HKSAR v. ADIRANGAM RAHMATHULLAH ASIF AHMAD

DCCC 967/2011

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 967 OF 2011

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Reasons for Verdict

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1.  The defendant faces five charges of dealing with property known or believed to represent the proceeds of an indictable offence, contrary to section 25(1) and (3) of the Organized and Serious Crimes Ordinance, Chapter 455.  He has denied these charges.  These charges relate to five transfers totaling US$636,718.00 deposited into the bank account numbered 012-394-9-205348-9 held in the name of Smart Trading Company with the Bank of China in Hong Kong between 24 September and 8 October 2010. 

2.  As the defendant speaks Tamil, a Tamil interpreter was made available to him throughout the proceedings, which were all translated into Tamil for him.  One of the prosecution witnesses on the special issue, PW 10 Ms Shareefa Jalaal, was the wife of the Tamil interpreter in court.  I was informed by defence counsel that the defendant did not have any objections to the Tamil interpreter in the court continuing to interpret the proceedings to the defendant.

3.  There were 10 prosecution witnesses.  The prosecution sought to adduce evidence of a video record of interview under caution by the defendant as well as items seized from the defendant’s home during a house search.  The admissibility of these were challenged by the defendant.  I dealt with the special issue of admissibility by way of the alternative procedure.  At the conclusion of the prosecution case on the special issue, a submission of no case was made by the defence.  After hearing submissions, I found there was a case to answer.  The defendant elected to give evidence on the special issue and called one defence witness. At the conclusion of the evidence and after hearing submissions, I was satisfied beyond all reasonable doubt that the video record of interview under caution was made voluntarily by the defendant and was admissible in evidence.  I was also satisfied beyond all reasonable doubt that the search of the defendant’s home was a proper search and the items seized during the search were all properly admissible into evidence.  I could see no reason to exercise my discretion to exclude these.  At the conclusion of the prosecution case, no submissions were made on behalf of the defendant.  I found that there was a case to answer on all the charges.  Having had his rights explained to him by his counsel, the defendant elected not to give evidence and called no evidence.  That was his right and I inferred nothing against him for exercising that right. As the defendant had elected not to give evidence and called no witnesses, Mr Tibbo objected to any closing submissions being made by the Prosecution on the facts.  Accordingly, Mr Wong, in accordance with accepted practice, made no final submissions on the facts.  After hearing final submissions from Mr Tibbo, I adjourned the matter until today to deliver my verdict.  have carefully considered all the evidence adduced before me as well as the submissions of counsel.  I have borne in mind at all times that the burden of proof remains throughout upon the prosecution to prove guilt beyond all reasonable doubt.  I have borne in mind too that the defendant has a clear record and have given myself the requisite directions in that regard. 

4.  Facts admitted by the prosecution and defence under section 65C of the Criminal Procedure Ordinance, Cap 221, were produced and marked as Exhibit P3. It was admitted therein that the defendant had opened bank accounts numbered 01239492053489 (‘Account 1’) and 01239410096655 (‘Account 2’) both held in the name of Smart Trading Company with the Bank of China in June 2010.  The defendant has been one of the two signatories of these two bank accounts since 21 June 2010.  It was further admitted that at all material times, the defendant was the sole proprietor of Smart Trading Company, which had commenced its business since 1 June 2010.  The banker’s affirmations for the opening mandate and bank transaction records of the bank account numbered 0033710060550 held in the name of Bloomingville Hong Kong Limited at the Standard Chartered Bank and that for the bank account numbered 01239492041741 held in the name of Basnas Hong Kong Company with the Bank of China were produced and marked as Exhibits P1 and P2 respectively. 

5.  It was also admitted that the defendant is a Hong Kong resident and that he has a clear record and he was arrested by the police on 4 March 2011 at the Departure Hall of Terminal 2 at the Hong Kong International Airport. 

6.  Further Admitted Facts under section 65C of the Criminal Procedure Ordinance, Cap 221, were produced and marked as Exhibit P24.  It was admitted that the defendant’s luggage was seized by PC 58948 (PW3 in these proceedings) at the Hong Kong International Airport at about 7 pm on 4 March 2011.  The luggage was passed to the Duty Officer of the Airport Police Station and subsequently to the Duty Officer of the Central Police Station.  The luggage had not been unlawfully tampered with by anyone from the time it was first seized until it was retrieved by PC10692 (PW4 in these proceedings) from the Duty Officer of Central Police Station at 2.20 pm on 6 March 2011. 

7.  Further Admitted Facts 2 under section 65C of the Criminal Procedure Ordinance, Cap 221 were produced and marked as Exhibit P27.  It was admitted that PC 55514 had prepared an accurate summary of fund flow based on information contained in Exhibits P1, P2 and P25, which was the banker’s affirmation for the opening mandate and bank transaction records of Accounts 1 and 2 of Smart Trading Company which was produced by agreement.  This summary was produced by agreement and marked Exhibit P26. 

8.  I shall deal firstly with the evidence of PW5, John Higham.  PW5 came to Hong Kong from Australia to give evidence in these proceedings.  The trial began on 17 April 2012 and it was anticipated that he would be required soon after the trial started and he was scheduled to return to Australia on Sunday, 22 April 2012.  By Friday, 20 April 2012, PW4 was under cross-examination, and there was little prospect of his testimony being completed that day.  In fact, PW4 did not complete his testimony until the afternoon of Tuesday, 24 April 2012.  I allowed PW5 to be interposed as a witness despite objection from Mr Tibbo.  PW5 was in Hong Kong at public expense and was due to leave.  I could not see that there would be any prejudice to the defendant if he was interposed as a witness. 

9.  PW5 testified that he was born in Australia in 1943, and was 68 years old.  He had been residing in Australia all along.  He works as a consulting surveyor with land, engineering and mining, all aspects of construction and land tenure and was currently working as a consultant on a gas plant in Western Australia, to put it simply he was a consultant construction surveyor.  He had been running his own business for about 50 years.  PW5 testified that in 2010, whilst he was in Australia, he received telephone calls from the staff of Westcore Capital Ltd.  He was invited to invest in the gold futures market, and he subsequently agreed to do so.  He filled in an account application form, Exhibit P18, he being the primary account holder and his wife, Gaye Ellen Higham, the co-account holder.  The form is dated 17/9/2010 and signed by PW5 and his wife.  It is clear from this form that when PW5 completed the form to open his investment account with Westcore, he was claiming to have limited investment experience.  He subsequently visited the web page of Westcore and found that his investment account was activated and he could gain access to it via the internet and he could view transactions as well as his balance online.  He had a password to access his investment account so that he could view it.  He made some inquiries and he was satisfied it was genuine.  He had checked their web page which were linked to other web pages that had data in relation to commodities and gold trading and such, and these matched what was in the Westcore web page.  He began trading and would transfer money on the instructions of staff from Westcore to the banks in Hong Kong.  Initially the amounts were small, the first transfer was for US$3,000, and he could see these transfers reflected in his investment trading account on the internet, as well as the gains he thought he had made.  He even asked for the money back and it was returned to him, and he believed it was genuine trading.  He subsequently learned that the Westcore web page was a bogus one, as was his investment trading account that he could access via the internet using the pin number and password he had been provided by Westcore. 

10.  PW5 and his wife had a joint bank account numbered 508222800 at the National Australia Bank (NAB) which could be operated by either of them – only one of their signatures was required for any instructions to their bank. Subsequently, on five occasions, upon the instructions of staff from Westcore, PW5 visited his bank together with his wife, and instructed the bank to transfer sums from their joint bank account to Account 1 of Smart Trading Company.  PW5 produced the ‘telegraphic transfer application customer copy’, Exhibits P19 to 23 herein, for each of these 5 transactions from his bank, wherein he applied for the telegraphic transfer to be sent to the party as indicated on the application, namely Smart Trading Company at Flat 5, 7^th floor, Room No 1, Yuen Shing Building, Hunghom, Hong Kong.  The bank account number and the name of the bank in Hong Kong was also on each application form, being that of Account 1.  These transfers were made on instructions from Westcore. PW5 had no knowledge of the relationship between Wescore and Smart Trading Company.  On each occasion, PW5 would access his investment trading account via the internet and saw the transfers reflected there.  There were bank charges for the telegraphic transfers, and these were deducted from the sums transferred.  PW5 started to be somewhat wary and felt suspicious.  He asked staff at Westcore to transfer some funds back to him, but the staff who used to be in contact with him started to avoid him, and he found that the Westcore web page had been dismantled and he could no longer access his investment account.  He thus made a report to the police.

11.  Although the telegraphic transfer application forms were signed by his wife, the funds were from their joint account.  On each occasion, he had accompanied her to the bank and the application forms were filled in and signed at the bank and the customer copy given to him, and he would e-mail that copy to Westcore.

12.  The five transfers were made as follows:-

(a) 23/9/2010 US$94,000.00 (Exhibit P19)

(b) 28/9/2010 US$100,000.00 (Exhibit P20)

(c) 5/10/2010 US$200,000.00 (Exhibit P21)

(d) 7/10/2010 US$42,898.50 (Exhibit P22)

(e) 8/10/2010 US$200,000.00 (Exhibit P23)

13.  PW5 was cross-examined at length about his background and commercial experience as well as his contact with the staff at Westcore.  Mr Tibbo asked him if he had gone outside the Westcore web page to check a third source and PW5 said he had not and said ‘that’s why I am sitting here feeling quite furious at the moment’.  It was suggested to him that he had not told the whole story about the transfers and he disagreed. 

14.  The fund flow summary, Exhibit P26, disclosed the following:

(a) On 24-09-2010, US$94,000 was transferred from the NAB, National Australia Bank account of PW5 and his wife. After deduction of a handling fee of US$25, US$93,975 was transferred to Account 1 of Smart Trading Company at the Bank of China. A handling fee of US$7.10 was deducted and the sum deposited into Account 1 was US$93,967.90. On 24-09-2010, US$93,028 was transferred from Account 1 and US$93,026 was credited to the account of Bloomingville Hong Kong Ltd at the Standard Chartered Bank.

(b) On 28-09-2010, US$100,000 was transferred from the NAB, National Australia Bank account of PW5 and his wife. After deduction of a handling fee of US$45, US$99,955 was transferred to Account 1 of Smart Trading Company at the Bank of China. A handling fee of US$7.10 was deducted and the sum deposited into Account 1 was US$99,947.90. On 29-09-2010, US$49,467.50 was transferred from Account 1 and credited to the account of Bloomingville Hong Kong Ltd at the Standard Chartered Bank. Also on 29-09-2010, US$49,467.50 was transferred from Account 1 and credited to the account of Basnas HK Co at the Bank of China.

(c) On 05-10-2010, US$200,000 was transferred from the NAB, National Australia Bank account of PW5 and his wife. After deduction of a handling fee of US$25, US$199,975 was transferred to Account 1 of Smart Trading Company at the Bank of China. A handling fee of US$7.10 was deducted and the sum deposited into Account 1 was US$199,967.90. On 05-10-2010, US$197,968 was transferred from Account 1 and credited to the account of Basnas HK Co at the Bank of China. A further sum of US$1,999.90 (HK$15,498.43) was transferred from Account 1 to Account 2 of Smart Trading Company at the Bank of China.

(d) On 08-10-2010, US$42,898.50 was transferred from the NAB, National Australia Bank account of PW5 and his wife. After deduction of a handling fee of US$25, US$42,873.50 was transferred to Account 1 of Smart Trading Company at the Bank of China. A handling fee of US$7.10 was deducted and the sum deposited into Account 1 was US$42,866.40. On 08-10-2010, US$42,437 was transferred from Account 1 and credited to the account of Basnas HK Co at the Bank of China. A further sum of US$429 (HK$3,323.59) was transferred from Account 1 to Account 2 of Smart Trading Company at the Bank of China.

(e) On 08-10-2010, US$200,000 was transferred from the NAB, National Australia Bank account of PW5 and his wife. After deduction of a handling fee of US$25, US$199,975 was transferred to Account 1 of Smart Trading Company at the Bank of China. A handling fee of US$7.10 was deducted and the sum deposited into Account 1 was US$199,967.90. On 08-10-2010, US$100,000 was transferred from Account 1 and credited to the account of Basnas HK Co at the Bank of China. On 09-10-2010, US$97,968 was transferred from Account 1 and credited to the account of Basnas HK Co at the Bank of China. A further sum of US$1,999.90 (HK$15,494.23) was transferred from Account 1 to Account 2 of Smart Trading Company at the Bank of China on 09-10-2010 and a cash amount of HK$40,321 was withdrawn from Account 2 of Smart Trading Company at the Bank of China on 12-10-2010.

15.  It is clear that the funds that were transferred from PW5’s bank account were sent to the bank account of Smart Trading Company, and almost immediately transferred out whilst a small portion was transferred to Account 2 of Smart Trading Company. 

16.  The other 9 prosecution witnesses all relate to the special issue on the admissibility of the first video record of interview under caution as well as the exhibits that were seized from the defendant’s home during the house search.  The gist of the objections was the treatment the defendant received from the time of his arrest, which was alleged to amount to oppressive conduct towards him.  There were also the breaches of various rules, as well as a breach of the Basic Law and the Hong Kong Bill Of Rights.  The admissibility of the two notices to persons in custody, Exhibit P4 and P4A, the first video interview under caution, Exhibit P5, the notebook entries in respect of the defendant’s consent for his home to be searched as well as the notebook entry listing out the items found in the search, Exhibit P6, were all involuntarily made, and thus the admissibility of the items seized during the house search, Exhibit P7 to P16, and the ATM card found from the defendant’s luggage, Exhibit P17, were also inadmissible.  It was submitted that he had not been advised of his rights to legal advice. 

17.  At the outset, I was informed by Mr Tibbo that the defendant’s identity was not in issue.  

18.  PW1, Immigration Officer Chan Wai Kwong, gave evidence on 4 March 2011, he was on duty at the Departure Hall of the Hong Kong International Airport.  The defendant was referred to him at 5.34 pm as he had been detained as he was on the ‘wanted’ list.  He explained to the defendant in English that he was detained because he was wanted by the police, and the defendant appeared to understand what he said, although he did not ask him specifically if he understood.  The defendant was handed over to the police at 5.50 pm (to PW2 PC 7068).  

19.  PW3, PC 58948, and SPC 46386 received the defendant from PW2 at 6.26 pm. PW3 explained to the defendant in simple English that they were going to process the Customs clearance procedures.  He then escorted the defendant and his luggage to the Airport Police Station, where he handed the defendant and his luggage over to the Duty Officer at 7.20 pm and had no further contact with the defendant.  It was suggested to him that he did not speak to the defendant at all.  He disagreed.  PW3 said he had looked at the defendant’s passport and knew he was from India.  He did not notice anything abnormal about the defendant or his appearance.  It was suggested to PW3 that a police officer at the entrance of the police station had shouted at the defendant to sign a document. PW3 disagreed any such had happened.

20.  PW6, Sgt 20066, was the Duty Officer at the Airport Police Station at the material time.  At 7.20 pm on 4 March 2011, he received the defendant and his luggage from PW3 in the Report Room.  He confirmed with the defendant that the defendant knew why he had been taken to the police station.  He also verified the defendant’s identity from his passport.  He said he spoke to the defendant in English, and he believed the defendant responded to him in English.  He had asked the defendant if he had any complaint or request and the defendant had said no.  The defendant was held in the temporary holding cell of the Report Room whilst awaiting police officers from the Central Police Station to come to collect him.  He and his luggage were handed over to officers from the Central Police Station at 9.50 pm.  It was suggested to him that he said things to the defendant in a very loud voice and in close proximity, and spoke so aggressively that his face was red. PW6 denied doing such.  He said he spoke to the defendant in the same tone that he had used when giving evidence, and when they spoke, there was a desk between himself and the defendant.  He was seated behind his desk.  I did note that PW6 spoke loudly – he had a loud voice.

21.  PW7, PC 53751, was instructed to go to the Airport Police Station to escort the defendant and his luggage back to the Central Police Station.  PC 49893 was the driver of the police vehicle.  He went alone to the Duty Officer in the Report Room at the Airport Police Station.  The defendant and his luggage were handed over to him, and he confirmed with the defendant that that was all his luggage and the defendant replied ‘yes’ in English.  He also told the defendant in English that he was escorting him to the Central Police Station.  The defendant appeared to understand, although he did not make any verbal response.  The defendant was conveyed to the Central Police Station in a police vehicle and they arrived at Central Police Station at 10.31 pm.  There was no conversation between him and the defendant during the journey.  He and PC49893 escorted the defendant from the police vehicle to the Duty Officer of the Central Police Station.  It took 2 to 3 minutes.  He made his report to the Duty Officer in punti and handed the defendant and his luggage over and then he and PC 49893 left.  During the time that he was with the defendant, the defendant had made no request or complaint to him.  It was suggested to him that apart from being handcuffed, the defendant was also shackled at the Airport Police Station.  PW 7 disagreed.  It was suggested that there were three police officers in the police vehicle. PW7 disagreed. 

22.  PW9, SSgt Hau Chi Kwan, was the Duty Officer at the Central Police Station at the material time.  PW7 brought the defendant to him.  The defendant did not make any complaint nor any request to him.  He introduced himself to the defendant in English and asked him if he had any questions.  He did not recall now if the defendant made a reply, but from his records, there is no record of any reply, and had the defendant asked anything, he would have recorded it so he believed there was no question from the defendant. 

23.  PWs 1, 2, 3, 6, 7 and 9 were the officers who dealt with the defendant from the time he was first detained until he was held in the holding cell of the Report Room at the Central Police Station.  

24.  PW4, PC 10692, was one of the two police officers who conducted the video interview under caution with the defendant and took him to his home for the house search and who seized the ATM card Exhibit P17 from his luggage.  He was instructed to return to Central Police Station to handle the present matter and returned at about 8 pm.  At 11.44 pm on 4 March 2011.  He signed out the defendant from the Duty Officer together with DPC 3732, the Chinese English interpreter PW8 Ms Yung Wing Yan, and the English Tamil interpreter, PW10, Ms Shareefa Jalaal.  Together they went to the video interview room on the 2^nd floor.  At 11.55 pm, a notice to persons in custody in English, Exhibit P4, was served on the defendant. PW4 explained the rights stated on the notice in punti, which was translated into English by PW8 and from English to Tamil by PW10 to the defendant.  A notice to persons in custody in Tamil, Exhibit P4A, was also served on the defendant – it was placed in front of the defendant and he had the opportunity to read it and it appeared to PW4 that the defendant was reading it.  The signatures on the notices were affixed by PW4, the two interpreters and the defendant after the contents had been explained to the defendant and he indicated that he understood the contents and his rights, at 0005 hours. 

25.  Thereafter, the first video interview under caution began.  At the conclusion of that video interview, a copy of the disc of the video interview was served on the defendant.  Mr Tibbo had objected to the master copy of the video interview, Exhibit P5, being produced as an exhibit as it was a different view from that of the disc served on his client.  In the course of cross-examination of PW4, the defence version was also played to PW4, and it was also produced as an exhibit and marked Exhibit P5D.  At the conclusion of the video interview, Exhibit P5 was sealed into a tamper proof exhibit bag, Exhibit P5A, and the defendant and PW4 both signed on Exhibit P5A.  The defendant was handed over to the Duty Officer at 2.16 am on 5 March 2011. 

26.  PW4 subsequently stamped Chinese characters in his notebook, Exhibit P6, at pages 34 and 35, in respect of the search of the defendant’s home – PW8 translated these into English in the notebook on pages 35 to 37 and signed, and PW10 translated this into Tamil on pages 37 to 39.  At 3.03 am PW4 signed out the defendant from the Duty Officer to seek his consent for a house search, PW10 explained what had been written on Exhibit P6 in Tamil to the defendant and the defendant also appeared to read it.  He indicated that he understood and signed on the notebook Exhibit P6.  Thereafter, PW4 took the defendant to his home at Room 7B, 14/fl., 23-25 Ma Tau Wai Road, Hung Hom, for a house search together with DPC 3732 and the two interpreters, who travelled to the defendant’s home in another vehicle.  At his home, PW4 conducted a house search in the presence of the defendant and his family, Sgt 50999, DPC 3732 and the two interpreters.  Amongst the things found were the bank passbooks of Accounts 1 and 2, Exhibit P7 and P8, the business registration certificate of Smart Trading Company, Exhibit P9, the company chop of Smart Trading Company, Exhibit P10, a red file containing a NAB Telegraph transfer application bearing 2 chops dated 23 September 2010, Exhibit P11, one dated 23 September 2010 bearing one chop and with some handwriting on it, Exhibit P11A, a NAB Telegraph transfer application dated  28 September 2010, Exhibit P12, a NAB Telegraph transfer application dated 5 October 2010, Exhibit P13, a facsimile transmittal sheet dated 16 September 2010 with the words ‘Westcore Capital’ written on it, Exhibit P14, an acknowledgment of online transfer instruction dated 24 September 2010 of the Bank of China, Exhibit P15, and an online e-banking security token, Exhibit P16.  These items were seized by PW4.  At the defendant’s residence, PW4 made a record in his notebook, Exhibit P6, of the items he had seized at pages 39 to 41.  PW8 translated these into English on the notebook, and PW10 translated the English into Tamil and wrote the Tamil translation in the notebook.  The defendant indicated to PW10 that he understood and signed on the notebook.  PW4 admitted that he had forgotten to record on the notebook that he had also seized a red file.  They all then returned to the Central Police Station, where the defendant was handed over to the Duty Officer. 

27.  At 15.09 hours that day, PW4 again signed out the defendant from the Duty Officer with DPC 3732, PW8 and PW10.  The defendant asked for a lawyer and was given the list of lawyers to do so but eventually, he was unsuccessful. Some further investigative work was conducted and then the defendant was returned to the Duty Officer at 18.18 hours.

28.  The next day, at 10.59 hours, PW4 again signed out the defendant from the Duty Officer together with DPC 3732.  They took the defendant to his residence to try to locate the defendant’s brother, but were unable to find him.  They then took the defendant to the brother’s address but were also unable to find him.  The defendant was then taken back to Central Police Station.  PW4 retrieved the defendant’s luggage from the Duty Officer and searched the luggage in the presence of the defendant, and the ATM card of account 2, Exhibit P17, was seized from the defendant’s luggage.  It was suggested that the red file was only seized in the second visit to the defendant’s home wherein photographs of the seized exhibits were also taken – PW4 disagreed. 

29.  PW4 said that the defendant did not make any requests or complaints to him except for a request to find a lawyer, although he ultimately failed to do so.  PW4 was cross-examined at some length.  It was suggested that he deliberately arranged that no notice to persons in custody be served to the defendant till his arrival at the Central Police Station and that no Tamil interpreter be arranged.  PW4 disagreed.  He agreed the defendant appeared cold at times during the first video interview, as he pulled the blanket closer to himself, but disagreed that the defendant appeared unwell.  It was suggested to PW4 that during the house search the defendant was shouted at and not allowed to speak to his family.  PW4 disagreed – he said they were allowed to speak but in English. 

30.  PW4 was cross-examined about a second video interview under caution.  Mr Tibbo initially suggested that only an English version of the notice to persons in custody was served on the defendant.  PW4 disagreed.  Mr Wong for the prosecution showed Mr Tibbo the Tamil version and Mr Tibbo submitted that the document had not been disclosed.  Mr Tibbo suggested to PW4 that the defendant refused to answer questions, but PW4 disagreed, and said he ended the interview as the defendant said he would like a lawyer.  This second video interview under caution was produced as Exhibit D6.  PW4 was also asked about a third video interview, Exhibit D7, at the conclusion of which defendant is recorded as having asked about bail and saying he was unwell.  PW4 denied that there had been the use of any threats, force or oppression by himself or anyone in his presence upon the defendant. 

31.  PW8, Ms Yung Wing Yan, was the English and Chinese interpreter.  She was responsible to translate what was said in punti into English and what was said in English into punti.  She confirmed that she had accurately translated everything that was said.  Both she and the Tamil interpreter, PW10, were present at the Central Police Station on the late evening of 4 March 2011.  They were present when the defendant was signed out by PW4 and they all went together to the interview room on the 2^nd floor.  A notice to persons in custody was served on the defendant, upon which she had signed, and it was read to the defendant in Tamil by PW10.  However, as it had been a long time, she could not recall all the details.  After the notice was served on the defendant, the video interview began and she interpreted all that was said during the interview as recorded therein.  She confirmed that after the first video interview, she had helped to translate what was written by PW4 in his police notebook into English and confirmed that what was written on Exhibit P6 in English was written by her and her signature appeared on it.  After she had completed the English translation, PW10 translated what she had written in English into Tamil on the notebook.  The two interpreters accompanied the police and the defendant when the defendant was taken to his home for a house search.  She was present when the defendant’s house was searched and exhibits seized.  After the search, PW4 had written what was seized in his notebook in Chinese and she had translated what he wrote into English on his notebook Exhibit P6 accurately.  She also signed on the notebook.  It was then handed to PW10 who translated what was written in English into Tamil on Exhibit P6. After that was completed, the party returned to the police station and she left.  She returned to the police station at about 2 pm to continue to work as an English and Chinese interpreter for the police in their investigations, including the issue of notices to persons in custody and a second video interview under caution.  At the conclusion, she left the police station.  Her evidence was not challenged by the defence. 

32.  PW10, Ms Shareefa Jalal, was the Tamil interpreter, and she translated everything that was said in English into Tamil and vice versa.  She said that she had accurately translated all that was said.  She had arrived at the Central Police Station at about 10.30 pm on 4 March 2011.  The defendant was signed out from the Report Room by the police officers in her presence and that of the Chinese English interpreter, and she said she did not recall the defendant making any requests to them at that time.  The defendant was taken to the interview room.  A notice to persons in custody was served on the defendant by the police, in English and in Tamil, Exhibit P4 and P4 A, and she confirmed that she had also signed on these.  She translated what was written in English on the notice into Tamil to the defendant.  The Tamil version was given to the defendant to read and was placed in front of him.  After the entire notice including the last paragraph had been translated to him, the defendant was asked to sign and he did.  PW10 said that as it was a long time ago, she did not remember all the details.  PW10 also confirmed that she had translated what was written in English on Exhibit P6 into Tamil and read it over to the defendant and he understood what was read to him and both she and the defendant signed on the notebook.  After that, they all went to the defendant’s home where a house search was conducted. Certain exhibits were found.  The police officer wrote on his notebook, Exhibit P6, a list of what was seized, and this was translated into English on the notebook, and she translated what was written in English into Tamil on Exhibit P6.  She read over what she had written to the defendant, he understood and then signed on the notebook.  PW10 also signed.  PW10 confirmed that she had witnessed the search and the seizures.  She did not recall the defendant making any complaints while he was with them.  They then went to the Hung Hom Police Station, and after that returned to the Central Police Station and then she left.  She returned to Central Police Station later that day and a second video interview was conducted.  The defendant requested to find a lawyer, and she translated his request.  He was allowed to do so, but ultimately he was unable to find one. The defendant did not make any complaint on this occasion either. 

33.  PW10 confirmed that it was a cold evening on 4 March 2011.  She recalled that when she saw the defendant, he appeared to be shivering and cold and it was she who asked the police to provide him with a blanket.  This was provided to him before she had completed reading the notice to persons in custody and before the video interview began.  The defendant can be seen at the start of the video interview and he was covered with a blanket.  Once he was given the blanket, she said he stopped shivering shortly thereafter.  She was asked if she was sure the defendant understood the notice to persons in custody – she said she could not be sure but she had read the entire notice to him.  She was asked if the police had asked the defendant before the interview began if he needed a lawyer – she said they had not, but this was one of the rights on the notice that she had read to the defendant.  She said the defendant looked tired and cold, as well as unwell.  She was asked about the house search and confirmed the defendant’s wife was present during the search.  She was asked if photos were taken and she said she was not sure but she thought they did take photos.  She was asked about whether a red or black binder was seized during the house search.  She said she remembered one or two box files being seized that evening, although she confirmed it was not mentioned on the list of items seized as recorded on Exhibit P6.  She confirmed that the defendant had made no complaints until after the third video interview, when he said he had not had enough sleep. 

34.  The defendant gave evidence on the special issue.  He described how he was intercepted by Immigration when he was leaving Hong Kong via the Hong Kong International Airport.  He was taken to an office and asked to wait there, but he did not know why.  Four police officers came, one appeared to be angry with him, then he said he could not say he was angry but he looked very different. He said the police officer told him something – he thought it was English but he could not understand.  They did not speak to him.  One officer wrote something in his notebook – after writing, the officer gave him the notebook and he was asked to sign.  When he hesitated, another officer raised his voice and said ‘you sign’ in English.  He immediately signed.  The contents were not read to him.  He was handed to two other police officers and taken to collect his luggage.  It was a cool evening and he did not have a jacket and felt cold. But he did not make any complaint.  He was then taken to a police station, and taken inside, where a police officer sat at a desk – his face reddened when he saw the defendant and he was very angry.  He had a paper in his hand and said something loudly – the defendant said ‘yes yes’ as he was scared, although he did not understand what was said.  He was taken to a cell where there was only a bench – he did not know why he was there and became cold and tense and scared.  After what seemed like a long time, another officer came and he was taken in front of the police officer who had spoken loudly and angrily.  He said that police officer was PW6.  He was handcuffed and shackled with a chain and taken out of the police station – he felt very scared and thought he was being taken to prison and he felt it was very cruel.  He said he had not been offered food or water, but he had not thought he had the right to ask either and had made no requests.  He was taken on a police van and driven for a long time – the window of the van was open and he felt very cold.  He did not know which police station he was taken to – he was taken into the Report Room where the handcuffs and shackles were removed, and led into a cell which only had a bench. No one spoke to him.  He was given a bowl of noodles which he ate, but felt it was not enough, but he did not ask for more.  Shortly before midnight, he was taken from the cell – he was very cold and worried about his family.  He described himself as ‘my brain felt frozen’.  He recalled police officers collecting him and said ‘probably there were interpreters standing there when I came out of the cell’.  In the room, there were papers on the table and the Tamil interpreter read something to him but he did not know what was read – he was cold and worried.  He did not tell anyone he felt cold.  He was asked if he was given any documents.  He said he was not – they were placed on the table while the Tamil interpreter was reading out to him, but he did not pay attention.  When asked if the police officer asked him if he understood his rights, he said the police officer might have but in his condition he did not pay attention.  He agreed he had signed documents but did not understand.  It was only when the video interview began that he was told the basis for his arrest and cautioned.  He answered the questions because he did not know what else to do – he was worried if he did not answer they might shout at him or scold him and he wanted to finish the matter quickly so he could go home.  He agreed during the interview he was asked if he wanted a lawyer, and this shocked him – he did not know any lawyer to call at that time.  He thought to finish the interview so he could go home.  The police officer asked him if he was in a state of mind to have the video interview and he said he was.  He said during the interview he still felt ill and cold but did not tell anyone. During the interview he is seen to remove the blanket because he said it was pricking him.  He was then taken to a holding cell after the interview.  He was then taken out and told they were going to his house.  He thought they would let him go after that.  He thought something was read to him before going to his home but he was not sure because of the condition he was in.  He was asked to sign and did so quickly.  At his home, he said it was he who pointed out the drawer where the bank passbooks and documents were kept.  He pointed out the drawer and said in English ‘top drawer’.  He described his understanding of English as ‘medium or less than medium’.  He had lived in Hong Kong for approximately 20 years.  In the video interview, Exhibit P5, the defendant is seen to answer questions put to him on more than one occasion before the question could be translated from English to Tamil.  Even when he was giving evidence, he corrected the Tamil interpreter when the interpreter wrongly interpreted daughter when he had said son.  He did not recall any statement being written in a police notebook at his home or that PW10 read anything to him.  Nor was he asked to sign anything.  He confirmed the signature on Exhibit P6 was his, but said it was signed back at the police station.  He denied that the police had seized any box files in the first visit to his home.  The police officer asked his wife for a jacket for the defendant during this first visit to his home.  He was taken to Hung Hom Police Station and then back to Central Police Station where he was kept for a while in the holding cell, and then taken to another building and kept in a cell which he said was very cold – there was a blanket but no pillow.  There was a toilet in the cell but it was soiled and smelly.  He was unable to sleep. He was given some Chinese tea to drink, but this was not something he was used to.  Later that afternoon, when he was collected from the cell for a further interview, he told the Tamil interpreter that he wanted a lawyer.  He was provided with a list of law firms and allowed to make phone calls, but he was unsuccessful.  There was a second video interview under caution, wherein he said he did not wish to speak.  There was also a third video interview under caution, where he said he did not wish to speak, but at the end, after the interview concluded, he asked about bail and said he was unwell – this was recorded as well.  That was the first time he told the police he felt unwell.  The next day 6 March 2011, he was again taken to his home, this time without the interpreters, and told they were going to his brother’s home.  But they went to his home first and it was on this occasion that the red and black files were seized and photos taken.  The police officers knew which drawer to go to – he did not point out the drawer where the files were seized from.  He was subsequently taken to his brother’s home but his brother was not there. 

35.  The defendant’s wife, Ms Shakina Begam Basheer, gave evidence on the special issue.  She described the first visit to her home by the police with her husband.  She said it was her husband who took out certain things from a drawer in the cabinet and gave it to the police – the defendant had said that he pointed to the drawer and said it in English and the police officer then searched the drawer.  She described herself as frightened and crying at the time. She said they took certain things when they left her home, but not the files. She described how she had to look for photocopies of her husband’s passport and identity card and she searched the drawers and saw the red and black files in the second drawer.  She described the second visit by the police to her home.  They brought black bags when they came and she was asked to go into a room with her son, although she opened the door to look out and she saw photos being taken and a camera light.  She knew the files had been taken because when the police left, the drawers were all opened – she closed the drawers and saw the files in the second drawer were missing. 

36.  I carefully considered all the evidence adduced before me on the special issues.  I bore in mind that the prosecution had to prove to the requisite standard that the challenged notices to persons in custody, first video interview under caution as well as the consent to the search of his home were made voluntarily by the defendant. 

37.  I found the prosecution witnesses on the special issue to be honest and credible witnesses, who each gave their evidence in a straight-forward and cogent manner, and were not prone to exaggeration.  Where they were mistaken or could not remember, they readily admitted it.  In particular I was impressed that PW4 was telling the truth when he described the serving of the notices to persons in custody to the defendant, as well as the notebook entries in his notebook that were signed by the defendant, namely Exhibit P6.  Each witness gave their accounts clearly and although there were some minor discrepancies, these did not cause me to doubt their voracity as witnesses.  Their accounts were inherently credible.  PW10 said she saw the defendant was cold, and she asked for a blanket for him, and this was immediately made available to him, and we can see that he was covered with a blanket during the first video interview, and it was partway into the interview that he himself removed the blanket.  When asked about the blanket, PW4 did not recall about the blanket.  I saw nothing sinister in this – clearly he was being asked about events over a year ago, and that he did not remember a blanket being obtained for the defendant is not unusual.  PW4 had omitted mention of the red file in his entries on Exhibit P6 of the seizures made.  Clearly this was an oversight on his part. PW10, the Tamil interpreter, said that there were files, although she could not remember the number or the colours. 

38.  The defendant did not impress me to be a witness of the truth.  I found him to be evasive when answering questions, and exaggerating his condition.  He described his brain as being frozen during the video interview, yet he can be seen clearly on the video to be answering questions put to him by the police officers.  At the start of the interview, he was reminded of his rights as contained in the notices to persons in custody, and reminded that the Tamil version had been served on him.  He was asked if he required a lawyer.  From a viewing of the video interview records the defendant appeared to be alert and able to understand and answer the questions put to him.  He exaggerated his poor understanding of English – in the video interview, he is seen on more than one occasion to answer questions even before the question had been translated into Tamil.  Whilst giving evidence, he corrected what he thought were inaccurate translations into English by the Tamil interpreter in court.  He was asked if he was fit to have the interview and he said he was.  He never raised any complaints about being unwell until the conclusion of third video interview.  He was evasive when asked about the entries in Exhibit P6.  He denied that any entries were made on Exhibit P6 in his home – both interpreters said that this was done at his home after the search and the items seized.  He emphasized that he was kept in very cruel conditions in the cells – these were cells in a police station – one cannot expect that these would be the lap of luxury.  He was provided with food and drink, albeit not what he might be used to.  But he made no request for anything different.  Mr Tibbo emphasized that he was not offered any food nor drink.  The police officers said that had the defendant asked, he would have been given, but it was not their practice to themselves volunteer food and drink at all times.  When a blanket was asked for, it was provided.  The police officers of their own volition asked the defendant’s wife to get the defendant a jacket. 

39.  The defendant’s wife’s testimony on the special issue had obvious discrepancies with that of the defendant, in particular in respect of the search and how the exhibits were seized during the first visit.  Her evidence was obviously rehearsed, in particular when she was describing the way the photos were taken at the second visit without any prompting.  She described how all the drawers were left opened during the second visit, whilst the defendant said the police officers went directly to the second drawer without any direction from him.  How would the police officers have known that there was more  to be found and that a further search was required.  

40.  I was satisfied that the two notices to persons in custody were properly served on the defendant and he understood the contents and signed voluntarily. He participated in the first video interview voluntarily, and he agreed voluntarily to the police searching his home and the exhibits were seized during the first visit to his home and they were properly seized.  The video interview was before me for all purposes.  I could see no reason to exercise my discretion to exclude these.  In light of what the Tamil interpreter had said about the defendant appearing ill, I paid particular attention to the defendant and I was satisfied to the requisite standard that there was no unfairness to him for the interview to continue in the circumstances.  The police officer did ask him if he was fit to continue and he said he was, and he appeared fully alert throughout that first interview. 

41.  Mr Tibbo submitted that there had been oppressive conduct towards the defendant from the time of his arrest – I did not find this.  Although it was only at Central Police Station that a Tamil interpreter was made available, prior to that, the police had explained to the defendant in simple English the reason for his arrest, and the defendant did understand this – it is clear that the defendant’s understanding of English is more than the bare minimum, as he exhibited during the video interview as well as in his testimony in court. 

42.  Counsel submitted that there had been a breach of the Basic Law as well as the Bill of Rights.  I did not find this.  Counsel also submitted that the defendant’s rights as an ethnic minority had been violated.  I did not find this. 

43.  On the general issue, I found PW5 to be an honest and credible witness. I accepted his testimony in its entirety as to the circumstances in which he made the five transfers from the joint account of himself and his wife to the account of Smart Trading Company.  Counsel for the defendant submitted that PW5 had not identified his wife’s signatures on some of the transfer applications. PW5 was present with her when the telegraphic transfers were applied for and they were given the customer copy which he produced in court.  He did not know the defendant or the defendant’s company but made the transfers as he was directed to and was the victim of a fraud perpetrated on him. 

44.  The prosecution need not prove that the monies being dealt with are actually the proceeds of an indictable offence.  This of course does not apply here as there is clear evidence as to the circumstances in which PW5 made the transfers that he did. 

45.  It was not in dispute that the five transfers were deposited into the bank account of Smart Trading Company or that these sums were dealt with by the defendant who operated this bank account.  He was the sole proprietor of Smart Trading Company (Exhibit P9) and the company chop was found from his home (Exhibit P10).  The only issue is whether he dealt with these proceeds knowing or having reasonable grounds to believe that they represented the proceeds of an indictable offence.  The prosecution proceed on the basis that there existed reasonable grounds to believe that the monies that passed through the bank account in whole or in part, directly or indirectly, represented the proceeds of an indictable offence. 

46.  The bank records, Exhibit P25, show that the defendant opened account 1 and account 2 in the name of Smart Trading Company.  The two passbooks were found from his home, Exhibit P7 and P8.  The bank card of Account 2, Exhibit P17, was found from his luggage.  In the first video interview, the defendant admitted that he was the only one who operated these bank accounts.  He operated the bank accounts via the internet on his computer at home, and the online security token, Exhibit P16, was also found from his home.  The fund flow chart clearly shows the 5 transfers from the NAB account to account 1 of Smart Trading Company and how they were dealt with thereafter.  These were significant sums.

47.  The defendant had no knowledge of the real source of the remittances or the identities of the end transferee.  The defendant received reward for allowing the funds to be deposited in his bank account and then transferring the funds out. 

48.  In the video interview, the defendant claimed Smart Trading Company had been engaging in the business of trading electronics and mobiles, yet he had no dealings with any suppliers, he did not look for buyers and had no dealings with buyers, he had invested no capital, he did not have anything to do with the delivery of the goods, he had no business connections with any other companies.  In my view, it is inconceivable that the defendant would consider himself in those circumstances to be engaging in trading activities. 

49.  To lend someone a bank account to deposit and withdraw monies is an essential part of money laundering and amounts to dealing in property (see HKSAR v Lau Siu Hing, CACC 111/2008).  By receiving the remittances as he did and then transferring them out, he was ‘dealing’ with the five sums that were transferred into the bank account of Smart Trading Company. 

50.  In the video interview, the defendant had denied any knowledge of ‘Westcore’, the company that perpertrated the fraud on PW5.  Exhibit P14 was found in the defendant’s home, and bore the words ‘Westcore Capital’.  

51.  The only inference to be drawn in the circumstances is that there are reasonable grounds for the defendant to believe that the five sums he dealt with in the bank account represented the proceeds of an indictable offence. 

52.  I am satisfied beyond all reasonable doubt that the prosecution has proved all the charges against the defendant and he is convicted as charged. 

53.  In the course of the trial, Mr Tibbo sought on several occasions to complain as to disclosure made by the prosecution.  I was satisfied that the prosecution had made full disclosure to the defence.  Mr Tibbo had also sought an adjournment to confirm legal advice and make certain investigations to make an application for stay of proceedings alleging misconduct on the part of the prosecution and the police, in relation to the notice to persons in custody in Tamil, Exhibit P4A, submitting it was a manufactured document or that the defendant signed because of misrepresentation or deception by the police and that Exhibit P4A had not been disclosed to the defence.  It was the prosecution position that the document had been disclosed to the defendant’s solicitors on 19/1/2012.  Mr Tibbo claimed he had not seen this and feared what else might not have been disclosed.  I refused his application for an adjournment.  In my view, these were matters that he could raise in cross-examination.  In fact, in the first video interview under caution, reference was made to the notice to persons in custody in the Tamil language.  He had also claimed non-disclosure of the notice in the Tamil language in a subsequent interview but it had been referred to in that interview as well.