bank account.  PW2 confirmed the payment.  He later remitted it to Markwin.

32.  PW2’s evidence that was in respect of the Ogawa contract and all other contracts, he had to know and approve the price, date and details, and he was specifically told by the defendant the price on the Ogawa was 3.88 million; that on the Procter & Gamble contract it was 1.6 million; on the Adidas contract it was 200,000.  He referred to receiving WhatsApp messages from her to that effect.  However, they were not produced in evidence.

33.  I will deal with the defendant.  The defendant gave evidence.  She is a person of clear record, married, with a 5‑year‑old daughter.  She has been in employment since leaving university.  She had worked for PW1’s father early in her career.  Eventually she moved to work for PW1’s company in the artiste management section of the company, which was Markwin.

34.  The defendant said she had full autonomy in agreeing contracts for her clients, that PW1 did not need to be informed about or need to approve the details and price of the contracts, and this in fact contradicted both PW1 and PW2’s evidence in this respect.  The defendant said she was in disagreement with PW1 about her level of remuneration, especially when it was proposed that PW2’s contract minimum be increased.  This would lead to a lot more work for her to do.  She had asked for commission in addition to her salary, but PW1 was reluctant to give her this option.  It remained an ongoing problem for the defendant.

35.  The defendant agreed that the amounts of the genuine contracts and invoices were negotiated by her and represented the true figures.  She had never seen the false contracts or invoices and did not create them or have any knowledge of them.

36.  The defendant had accompanied PW2 to Malaysia and had been at The Crazy Hours Concert.  She believes her actions might have offended the Ogawa representatives and they had communicated this to PW2. However, nothing had been said on her return until 15 September, when a meeting with PW1 had occurred.  There had been no telephone conference.  She said she had raised the issue of her commission again with PW1, that PW1 had accused her of treating the Ogawa people badly and offending them.  He said their contract was worth a lot of money and that its loss could be very damaging for the company.  He also said her handling of the China bank account was messed up and that she owed the company $920,000 from the account and that it should be paid to PW2.  He was very angry, and dismissed her.

37.  She was tearful and upset and confused, and sat at her desk for a long time.  Eventually she had written the WhatsApp that referred to her treatment of Ogawa and promised to pay the 920,000.  It had nothing to do with false contracts or taking money.  She said she had never made any confession to PW1.  He had made this up.

38.  She had sent the $920,000 to PW2 because she had been told to do so by PW1.  She denied that she told PW2 in the WhatsApp group that the Ogawa contract was 3.88 million or that she had given false figures for the Procter & Gamble and Adidas contracts.  She said she was not aware of any of the entries and contracts in Markwin’s accounting records and was not responsible for any of the information contained in them.

39.  Now, with the legal considerations, the defendant faces three charges of fraud.  The prosecution must prove the charges to a criminal standard; that is, beyond reasonable doubt.  The burden of proof remains on the prosecution throughout the trial.

40.  Fraud is defined by section 16A of the Theft Ordinance as follows:

“If any person by deceit (whether or not the deceit is the sole or main inducement) with intent to defraud or induces another person to commit an act or make an admission that results in either:

(a) in benefit to any other than the second‑mentioned person; or

(b) in prejudice or a substantial risk of prejudice to any person other than the first‑mentioned person, the first‑mentioned person commits the offence of fraud.

Thus the elements of the offence are deceit by words or conduct practised by the defendant deliberately or recklessly with intent to defraud, which induces the victim to do or refrain from doing something which results in benefit to the defendant or a substantial risk of harm to another. A person is treated as having an intent to defraud if he intends that by practising the deceit he will induce another person to do an act or to not do an act which results in benefit to someone other than that person or prejudice or the substantial risk of prejudice to someone other than the defendant.”

41.  The defendant must act dishonestly when practising the deceit.  Thus she must be shown to be dishonest by the ordinary standards of reasonable honest people and she must know that what she did was dishonest by those standards.

42.  The defendant is also a person of clear record. This is relevant to her propensity to commit an offence of this nature and the credibility of any testimony given by her.

43.  In this case the prosecution relies upon some circumstantial evidence to prove aspects of the charge:  clearly, namely her intent and her responsibility for submission of the false documents.  Where there is no direct evidence, such proof may be provided by way of the drawing of an inference.  Such inference must, however, be established beyond reasonable doubt, must be an irresistible inference, but also can be said to be the only reasonable inference to be drawn from the proven facts.

44.  In broad terms, the prosecution say the defendant cheated Markwin by informing them of reduced fees for PW2’s work, and in order to support this she made use of false documents, the contracts and invoices, to mislead the accounting department into believing that that was the genuine figure and full payment.  This would then enable her to channel money out of the company by further misrepresenting the amounts earned by artistes on mainland jobs.

45.  The prosecution rely upon the admissions made to PW1, together with the false contracts and invoices, to establish the fraud. They say that in each case, the submission of the false documents is deceitful and with an intent to defraud, and that is obviously shown, and that that induced Markwin to accept the false figures as full payment, and that this obviously results in a benefit to the defendant on her admission or prejudice or the substantial risk of prejudice to Markwin and PW2 which must obviously be the case if there is the submission of a false document.

46.  The defendant denies this.  She said she handed the genuine contracts and invoices to the accounting department and has no knowledge of the provenance of the false documents found in the accounting department.  She had no knowledge or input into how the accounting department would record the payments made.  She says the modus operandi of her work meant she could not practise such a fraud upon the company.

47.  It is said that the prosecution cannot begin to establish who created and placed the false contracts and invoice found in the accounting department.  It certainly cannot be shown that the defendant did this.  There was no evidence of who and how those documents had been handled in the accounting office.  It is said there was no basis on which to draw an inference, because it must be an inference, that it was the defendant who created and submitted the false documents.

48.  It is said that the handwriting in the accounting documents, there is no evidence to attribute any of those entries to the defendant.  The defence also submitted that the prosecution has been unable to adduce any evidence connecting the defendant to the false documents.  There is no evidence to show what is described as the flow of funds to the defendant to show how she may have benefited as would be normal in a fraud case, and in this the prosecution must rely solely on the defendant’s admission to PW1.

49.  It is said there is no evidence to establish what is described as the mirror fraud on the mainland account, which is said to have involved the reduction in funds received into the defendant’s China account.  However, no reduced contracts or invoices are identified in relation to any of PW2’s China contracts.

50.  Furthermore, it is said that PW1 is an unreliable witness.  It is said he was contradicted by the WhatsApp evidence from the Adidas negotiation where the defendant appeared to handle the entire negotiation alone, when he had said he had a hands‑on attitude to the three aspects of PW2’s contracts that he evidenced; that PW1 was evasive about his contacts with Ogawa when investigating PW2’s contract with that company; that he had said a number of electronic exchanges between him and the defendant existed which were never produced in court.

51.  It was said that PW1’s company had never shown a profit and it was, as such, as much in Markwin’s interest that PW2’s earnings should be reduced.  It was said that PW1 was lying about the defendant making any admission to him and his evidence should be rejected; furthermore, that none of the WhatsApp messages about contract prices that PW2 had said existed had ever been produced by him or PW1 and that PW1 was not and could not be correct when he said the defendant informed him of the false figures for the contracts and invoices.

52.  Now, a resolution of the issues is as follows. One of the primary charges in the prosecution case comes from the defence submission that PW1 and also PW2 must be lying.  PW2 specifically testified that in respect of the Ogawa contract, the defendant told him the contract price was 3.88 million.  He also insisted that he would be informed of all contract prices before a deal was struck; that PW2 went on to say that the defendant told him the Procter & Gamble contract was 1.6 million and the Adidas contract was 200,000, which meant that on PW2’s evidence, the defendant informed him of the contract prices of all three false documents prior to them being finalised; that it was put to PW2 that he was incorrect.

53.  The defendant in her evidence in cross-examination was only prepared to say that she could not remember whether she told him this or not.  So in effect, PW2’s evidence on the evidence heard at trial is uncontradicted.

54.  As far as PW2 was concerned, I found him to be an obviously truthful witness.  He could have no motive or reason to mislead the court.  He was obviously told of the 3.88 million Ogawa contract because he was surprised when the Ogawa people told him it was a higher sum.

55.  It is logical and sensible that as the recipient of 88 per cent of the contract fee he would have an active interest in the size of the contract fees he received, and it would be cleared with him before acceptance. 

56.  I had no reason to reject or disbelieve any part of PW2’s evidence.  He was plainly and obviously a truthful witness.  I accepted his evidence in its entirety.

57.  PW1’s evidence, as I have already outlined, was also subject to criticism by the defence.  It was said that lack of profitability of China 3D HMV meant that PW1 had a motive to deflate the contracted price of PW2’s earnings, that his evidence about being informed about the contract price before closure of the deal was untrue, and that he deliberately misinformed the court of the defendant’s confession and had accordingly misrepresented the nature of the defendant’s alleged WhatsApp admission.

58.  What is clear is that PW1 was unaware of the false documents in Markwin’s accounting office.  He only came to know as a result of PW2’s complaint about the Ogawa contract.  He then acted.  This is confirmed by Mr Ong’s statement where he said that in September 2014 he was contacted by PW1 and informed Mr Ong he suspected 920,000 had been stolen from the Ogawa contract.  PW1 was unaware at that time of the actual details of the Ogawa contract.

59.  PW1’s actions in respect of his investigation show he was unaware of the nature or the existence of the fraud practised on the company until the defendant admitted it to him on the evening of 14 September.  Up to that point he was still prepared to consider that someone at Faster Advertising had been involved.

60.  I found PW1 to be a wholly truthful, reliable and honest witness.  He was clearly truthful.  I found the allegations made against him to be mere speculation and devoid of any substance.  I was prepared to accept his evidence, like PW2’s evidence, in its entirety.

61.  In making these determinations about the credibility and reliability of PW1 and PW2, I did bear in mind the evidence given by the defendant.  I found that I could only reject the defendant’s entire body of evidence as being untruthful.  She simply told me a story to try to divert blame from where it should obviously rest, namely on her.

62.  The defendant was solely responsible for these contracts.  She signed them.  She was asked if she did inform PW2 about the fraudulent figures in these false documents, and in court she claimed not to remember, which was clearly disingenuous.  As a sole negotiator she would have full knowledge of the price.  It is not believable that she could not remember this or not remember what she told others about it.  Her answers were evasive.

63.  What she told PW2 was clearly a false and fraudulent misrepresentation, and she was unable to categorically deny that she had made it.  As to her denial of making an admission to PW1 and then saying that the WhatsApp was an apology for poor work, this is also clearly a fabrication that tries to establish an innocent explanation for what is obviously an admission to serious wrongdoing; in her phrase, “the biggest wrongdoing”.

64.  I reject her evidence that this was an apology for poor work and performance.  As I said, she admits to the biggest wrongdoing.  This is an admission that can only be read in the light of her earlier admission that evening made to PW1, a fact that was confirmed by her paying the exact sum of $920,000 to PW2 the next day, the sum mentioned in her admission to PW1, and coincidentally a sum that the defendant specifically asked to be placed into final payment of Ogawa to Markwin in a cheque.

65.  Now, in making these determinations, I did bear in mind the defendant’s clear record.  I have said she is a person of clear record, its relevance to her propensity to commit such offence, and the credibility of the testimony given by her.  But despite that, I rejected her evidence in its entirety.

66.  From these findings on credibility and reliability and my determination of that issue, I found the defendant misrepresented to PW2 the contract price of his work in a false and deceitful manner that, coinciding with the false documents placed in Markwin’s accounting office.  Thus, the only available inference to be drawn from this is that the defendant was responsible for those false documents, that the defendant told PW1 that “The money was taken away by me”.  This must mean she had taken the 920,000 from the Ogawa contract.  She promised to repay it the next day, which she did so; and that the WhatsApp finally confirmed her wrongdoing in this respect and that is why it was done in the presence of legal representatives.

67.  I find that the prosecution witnesses are accepted and the defendant’s responsibility for submission of the false documents and her making of the subsequent admission of taking the balance of the Ogawa contract clearly evidences in fact all the offences of fraud as charged.

68.  Thus my conclusions reached on the charges will be as follows:  that it is proven that in each case, by the submission of those false documents, Markwin would be deceitfully adduced to accept the false figures to be genuine and to be made as full payments on the contracts, and this would result in the benefit to the defendant and also in prejudice or substantial risk of prejudice to both PW2 and Markwin.  In more detail, I found the defendant was responsible for the existence of the false Ogawa contract or was responsible for its submission to the accounting department of Markwin, and that she misrepresented the true figure of the contract to both Markwin and PW2 to be 3.88 million when it was in fact for 4.8 million; that she specifically requested that one of the tranches for the payment of the contract be in a tranche of 920,000.  The defendant admitted taking away the 920,000, and repaid that sum to PW2 by way of what is in fact an admission by way of conduct.

69.  Clearly, the submission of the false contract is a dishonest and deceitful act done with the intention to defraud which was done both for the benefit of the defendant and actually led to the pleaded prejudice or the substantial risk of prejudice to both Markwin and PW2.

70.  That charge is clearly proved.  The defendant is convicted.

71.  On Charge 2, the defendant told PW2 the contract price was 1.6 million when the actual sum was 2 million.  She was accordingly responsible for the creation and submission of the false Procter & Gamble contract by way of the inferences drawn; that she told Miss Wong at Procter that the balance of 400,000 was to be remitted, although the date of that cannot be established.

72.  This I find must have been to prevent there being an inconsistency between the sum received by Markwin and the contract price held by Markwin’s accounting office contract, the clear object of the reduced figure in the contract being for the defendant to fraudulently obtain the 400,000 balance on the payment for the genuine contract, but the defendant being unable to bring this to completion.

73.  Clearly, the fact that the defendant informed PW2 of the false contract figure leads to the inference being drawn that she was responsible for the submission of the false contract.

74.  This again is dishonest and deceitful with the requisite intent to defraud.  The only purpose of this could be to conduct a similar fraud to the one practised in respect of the Ogawa contract.  However, the money could not be obtained as the 400,000 was paid after the defendant’s dismissal.  However, the offence of fraud has been completed in these circumstances as all the elements of that offence are present and proved, and I accordingly convict the defendant of that offence.

75.  On Charge 3, PW2 confirmed the defendant told him the final price was 200,000 when the actual genuine invoice was for 300,000.  A false invoice was submitted to the accounts office.  The inference can be drawn beyond reasonable doubt the defendant was responsible for the creation and submission of this invoice, and it is proved that Adidas in fact paid 300,000.  The internal record of Markwin’s accounting department shows the payment of the Adidas invoice was made by a $200,000 cheque drawn on the defendant’s account and that the 300,000 paid by Adidas was attributed to a payment for a Beijing contract.

76.  Again, this proves the submission of the false invoice is a deceit performed with the requisite intent that the balance of 100,000 be capable of being taken by the defendant by the engine of fraud she had devised whilst leaving no obvious inconsistency in the accounting record, thereby inducing Markwin to accept the false figure as full payment, resulting again to benefit to her or prejudice or substantial risk of prejudice to Markwin and PW2.

77.  In those circumstances, I find I must also enter a conviction on this 3rd charge.  It is proved.