HKSAR v. LEUNG WAI SUM AND OTHERS

DCCC 483 & 811/2022 (Consolidated)

[2025] HKDC 591

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NOS 483 & 811 OF 2022

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REASONS FOR VERDICT

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1. D1 to D4 face a Charge Sheet consisting of 6 charges of Dealing with property known or believed to represent proceeds of an indictable offence, contrary to section 25(1)  and (3)  of the Organized and Serious Crimes Ordinance, Cap 455. They all pleaded not guilty to their respective charges resulting in the necessity of a trial.

2.  Particulars of these charges are that A (defendant(s)), between B and C, in Hong Kong, knowing or having reasonable grounds to believe that property, namely a total sum of D Hong Kong currency in the E held under the name of the said A with F, in whole or in part directly or indirectly represented the proceeds of an indictable offence, dealt with the said property.

3.  For Charge 1, A is D1; B is 30 April 2018; C is 1 April 2020, D is $11,165,898.29; E is account numbered 012-708-1-014134-0; F is Bank of China (Hong Kong)  Limited.

4.  For Charge 2, A is D1; B is 30 April 2018; C is 1 May 2020; D is $7,777,265.00; E is betting account numbered 28634297; F is The Hong Kong Jockey Club.

5.  For Charge 3, A is D1 and D2; B is 24 June 2019; C is 1 April 2020; D is $531,521.63; E is account numbered 012-806-2-007339-7; F is Bank of China (Hong Kong)  Limited.

6.  For Charge 4, A is D2; B is 31 December 2017; C is 21 April 2020; D is $1,613,095.15; E is account numbered 012-680-1-010982-6; F is Bank of China (Hong Kong)  Limited.

7.  For Charge 5, A is D3; B is 2 July 2019; C is 20 November 2019; D is $2,614,187.34; E is account numbered 012-358-2-007157-0; F is Bank of China (Hong Kong)  Limited.

8.  For Charge 6, A is D4; B is 2 December 2018; C is 21 December 2019; D is $4,167,208.96; E is account numbered 012-352-1-042734-1; F is Bank of China (Hong Kong)  Limited.

9.  The offence the subject of each charge is more commonly known as “money laundering” offence.

PROSECUTION CASE IN BRIEF

Against D1

10.  During the charge period, D1’s A/C1 had over $11 million deposited in it.  Most of the funds were soon withdrawn and dissipated in different ways. The total amount of withdrawals was very close to the total amounts of deposits.  The amounts were out of proportion to his known means.  Charge 1 refers.

11.  During the charge period, D1’s HKJC account recorded a total of over $7.7 million in deposits (in 919 transactions)  and a total of over $4.4 million in withdrawals (in 344 transactions).  The total betting and total pay-out were around $26 million and around $23 million respectively.  In terms of deposits, a total of 762 transfers amounting to more than $5.8 million came from D1’s A/C1.  In terms of withdrawals, a total of 307 transfers amounting to more than $3.8 million were made in favour of D1’s A/C1.  The amounts were out of proportion to his known means.  Charge 2 refers.

12.  During the charge period, a total of over $530,000 was deposited into D1’s joint account with D2 (A/C2).  Most of the funds deposited were usually withdrawn by cash in around one month.  The total amount of withdrawals was very close to the total amount of deposits.  Charge 3 refers.

Against D2

13.  During the charge period, a total of over $530,000 was deposited into D2’s joint account with D1 (A/C2).  Most of the funds deposited were usually withdrawn by cash in around one month.  The total amount of withdrawals was very close to the total amount of deposits.  Charge 3 refers.

14.  During the charge period, a total of over $1.6 million was deposited into D2’s A/C3.  Most of the funds deposited were soon withdrawn and dissipated in different ways.  The total amount of withdrawals were close to the total amount of deposits.  The amounts were out of proportion to her known means. Charge 4 refers.

Against D3

15.  During the charge period, a total of more than $2.6 million was deposited into and withdrawn from D3’s A/C4.  Most of the funds (usually in small amounts)  deposited into the account were often withdrawn or transferred out in bulk amounts (mostly by several withdrawals)  with a short period of time.  The amounts were out of proportion to her known means.

16.  On 10 July 2019, that is one week after account opening, D3 applied to change her mobile number to 6999 0184 and her email address to Cooolaaa@icloud.com by filling in and returning in person a “Customer Information Amendment Form” to BOC.  On the form, “I/D Confirmed” was stamped near the signature part of the form.  Charge 5 refers.

Against D4

17.  During the charge period, a total of over $4 million was deposited into D4’s A/C5.  Multiple funds from different counterparties were usually deposited in smaller amounts, accumulated in the account, and were often withdrawn or transferred out in bulk amount (in thousands)  on the same day or shortly after.  The total amount of withdrawals were slightly more than the total amount of deposits.

18.  Within the charge period, D4 had made 5 applications for change of contact information by filling in and returning in person the respective “Customer Information Amendment Form” to BOC.  Charge 6 refers.

DEFENCE CASE IN BRIEF

D1

19.  D1 gave evidence but called no other witnesses.  D1 used to run a retail business and had made substantial profit.  He also received a legacy from his late father.  He gave all these funds in cash to his mother for safekeeping. Whenever he needed money, he would ask her.

20.  He ceased his business end of 2017.  He met D2 at about this time.  They cohabited as couple.  Both of them became addicted to gambling.  D1 gambled in soccer betting using his HKJC account which was linked to his A/C1.  He also gambled in mobile phone games purchasing and redeeming points by FPS through his A/C1.  He also gambled in the streets on “13 pieces” below his housing estate.  The funds in and out of his A/C1 relate to his gambling.  The funds in and out of his joint account with D2 (A/C2)  relate to savings with a view to marriage.

D2

21.  D2 gave evidence but called no other witnesses.  She used to rely on CSSA and her previous boyfriends.  She met D1 end of 2017 and they, together with her two children from previous relationships, lived together.  D1 provided for them.  Starting 2018, both D1 and D2 became heavy gamblers.  She gambled in mobile phone games and mahjong.  Her A/C3 was used for purchasing and redeeming points in relation to mobile phone games hence the numerous FPS transactions. Her joint account with D1 (A/C2)  was for savings with a view to marriage.  She gambled daily in Mahjong Parlour.  Her source of funds for gambling were gifts from her previous boyfriend(s), D1, her father, and D1’s mother.  She also borrowed from relatives and friends.  She lived from rags to riches as a norm and had ups and downs.

D3

22.  D3 gave evidence but called no other witnesses.  On or about 1 July 2019, she went for a job interview and she was told that, if successful, she would have to open a bank account to receive salary.  Without waiting for the outcome, on 3 July 2019, she opened A/C4 at a BOC branch together with her then cohabiting boyfriend Ng and their baby daughter.  However, she left with her baby first leaving Ng to collect the documents including the bank card from the counter.  A few days later, she asked Ng about the documents including the card, but the response was the documents (including the card)  were lost on 3 July.  On a subsequent day to this response of Ng, D3 saw a letter in BOC envelope on the surface of the shoe cabinet.  It felt like a card so she asked Ng for the PIN which he had earlier chosen at the bank counter in her presence.  She wrote the PIN on a label and stuck it on to the envelope before putting the whole in the shoe cabinet drawer.  On 14 July which was her birthday, D3 and Ng had a big quarrel and she left Ng’s premises for her maiden home with a few garments after telling Ng that they were separating.  She never returned to collect her daughter or other belongings.  D3 denied being responsible for the Customer Information Amendment Form which she said was not signed by her.

D4

23.  D4 gave evidence but called no other witnesses.  D4 was working in renovation field and opened A/C5 for the purpose of obtaining a bank card to facilitate movement of funds in anticipation of forthcoming renovation projects. However, the projects never came and he put the card and PIN aside in his Sham Shui Po flat where he lived with his then girlfriend.  The rental of the flat was shared with his renovation friends who stored tools there.  Later, there was no work available so he moved back to his maiden and current home in Kowloon City with his girlfriend.  He moved his many stuff back including many letters.  He started working as a kitchen hand but eventually even that work became unavailable.  Girlfriend was a heavy gambler and she stayed for one year in his maiden home then left.  D4 had salary slips and documents which bore his signatures where he lived.  D4 never used his A/C5 or the bank card.

24.  D4 denied operating A/C5 and denied being connected with any of the 5 Customer Information Amendment Forms.  D4 said it was possible that someone familiar with his signature forged his signatures.

ISSUES IN THE CASE

25.  The issues in the case revolve in the first instance around the credibility and reliability of the four defendants as witnesses.  If any defendant’s exculpatory evidence is true or may be true, that defendant is not guilty of the charge(s)  against him/her.

26.  However, if the exculpatory evidence of a particular defendant could not possibly be true, then the issue will become whether the prosecution evidence against him/her would be sufficient to prove a case of money laundering against him/her.

APPLICABLE LAW

Money laundering offence

Meaning of “having reasonable grounds to believe”

27.  In HKSAR v Harjani Haresh Murlidhar (2019)  22 HKCFAR 446, the Court of Final Appeal has stipulated what it means to be “having reasonable grounds to believe”, as follows:

(a)  What facts or circumstances, including those personal to the defendant, were known to him that might have affected his belief as to whether the property was tainted? Where the defendant gave evidence of facts and matters that affected his belief about the nature of the property, the court had to decide whether he was, or might be, telling the truth about the existence of these facts and matters;

(b)  Would any reasonable person who shared the defendant’s knowledge be bound to believe that the property was tainted (the Question)? Where the court found that the defendant was, or might have been, telling the truth about the existence of facts and matters that he claimed affected his belief, the court must take those facts and matters into account when answering the Question; and

(c)  If the answer to question (b)  was “yes”, the defendant was guilty. If it was “no”, the defendant was not guilty (See paras 25-28 of judgment).

28.  Harjani further held that, where the defendant did not give or adduce evidence, the court had first to find what relevant facts or circumstances were known to the defendant and then answer the Question.  If “yes”, the defendant would be convicted, and likely sentenced on the basis that he must also have believed that the property was tainted (See para 29 of judgment).

29.  Where the defendant gave evidence that he did not believe the property was tainted, in answering the Question, the court must give due consideration to the evidence given by him as to what he believed and why.  It was the facts and circumstances that the defendant asserted led him to a particular belief or perception that were significant rather than the subjective belief or perception itself.  The court had to consider two interrelated questions: (a)  was the defendant telling the truth when he said that he did not believe that the property was tainted; and (b)  could a reasonable person in the defendant’s position have failed to believe that the property was tainted? (See paras 27, 30, 41-42, 49 of judgment)

30.  Normally, the court would give the same answer to each question. However, a rare case might arise where the court concluded that any reasonable person in the defendant’s position would have believed that the property was tainted but nonetheless accepted the defendant’s evidence that he did not have this belief.  This was only likely in circumstances where it was apparent that the defendant lacked the reasoning abilities of a normal person.  In such circumstances, D should be convicted but his belief might well be a mitigating factor when he came to be sentenced (See paras 31-33 of judgment).

31.  The court had to weigh the matters of which the defendant had personal knowledge, which would incline a reasonable person to believe that the transaction was clean, against the particulars of the impugned transaction itself, which would incline a reasonable man to believe that the transaction was tainted.  The defendant’s perception would not necessarily carry any weight, let alone determinative weight.  If, on balancing all these matters any reasonable person would be bound to conclude that the transaction was tainted, the defendant would properly be convicted.  If, on balance, a reasonable man might conclude that the transaction was clean, an acquittal must follow (See paras 55, 58-59 of judgment).

HKSAR v Wong Chor Wo, CACC 314/2006 (unreported)

32.  The Court of Appeal in HKSAR v Wong Chor Wo, CACC 314/2006 (unreported)  pointed out,

“108. In the normal course of events, if a man allows another person to use his bank accounts to deposit and withdraw funds, in the absence of evidence to the contrary, the inevitable inference will arise that the holder of the bank account has reasonable grounds to believe that the funds passing through the account represent the proceeds of an indictable offence.”

PROCEDURAL HISTORY

33.  Prosecution called 3 witnesses.  They are PW1 Lai Chung Yin (BOC staff), PW2 DPC7696, PW3 Tsang Hing Lun (HKJC staff).

34.  After the close of prosecution case, none of the defence had half-time submissions to make.  After consideration of the relevant evidence, I ruled that there was a prima facie case on all charges against the corresponding defendants.

35.  Each of the defendants has elected to give evidence but call no other witnesses.  I will assess their evidence objectively as I have done in relation to prosecution witnesses but bearing always in mind that only the prosecution bears the burden of proof.

36.  After the close of all evidence, parties made what essentially were written submissions (D4’s written submissions in Chinese only).  I have considered them fully without reciting them here.

SUMMARY OF PROSECUTION EVIDENCE

PW1 Lai Chung Yin

37.  PW1 is a staff member of BOC.  A customer under general circumstances would attend a branch of the Bank to apply to change customer information by way of customer information amendment form (example is the one relating to D3 ie P1-8 pp 5879-5880 dated 10.7.2019).  On p 5880, there is a chop “I/D CONFIRMED” beside the signature of the customer which means a colleague has verified the identity of the customer by checking ID card. (The proposed amendments are mobile phone number to 69990184 and email address to Cooolaaa@icloud.com)

38.  In relation to the customer information amendment form relating to D4, P1-11 pp 6793-6794 dated 6.4.2019, there is no “ID CONFIRMED”.  PW1 was not sure if the relevant staff member received this form from the customer. (Here, the checker was the same as the handler)(The proposed amendments are mobile phone number to 69990184 and email address to Cooolaaa@icloud.com)

39.  In relation to another (a 2^nd)  customer information amendment form relating to D4, pp 6795-6796 dated 17.7.2019, which proposed the same amendments to mobile phone number and email address as the previous form; PW1 did not know the reason why.  Again, there was no “ID CONFIRMED” chop here, reason unknown.  PW1 reiterated it was normal procedure for customer to attend the branch to deal with such amendments.  However, PW1 was not clear if somebody else took the form to the branch. (The checker here was the same as the handler)

40.  Normally, the Bank would have to verify everything including ID of customer before proceeding but PW1 added the caveat that he was not a frontline officer.

41.  In relation to a 3^rd customer information amendment form relating to D4, pp 6797-6798 dated 13.8.2019, the proposed changes are the address to “1/F, 12 Boundary Street, Prince Edward” and mobile phone number to “53774145”.  Here, there was “ID CONFIRMED” chop in Chinese.  Normally, a staff member known as a checker (more senior)  would verify the ID of customer; the staff member who received the form was known as the handler.  The handler made a photocopy of the ID card and passed it to the checker for verifying ID.  On this form, the checker was the same person as the handler.

42.  In relation to a 4^th customer information amendment form relating to D4, pp 6799-6800 dated 23.9.2019, the proposed change was the mobile phone number to “62155210”.  Again, there was an “ID CONFIRMED” chop. There was no checker on this form.

43.  In relation to a 5^th customer information amendment form relating to D4, pp 6801-6802 dated 15 October 2019, the proposed change was the address to Flat H, 1/F, 12 Boundary Street, Prince Edward”.  There was no “ID CONFIRMED” chop, nor was there a checker.  PW1 was not sure if the handler received this form.

44.  Under cross-examination by D3’s counsel, PW1 explained the reason why his evidence was often tagged with “general speaking” was that he was not a frontline staff member and he learned about the general practice from branch staff by communicating with them.

45.  PW1 said that the checker the photocopy ID card against the information in the bank system.  The frontline staff would also check the signature on the customer information amendment form against the bank record.

46.  PW1 agreed that the disputed signature purportedly of D3 on the customer information amendment form at p5880 and D3’s signature on the Opening Mandate at p 5876 (P1-7)  looked different from one another.  PW1 was not sure if anyone checked the signature against the bank system on this occasion.

47.  Under cross-examination by D4, PW1 said that the difference between D4’s signature on the Opening Mandate at p 6790 (P1-10)  and the disputed signature on the 1^st customer information amendment form p 6494 was not big; as regards the 2^nd form at p 6796, the difference is slightly bigger.

48.  PW1 agreed that the customer information amendment form could be downloaded by the customer, filled in and posted/handed in to the relevant office; however, he was not sure if the relevant department would accept it or not.

PW2 DPC7696

49.  PW2 was the officer who prepared the fund flow analyses of the 5 topical bank accounts and the HKJC account: P3 (related to accounts of D1 and D2 including D1’s HKJC account); P4 (related to accounts of D3 and D4); and P4A (related to account of D4 only in Chinese).  He also prepared an inter-accounts transactions chart (P22).

50.  Under cross-examination by counsel for D1 & D2, PW2 being not a HKJC staff member was not able fully to assist the court on the details of some of the HKJC transaction records.

PW3 Tsang Hing Lun

51.  PW3 is senior accounts administrative officer of HKJC.  He is conversant with the procedure of betting activities in respect of which computer is used. He produced P2 computer certificate in relation to D1’s HKJC account together with attachments.

52.  CV stands for cash voucher(s)  which could be bought at off-course betting centres.  CV has validity of 180 days.  CV could be used for placing bets, converted to cash over counter, or deposited into betting account.  CV has serial numbers (19 alphanumeric characters).  CV is freely transferrable.

53.  Cash can also be deposited into betting account.  In the transaction record, there is a record of cash deposit: if there is a serial number attached to the “cash deposit” record, then it is a CV deposit.

54.  Betting account may be but need not be linked to a bank account of the same name.  Computer system will have inter-account transactions record.

SUMMARY OF DEFENCE EVIDENCE

D1

55.  D1 resides with his girlfriend D2, and her daughter and son out of D2’s previous relationship.  D1 is educated to F3 locally.  He has worked in kitchen, in retail sector, and in sales sector, and in jobs related to selling goods at a bargain.  Since 2011, he had been learning to sell goods at temporary retail shops by promotion (the location would be changed every 3 to 4 days).

56.  Since December 2014, he started trading under “D.Church Trade Company.HK” (D1/1 p 2).  He obtained business registration for the purpose of running a food festival booth at HKCEC.  This business continued in operation until 2017.  D1/2 is the business registration document for 2014-15.  D1/3 is his namecard.

57.  His retail shop sold tea leaves, dried seafood and Chinese moxa rod sourced from Mainland China.  D1/4 are the remittance slips for purchases during those years.  Others could not be located because of lapse of time. D1/5 is a sourcing document.  D1/6 are payment slips etc for rental of yards (sales outlets).  D1 ran these shops with a partner called Ga Lei since December 2014.  D1/7 are photos in relation to 13^th, 14^th and 15^th Hong Kong Food Festivals which D1 participated, though he could not locate the records of 2016.  D1/8 are photos of income and expenses records from December 2014 to November 2015.

58.  D1 ran retail shop business till 2017.  As to why there were no business records of 2016 and 2017, D1 said he got addicted to gambling (in 2017), so he paid less attention to the company.

59.  Overall, he gained profit (cash)  from his business.  D1 gave his share of the profit to his mother for safekeeping.  Whenever he needed cash, he would ask his mother.  Mother did work, she could make her living on her own income. When his father passed away, he left $400,000 to D1 which was kept by mother.

60.  D1 made expenditures in cash.  From 2017 onwards, he co-habited with D2.  He paid rent and school fee of kindergarten where D2’s on attended.

61.  D1 mainly bet through his HKJC account.  He deposited cash into his BOC account (A/C1)  and then made transfer to HKJC account.  Whenever he won in gambling, he could transfer money back to BOC account from which money could be withdrawn by ATM card without time limit.

62.  Prior to 2017, there was less severe gambling.  From mid-October 2017, he had more frequent betting.  In 2017, he mostly played “corner HiLo” in soccer games because it was easier to play.  D1 also gambled on horse racing but fewer times.

63.  Betting increased progressively.  D1 would gamble according to the balance in his HKJC account, sometimes using the winnings to bet.  Other times, he would take out part of the winnings for expenses.  Overall, D1 made a loss. His funds for betting came from his mother, the money left in running his business, loan from friends, winnings from bets.

64.  Sometimes, he would bet at off-course betting centres.

65.  On 3 July 2018, D1 did purchase cash vouchers to the total value of $143,000 at Kowloon City Nga Tsin Long Road off-course betting centre.  The money came from the savings of changes kept inside a water dispenser plastic bottle (a habit since the days of running retail business)  and some savings of D2.  D1/32(1)  shows the current plastic bottle of savings.

66.  Apart from soccer and horse gambling, D1 also street-gambled in playing cards “13 pieces” on ground floor area in his housing estate.  D1 also played mobile phone games (betting)  since around late 2018 such as fish-hitting games and jackpot games.  D1/9 shows photos of invitation to join game from January to August 2020.  D1/10 shows the first page of “Joker Gaming” in February 2020.  D1/11 shows email relating to opening gaming account in December 2020. D1/12 shows WeChat Pay records between November and December 2020 relating to fish-hitting and slot machine games.  Various persons’ FPS accounts were used as source of winnings.

67.  As regards why there were no records of 2018-2019, D1 said he deleted them because there were too many records.

68.  Although the records show that there were inter-accounts fund movements between D3 & D4 on one hand and D1 on the other, he did not know them.

69.  D1/13 shows WhatsApp records of another gaming group between December 2019 and May 2020: D1 asked for FPS account information so that he could deposit money into it in order to play games; he was given FPS phone number(s).  D1/14 shows WhatsApp records of fish-hitting game in November to December 2019: one FPS information at D1 Bundle p 73(5)  & (6)  showed up in his BOC account (A/C1)  record at p 5493 (P1-2): 3 December 2019 to Lam Sxx Mxx for $1,000.  D1 said that FPS information changed all the time because the gaming agents differed on each occasion.  Another example of FPS information at D1 Bundle p  74(11)  showed up in D1’s BOC account (A/C1)  record is at p 5504: 10 December 2019 to YIEN Pxx Kxx for $5,000.

70.  D1/15 shows WhatsApp records of another gaming group between December 2019 and February 2020 in which D1 made payment through FPS: at D1 Bundle p 75(3), D1 paid FPS Ng Hoi Ting and this is reflected in D1’s BOC account record at p 5523.

71.  When asked why the same name FPS was used for different games, D1 said these FPS people would sell their bank accounts to the gaming agents and that is the reason.

72.  D1/16 shows WhatsApp records between April 2020 and January 2021 of another gaming group: here D1 could play game on credit of $5,000.

73.  D1/17 shows WhatsApp records in April and May of 2020 of “Joker Gold Club” in which D1 paid and played.  D1/18 shows WhatsApp records in May 2020 of another game in May 2020 in which D1 paid and received money.  D1/19 shows emails in May 2020 from BOC in May 2020 relating to game payment through FPS. D1/20 shows WhatsApp records in May 2020 of a gaming group “Winner”.  D1/21 shows WeChat records in January 2021 of another gaming group in which D1 paid money.  D1/22 shows notifications from BOC to D1 in February 2020 regarding FPS transactions in which D1 paid game money to one “Choi”.  D1/23 shows notifications from BOC to D1 in February 2020 regarding FPS transactions in which D1 paid game money to one “Ip”.  D1/24 shows notifications from BOC to D1 in February 2020 regarding FPS transactions in which D1 paid game money to one “Chuong”.

74.  In relation to P22 the inter-accounts/parties transactions chart, regarding transactions from/to D3’s and D4’s bank accounts, these are FPS transactions under the instructions of the gaming agents.

75.  D1/25 shows WeChat records in December 2020 in which D1 gave points to D2 (Carson)  to play games.  D1/26 shows WeChat records in December 2020 relating to “Isabelle” mentioned in D1/25.  D1/27 is a screenshot of top-up screen in November 2020 relating to making payment of $1,000: once the button is pressed, a two decimal place figure will pop up; D1 will add this to the $1,000 to mark his ID to the game agent of cash website (no WhatsApp group or player account number will be involved).

76.  D1/28 shows WhatsApp records in January 2020 of a friend who worked as game agent and asked D1 to patronize.  D1/29 shows WeChat records in January 2021 of D1 asking a relative to lend him RMB100.  D1/30 shows WeChat records in January 2021 of D1 asking another relative to lend him RMB.  D1/31 shows WeChat records in January 2021 of D1 asking another relative to give him RMB300 to play games.

77.  Regarding the joint account of D1 & D2 (A/C2), it was opened in June 2019 for the reason that D1 and D2 wanted to get married so the joint account was for saving money.  The account needs both of their signatures to operate lest one of them took out money for gambling.  D2’s source of income in the beginning was CSSA but it later ceased.  D2 also had $100,000 odd from her ex-partner.

78.  D2 gambled.  Sometimes she played mahjong at Mahjong Parlour.  D2 played phone betting games.  D1 gave her points for playing.  D1 gave D2 funding in cash and by transfers.  ATM has daily withdrawal limit of $20,000; that’s why there were also transfers.  D1’s BOC account (A/C1)  record at P1-2 p5536 and D2’s BOC account (A/C3)  at P1-5 p5806 bear witness to the relevant ATM withdrawals and transfer.

79.  D1 got money out of his BOC account also for miscellaneous family expenses.

80.  D2 has also contributed to savings in the joint account (A/C2). Deposits from D2 were sourced from D2’s winnings in mahjong and betting games.

81.  In the joint account’s statements P1-2 at p 5736, the reason for withdrawing $120,000 on 2 October 2019 was for the purpose of holding a wedding banquet in the Mainland home town.  D1 and D2 left Hong Kong on the next day and came back on 6 October 2019.  In the end, they did not hold the wedding banquet and unused part of the money was brought back and deposited into the joint account.  They continued to deposit money into the joint account after October 2019.

82.  On 21 January 2020 (p 5738), D1 and D2 had quarrel over gambling and wanted to terminate the joint account and divide the money between them. However, they reconciled and deposited money into the joint account again.  On 19 February 2020 (p 5739), they quarreled again and withdrew $50,000.  Eventually BOC closed the joint account.

83.  Under cross-examination, D1 said that he made from his retail business several 10s of thousand dollars per month.  D1 said he was told by ex-boss that that there was no need to pay profit tax for the first 3 years of the operation of SME so he did not pay profit tax.  Although he ran his business for more than 3 years since December 2014, starting from end of 2017, he did not take part in real business.  He did not have the business registration renewed and for this reason, he was fined by court twice.

84.  The profit mentioned previously had not yet included commission.  On average, the commission would be $20,000 to $30,000 per month.  He had not kept the full business record because of lapse of time and also because he did not anticipate legal proceedings.

85.  By the time he stopped the retail business at end of 2017, he had managed to save from the profit and salary a total sum of $200,000 to $300,000 in cash which he handed to his mother.  D1’s father passed away in 2018.

86.  D1 planned to get married in end of 2018.  After she came to know D2, she supported her by paying rents and school fees of her two kids.  D1 had no other income and asked mother for money.

87.  The cash vouchers of $143,000 came (as to $113,000)  from the changes plastic bottle (contributed by D1 & D2)  and the coins bottle (later coins bottle refuted); the balance of $30,000 came from mother (in re-examination, D1 added that $20,000 (consisting of $500 and $100 banknotes)  of the $143,000 were from savings of D1 & D2).

88.  The cash vouchers consisted of 28 x $5,000 and one $3,000 vouchers.  D1 did use them all: with most of which he placed bets on betting machines and he deposited a few into his betting account.

89.  It was because of his gambling addiction that he did not engage in other things after 2017.

90.  After D1 met D2, his household expenses amounted to about $15,000 excluding expenses on outings.

91.  When D1 asked for money ($10,000 to $20,000 each time)  from his mother, he would say that the money was needed for running business.

92.  When asked how he would be able to make deposits amounting to more than $7.7M into his betting account between 1 May 2018 and 30 April 2020, he said some of them were winnings.  Sometimes he took out winnings, other times he placed further bets with winnings.

93.  For the $50,000 withdrawn from joint account on 30 July 2019 (p 5734), D1 said he was intending to get married.  However, because of quarrel with D2, they did not get married.  After withdrawal, the sum of $50,000 was given to mother and paternal uncle for use of booking wedding banquet in Mainland. Later on, paternal uncle gave back part of the money to mother; the balance was already used.

94.  The deposits into the joint account from 3 to 5 September 2019 were winnings from either D1 or D2.

95.  On 6 October 2019, when D1 returned from Mainland to Hong Kong after cancellation of wedding banquet due to another fall out with D2 and the pandemic, he brought back only $80,000 to $90,000 some of which he deposited back into the joint account in November 2019.

96.  On p5734 of joint account statement, on 3 September 2019, the $16,000 and the $4,000 deposited shortly after 2 am were winnings from “13 pieces” poker game.

97.  Under re-examination, D1 added that there was no ATM issued for the joint account; the ATM deposits were made by inputting bank account number.

D2

98.  D2 was educated to F2, all along a housewife.  D2 met D1 in 2017 and they resided together.  D2 has 2 children from her earlier relationship with other(s).  D2 was arrested with D1 on 28 January 2021 inside a hotel.  The background of the arrest was D2 received a call on D1’s mobile phone.  Police wanted to locate D1 and told what they suspected D1 of.  D2 told officer that the residence was under renovation and she and D1 were living in a hotel (address provided to police).

99.  Within 21 minutes, police arrived.  The couple let them in.  Arrest and caution took place. Police searched the hotel room.  The couple were brought back to Wong Tai Sin residence for house search.  D2’s white Benz (made in 2011 and purchased in 2019 and a gift by D2’s father)  was also searched.  D2 had 2 phones one of which was seized by police; the other phone had no SIM card.  D2 provided the seized phone’s password to the police.

100.  D2’s last partner left her about $140,000 mostly in case, balance in his bank account to which she had access.  Until early 2018, she lived on CSSA. Since then, she lived wholly on D1.  D1 would from time to time give her cash of several 100s to several 1,000s each time.

101.  D1 made some money to their joint account because they were saving money.  D1 also transferred $40,000 ($20,000 x 2)  to D2’s BOC account (A/C3)  because she asked D1 for money for mahjong games: reason was that daily limit was cash withdrawal from his account was $20,000 but she wanted $40,000; the only way was to withdraw money from her own account after transfer from D1’s account.

102.  Since 2018, D2 gambled in mahjong, and mobile phone betting games (Joker, cash web, slot (Jackpot), and fish-hitting).  She played mahjong in Mahjong Parlours daily but less frequent now.

103.  D2 described herself as inveterate gambler.  She sometimes won sometimes lost.  She would where necessary ask parents and friends and even her daughter to lend money to her for gambling.  She would ask D1 for money too.

104.  D2/1 shows photo of a pawn ticket dated 4 February 2020 evidencing pawn of a watch for $60,000 money which she needed for gambling.  Other times in 2019-2020, she also pawned a diamond ring and gold necklace and jade pendant but no records were kept.

105.  D2 has HKJC betting account but never used it.  D2 knew D1 had HKJC betting account.  D2 knew D1 was engaged in soccer betting; sometimes D1 would ask her to place bets on corner High or Low.  At first, D2 knew D1 was skillful and he could win several 10s of thousand dollars but later they quarreled and did not discuss it anymore.

106.  When D2 first met D1, he was proud of his engagements in retail outlets.  When they resided together, D1 stopped those engagements.

107.  D1 got his money for gambling from his mother.  Even D2 could get cash from D1’s mother.  D2 sometimes borrowed money from parents and relatives and friends in cash or through FPS.

108.  D2 played mobile phone games.  When she played, she needed to make payments in in a similar way as D1 has described.  She has prepared documents to show how she played games; however, most of them related to activities after the charge period.

109.  There were little or no records of play in 2018, 2019 and 2020 because both of them received limited education, and every year she changed into a new iPhone and there was no record once data was transferred.

110.  D2 continued to play mobile phone games after 2020 and she chose some of documents to show the court.

111.  D2 gambled in mahjong and mobile games in 2018 and 2019.  For mahjong (starting end of 2018 at Mahjong Parlours), it was all in cash.

112.  D2 then went through the technicalities of different levels of play in mahjong (in terms of amounts of bets).  The maximum one could win in a single round is $7,200 or more but that was rare.  The common winnings were $5,000-$6,000 per round.  The usual loss was $1,000 to $2,000 per round.

113.  D2 got her betting fund initially from the $100,000 odd left to her by ex-partner.

114.  For higher level of bets, one had to exchange money for chips from Mahjong Parlour which could be redeemed later.

115.  D2 would seldom deposit cash winnings from mahjong into her own bank account (A/C3).  She kept them at home.  D2 paid for all her personal expenses in cash.

116.  D1 would give D2 cash when latter asked him; other times D1 gave D2 without her asking when D1 won money from somewhere.  D1 also transferred money to D2’s account but that was seldom.  Once was $20,000.  On that occasion, she wanted to play mahjong and she needed $40,000; but the ATM daily withdrawal limit was $20,000; so D1 transferred $20,000 to her so she could make cash withdrawal on her own.  P1-5 p5806 testified to that.

117.  D2 did not make any record of mahjong win/loss.

118.  For mobile phone betting in 2018-2019, D2 did not have any record. Reason was she changed her mobile phone and all messages were lost.

119.  D2/3 shows the game types and how to deposit and withdraw money relating to mobile games in January 2021.

120.  D2 played in 2018-2019 games of fish-hitting, jackpot/slot machine but she did not play soccer gambling.  In 2018-2020, D2 needed to register her personal information, mobile number, FPS and bank account number (A/C3)  in order to play mobile games.  First time when she played, she needed to deposit money at convenience store in cash.  Subsequent games were paid through FPS. WeChat Pay was also used.  But WeChat Pay allowed players to pay through FPS or other means.  So sometimes D2 used WeChat Pay as a platform but paid through FPS.  D2 also received payment by this means through FPS to her BOC account (A/C3).

121.  D2 effected FPS payment out by a phone number or QR code given to her by game organizer.  If it was a cash web, would need to add two decimal places in the sum transferred to identify herself.

122.  D2/4 shows payment at convenience store by QR code in October 2020.

123.  D2/14 at D2 Bundle p83 shows a table of mostly deposits to cash web game where there were 2 decimal places for the payments in July 2024.

124.  D2 then referred to the rest of D2 Bundle which consisted of similar game pay and withdrawal records to those submitted by D1 in D1 Bundle.  D2’s records spanned from October 2020 to March 2023 and hence outside the charge period relating to D2.  D2 averred that the position in 2018-2020 was similar.

125.  When asked by reference to p1797 the fund flow analysis relating D2’s A/C3 why there were cash deposits into the account, D2 explained that the cash consisted of loans from family members and friends, that given by D1, and some mahjong winnings, for the purpose playing games.

126.  When asked by reference to the Breakdown of Transfer Deposit at p 1800, D2 said #6 was from D1, and #5 “Transfer from Smart A/C” was related to using WeChat (Pay)  as a platform for FPS receive transfers (mostly on her redeeming game points).  D2 did not know the name of #8 “Chan Tin Sum” (D3)

127.  When asked by reference to p 1797 why there were 415 withdrawal transfers over 27.5 months, D2 said that she had the habit of depositing $1,000 on each occasion when she played games and she played many times each day.  As regards ATM transfer withdrawals, D2 said they related to penalty tickets, school fees and miscellaneous fees for daughter, and loan or repayment to friends.

128.  D2 did not know D3 or D4 before the proceedings.

129.  D2/16 shows that D2 asked a friend for loan for playing games in October to November 2020.  D2/17 shows D2 asked his father for $30,000 in November 2020.  D2/18 shows D2 asked a friend to add points to her account even when she was in hospital in November 2020 and D2 asked a friend for $1,000 in January 2021.  D2/19 shows D2 asked a friend for loans from $600-$1,000 for playing games in January 2021.  D2/20 shows D2 asked a friend to pay in $1,000 for games using QR code in January 2021.  D2/21 shows D2 asking the opposite party for points to play games in January 2021.  D2/22 shows D2 asking the game agent for points in January 2021.  D2/23 shows D2 asking a friend for $1,000 for playing games in January 2021.

130.  D2 averred that since 2018, her mode of living was basically similar.

131.  When asked by reference to P22 why she transferred $113,900 from her A/C3 to the joint account with D1 (A/C2), D2 said these were winnings from mobile games each of several 10s of thousand dollars.  Reason was that she did not wish to use the money to gamble; money in joint account could not be taken out again unless both D1 and D2 signed at bank counter.  There was no ATM card for joint account and one has to enter account number for ATM cash deposits.

132.  Regarding withdrawals from joint account on 30 July 2019 for $50,000 and on 2 October 2019 for $120,000, D2 agreed with D1’s explanation.  Withdrawal on 21 January 2020 of $150,000 occurred when they had a quarrel to the point of separation and they wished to divide the funds.  Relationship later improved and money started to be deposited again.  There was a quarrel again later and almost all money ($50,000)  was taken out on 30 March 2020.  Later the account was cancelled by someone.

133.  D2 did not suspect the source of D1’s funds.

134.  (With reference to P22)  Apart from some transfers (each time say $1,000)  from “Chan Ka Yee” (D2’s name)  to D1’s BOC account (A/C1)  for purpose of playing games, D2 said she also provided cash to D1, reason was D1 had gambled away all the money in soccer betting.  The amount of cash varied from several thousand to several 10s of thousand dollars.

135.  As regards the transfer of $31,000 (on 21 January 2020 at p  5737)  from the joint account to D1’s A/C1, it was probably because they went to cancel the joint account and the balance was transferred to D1’s account (in re-examination, D2 changed this to maybe D1 needed this money to gamble).

136.  Under cross-examination, D2 repeated what D1 said, that gamblers lived from rags to riches in a glimpse of time.  D2 only became addicted to gambling (in 2018)  after knowing D1 (end of 2017).

137.  The watch (a Rolex)  and the diamond ring that D2 pawned were left behind by the deceased boyfriend.

138.  D2 disagreed that she was financially very tight because she said it was like the ups and downs of Hang Seng Index.

139.  It was D2 who taught D1 to buy cash vouchers from HKJC because unlike banks who would charge administration fee for counting small changes, HKJC would not.

140.  D2 agreed when the mobile games and mahjong games were combine, as a whole, she made a loss over the years.

141.  There was one occasion when D2 brought along $70,000 to $80,000 to Mahjong Parlour to play mahjong.  That was when D2 and D1 split the withdrawal amount of $150,000 into two parts.  D2 took her part on that occasion and she won almost $1 million and took the cash back home.  The cash in bulk was being kept at home for D1 and D2 to spend as each of them liked.  D2 thought that the almost $1 million would not last for one week.

D3

142.  D3 was born in Hunan and came to Hong Kong in 2007.  She lived in a unit Kwai Shing Estate of whom she and her mother were registered tenants.  D3 was arrested there on 30 August 2021.

143.  At the end of 2016, D3 met a man surnamed Ng and they became boyfriend/girlfriend. Ng’s job was to lead people to get phone (service)  by registering in the provider without any payment in advance.  Ng lived in a unit in On Yam Estate. In August 2018, they had a baby girl.

144.  On 3 July 2019, D3 opened a bank account (A/C4)  at BOC (at Shek Yam branch).  Before that, she went to a restaurant for an interview for the position of cashier.  She was told that if she was successful, she would need a bank account to receive salary.

145.  The Opening Mandate of her BOC account (A/C4)  had the On Yam Estate address where she was living with Ng.  On the Mandate was also her email address and a phone number “68906662” which was Ng’s phone number.  The reason for using Ng’s number was she lost her phone two days prior.

146.  At the job interview, she also left her own email address and Ng’s phone number.

147.  A few days after (3 July 2019), D3 had a quarrel with Ng.

148.  D3 did ask Ng if he had received a call back from the prospective employer.  The response was he had no idea; he did not pay much attention to it.  Eventually, he went back to the prospective employer and asked why was there no news after so long and they said they had already informed her.  She did not get the job.

149.  The reasons why D3 need to find a job was after the birth of daughter (in August 2018), Ng was giving less and less money to her for family expenses.  Ng said he lost money in gambling.  They always had quarrels about gambling.  After 3 July 2019, there was a big argument on 14 July (2019)  that is D3’s birthday about D3 asking Ng for money for buying milk powder and diapers.  After the quarrel, they separated.  She grabbed a few garments and nothing else and left.  She even left the daughter behind.

150.  The bank card and the bank documents were left in the On Yam Estate unit.

151.  Regarding the prosecution allegation that she went on 10 July 2019 to the bank to change contact details, D3 denied it.

152.  When shown the relevant customer information amendment form P1-8 p 5879-5880, D3 denied filling in this form.  D3 denied it was her signature.  She did not know about the proposed amended phone number “69990184” nor the proposed amended email address Cooolaaa@icloud.com.

153.  She usually kept her HKID card in her handbag placed in the sitting/dining room.

154.  She remembered on 10 July 2019, she went downstairs with her daughter. She did not take her handbag but only brought along money and her (new)  phone with her.

155.  Later, D3 met another man and married him.

156.  D3 knew nothing about the transactions in her BOC account (A/C4).

157.  D3 adopted what she said to the police when arrested and which was recorded in the police notebook, “This card already went missing soon after I had applied for it.  It had never been used.”

158.  D3 has not adopted her video-recorded interview as part of her evidence.

159.  Under cross-examination, D3 said it was around 1 July 2019 when she went for the job interview.   The restaurant where job interview took place was in Shek Yam Shopping Mall close to Ng’s residence.

160.  D3 and Ng together went to open the BOC bank account (A/C4).

161.  D3 said she did not recall if the bank card and PIN were mailed to her or she obtained it at the counter at the time.

162.  D3 cohabited with Ng at the material time.  After she obtained the bank card and PIN, they were placed in On Yam Estate unit where they lived.  Her daughter and Ng’s family members also lived there.

163.  When D3 and daughter went downstairs at 3 to 4 pm on 10 July 2019 to grab something to eat, Ng was at home.  After eating, D3 went to purchase milk powder and diapers before returning home at 6 to 7 pm after being out for nearly 2 hours.  On return, Ng was not home.  D3 saw Ng again at around midnight.

164.  On 14 July 2019, after she told Ng they were separating, she left his residence for her parents’ home and she never returned to On Yam Estate unit nor did she collect her other belongings.

165.  D3 told the court in more detail what happened on 3 July 2019 when she went to open the bank account.  That day, D3 and Ng and their daughter were all there.  D3 and daughter left the bank first leaving Ng to collect the documents and propaganda leaflets at the counter.

166.  A few days after the bank visit, D3 asked Ng over the phone if the documents including the card could be obtained immediately.  Ng replied that it was lost on that day (of bank visit).

167.  On a day subsequent to the phone call between D3 and Ng, D3 saw on the surface of the top rack of the shoe cabinet a letter in a BOC envelope.  She felt the letter.  It felt like a card inside.  Besides, a notification email of successful application of account had been sent to her email.  So she deduced it was the card.  Shen then stuck a label with the PIN written on it onto the envelope before putting the letter inside the drawer of the shoe cabinet.  D3 went on to explain where the PIN came from.  She said that at the time when the bank account was being opened, it was she that set up the PIN in the absence of the bank card.  It was Ng who chose the PIN.  Ng told her and she input the PIN into the system.  On the day of seeing the card at their home, D3 asked Ng again for the number before writing it down on the said label.

168.  D3 disagreed to the suggestion that bank account was opened for Ng’s use.  D3 disagreed that it was she who submitted the customer information amendment form to the bank.

D4

169.  D4 was 62 years old, born in Fujian, of junior secondary education level in Mainland, divorced, now living in a unit in 43 Kai Tak Road (Kowloon City). He was a street stall attendant on Sai Yeung Choi Street.

170.  He opened the relevant BOC account (A/C5).  He could not remember if the bank card was given to him over the counter or mailed to him afterwards.   The PIN was later mailed to him.  The reason for him to open the BOC account card was to deposit money using the card for the renovation projects he (was to)  engage in.  In the end, he was not awarded any projects to work on, so he put the card aside.  He resorted to work as a casual worker in painting work.

171.  The card was opened at Sham Shui Po branch.  That time, he was renting a place in Sham Shui Po to live in and he registered that place in the account card application.  The card was mailed to that address.  The place was rented with two or three friends for the storage of renovation tools.  D4 lived there.  He engaged in renovation field with a few friends.

172.  The Sham Shui Po place was rented until 2018/2019.  Whether it was due to riot or epidemic, he did not work anymore.  He returned to Kowloon City unit where he resided with his mother.  Then he worked as a kitchen worker.

173.  After returning to the maiden home, the card was put aside for many years.  Business of the kitchen outlet was not good and did not continue. Friends in the renovation field called him and offered him work as casual worker.  On a particular day when he was in Sham Shui Po, in early evening, he was stopped and searched by uniformed police.  It was discovered that he was wanted.  Next day, after he was moved to a Police HQ, he was told to be involved in a money laundering case.  VRI was conducted.  House search was conducted.  As for the card, it was not used.  As to when or where it was lost, he could not recall.

174.  He has previously lost his HKID card two to three times between 2010 and 2020 and he had reported the loss each time to the police.

175.  D4 has not adopted his video-recorded interview as part of his evidence.

176.  Under cross-examination, D4 agreed he opened the BOC account (A/C5)  in December 2017.  Upon receiving the PIN, he had not changed it or he could not recall if he had changed it.  He had never used the bank card nor the account.

177.  When he moved to Kowloon City, it was placed in the cabinet.  He did not know when it was lost.

178.  During December 2017 to December 2018, he had received income in cash as a casual worker.

179.  D4 returned to his maiden home ie a unit in 43 Kai Tak Road, Kowloon City, to live with his mother around mid-2018 to early 2019.  When he moved from Sham Shui Po, he moved many other stuff including many letters.  So he did not know if he still had the bank card and PIN after the move.

180.  D4 used to have a girlfriend (who had gambling habits)  who moved with him from Sham Shui Po to Kowloon City.  The girlfriend stayed in Kowloon City for almost a year up before she left.

181.  D4 denied having anything to do with the 5 sets of customer information amendment form.

182.  At one time, when D4 had received both the bank card and the PIN, he put one into the other’s envelope but was not sure which into which.

183.  When shown the bank statements of his BOC account (A/C5)  P1-12 at p 6803, D4 denied anything to do with the first two ATM transactions which happened on 4 January 2018, not long after he opened the account in December 2017.  D4 agreed he must have lost his card as early as January 2018.

184.  As regards the 4^th entry on the same page, an auto-deduction of $4,170 to Prime Credit Limited on 5 January 2018, D4 had no recollection. D4 admitted having borrowed money from Prime Credit but he repaid money by cash delivered to the credit financial institution.  D4 equally had no idea about the 3^rd entry of ATM deposit also on 5 January 2018 of $4,200.

185.  D4 said the reason for taking out loans from the institution was for the sake of his then girlfriend.  In the past, she received dunning messages or calls from others asking her to make repayment.

186.  D4 did make repayment for loan thus: once he had salary, he would give money to girlfriend for her to make repayment; but she lost money in gambling; so he had to take out the loan.  When he made repayment for loan, he was given a number to make repayment by credit financial institution.

187.  D4 added that he had never made arrangement for auto-deduction with the bank.  D4 said once he received the salary, he would give money to girlfriend for her to make the deposit.

188.  D4 said someone must have forged his signatures on the customer information amendment forms.  He also had no idea about the address change to 12 Boundary Street which did not ring any bell.  He also had no idea about the proposed number change to “53774145” nor to “62155210”.

189.  Using as an example, D4’s then girlfriend would be in a position to know his signature because he had lots of salary slips and documents at home.

190.  D4 only had one signature because he had limited education.

191.  D4 had not been a director of any limited company although in the past, he did attempt to register a courier transportation company.  However, he did not start the business.

192.  D4 denied being the director of two companies named United Garment Limited and Everest Groups Limited.

193.  D4 was shown the Companies Registry records of United Garment Limited which had D4’s name and the address Flat H, 1^st Floor, 12 Boundary Street.  D4 was also stated as a member of the company.  D4 denied any involvement in it.

194.  D4 was cross-examined about the other company Everest Groups Limited. However, unfortunately, prosecution used the wrong set of Companies Registry records, that of a duplicate set of the United Garment Limited papers namely pp 2096 and 2100, to cross-examine D4.  So this part of the cross-examination has no value at all.

195.  Prosecution put to D4 that from 3 December 2018 to 5 April 2019, D4 operated A/C5 in dealing with the proceeds of indictable offences.  D4 disagreed.

196.  Prosecution put to D4 that from 6 April 2019 to 20 December 2019, D4 lent his same account to others for them to deal with the proceeds of indictable offences.  D4 disagreed.

MY CONSIDERATIONS

197.  I have borne in mind the legal principles in HKSAR v Harjani Haresh Murlidhar (supra) and HKSAR v Wong Chor Wo (supra).

198.  I bear in mind the burden rests on the prosecution throughout, standard being beyond a reasonable doubt.  The defence needs to prove nothing, least so the innocence of the defendant(s).

199.  I will deal with the charges separately.  The verdict in relation to one charge does not affect the verdict in relation to another.  However, I will be alert to any possibility of inconsistent verdicts.

200.  I will consider the evidence for and against each defendant separately but bearing in mind some of the evidence may be common to more than one defendant.  I bear in mind Charge 3 is a joint charge against both D1 and D2 in relation to a joint bank account.

201.  I have considered all the admissible evidence and all the submissions of counsel and D4.

202.  First, I will assess the credibility and reliability of the evidence of each of the witnesses.

PW1 Lai Chung Yin

203.  PW1 admitted that he was not a front-line staff and what he knew about the front-line practice he learned from others hence hearsay.  He was not confident about his answers on many instances about the practice in relation to customer submitting customer information amendment forms.  He even went so far as to say that such form may be downloaded by customer and posted to the relevant office.

204.  As such, I am unable to accept the prosecution’s proposition that the customer had to appear in person and had his/her ID checked before the amendment form would be processed.

PW2 DPC7696

205.  PW2’s evidence on the preparation of the fund flow analyses of the 5 bank accounts and HKJC account is uncontroversial and hence I am prepared to give full weight to it.

206.  However, as regards details of some of the HKJC transaction records, PW2, being not a HKJC staff member, admitted he was unsure about them.  That being so, I will not give full weight to answers relating to HKJC transaction records.

PW3 Tsang Hing Lun

207.  PW3’s evidence is not controversial and I am prepared to give full weight to it.

D1

208.  Having thoroughly considered the evidence of D1, I tend to agree that what he said may be true.  With the support of the documents in the D1 Bundle, it is clear that D1 was a heavy gambler at the relevant time and this is also supported by the HKJC transaction statements.  The way D1 was able to describe his gambling experience both in relation to HKJC betting account and the mobile games, I simply could not imagine he made all this up just to create a defence for the money laundering charges.  The evidence about keeping his savings with his mother rather than with the banks may sound strange to most people but could not be said to be impossible.

209.  D1’s gambling experience could explain the frequent in and out transactions in his BOC account (A/C1)  inclusive of the multiple FPS transactions and also the HKJC betting account transactions even the huge total amounts involved.

D2

210.  Having thoroughly considered the evidence of D2. I tend to agree that what she said may be true.  Although the documents in the D2 bundle were mostly after the charge periods as against D2, they did paint a picture of D2 being a heavy gambler in at least mobile games after the charge period.  However, one does not become a heavy gambler overnight so it is at least possible that she was also a progressive gambler from 2018 onwards.  The way D2 described her mahjong gambling experience did have a ring of truth about it.

D3

211.  After examining carefully D3’s answers in relation to how she obtained what she believed to be the bank card and how the PIN came about, I am sure she was lying on this important aspect of the case.  Coupled with her initial answer to the police (which she adopted in court)  that the bank card was lost after she applied for it, which was clearly something which was wholly inconsistent with her other evidence in court, I have lost confidence in her as a credible witness.  I reject her evidence in all areas of dispute and in issue. However, I am able to accept part of her evidence where there is no exculpatory effect (more below).

D4

212.  Although the auto-deduction from A/C5 to Prime Credit Limited in the early months of the life of the account look suspicious, it was explicable on the basis it was the then girlfriend of D4 who had hijacked the use of the bank card and the account.  Unfortunately, there was no prosecution evidence as to when and how the auto-deduction arrangement was made.  According to D4, the girlfriend would be in a position to know the signature of D4, so it was possible for her to forge the signatures of D4 on the customer information amendment forms.  Also, there had been repeated amendments of the same particulars (the phone number and the email address)  on two separate forms thus raising the possibility they were effected by two different persons not knowing what the other was doing.

213.  As regards the companies, D4 was never asked about the English signature purportedly of D4 appearing in the Companies Registry record of United Garment Limited at P7 pp5065 and 5067.  This is relevant because D4’s evidence that he only had one signature was never challenged.  Besides, the relevant records bear dates well after the charge period anyway.

214.  As regards the other company Everest Groups Limited, although the Companies Registry record shows D4’s true address at 43 Kai Tak Road, Kowloon City, these papers (where no signatures appear)  were never shown to D4 during cross-examination and he was not asked anything about them.  In fairness to D4, little weight should be placed upon them.

215.  All in all, D4’s version that he had never used his bank card and bank account is at least credible in the absence of strong evidence to the contrary.

DETAILED ANALYSIS OF THE CASE AGAINST D3

216.  The fact that I have rejected D3’s evidence insofar as matters of dispute and in issue are concerned does not by itself make D3 guilty of the Charge 5 against her.  I have still to examine the prosecution evidence to see if a case of money laundering has been made out.

217.  The salient admitted facts regarding D3 are reproduced below:

“2. At all material times, D3 did not have any landed properties or connections to the companies registered in Hong Kong. According to the records of IRD, D3 was reported to be employed as a guest experience service crew with salary totalling HK$11,206 from 10 June 2016 to 31 March 2017 and as a part-time staff with salary totalling HK$11,339 from 5 September 2019 to 31 March 2020 respectively.

…

13. On 3 July 2019, D3 opened a personal savings account numbered 012-358-2-007157-0 with BOC in her name (“Account 4”). D3 was the sole signatory of Account 4. The account opening form is now produced as Exhibit “P1-7”. On 10 July 2019, an application was made to the bank to change the mobile phone contact number and email to 6999 0184 and Cooolaaa@icloud.com respectively by filling in and returned in person a “Customer Information Amendment Form” to BOC. In the related application form, “I/D confirmed” was stamped near the signature part of the form. The related application form is now produced as Exhibit “P1-8”. Account 4 was closed on 19 November 2019.

14. Between 3 July 2019 and 19 November 2019, a total of HK$2,614,187.34 were deposited into and withdrawn from Account 4. Most of the funds (usually in small amount)  deposited into the account were often withdrawn or transferred out in bulk amount (mostly by several withdrawals)  within short period of time. Other features of the flow of funds of Account 4 during the said period are mainly as follows :

Deposit

(a)  the monthly average amount of the deposits were HK$475,306.79;

(b)  there were a total of 6,672 deposits via FPS amounting to HK$2,595,675.50;

(c)  there were a total of 8 ATM cash deposits amounting to HK$18,500;

(d)  most of the transactions were in multiple of hundreds, ranging from HK$0.1 to HK$10,000 per transaction. At least 398 counterparties were involved in the deposit of the account;

Withdrawal

(a)  there were a total of 376 withdrawals via FPS transfer amounting to HK$1,406,203.1;

(b)  there were a total of 108 ATM cash withdrawals amounting to HK$1,110,000; and

(c)  most of the transactions were in multiple of hundreds and thousands, ranging from $0.1 to $20,000 per transaction. At least 169 beneficiaries were involved in the withdrawal of the account.

…

18. On 30 August 2021, D3 was arrested at her residence in Kwai Chung for money laundering. Under a post-recorded caution statement by DPC 7903, D3 stated that she had lost the bank card of Account 4 soon after she applied for the card and she had never used it. The voluntariness of the post-recorded caution statement is not in dispute. The post-recorded caution statement and its certified English translation are now produced as Exhibits “P14” and “P14A” respectively.”

218.  I found from the above admitted movements of funds in the account that the account clearly displays money laundering traits.  Indeed, the defence has not submitted otherwise.  The main (and perhaps the only)  contention of the defence was that the operation of the account had nothing to do with D3 nor with her connivance.  I found as a fact that during the charge period, A/C4 had been used for money laundering purpose.

219.  Now, regarding the purpose for which the account (A/C4)  was opened. Prosecution has put to D3 that “You opened the account - the bank account for Mr Ng’s use, not for your own use”.  First of all, I found it strange that somebody had to open a bank account to receive salary even before an offer of appointment had been given, as testified by D3.

220.  Secondly, I found it doubly-strange that D3 would allow Ng to choose the PIN for her account, given her rocky relationship with him unless there was some hidden reason to do so.  Surely, D3 could have chosen her own PIN with something she could easily remember and which was private to herself.

221.  Thirdly, I found it triply-strange that D3 and her baby girl would leave the bank first even before everything was completed at the counter, leaving Ng to collect the documents (possibly including the bank card)  unless there was some hidden reason to do so.

222.  I do not find it possible D3 opened the account for the purpose of receiving a contingent salary and I reject that evidence.  However, I accept the evidence that D3 went with Ng to open the bank account, that D3 allowed Ng to choose the PIN.  I accept D3 left the bank first to allow Ng to collect the bank documents (possibly including the bank card).  All of these facts point to the only logical and irresistible inference – D3 opened the account (with the associated bank card)  for Ng’s use.

223.  Defence challenged para 36 of the prosecution’s written submissions which reads “… the only irresistible inference must be that D3 had lent or allowed others to use her bank card to operate Account 4…”.  Defence seems to suggest that that had not been put to D3 in cross-examination.

224.  In fact, apart from putting to D3 the purpose for which the account was opened, prosecution also put to D3 that “You let somebody else to use your bank account, be it Mr Ng or other person.”  Since use of the account would include use of the card, so I adjudge that the prosecution is entitled to so submit in closing.

225.  By knowingly leaving the card and PIN in the possession of Ng (which I found as a fact), D3 has clearly relinquished her control of her account for others’ use.  Knowing Ng to be a heavy gambler (which I found as a fact), D3 clearly had reasonable grounds to believe that whatever funds that passed through the account subsequently represented the proceeds of an indicatable offence (Wong Chor Wo applied).

226.  Regarding the Customer Information Amendment Form relating to D3’s account, because of the way in which I have treated PW1’s evidence, I cannot be sure that the account holder had to personally attend at a branch and had his / her ID checked by the teller.  In any event, the evidence is not strong enough to prove beyond reasonable doubt that the disputed signature is the signature of D3.  However, this aspect of the case does not affect the main theme of the prosecution case that D3 lent or allowed others to use her bank account and the associated bank card.

227.  I have revisited the legal principles in Harjani and do not find anything that would detract me from finding the only logical and irresistible inference that by allowing others to use her bank account and the associated bank card during the charge period, D3 had dealt with the property stated in Charge 5, having reasonable grounds to believe that that property, in whole or in party, directly or indirectly represented any person’s proceeds of an indictable offence.

228.  Prosecution has proved all elements of the offence subject of Charge 5 against D3.

OTHER MATTERS

229.  In closing, the prosecution, for the first time, suggested that D1 and D2 might be liable for section 7 (Bookmaking)  and/or section 14 (Providing money for unlawful gambling or for an unlawful lottery)  of the Gambling Ordinance, Cap148, and therefore the money they dealt with in the corresponding accounts could be proceeds of indictable offence(s).  With respect, this is a preposterous suggestion.  All D1 and D2 did were gambling, perhaps even unlawful gambling which is a summary offence.  There is no way the winnings of a gambler could suddenly become proceeds of an indictable offence.  This cannot be the legislative intent.

CONCLUSION

230.  For the above reasons, I found D1 not guilty of Charge 1, Charge 2, and Charge 3; I found D2 not guilty of Charge 3 and Charge 4; I found D3 guilty of Charge 5; and I found D4 not guilty of Charge 6.