HKSAR v. YU CHI KIT

DCCC 122/2022

[2024] HKDC 675

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 122 OF 2022

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REASONS FOR VERDICT

D3 faces a charge of "Handling stolen goods" (Charge 12)  and a charge of "Dealing with property known or believed to represent proceeds of an indictable offence" (Charge 18; alternative to Charge 12). He pleaded not guilty to both charges.

2.  There are 2 more defendants in this case (D1 and D2).  They have been dealt with by different judges.  This trial concerns D3 only.

The Prosecution Case

General issue

The predicate offence

3.  A BMW brand private car VW7200 ("the Car")  was owned by Willying Vehicle Service Limited.  The Car was advertised for rental on e-platforms Carousell and Facebook by a company named Team One Production Company Limited ("Team One").

4.  On 12 May 2021, someone who identified himself as Yiu Ho Ming sent WhatsApp messages to Mr. Ho, a staff member of Team One, showing interest in renting 2 cars for a month.  After negotiation, Yiu agreed to rent 2 cars (including the Car)  from Team One for 1 month at $22,000.  Yiu sent photos of his ID card and driver's licence to Mr. Ho.

5.  About 1:56 p.m. on 12 May 2021, Yiu notified Mr. Ho via WhatsApp that he had deposited a cheque for the sum of $22,000 into Ho's bank account.  Ho then drove the Car and another car one by one to Kan Tau Tsuen in Fanling.  About 3:30 in the same afternoon, Pau Tik Lun (i.e. D1 in this case)  arrived at Kan Tau Tsuen, claiming to Mr. Ho that he was Yiu.  D1 then collected both cars and drove them away one by one.

6.  About noon on 13 May 2021, Mr. Ho discovered that the cheque deposited by Yiu was dishonoured.  He reported the matter to the Police.  The Car hence became stolen property.  Its value was $45,000.

Charges 12 & 18

7.  About 9:55 a.m. on 29 July 2021, whilst on patrol, PC 13450 saw the Car parked at Wang Mau Street (near Lamppost AB0647)  in Kowloon Bay ("the Scene"); all doors and windows were locked.  PC 13450 reported to Console and was informed that the Car was a wanted vehicle.  He guarded the Car and informed the officer-in-charge of this case.

8.  About 10:30 in the same morning, PC 21589 arrived at the Scene and guarded the Car together with PC 13450.

9.  About noon on the same day, D3 was seen walking towards the Car.  He took a key fob out of his right trouser pocket and was about to unlock the doors of the Car.  PC 21589 intercepted D3 and asked D3 to hand over the key fob.  He cautioned D3 for "Fraud".  D3 said "Ah Fai lent the car to me.  I don't know what happened."  D3's verbal reply was post-recorded on PC 21589's notebook (Exhibit P3)  later on that afternoon.

10.  D3 admitted all the facts stated above[1]. No live prosecution witnesses were called for the general issue.

Special issue

11.  The prosecution seeks to rely on the contents of D3's video recorded interview (VRI)  contained in Exhibit PP9.  D3's counsel Mr. McGuinniety objects to the admissibility of Exhibit PP9 on the basis of involuntariness.  Written grounds of objection were placed before me.

12.  The prosecution called only 1 witness, PC 16972 (PW1), for the special issue.  He denied all the allegations of improper conduct put to him by Mr. McGuinniety.

The Defence Case

Special issue

13. D3 elected to give evidence but did not call any defence witness. In gist, he alleged that there were in fact 2 VRIs. He claimed that in the 1^st VRI, he had refused to answer most of the questions. Suddenly, someone knocked on the door. PW1 paused the recording machine and left the room for about 10 minutes. When he returned, he took out the disks from the recording machine and started threatening D3. PW1 told D3 that the Car was obtained by deception; he could say it was stolen or obtained through illegal means. If D3 did not say anything, he would not get police bail. He would then be charged without court bail either; it would then take a year or two for this case to be tried. After making such threats, PW1 put new disks into the recording machine and began the 2^nd VRI.

14. D3 said he was scared by PW1's threats. He pretended to cooperate in the 2^nd VRI but deliberately refrained from saying the word "stolen"; he said "unclean" instead. When pressed by PW1 at the end of the interview, he gave in and said "illegal means".

Assessment and Analysis of Evidence

Special issue

15. I have borne in mind the burden and standard of proof in the special issue. I have considered the evidence of both PW1 and D3 and have observed their demeanour in the witness box.

16. To attack PW1's credibility, Mr. McGuinniety tried to paint a picture that there was a 1^st VRI, which took place right before to the one contained in Exhibit PP9. Mr. McGuinniety relied on the "Register of VIR Tape" (Exhibit P6)  to show that the disk set used for recording the present VRI (i.e. Exhibit PP9)  was not obtained from the Report Room of Yuen Long Police Station. Responding to this allegation, PW1 denied that there was an "aborted" VRI; he maintained that there was only one VRI all along.

17. PW1 has frankly admitted that he had obtained the disk set for the present VRI from a storage cabinet in his team office. He explained that since the disk set (i.e. Exhibit PP9)  was not obtained from the Report Room, there is no record on the log book (i.e. Exhibit P6)  for that particular set of disks. On the contrary, Mr. McGuinniety submitted that since the 1^st VRI was aborted, PW1 had no choice but to obtain another set of disks from his team office, which did not require any record of issuance, for the present VRI in order to cover up for the lack of record on Exhibit P6.

18. Mr. McGuinniety's argument may be sound if there is a rule which stipulates that blank disk sets for VRIs must only be obtained from and returned to the Report Room with proper records kept, same as the issuing and returning of arms to and by police officers at the beginning and the end of a shift.

19. I have studied the contents of Exhibit P6. The disk sets recorded on it were not drawn from the Report Room of Yuen Long Police Station according to their serial numbers. In fact, they were taken out rather randomly. On this basis, I draw the irresistible inference that blank disk sets for VRIs at Yuen Long Police Station were not treated like pistols and bullets or exhibits contained in tamper-proof bags, the issuance and return of which must be properly accounted for. In relation to this point, Mr. McGuinniety submitted that if the blank disk sets need not be properly accounted for, why bother to maintain a log book? In my view, there could be many other reasons for keeping a log book; I need not speculate on such reasons or imagine one.

20. Common sense tells us that blank disk sets are not valuable commodities. They have no value (evidential or otherwise)  until they contain interviews of suspects or witnesses. I see no reasons why their issuance (when they are still in blank stage)  need to be accounted for. Once a VRI is completed, there are rules which govern the sealing and preservation of the integrity of the master disk as well as the distribution and use of the other 3 coloured disks. In my view, blank disk sets are no different from any common stationery items in a police station like the various blank Pol forms, pens and pencils; they do not need to be locked away and signed for when taken out to be used. Hence, I see nothing wrong or sinister for PW1 to take a blank disk set from a storage cabinet in his team office (instead of the Report Room)  to record the present VRI. As a juror, I believe PW1's evidence. There was no "aborted" VRI as alleged by D3; and Exhibit PP9 contains the only VRI which PW1 had conducted with D3.

21. Regarding D3 having been threatened and/or induced by PW1 to participate in the alleged 2^nd VRI, I see flaws in his evidence. He stated that he was allowed to call his lawyer twice before the alleged 1^st VIR began. He also said he had asked his lawyer to prepare to come over. Clearly, D3 knew about his rights. Furthermore, he knew that his lawyer was on his way to the police station. If that was the case, why would he not wait until the arrival of his lawyer to commence any VRI? Also, knowing that his lawyer would arrive soon, why would D3 be scared by PW1's threatening words and succumb to his demands to cooperate? These are the questions I would ask rhetorically as a juror.

22. D3 has reiterated many times in his evidence that in the alleged 2^nd VRI, he had deliberately used the word "unclean" instead of saying what PW1 had asked him to say. In my view, this line of defence is a two-edge sword. As a juror, I find that it shows D3 knew how to protect himself and could still exercise his freewill in terms of his choice of words. In other words, he was not really threatened by PW1's words (even if such words were said)  or feeling scared. D3's demeanour and his tone of voice as shown in Exhibit PP9 clearly demonstrated that he was calm and had answered each question willingly. I do not see the slightest degree of involuntariness or reluctance throughout the interview.

23. Based on the reasons stated above, I am satisfied that the prosecution has proved D3's voluntariness in relation to the VRI contained in Exhibit PP9 beyond reasonable doubt. Hence, I rule Exhibit P9 admissible. It thus becomes part of the evidence in the prosecution case.

General issue

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

25. D3 elected not to give evidence or call any defence witness. This is his right; I drew no adverse inference against him in this regard.

26. It is an admitted fact that D3 possessed the key to the Car and he was walking towards it intending to open its doors. It is trite law that in order to establish Charge 12, the prosecution must prove D3 knew or believed that the Car was stolen. Suspicion that it was stolen, even coupled with the fact that he shut his eyes to the circumstances, is not enough, although those matters may be taken into account by a jury when deciding whether or not the necessary knowledge or belief existed[2].

27. In his VRI, D3 stated that a friend named "Ah Fai" lent him the Car to drive. D3 knew that the Car was a little "unclean". D3 did not need to pay to borrow the Car; he therefore drove it temporarily[3]. D3 claimed that he did not know Ah Fai's full name and did not have his contact details[4]. D3 bumped into Ah Fai about a week ago in Mongkok. He chatted with Ah Fai and asked Ah Fai to lend him the Car[5]. Ah Fai did not say for how long D3 could borrow the Car; he would call D3 when he wants the Car back[6]. D3 borrowed the Car because his own 7-seater had broken down[7].

28. At the end of the VRI, D3 was asked to clarify what he meant by the Car was "unclean". He explained that he thought the Car could have been obtained by illegal means[8].

29. Mr. McGuinniety submitted that even taken to their highest, D3's so-called admissions in his VRI are not sufficient to meet the required standard of proof. He argued that by using words like "could have", "might have", "probably" and "may be", D3 was at most guessing or suspecting that the Car was "unclean". I agree with Mr. McGuinniety. The prosecution does fall short of proving D3 knew or believed that the Car was stolen. On this basis, I find D3 not guilty of Charge 12.

30. I have reminded myself of the legal principles stated in HKSAR v Yeung Ka Sing, Carson(2016)  19 HKCFAR 279. Regarding the mens rea of the "money laundering" offence, the Court of Final Appeal held:

"To convict, the jury had to find that the accused had grounds for believing, and there was the additional requirement that the grounds must be reasonable: That is that anyone looking at those grounds objectively would so believe[9]."

The Court of Final Appeal also held that when dealing with this issue, the court must take into consideration of the personal beliefs, perceptions and prejudices of the accused[10].

31. In respect of how to decide if the accused had reasonable grounds for believing that the property in question was "tainted", the Court of Final Appeal in HKSAR v Harjani Haresh Murlidhar (2019)  22 HKCFAR 446 laid down the following test[11]:

(i)  What facts or circumstances, including those personal to the defendant, were known to the defendant that may have affected his belief as to whether the property was the proceeds of crime ("tainted")?

(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" the defendant is not guilty.

32. In the present case, D3 bumped into a friend (whose full name and contact details were unknown to him)  in Mongkok and started chatting. D3 asked that friend (Ah Fai)  to lend him the Car because D3's own car had broken down and D3 did not want to be late for work. Ah Fai agreed to lend D3 the Car for free. Ah Fai did not say for how long D3 could borrow the Car; he would call D3 when he wants the Car back. Finally, D3 thought the Car was "unclean" and it could have been obtained by illegal means.

33. Mr. McGuinniety submitted that if D3 had any doubts about the legitimacy of the Car, he would not have walked towards it when he saw police officers trying to ticket it[12]. Any reasonable person knowing that the Car was "unclean" would have just turned around and walked the other way. Mr. McGuinniety stressed that D3's behaviour upon seeing the police officers completely speaks for itself – he saw nothing illegal about the Car.

34. There are many reasons for D3's reaction upon seeing the police officers standing by the Car. May be he was trying to be bold or he found it awkward to turn around. I cannot and should not speculate on the reasons why D3 did not turn around but walked right into the police officers. What I cannot ignore is the story D3 gave in his VRI.

35. As an ordinary person growing up and having lived in Hong Kong for most of my life, I have yet to bump into a so-called friend (whose full name and contact details are unknown to me)  on the street one day and he ended up lending me his car for free after a just quick chat. Apart from being too good to be true, the highlight of D3's story is that he thought the Car was "unclean", meaning it could have been obtained by illegal means. He nonetheless decided to borrow the Car because he was tempted by the convenience[13] [of driving to work]. I have not a single doubt that D3 knew or had reasonable grounds for believing that the Car was "tainted". This is a finding of fact I make as a juror.

36. Based on the reasons stated above, I am satisfied that the prosecution has proved beyond reasonable doubt all elements of the "money laundering" offence. I find D3 guilty of Charge 18.