HKSAR v. ADIRANGAM RAHMATHULLAH ASIF AHMAD

CACC 301/2012

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 301 OF 2012

(ON APPEAL FROM DCCC NO. 967 OF 2011)

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REASONS FOR JUDGMENT

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1. The applicant who, having been refused the grant of legal aid, was represented by Mr Tibbo and Mr Sutherland assigned by the Hong Kong Bar Association’s Free Legal Service Scheme, sought leave to appeal against his conviction on 29 June 2012 after trial by Deputy District Court Judge Chainrai of five charges of dealing with property, knowing or having reasonable grounds to believe that the property represented the proceeds of an indictable offence, contrary to section 25 (1) and (3) of the Organized and Serious Crimes Ordinance, Cap. 455 and against the sentences of imprisonment imposed in respect of each of the charges. At the hearing we dismissed those applications for leave to appeal and said that we would give our reasons in due course. That, we do now.

THE TRIAL

The Charges

2. The 5 charges concerned the applicant’s dealings with various amounts in United States dollars deposited into the bank account of Smart Trading Company (“Smart Trading”) with the Bank of China  (Hong Kong ) Limited (“Bank of China”) in the period on or about 24 September and 8 October 2010.

The prosecution case

3. There was no dispute that the applicant was the sole proprietor of Smart Trading, which commenced business on 1 June 2010 on which date he opened two bank accounts with the Bank of China, described at trial as ‘Account 1’ and ‘Account 2’, of which accounts he and his brother were the two signatories.[1]  After bank charges had been deducted those accounts received by way of telegraphic transfer the following amounts in United States dollars on or about the following dates:

Charge 1: $93,967.90, on 24 September 2010;

Charge 2: $99,947.90, on 28 September 2010;

Charge 3: $199,967.90, on 5 October 2010;

Charge 4: $42,866.40, on 8 October 2010; and

Charge 5: $199,967.90, on 8 October 2010.

4. It was an admitted fact that the monies in Account 1 of Smart Trading were dealt with in the way described in exhibit P26.  On each occasion the monies were transferred by telegraphic transfer from the account in the joint names of Gaye Higham and John Higham with the National Bank of Australia in Australia to Account 1 of Smart Trading with the Bank of China.  From the round sums of money transferred, bank charges were deducted and the net amount described above credited to the account of Smart Trading.  On receipt, the monies were transferred in United States dollars from Account 1 of Smart Trading on the following dates and amounts to bank accounts in the names of the recipients:

Charge 1:	24 September 2010 - $93,028 to the Standard & Chartered Bank bank account of Bloomingville Hong Kong Limited (“Bloomingville”);
Charge 2:	29 September 2010 -
	(i) $49,467.50 to the Standard & Chartered Bank bank account of Bloomingville; and
	(ii) $49,467.50 to the Bank of China bank account of Basnas Hong Kong Company (“Basnas”);
Charge 3:	5 October 2010 -
	(i) $197,968 to the Bank of China bank account of Basnas; and
	(ii) $1,999.9 to Account 2 of Smart Trading;
Charge 4:	8 October 2010 -
	(i) $42,437 to the Bank of China bank account of Basnas; and
	(ii) $429 to Account 2 of Smart Trading; and
Charge 5:	8 October 2010 - (i) $100,000 to the Bank of China bank account of Basnas; and
	9 October 2010 - (ii) $97,968 to the Bank of China bank account of Basnas ; and
	(iii) $1,999.90 to Account 2 of Smart Trading.

5. The bank records of the bank accounts of Bloomingville and Basnas, with the Standard & Chartered Bank and the Bank of China respectively, reflected the receipt of those monies.[2]

6. John Higham, a consultant surveyor working in a gas plant Western Australia, testified that together with his wife he had caused the transfers of money to be made from their joint account with the National bank of Australia to the bank account of Smart Trading (Account 2) with the Bank of China in the course of what he believed to be their investment in gold futures trading with Westcore Capital (“Westcore”), with whom he believed he and his wife had opened an account by submission of an account application form dated 17 September 2010.  From time to time, he accessed the Internet web page of Westcore, including what purported to be his investment account which reflected his trading and the current balance.  He made the transfers of money to the bank account of Smart Trading on the instructions of persons he believed to be employees of Westcore in what he believed to be trading in gold.  He had no knowledge of the relationship between Westcore and Smart Trading.  He produced the five copies of the ‘Customer Copy’ of the ‘Telegraphic Transfer Application’ which he or his wife had signed to effect the transfers to the stipulated bank account of Smart Trading from their joint bank account with the National Bank of Australia.[3] He e-mailed copies of those documents to an e-mail address of Westcore.[4]

7. Having become suspicious of Westcore, when he met with prevarication in face of his request of Westcore that monies be remitted to him from his investment account, he made a report to the police.  His suspicions were justified.  The website disappeared and he was no longer able to make any contact with Westcore.

8. The applicant was detained by police officers in the Departure Hall of Hong Kong International Airport on 4 March 2011, after having been stopped by an immigration officer at about 5:30 p.m. that afternoon.  In due course, he was taken to Central Police Station where a video recorded interview was conducted of him between 0:10 and 01:59 a.m. on 5 March 2011.  Thereafter, in the early hours of the morning, the applicant’s home was searched and police officers seized various items from drawers in a chest of drawers, including:

· 2 bank passbooks for the two Bank of China accounts of Smart Trading, exhibits P7 and P8;

· the business registration certificate of Smart Trading, exhibit P9;

· extracted from a red box file, one of 2 box files:

(i) copies of the ‘Customer Copy’ of four ‘Telegraphic Transfer Applications’, exhibits P11, P11A, P12 and P13, in respect of the transactions the subject of Charge 1 (two copies), Charge 2 and Charge 3;

(ii) a facsimile transmission directed to Shaun Schulz/Charles Parker at Westcore Capital, dated 16 September 2010, exhibit P14, from a named sender with an address in the state of Victoria in Australia, referring to “see the receipt for 35,000 USD attached”;

(iii) an acknowledgement of an online transfer from Smart Trading on 24 September 2010 of US$93,028 to Bloomingville, exhibit P15; and

(iv) a Bank of China online banking security token, exhibit P16.

9. The prosecution sought to rely on the record of interview, Exhibit P5, on the basis that it was a ‘mixed’ statement.  Also, they sought to adduce into evidence the items seized from the applicant’s home and in his luggage.

Video record of interview

10. In the video record of interview the applicant said that he had set up Smart Trading, which address was his home address.  Its business was in trading electronic and mobile products.  He said that its business turnover was about US$1.5 million in the two months in which he had operated before he ceased that business.  In June 2010, he had opened bank accounts in the name of Smart Trading with the Bank of China name.  It had a multiple currency account.  He operated the account online, using a computer at home.  He did not inject any capital.  Rather, he worked on a commission basis.

11. The applicant said that one person he did business with on that basis was someone he knew only as ‘Chan’.  They communicated with each other through computer ‘chat room’ programme Yahoo! Messenger.  He did not have his telephone contact number.  Chan received orders and liaised with suppliers, but did not send the applicant any invoices.  The applicant had no dealings with the buyers or was involved in the delivery of the goods.  In the course of his dealings, with Chan he received telegraphic transfers of money to the accounts of Smart Trading from Australia, from which he would deduct 1% commission for himself and then transfer the balance to various other accounts designated by Chan.  The applicant denied knowing a company called Westcore Capital.[5]

The defence case

12. The applicant did not testify or call evidence on the general issue.  However, he did testify and called his wife to testify in the defence case on the special issue.

Special issue

13. Objection was taken on behalf of the applicant to the admission into evidence of the video record of interview, exhibit P5 and documents the applicant had signed before and after that interview, namely:

(i) two notices to ‘Persons under Investigation by, or Detained in the Custody of, the Police’, exhibit P4 and P4A, one of which was in English and the other in Tamil; and

(ii) extracts of the police notebook of PC 10692, who conducted the video record of interview, which recorded the applicant’s signed acknowledgement of the written record begun at 03:04 on 5 March 2011, compiled in Chinese, English and Tamil, of his having given his consent to the police to search his home and a subsequent written record begun at 03:45 of items seized after a search of the applicant’s home.

Further, objection was made to the admissibility of exhibits, said to have been seized from the applicant's home in the search conducted of those premises in the early hours of 5 March 2011, exhibits P7 to P16, as well as the ATM card (P17) seized from the applicant’s luggage.

Objections to admissibility

14. The overall complaint was one of oppression to the applicant before, during and after the video record of interview.  First, the police failed to inform him of the reasons for his arrest.  Secondly, he was not cautioned at the time of his arrest.  Thirdly, at the time of his arrest or soon thereafter he was not served with a ‘Notice to Persons under Investigation by, or Detained in the Custody of, the Police’.  Fourthly, the police did not explain to him his rights, including the right to obtain legal advice and be provided with food, drink and sufficiently warm conditions.

15. It was contended that there were repeated breaches of the provisions of the Secretary for Security’s ‘Rules and Directions for Questioning of Suspects and the Taking of Statement, including Principles (c), (d), (e), Rule II and Directions 4, 6 and 8.

16. Next it was contended that the applicant’s constitutional rights provided by the Bill of Rights had been infringed: the right to liberty, Article 5; the protection against unlawful/arbitrary search, Articles 29; the right to confidential legal advice, Article 35; and the right to a fair trial, Article 87 of the Basic Law.

17. Then, it was contended that the applicant’s acknowledgement by his signature on the written record in PC 10692’s notebook, exhibit P6, of his consent to his home being searched was also obtained in ongoing oppressive circumstances, in particular arising from the fact that the applicant had not been informed of his right to obtain legal advice, prior to giving his consent.  In consequence, it was contended that all the exhibits seized from his home were unlawfully obtained and, as a result, were inadmissible in evidence. 

Special issue

18. The judge conducted a voir dire on the special issue.

The prosecution case

19. Immigration Officer Chan Wai-kwong said that at 5:34 p.m. on 4 March 2011, the Applicant was stopped at the Departure Hall of the Hong Kong International Airport because his name was on the ‘Wanted’ list.  He told him in English that he was wanted by the police.[6]  He handed the applicant over to PC 7068, Ku Ka Shun at 5:50 p.m.  The latter testified that having confirmed with the Console that the applicant was wanted by the police, he arrested the applicant at 6:05 p.m., informing him in English that he was wanted in a deception case.[7] PC 58948, Chau Chin Tong took over custody of the applicant at 6:26 p.m. and, having informed him in English that he would do so, retrieved his luggage from the Customs & Excise Hall.[8]  At 7:20 p.m. he handed the applicant, together with the luggage, to Sergeant 20066, Tse King Shing at the Airport Police Station.  Sergeant Tse said that he conversed briefly with the applicant in English, who made no complaint or request.  The applicant was then detained in temporary holding cell, pending escort to Central Police Station.

20. At 9:50 p.m., officers from Central Police Station took custody of the applicant and drove him to Central Police Station.  PC 53751, Yim Kin Wing said that he told the applicant in English that was where he was to be taken.  On their arrival at Central Police Station at 10:31 p.m., the applicant was handed over to Station Sergeant Hau Chi-kwan.  Station Sergeant Hau asked the applicant in English if he had any questions.  As he recalled, he received no reply.  Had there been any reply, he would have made a record of the reply.  Then, the applicant was placed in a cell in the Report Room. 

21. PC 10692, Chau Chi Ming accepted in cross-examination that at about 7:15 p.m. on 4 March 2011 he had been contacted by his superiors and informed that the applicant had been detained at the airport.  Soon after his arrival at Central Police Station at about 8 p.m. he had set in motion a request for the provision of interpreters to interview the applicant.[9]  Ms Shareefa Jalaal, a Tamil interpreter, said that she arrived at the Report Room of Central Police Station at about 10:30 p.m. that night.

22. At 11:44 p.m. PC 10692 and PC 3732, took the applicant out of the cells to an interview room, in order to conduct a video record of interview.  The interview was to be conducted in Cantonese by the police officer and interpreted, first into English and then into Tamil, respectively by Ms Yung Wing Yan and Ms Shareefa Jalaal. 

Notices

23. In the interview room, prior to the interview commencing PC 10692 served on the applicant two ‘Notice to Persons under Investigation by, or Detained in the Custody of, the Police’, exhibit P4 and P4A, one of which was in English and the other in Tamil.  In cross-examination, he said that he did not recall how the Notice was read to the applicant but he was sure that he gave the applicant the Tamil version of the Notice to read and asked the Tamil interpreter to read it to him.  He wrote on the two notices the time of commencement and completion of the procedure, namely 23:55 on 3 March and 00:05 on 4 March 2011.

24. There was no dispute that this was the first occasion, since his interception at 5:34 p.m. and subsequent arrest at 18:05 on 4 March 2011, that the applicant had been served with a ‘Notice to Persons under Investigation by, or Detained in the Custody of, the Police’ or had been given access to a Tamil interpreter.

25. Ms Shareefa Jalaal said in cross-examination that when she had first seen the applicant he was shivering and shaking with cold.  At her request of one of the police officers, the applicant was provided with a blanket.[10] She said that he looked unwell.[11]  Then, at PC 10692’s request, she had translated into Tamil for the applicant from the English version of the Notice.[12]  She did not ask the applicant if he understood the Notice.[13]  She said that the officer gave the Tamil version of the Notice to the applicant, but she did not read that out.  Although that Notice was placed in front of the applicant, she said that the applicant did not read it.[14]  There was no dispute that the applicant, the officer and both interpreters signed on the English version of the Notice whereas, only three of them, not Ms Yung Wing Yan, signed on the Tamil version of the Notice.

Video record of interview

26. Beginning at 00:10, with the assistance of the two interpreters, PC 10692 conducted a video record of interview of the applicant, which concluded at 01:59 a.m.  Then, the applicant was returned to the custody of Sergeant Hau at 02:16 a.m. on 5 March 2011.

27. At 03:30 a.m. PC 10692 took the applicant out of the police cell and sought his consent to conduct a search of his home.  Again he was assisted in making those enquiries by the same two interpreters.  A record was made in the police officer’s notebook, exhibit P6, in Chinese, English and Tamil of the request and the applicant’s consent.  Ms Shareefa Jalaal said that she had written the Tamil translation in the police officer’s notebook and read it to the applicant.  In answer to her questions, he confirmed that he understood its contents and signed on the notebook, as did she, the other interpreter and the police officer.[15]

28. Then, the applicant was escorted by police officers to his home at premises in Loong King Mansion, 23-35 Ma Tau Wai Road, which was searched in his presence and that of his wife.  PC 10692 said that the items seized included: two bank passbooks for Accounts 1 and 2 of Smart Trading with the Bank of China, exhibits P7 and P8; a business registration certificate for Smart Trading Company, exhibit P9; Smart Trading’s company chop, exhibit P10; and documents extracted from a red file, namely copies of the Customer Copy of three of the Telegraphic Transfer Application forms in which monies were sent by Mr John Higham to Smart Trading, exhibits P11, P11A, P12 and P13, a facsimile transmittal sheet dated 16 September 2010 addressed to persons at Westcore Capital, exhibit P14; an acknowledgement of online transfer instruction dated 24 September 2010 from Smart Trading to Bloomingville, exhibit P15; and an online e-banking security token, exhibit P16.

29. PC 10692 said that he made a record of those seizures in his notebook, exhibit P6.  Once again, the record was compiled as it had been done earlier, namely first in Chinese by the police officer, next in English by Ms Yung Wing-yan and, finally in Tamil by Ms Shareefa Jalaal.  The record was signed by the three of them and by the applicant.

30. In cross-examination, Ms Shareefa Jalaal was asked if she remembered the seizure of any red or black box files, it having been pointed out to her that there was no such reference on the list of seizures contained in the police officer’s notebook.  She said that she remembered a box file, “I think two, I am not very sure.”[16]

31. PC 10692 denied that he had not seized the red file or its contents in the early hours of 5 March 2011 and the related suggestion that they had been seized on the morning of 6 March 2011 when the police party returned to the applicant’s premises.  He accepted that his entry in his notebook of the items seized in the search of the applicant premises in the early hours of 5 March 2011 did not stipulate the documents seized from the red file or the seizure of either the red or black files.  He said that he had omitted to make that record, as he had when he copied out that entry into a second notebook.  However, he agreed that they were referred to in his witness statement, dated 7 March 2011.  In compiling that statement, he had not relied on his earlier notebook entries.[17]

Defence case

The applicant

32. The applicant testified that he had been intercepted by immigration officers as he was leaving Hong Kong to fly to Singapore.  In light of the anticipated weather at his destination he was clad in only jeans and a T-shirt.[18]  He did not know that he had been told that he was under arrest whilst he was at the Airport Police Station.[19]  He was placed in a van and taken to a police station, where he was placed in the cells.  He was cold and frightened.  Later, having been handcuffed, shackled and after a chain had been placed around his waist he was taken in a police van to another police station.  He was shivering from the cold.[20]  On arrival at the other police station, the restraints were removed and he was placed in a cell.  Once again, he was very cold.  There, for the first time he was offered some food, dry noodles, but not water.

Notices

33. Later, he was taken out of the cells and taken by police officers, in the company of two female interpreters, to an interview room.  He was shaking and shivering.  On the intervention of the Tamil interpreter, at her request of a police officer, he was provided with a blanket.  Because his physical and mental condition was so bad he had not grasped or understood that the text of a Notice to Persons in Custody had been read to him in Tamil by the interpreter.[21]  He denied that he was given a copy of the Notice written in Tamil or that he had read and understood it himself.  He had signed the Notice because he had been asked to do so.[22]  He felt cold and unwell, as he did throughout the night.

Video record of interview

34. The applicant said that he had participated in the video record of interview because he was afraid that if he did not he would be shouted at or scolded.  He wanted a finish to what was happening to him, so that he could go home.  In spite of wrapping himself in the blanket he still felt cold.  He had not participated voluntarily in the video record of interview.[23]

Consent to the search

35. The applicant said that at the police station, prior to the search of his home, he thought that the Tamil interpreter had read something to him.  However, given his condition he was not sure.  Although he accepted that he had signed the police officer’s notebook, he said that he did not do so to evidence his consent to the search.  He had signed quickly in response to being told to do so.  He did not read what he signed.[24]

Seizures

36. The applicant said that when he was taken to his home he was asked by a police officer in English where his bank passbooks were kept.  After he had pointed out the first drawer in a chest of drawers, police officers seized those documents.  He denied that the red and black files, the former of which contained copies of some of the telegraphic transfer applications made by John and Gaye Higham and a facsimile dated 16 September 2011 addressed to Westcore Capital, had been seized on the occasion of the search in the early hours of the morning of 5 March 2011.  Rather, they had been seized on a second visit to the premises on 6 March 2011.

The applicant’s wife

37. The applicant’s wife, Madam Shakina Basheer, testified that she was at her home at about 03:30 a.m. on 5 March 2011 when her husband arrived in the company of police officers.  She was shocked to see that he was in handcuffs.  The police officers searched some of the premises and seized a computer and some of the contents of the first drawer of a chest of drawers.  They had not searched the second drawer.  Her husband had located those documents for the police officers.  No photographs were taken on that occasion.

38. At about 07:00-30 that morning, in an attempt to locate a photocopy of the applicant’s passport and identity card, she had searched the same chest of drawers, including the second drawer.  In that drawer, she noticed the red and black files.

39. On the morning of the following day, police officers had returned with her husband to their home.  Again, they conducted a search of the premises.  This time it included the second drawer of a chest of drawers.  Also, they took photographs on this occasion.  When they had left she noticed that the red and black files contained in the second drawer was missing.

GROUNDS OF APPEAL AGAINST CONVICTION

Judicial bias

40. Mr Tibbo submitted on behalf of the applicant that the judge’s interventions in the examination-in-chief and cross-examination of two of the prosecution witnesses, namely Mr John Higham, PC 10692 and Ms Shareefa Jalaal, demonstrated bias against the defence, so that the trial was unfair.

41. Next, it was submitted that, having regard to the discrepancies and inconsistencies in their testimony, the judge erred in determining the witnesses for the prosecution called in the special issue to be “honest and credible witnesses”.  In particular, it was contended that the judge had erred in accepting the evidence of PC 10692 having regard to the discrepancies between his oral testimony and his notebook entries, exhibit P6, in particular that his notebook entries made no mention of the seizure at the applicant’s home in the early morning of 5 March 2011 of the red and black files or any documents contained in them or of photographs having been taken at that time.  Furthermore, it was submitted that the judge failed to have regard to the fact that the testimony of PC 10692 was in conflict with the evidence of Ms Shareefa Jalaal, the Tamil interpreter, on various issues relating to the treatment of the applicant prior to the commencement of the video record of interview.  Those matters included whether he was cold and shivering, whether PC 10692 asked the applicant if he understood the Notice to Persons in Custody, whether the applicant read the document, and if he wished to contact a lawyer.  Finally, it was contended that, having regard to those inconsistencies and discrepancies, the judge failed to give reasons for accepting the evidence of PC 10692.

Reasonable grounds to believe that the monies were the proceeds of an indictable offence

42. Then, it was submitted that the judge erred in finding that there were reasonable grounds to believe that the monies received in the bank account of Smart Trading represented the proceeds of an indictable offence.  The inference of guilt was not the only reasonable inference to be drawn from the evidence. 

The applicant’s video record of interview

43. Next, it was contended that the judge erred in finding that the video record of interview conducted of the applicant, exhibit P5, was made voluntarily by the applicant and, having determined not to exercise her discretion to exclude it, in ruling that it was admissible in evidence.  Mr Tibbo submitted that in the period leading up to and including the video record of interview there were breaches of the applicant’s rights as provided for by Principles (c), (d) and (e), Rule II and Directions 4, 6 and 8 of the Secretary for Security’s ‘Rules and Directions for Questioning of Suspects and the Taking of Statements’.  Also, there were violations of the applicant’s rights provided by the Bill of Rights and the Basic Law, including the right to liberty, the right against unlawful/arbitrary search, the right to confidential legal advice and the right to fair trial.  Finally, the judge failed to give reasons for her determination that those rights were not breached.

The exhibits seized from the applicant’s home

44. Finally, it was contended that the judge erred in admitting into evidence the exhibits seized from the applicant’s home.  The applicant’s apparent consent to the search of his home, as evidenced by the applicant’s signature in the notebook of PC 10692 was vitiated by the oppressive circumstances leading up to and obtaining at the time of that consent as evidenced by the applicant’s signature in the notebook of PC 10692.

A CONSIDERATION OF THE SUBMISSIONS

Judicial bias

45. Not surprisingly, Mr Tibbo did not seek to support his written submissions in respect of judicial bias by the judge in his oral submissions.  They are utterly bereft of any merit whatsoever and ought never to have been advanced.

46. One of the grounds on which reliance was placed is illustrative of the lack of merit.  It was submitted that the judge evidenced judicial bias in her interventions resulting in her ruling, against the objection of Mr Tibbo, that the evidence of Mr John Higham be interposed in the ongoing cross-examination of PC 10692.  At the end of the hearing on Thursday, 19 April 2012 the judge had been informed by counsel for the prosecution that Mr Higham had arrived in Hong Kong.  She was told that he had come to Hong Kong from Australia at public expense.  At that time, PC 10692 was giving evidence-in-chief.  Notwithstanding the judge’s observations as to the expense to the public purse of Mr Higham remaining in Hong Kong for additional days, Mr Tibbo indicated that he objected to the interposing of his evidence.  At that stage, the judge said simply that in those circumstances nothing could be done.

47. In the morning of the following day Friday, 20 April 2012 cross-examination of PC 10692 began at about 10:15.  After the lunch adjournment the court was informed by the prosecution that not only was Mr Higham at court but also he had arranged to be in Hong Kong until Sunday only.  Notwithstanding the judge’s expressions of concern as to the unnecessary cost to public funds by Mr Higham’s continued stay in Hong Kong if he was not called as a witness, Mr Tibbo remained adamant that he wished to complete his cross-examination of PC 10692, protesting that the defence ought not to be stopped in its cross-examination.  In the result, the judge ruled that Mr Higham would be interposed to give evidence, saying:[25]

“ …the prosecution seeks to have Mr Higham interposed as a witness since he has come in from overseas and is due to leave on Sunday and he is here at public expense. I can see no prejudice to the defence if Mr Higham is interposed as a witness.”

48. In the event, having begun at 2:50 p.m. Mr Higham’s evidence was complete within one and a half hours, so that Mr Tibbo was able to resume his cross-examination of PC 10692 at about 4:15 p.m.  That cross-examination by Mr Tibbo occupied all of 23 April and concluded only at 3:45 p.m. on 24 April 2012.

49. We are satisfied that there was no prejudice whatsoever to the conduct of the applicant’s case in interposing the testimony of Mr Higham during the cross-examination of PC 10692. Indeed, Mr Tibbo has not attempted to suggest there was any prejudice.  In those circumstances, it beggars belief that the judge’s ruling is prayed in aid as evidence of judicial bias.

50. Insofar as Mr Tibbo condescended to providing some broad references to the impugned passages of judicial interventions and questions in the transcript of the evidence of PC 10692 and Mr Higham as evidencing judicial bias, we are satisfied that there was no such impropriety.  As far as the evidence of Ms Shareefa Jalaal was concerned, Mr Tibbo merely referred the court to the transcript in extenso.  It is clear from a reading of the 23 pages of transcript that the occasions of the judge’s intervention occur when it was necessary for her to confirm evidence or otherwise resolve ambiguities.  In that context, the observations of Power JA, as he was then, in the judgment of this Court in The Queen v Yeung Mau Lam[26]in respect of judicial interventions and questions of witnesses is relevant:

“ .. it is the duty of the judge to ensure, at all times that he understands the evidence of witnesses and that witnesses make responsive answers to the questions asked. We further observed that while it is desirable that judicial questioning comes at the end of cross-examination or, preferably, the end of re-examination, there may well be circumstances in particular trials which make a proper for the judge to intervene by asking questions at much earlier stages.”

51. In the same vein, Cheung JA, in the judgment of this Court in HKSAR v Wu Yui Yuen noted:[27]

“ Judges are not expected to sit passively during the proceedings but rather are entitled to and are expected to exercise proper control over the proceedings so that ambiguities can be clarified and issues can be properly identified.”

Special issue: ruling

52. The judge noted that the prosecution had called no fewer than nine witnesses on the special issue.  In ruling admissible the various exhibits the subject of objection, the judge said of those witnesses that she found them to be:[28]

“ …honest and credible witnesses, who 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.”

53. Having noted that there were some “minor discrepancies” in their testimony, the judge determined “..these did not cause me to doubt their vo(e)racity as witnesses” and that their accounts were “inherently credible”.[29]

54. Of PC 10692, the judge determined that he:

“ 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 was signed by the defendant, exhibit P6.”

55. Of the fact that PC 10692 did not remember that a blanket had been obtained for the applicant before the commencement of the interview, as she said was the evidence of Ms Shareefa Jalaal, the judge noted that the events about which he was testifying occurred over a year earlier.  She determined that lack of memory to be “not unusual”.  She accepted the testimony of PC 10692 that his failure to record the fact of the seizure at the search of the applicant’s home on 5 March 2011 of the two box files and their documentary contents was an “oversight”.  In that context, she noted that it was the testimony of Ms Shareefa Jalaal that, “..there were files, although she could not remember the number or the colours”.

56. One of the apparent discrepancies between the evidence of PC 10692 and Ms Shareefa Jalaal was whether or not the applicant had been asked, in the period immediately before the commencement of the video record of interview, whether he wished to have a lawyer.  In her reasons for verdict, the judge noted of Ms Shareefa Jalaal’s testimony, that:[30]

“ She was asked if the police had asked the defendant before the interview began if he needed a lawyer - she said that they had not, but this was one of the rights on the notice that she had read to the defendant.”

57. In fact, Ms Shareefa Jalaal’s answer to the question of whether the police had asked the applicant if he needed a lawyer before the interview began, was “I don’t think so”.[31]  As the judge noted, Ms Shareefa Jalaal acknowledged that the right to contact a lawyer was one of the rights stated on the Notice to Persons in Custody, which she had translated into Tamil for the applicant at that time.

58. Under the rubric, ‘YOUR RIGHTS’ the following rights relevant to communicating with a lawyer are set out on the Notice to Persons in Custody:

“ 6. Request to be provided with a list of solicitors;

………

9. Make private telephone calls to, or communicate in writing or in person words, a solicitor or barrister;

10. Have a solicitor or barrister present during an interview with the police;

11.   Communicate privately with a solicitor or barrister claiming to have been instructed by a third person on your behalf;”

59. In cross-examination, PC 10692 asserted that at the time that he had served the Notice to Persons in Custody on the applicant prior to the video record of interview he had asked if he wished to have a lawyer.[32]  Clearly, that evidence is to be judged in the context of the undisputed evidence from Ms Shareefa Jalaal that at PC 10692’s direction and in his presence she had informed the applicant in Tamil of those rights as set out in the Notice to Persons in Custody.  The difference in their testimony was of no consequence.

60. The judge determined the applicant not to be “a witness of the truth”.  She said that he was “evasive in answering questions and exaggerating his condition”.  Of his evidence that his brain was “frozen” during the video record of interview, the judge noted that he answered questions put to him and, having viewed the video recording, found that the applicant “appears to be alert and able to answer the questions put to him”.

61. It is to be noted that at an early stage of the interview PC 10692 said to the applicant:[33]

“ Well, behind you is an enlarged Custody Notice to Persons Detained in the Custody of the Police. Well, at the earlier time I also explained to you there were two sheets, one in Tamil, one in English. Well, we also, through the interpreters, explained to you.. your rights. Do you understand your rights stated therein?”

The applicant responded that he understood.  In response to being asked “..do you need a lawyer?” the applicant said “I have to decide after seeing this”.[34]  However, he answered in the affirmative when asked if he would continue with the interview.

62. Having been told that he was suspected of being involved with a deception case concerning Mr John Higham in September 2010 involving a stipulated Bank of China bank account, the words of caution were administered to the applicant.  In the face of his response that he understood and was willing to continue with the video interview, the words of caution were administered again to the applicant, after which he answered in the affirmative when asked if he was in a suitable frame of mind to conduct the interview.  He answered in the negative when asked if he needed to take a rest.[35]

63. Noting that on occasions the applicant answered questions before they had been interpreted to him in Tamil, and that he had corrected some of the interpretations, the judge determined that he “exaggerated his poor understanding of English”.  Further, she determined that the applicant was “evasive” when asked about entries in the police officer’s notebbook, exhibit P6.  She noted that his denial that any entries were made in the police notebook at his home[36] was contradicted by the evidence of both of the female interpreters.[37]

The applicant’s health

64. The judge said that in light of the evidence of Ms Shareefa Jalaal she had paid “particular attention” to the applicant in the video record of interview.  Having done so, she determined[38] that there was “no unfairness to him for the interview to continue in the circumstances”.  Noting that he had been asked if he was fit to continue and had said that he was[39] and finding that he “appeared fully alert throughout the first interview”.[40]

The assistance of an interpreter

65. Of the contended unfairness to the applicant resulting from the delay in providing the services of a Tamil interpreter of just over 6 hours, after he was first detained by immigration officers, the judge determined that was not oppressive conduct.  She accepted that the reason for his arrest had been explained to him in simple English at the time of his arrest at 18:05, a sufficient command of which the applicant had exhibited during testimony and in the video record of interview.[41]

66. Finally, the judge rejected submissions that the applicant’s rights provided for by the Bill of Rights and the Basic Law had been breached.  She added:[42]

“ Counsel also submitted that the defendant’s right as an ethnic minority had been violated. I did not find this.”

67. It appears that the right in question, in the context of the admissibility of the material to which objection was taken in the special issue, was the right of a person under arrest to be communicated with in a language in which he understood.  In fact, on a number of occasions police officers had used simple English, clearly not their native tongue, to communicate with the applicant, in the absence of an interpreter, judging it to be a language of which he had some understanding.  Arrangements were made for the provision of no less than two interpreters so that the record of interview of the applicant could take place.

68. Of the applicant’s understanding of his circumstances, in particular what was happening to him, the judge had determined earlier:[43]

“ 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 exhibited during the video interview as well as in his testimony in court.”

69. In the result, the judge found:[44]

“ 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 can see no reason to exercise my discretion to exclude these.”

70. We are satisfied that the judge was entitled to make those determinations and there is no merit whatsoever in the grounds of appeal that are advanced in that respect.

Reasonable grounds to believe that the monies were the proceeds of an indictable offence

71. There was no issue that the monies transferred by Mr John Higham into Account 1 of Smart Trading with the Bank of China were the “proceeds of an indictable offence”.  The judge found that he was “the victim of a fraud...”.[45]  Similarly, there was no issue that the applicant “dealt” with those monies by receiving them into that account and by making onward transfers of the monies.[46]  As the judge noted, the only issue was whether in so dealing the applicant knew or had reasonable grounds to believe that the monies were in whole or in part the proceeds of an indictable offence.  Having noted that the prosecution put its case on the basis of the latter limb of committing the offence, the judge found:[47]

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

72. The judge rejected the defence case, as advanced in the video record of interview, of the applicant’s understanding of the nature of the transactions in Account 1 of Smart Trading with the Bank of China, finding:[48]

“ ... 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.”

73. Of the applicant’s denial in his video record of interview of knowledge of Westcore, which she described as the company that “perpetrated the fraud” on Mr John Higham, the judge noted that the facsimile transmission dated 16 September 2010 sent by a sender with an address in the state of Victoria in Australia and in which reference is made to a receipt for 35,000 USD was attached:[49]

“ Exhibit P14 was found in the defendant’s home, and bore the words ‘Westcore Capital’.”

74. In the result, she concluded:[50]

“ 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.”

75. We are satisfied that the judge’s finding that it was “inconceivable” that, in the absence of any of the normal business records or dealings that she identified, the applicant would consider himself to be engaged in trading activities is unimpeachable.  Of those circumstances, the judge said of the activity in which the applicant was engaged:

“ The defendant received the rewards for allowing funds to be deposited into his bank account and then transferring the funds out.”

76. It was in that context that the judge’s observation of the discovery by the police of the facsimile dated 16 September 2010 addressed to Westcore was made.  That gave the lie to the applicant’s denial of knowledge of Westcore.  Relevant to that evidence, was the discovery in the same file of several copies of the Customer Copy of Telegraph transfers of various money made by Mr John Higham which he testified he had sent by e-mail to Westcore.

77. We are satisfied that in those circumstances there was overwhelming evidence to support the judge’s determination that the only reasonable inference was that there were reasonable grounds for the applicant to believe that the monies were the proceeds of an indictable offence.

Reasons for Sentence

78. In her reasons for sentence having adverted to numerous cases in which this Court has addressed the issue of sentencing in offences of this nature, the judge referred to the judgment of Stock VP in HKSAR v Boma Amaso[51] in which relevant significant features in the commission of the offence were identified.  The judge noted that they included:[52]

“ the amount of money laundered, the nature of the indictable offence involved and whether the defendant is aware of it, role of the defendant, whether international dimension and organised crime syndicate are involved, duration of the laundering and the degree of planning and sophistication.”

79. The judge described the circumstances of the commission of the offence and the applicant’s role:

“ In my view this was a carefully planned operation with a very clear international dimension, all the remittances to the bank account having come from overseas -Australia. The opening up of different bank accounts to facilitate the moving of the funds make the detection of the crime all the more difficult. In a short period of time, the defendant had dealt withalmost HK$5 million.”

80. Although the judge determined that there was “no direct evidence that the defendant played a part in the fraudulent scheme”, she said of his role:

“ … he was an essential cog in the processing of the money. He was the sole proprietor of Smart Trading Company, and he opened the bank account of Smart Trading Company and he was the one who operated the bank account. Almost immediately after receipt, almost the entire sum was transferred to other accounts on each occasion.”

81. Of the predicate offence of fraud, she said:

“ There was also a level of sophistication here as well. A sham web page was set up wherein the victim could see that his transfers had been credited into his trading account, and he could also see ficticious investment transactions wherein he was deceived into believing he had made a lot of profit on his investment. However, there is no evidence that the offences were committed by the defendant on behalf of an organized criminal syndicate.”

Nevertheless, the judge went on to determine:

“ I do not accept that the defendant was unaware of the scam operated on the victim.”

82. In determining the sentences to impose upon the applicant, the judge said that a deterrent sentence was of “paramount importance” and noted that the predicate offence was fraud, for which offence the maximum sentence was 14 years’ imprisonment.  Having said that she had regard to the fact that the applicant had been convicted after trial and had “shown little remorse”, the judge said that she had taken into account “the role played by the defendant and all the circumstances of the offences as well as personal circumstances of the defendant”.[53]

GROUNDS OF APPEAL AGAINST SENTENCE

83. In grounds of appeal against sentence advanced by Mr Sutherland on behalf of the applicant it was submitted, first that the judge erred in distinguishing in the sentences imposed in respect of the various charges on the basis of the amount of money involved, given that the greatest difference in the amounts concerned was only about US$160,000.  Secondly, it was contended that the judge failed to afford proper weight to mitigating factors, including the fact that the applicant had been used by others involved in the fraud itself and the fact that his father was ill and had died whilst he was in custody.

A CONSIDERATION OF THE SUBMISSIONS

84. In oral argument, Mr Sutherland submitted that the judge’s determination in her Reasons for Sentence that she did not accept that “the applicant was unaware of the scam operated on the victim” was at odds with her statement in the Reasons for Verdict that the applicant “had no knowledge of the real source of the remittances or the identities of the end transferee”.[54]  There was no suggestion at trial that the applicant knew anything more than the names and account particulars of the transferees to whom he made remittances from the monies deposited into Account 1 of Smart Trading, other than transfers he made to Account 2 of Smart Trading.  On the other hand, as the judge noted, the applicant was found in possession of various copies of the Customer Copy of Telegraphic Transfers made by Mr John Higham to Account 1 of Smart Trading with the Bank of China, together with the facsimile addressed to Westcore.  Clearly, it was to be inferred that the applicant knew the provenance of the monies deposited into that account.  As the judge had determined, in all circumstances the applicant had reasonable grounds to believe that the monies were the proceeds of an indictable offence.  On the other hand, there was nothing on the documents that indicated specifically that the monies were payments made by victims of a fraud in trading gold futures.

85. There is no merit in the submission that the judge erred in having regard to the amounts of money involved in the respective charges in determining the appropriate sentence to impose upon the applicant.  That factor is one of the features to which this Court said in Boma Amaso a judge was to have regard in sentencing for this offence.  Clearly, that was the basis upon which the judge differentiated between the charges: imposing 2½ years’ imprisonment in respect of dealing in US$42,866.40 (Charge 4); 3½ years’ imprisonment in respect of dealing in US$93,967.90 (Charge 1) and US$99,947.90 (Charge 2); and 4½ years’ imprisonment in respect of dealing in two amounts of US$199,967.90 (Charges 3 and 5).  That distinction was entirely appropriate.

86. The judge was correct to have regard to the matters that she identified as relevant to sentencing the applicant, in particular that a deterrent sentence was required.  The applicant’s personal circumstances were of little weight.  As she noted, the applicant was “an essential cog in the processing of the money”, transferring almost all the monies received, less that which he kept for himself, “almost immediately after receipt.”  The applicant dealt with almost HK$5 million in a little over two weeks, placing the monies beyond the reach of the authorities or the victim.

87. We are satisfied that the judge was correct to determine that the applicant’s culpability was appropriately reflected by a total sentence of 4 years’ imprisonment.

Conclusion

88. For those reasons, we dismissed the application for leave to appeal against sentence

[1] Admitted Facts; Appeal Bundle, page 14.

[2] Exhibits P1 and P2.

[3] Exhibits P19-23.

[4] Appeal Bundle, page 415.

[5] Exhibit P5, counter #s 429-434.

[6] Appeal Bundle, page 279.

[7] Appeal Bundle, page 283.

[8] Appeal Bundle, page 289 and Admitted Facts, page 15.

[9] Appeal Bundle, pages 380-2.

[10] Appeal Bundle, pages 602-3.

[11] Appeal Bundle, page 607.

[12] Appeal Bundle, page 593.

[13] Appeal Bundle, page 595.

[14] Appeal Bundle, page 594.

[15] Appeal Bundle, page 597.

[16] Appeal Bundle, pages 609-10.

[17] Appeal Bundle, pages 512-14.

[18] Appeal Bundle, page 658.

[19] Appeal Bundle, page 757.

[20] Appeal Bundle, page 664.

[21] Appeal Bundle, page 668.

[22] Appeal Bundle, page 686.

[23] Appeal Bundle, pages 670-2.

[24] Appeal Bundle, page 686.

[25] Appeal Bundle, page 410.

[26] The Queen v Yeung Mau Lam [1991] 2 HKLR 469 at 473 G-H.

[27] HKSAR v Wu Yui Yuen (CACC 151/2011; unreported, 25 September 2012) at paragraph 32.

[28] Appeal Bundle; page 26, paragraph 37.

[29] Appeal Bundle; page 26, paragraph 37.

[30] Appeal Bundle, page 21 G-I.

[31] Transcript, page 605.

[32] Transcript, pages 447-8.

[33] Record of Interview, counter #s 55-61.

[34] Record of Interview, counter #s 67-90.

[35] Record of Interview, counter #s 128-194.

[36] Appeal Bundle, pages 693 and 761.

[37] Appeal Bundle, pages 578-9; and pages 598-9.

[38] Appeal Bundle; page 25, paragraph 40.

[39] Exhibit P1, counter #s 184-194.

[40] Appeal Bundle; page 25, paragraph 40.

[41]  Appeal Bundle; page 28, paragraph 41.

[42] Appeal Bundle; page 46 C-E, paragraph 42.

[43] Appeal Bundle; page 45, paragraph 41.

[44] Appeal Bundle; page 45, paragraph 40.

[45] Appeal Bundle; page 46, paragraph 43.

[46] Appeal Bundle; page 47, paragraph 46.

[47] Appeal Bundle; page 47, paragraph 47.

[48] Appeal Bundle; page 47, paragraph 47.

[49] Appeal Bundle; page 48, paragraph 50.

[50] Appeal Bundle; page 48, paragraph 51.

[51] HKSAR v Boma Amaso.

[52] Appeal Bundle; page 57 G-J, paragraph 10.

[53] Appeal Bundle; page 58, paragraphs 14 and 15.

[54] Appeal Bundle; pages 57 L-M, paragraph 11; and page 47 M-N paragraph 47.