HKSAR v. HUI LOK TO, KEVIN AND OTHERS

DCCC 431/2017

[2018] HKDC 509

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 431 OF 2017

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REASONS FOR VERDICT

1.  D2 pleads not guilty to one charge of conspiracy to deal with property knowing or having reasonable grounds to believe the property represented the proceeds of an indictable offence, contrary to section 25(1) and (3) of the Organized and Serious Crimes Ordinance[1] and sections 159A and 159C of the Crimes Ordinance[2] (charge 3). D2 also pleads not guilty to the alternative charge of dealing with property known or believed to represent proceeds of an indictable offence (charge 4).

2.  D3 pleads not guilty to two charges of conspiracy to deal with property knowing or having reasonable grounds to believe the property represented the proceeds of an indictable offence (charges 5 & 9). 

3.  D4 pleads not guilty to three charges of dealing with property known or believed to represent proceeds of an indictable offence (charges 6, 7 & 8). 

4.  When the trial commenced there were four defendants.  Sadly, during the trial Mr Chun Chung Kwong, Patrick (D1) passed away.  The late Mr Chun pleaded not guilty to two charges of conspiracy to deal with property knowing or having reasonable grounds to believe the property represented the proceeds of an indictable offence (charges 1 & 2) and not guilty to charges 3 & 4 with which he was jointly charged with D2.  On production of the death certificate I ordered that the charges as against the late Mr Chun be declared of no legal effect and not to be proceeded with, unless and until the court, on cause being shown, otherwise orders. 

Introduction

5.  The property referred to in the charges is money deposited in the bank accounts of Asia Trading Co (charges 3 & 4); Asia Supply Resources (charge 5); Grace Garcia Casia (PW4) (charges 6, 7 & 8) and Man Yiu Pun (D3) (charge 9)[3].

6.  In summary the prosecution case against D2 is that D2 conspired with D1 and a person called Joe to set up Asia Trading Co and open the bank account for the sole purpose of money laundering, D1, D2 and Joe knowing or having reasonable grounds to believe the monies represented the proceeds of an indictable offence (charges 3 & 4).

7.  The prosecution case against D3 is that D3 conspired with Okafor Joek Kingsley to set up Asia Supply Resources and open the bank account to deal with the monies remitted to the account, knowing or having reasonable grounds to believe the monies represented the proceeds of an indictable offence (charge 5);and to deal with monies remitted to his personal account, knowing or having reasonable grounds to believe the monies represented the proceeds of an indictable offence (charge 9).

8.  The prosecution case against D4 is that D4 used the bank accounts of Grace Garcia Casia, a domestic helper, to receive monies which Miss Casia withdrew and gave to D4, D4 knowing or having reasonable grounds to believe the monies represented the proceeds of an indictable offence (charges 6, 7 & 8).

9.  D2’s case in summary is that D2 set up Asia Trading Co and opened the bank account to do genuine business of buying and selling old clothes for Joe and that D2 did not suspect the monies remitted to the account were from illegal sources. 

10.  D3’s case in summary is that because his friend Joe (Okafor Joek Kingsley), who was a foreigner, did not have proof of address and therefore could not register a company and open a bank account, he set up Asia Supply Resources and opened the bank account for Joe to do business (charge 5) and allowed Joe to use his personal savings account to receive a remittance from his customer (charge 9). D3 did not suspect the legitimacy of the monies remitted to the accounts. 

11.  D4’s case in summary is that he did not use the accounts of Casia Grace Garcia and did not receive any money from Miss Casia.  

Conspiracy

12.  Conspiracy is an agreement between two or more persons to do an unlawful act or to do a lawful act by unlawful means with the intention of carrying it out.  A party may join a conspiracy at any stage provided the conspiracy is a single, ongoing one.  The agreement may be proved by direct evidence, or by proving circumstances from which the court may presume it.  Proof of the existence of a conspiracy is generally a matter of inference, deduced from certain criminal acts of the parties accused.

13.  The unlawful act alleged in the conspiracy charges is to deal with property knowing or having reasonable grounds to believe the property, in whole or in part, directly or indirectly represented the proceeds of an indictable offence. 

14.  Following the decision in HKSAR v Lung Ming Chu the prosecution must prove in respect of each conspiracy charge that:

(a) the defendant agreed with one or more of the named conspirators to deal with property with the intention that the agreement be carried out; and

(b) that at the time of making the agreement the defendant and one or more of the named conspirators knew or had reasonable grounds to believe the property represented or will represent, the proceeds of an indictable offence[4].

15.  I reject the submission of Mr Cheung, on behalf of D3, that an agreement to deal with property is insufficient and that the prosecution must prove D3 and Okafor Joek Kingsley conspired to launder money[5].

Dealing with property

16.  Monies are clearly property[6]. Dealing in relation to property is defined in section 2(1) of the Ordinance and includes, (a) receiving or acquiring the property; (b) concealing or disguising the property (whether by concealing or disguising its nature, source, location, disposition, movement or ownership or any rights with respect to it or otherwise); and (c) disposing of or converting the property. 

Proceeds of an indictable offence

17.  The prosecution do not have to prove the property represents the proceeds of an indictable offence[7].

Knowing or having reasonable grounds to believe

18.  The mens rea of dealing has two parts “knowing” or “having reasonable grounds to believe”. 

19.  In HKSAR v Yeung Ka Sing, Carson[8] the Court of Final Appeal confirmed their earlier decision in HKSAR v Pang Hung Fai[9]that the better and less complicated test for determining whether the accused had reasonable grounds to believe was that propounded by the Appeal Committee of the Court of Final Appeal in Seng Yuet Fong v HKSAR,[10] namely that:

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

20.  In deciding whether the defendant had reasonable grounds to believe the applicable standard is would those grounds lead to the belief and not could those grounds lead to the belief and in determining this the defendant’s belief, perception or prejudice are to be considered and given such weight as is warranted[11].    

Evidence

21.  Most of the prosecution case was admitted, including records of interview and video recorded interviews in respect of D3 and D4[12]. I have considered both the inculpatory and exculpatory parts of the interviews, in accordance with the principles in R v Sharp[13]. I direct myself that the interviews of D3 and D4 are not evidence against the other defendants, save where that evidence is favourable to another defendant[14].   

22.  The prosecution called two witnesses from the schedule of prosecution witnesses: DPC 20920 (PW1[15]), who visited the registered address of Asia Trading Co and Asia Supply Resources and Casia Grace Garcia (PW4[16]), who the prosecution say lent her bank accounts to D4[17].  One additional witness was called Ngai Ping Yin (PW3), the vice operations manager of the Tuen Mun Town Plaza branch of the Bank of East Asia, who gave evidence relating to the account of Asia Trading Co. 

23.  Trial bundles have been submitted[18]. The prosecution also submitted fund flow charts of each bank account which were referred to during the evidence and in submissions[19]. 

24.  All the defendants elected to give evidence.  One witness was called on behalf of D3.   Admitted in evidence is that D2 has no criminal record in Hong Kong[20]. I direct myself as to good character in accordance with the decision in HKSAR v Tang Siu Man[21].

25.  In considering the evidence due allowance is given to all witnesses, both prosecution and defence, by reason of the fact that the events they testified about were over five years ago. 

26.  Mr Chun Chung Kwong, Patrick having passed away after giving evidence, his evidence is available for the court to consider.   I will refer to the late Mr Chun by his numerical designation at trial, D1[22].

27.  The late Mr Chun also took part in three video recorded interviews.  The admissibility of the interviews was challenged by D1.  My reasons for ruling the interviews admissible in evidence are annexed to the verdict.  As with the interviews of D3 and D4, the interviews of D1 are not evidence against D2, D3 or D4, save where that evidence is favourable to D2, D3 or D4.   

28.  Admitted in evidence is that D1 had no criminal record in Hong Kong[23].

29.  In reaching my verdict I remind myself of the burden and standard of proof and that the burden is on the prosecution throughout.  The defendants have nothing to prove.  I direct myself that I must be sure of the guilt of the defendants on each charge before I can convict, the case of each defendant being considered separately and each charge being considered separately.  On the other hand, if the court thinks that the defence evidence pointing to innocence is true or may be true, it would follow that the defence has raised sufficient doubt in the prosecution case and the defendant entitled to be acquitted.  

30.  I remind myself that when drawing inferences from the evidence the inference must be the only reasonable inference to draw from the proved facts.  If from the facts proved there is a reasonable inference to draw against a defendant as well as one in his favour, the adverse inference cannot be drawn.  

31.  I have carefully considered all the evidence together with the submissions of Mr Chau, Mr Cheng, Mr Cheung and Mr Laskey. 

REASONS FOR VERDICT D2

Charges 3 & 4

Charge 3

32.  The particulars of the charge read as follows: 

“CHUN Chung-kwong, Patrick and HUI Lok-to, Kevin, between the 9^th day of January 2013 and the 5^th day of February 2013, both dates inclusive, in Hong Kong, conspired together with a Nigerian male alias Joe, knowing or having reasonable grounds to believe that property, namely a total sum of $530,840.00 Hong Kong currency, in whole or in part directly or indirectly represented any person’s proceeds of indictable offence, to deal with the said property.”

33.  In the alternative D2 is jointly charged with D1 of dealing with the sum of $530,840.00 knowing or having reasonable grounds to believe the sum of $530,840.00 in whole or in part directly or indirectly represented any person’s proceeds of indictable offence (charge 4).

Introduction

34.  The monies referred to in the charges are monies deposited in the account of Asia Trading Co held with the Bank of East Asia (Account C).  Asia Trading Co (“Asia Trading”) was registered as sole proprietorship by D2 on 21 December 2012.  On 9 January 2013 D2 opened the bank account.  D2 was the sole signatory of the bank account.

35.  Between 9 January and 5 February 2013 a total sum of HK$530,840.00 (the sum particularised in the charge) was deposited in the account.  Save for the sum of $5,000 cash deposited on opening the account and interest of $1.61 the monies were deposited by way of two overseas remittances on 22 January and 24 January 2013.  Between 24 January and 31 January 2013 all the monies except $18,839.60 were withdrawn by D2, including a cash cheque in the sum of $130,000 which was cashed by D1[24]. The balance of the account was withdrawn when the account was closed on 5 February 2013.

Prosecution case

36.  The prosecution case in summary is that D1, D2 and Joe conspired to set up Asia Trading and open the bank account for the sole purpose of money laundering, D1, D2 and Joe knowing or having reasonable grounds to believe the monies represented the proceeds of an indictable offence[25].

Defence case

37.  In summary the case of D2 is that D2 set up Asia Trading and opened the bank account to do genuine business of buying used clothes for Joe and that he did not suspect anything illegal about the monies remitted to the account.  

Prosecution evidence

38.  Most of the prosecution case was admitted with only two witnesses called: DPC 20920 (PW1), who visited the registered address of Asia Trading and Ms Ngai Ping Yin (PW3), the vice operations manager of the Tuen Mun Town Plaza branch of the Bank of East Asia. 

Defence evidence

39.  D2 elected to give evidence.  No witnesses were called on his behalf. D2 also relies on the evidence of D1.

Agreement to deal with property

40.  Admitted in evidence is that D2 registered Asia Trading as a sole proprietorship[26]. The application by D2 for registration of Asia Trading is dated 21 December 2012 and states that the business commenced on 18 December 2012[27].

41.  Admitted in evidence is that on 9 January 2013 D2 on behalf of Asia Trading opened a bank account with the Bank of East Asia (Account C)[28].  D2 was the sole signatory of the account[29]. The account was a CorporatePlus Account which comprised of a current account and a savings account.  The current account was a Hong Kong dollar account and the savings account was both Hong Kong dollar and US dollar.

42.  The bank statements and documents exhibited in the banker’s affirmation show that:

(a) on opening the account $5,000 cash was deposited in the HK dollar savings account[30];

(b) on 22 January 2013 US$36,732.25 was remitted to the US dollar savings account which was exchanged into HK$284,489.34 and transferred to the HK dollar current account by phone banking on 24 January 2013[31];

(c) after the money was transferred to the HK dollar current account the money was then transferred on the same day to the HK dollar savings account from which D2 withdrew $270,000 cash[32];

(d) on 24 January 2013 a sum of US$31,173.25 was remitted to the US dollar savings account which was exchanged into HK$241,349.11 and transferred to the HK dollar current account by phone banking on 26 January 2013[33];

(e) on 27 January 2013 HK$ 111,349 was transferred by phone banking from the HK dollar current account to the HK dollar savings account[34];

(f) on 28 January 2013 D2 issued a cash cheque for $130,000, which was cashed by D1 and withdrew $100,000 cash from the HK dollar savings account[35]; and

(g) three ATM cash withdrawals were made, two on 28 January and one on 31 January 2013[36].

43.  The bank account was closed on 5 February 2013 when D2 withdrew the remaining balance of $18,839.60[37].  

44.  Also admitted in evidence are the movement records of D1 and D2[38].  The movement records show they were both in Hong Kong when the bank account was opened on 9 January 2013 and monies withdrawn on 24 January, 28 January and 31 January 2013. 

45.  The movement records also show that on 22 January 2013 the day of the first remittance D1 and D2 both went to China at the same time[39] and returned at the same time the following day[40]. Similarly, the day the account was closed 5 February 2013 D1 and D2 returned from China together at 15:18:30 having both left together the day before[41].  The withdrawal form for the closing balance of $18,839.60 shows the time of the withdrawal was 15:58[42].

46.  Admitted in evidence is that on 24 June 2013 DPC 20920 found the business registration certificate of Asia Trading[43]; credit advices for the two remittances made on 22 January and 24 January 2013[44] and one ATM card collection notification[45] in the home of D1[46].

47.  I am satisfied so I am sure on this evidence the only inference to draw is that not only did D1 and D2 agree to deal with the money in the bank account but they also carried out the agreement, D2 withdrawing the money and D1 cashing a cheque drawn on the account.   

48.  In evidence D2 testified that after D1 told him about Joe he set up Asia Trading and opened the bank account and that on the instructions of D1 he withdrew the monies remitted to the account, which monies he gave to D1 to give to Joe.  D1 gave similar evidence[47]. I am satisfied so I am sure on this evidence the only inference to draw is that D1, D2 and Joe agreed to deal with the money in the bank account and carried out the agreement when D2 withdrew the money from the account which he gave to D1 to give to Joe[48].

Knowing or having reasonable grounds to believe

Prosecution evidence

49.  Admitted in evidence is that D2 did not report to the Inland Revenue Department any income for himself or on behalf of Asia Trading for the period 1 April 2011 to 31 March 2015[49]; did not have any real property[50] and that between 1 January  2012 to 1 January 2015 no import or export declaration was lodged by Asia Trading[51].

Evidence of DPC 20920 (PW1)

50.  On 8 May 2013 DPC 20920 visited the registered address of Worldwide Trading/Asia Trading as stated on the applications for registration, namely Flat A, 7/F, 458 Castle Peak Road, Cheung Sha Wan[52]. DPC 20920 found no company at this address.  The premises were residential and Flat A on the 7th floor was a subdivided room.  DPC 20920 said the whole building was residential. 

51.  In cross-examination DPC 20920 said that as far as he remembered Flat A was subdivided into four or five flats/rooms and that he spoke to one or two of the occupants of the subdivided rooms[53].

Evidence of Ms Ngai Ping Yin (PW3)

52.  Ms Ngai Ping Yin, who was the vice operations manager of the Tuen Mun Town Plaza branch of the Bank of East Asia in 2013, testified that on 28 January 2013 the police made enquiries about a suspect payment made to the Asia Trading account.  The bank also received an email from a Mr Ibrahim saying that his email address had been used by others. 

53.  As a result of the email, Ms Ngai telephoned D2.  Ms Ngai said this should have been on the 28 January 2013. Ms Ngai wanted to learn more about the business nature of Asia Trading and to find out whether D2 had any trading documents to provethe two remittances on 22 January and 24 January 2013 were legitimate[54]. 

54.  Ms Ngai asked D2 about the operation of his business.  D2 replied that he bought some used clothes at the Salvation Army and after packing them the clothes would be sold overseas.  D2 said the two remittances were payments to him by his customers for selling the clothes and said he would give the tradingdocumentsto the bank later on. 

55.  While waiting for D2 to submit the trading documents a remittance of US$9,000 was received by the bank on 29 January 2013.  Ms Ngai therefore called D2 and said she needed the trading documents relating to this remittance as well.  D2 replied he did not have any receipt for the payment which was made by his partner and therefore told the bank to return the payment.  

56.  On 30 January 2013 the bank received another remittance in the sum of US$30,000.  Ms Ngai again called D2 requesting the trading documents relating to this remittance.  D2 replied that he would give them one to two days later. 

57.  On 31 January 2013 another remittance in the sum of US$18,000 was received by the bank.  Ms Ngai again called D2 requesting the trading documents relating to this remittance.  D2 said he did not have the documents for the time being and asked the bank to return the remittance together with the remittance of US$30,000.

58.  The next day, 1 February 2013, D2 went to the bank.  D2 was accompanied by a male surnamed Chun.  D2 told Ms Ngai that Mr Chun was his partner.  In cross-examination Ms Ngai agreed that Mr Chun said he assisted D2 for some work in Mainland China[55]. 

59.  In the meeting D2 submitted some documents concerning buying clothes from the Salvation Army.  Ms Ngai said the form of the documents submitted were like the receipts, exhibit D1, but she was not sure whether they were the same documents submitted by D2[56].

60.  After the meeting Ms Ngai submitted the documents given by D2 to the department AML (Against Money Laundering) who told her the business nature of Asia Trading was different to the information supplied when opening the account.  Ms Ngai therefore telephoned D2 the same day telling him the business nature was different from the information he submitted.  D2 said that apart from garment business there was other trading but did not explain what other trading.  D2 also said that he would look for the information concerning trading. 

61.  The next time Ms Ngai saw D2 was on 4 February 2013.  Ms Ngai could not remember if on this occasion D2 was accompanied by anyone else.  D2 was a bit angry and asked why he could no longer use the account.  Ms Ngai explained to D2 that she had previously told him that the deposit function of the account was withheld until he provided proof of each and every remittance.  After telling D2 he needed to have the trading documents as proof he said he wanted to cancel the account.  The next day the account was closed and D2 withdrew the balance in the account. 

62.  Ms Ngai testified that D2 never produced the trading documentation and explained that the three remittances on 29 January, 30 January and 31 January were not credited to the account because no trading documents were received by the bank. 

Defence evidence

63.  In summary D2 testified that he became acquainted with D1 in 2008 when they were both taxi drivers.  On one occasion D2 told D1 that he could buy large quantities of old clothes from the Salvation Army.  

64.  D2 told the court he had been engaged in buying and selling clothes with the Salvation Army for 10-15 years in the name of Asia Trading Co Ltd which held a licence to buy clothes from the Salvation Army. 

65.  Around October/November 2012 D1 told D2 that he had a ‘boss’ who would like to source old clothes and asked D2 if he could make a purchase of old clothes for him. D2 replied he could not at that moment because Asia Trading Co Ltd was jointly owned with his wife, whom he had divorced in March 2012 and was in the process of sharing the property.  D2 did not want his ex-wife to know what he was doing and therefore told D1 that he needed to set up a new company before buying old clothes for him.   D2 also told D1 that all transactions with the Salvation Army were in cash and therefore he would only buy clothes for D1 and his ‘boss’ after receiving cash. 

66.  At the beginning of cross-examination by Mr Chau on behalf of the prosecution D2 said he learnt from D1 afterwards that the name of the ‘boss’ was Joe.   Later in cross-examination when asked by Mr Chau if Joe was D4, D2 replied yes.  Mr Chau then asked D2 how did D1 describe his relationship with Joe.  D2 replied that D1 said D4 was his ‘boss’ but did not know how to explain the definition of ‘boss’ because D1 was not directly employed by D4[57].

67.  In December 2012 D1 asked D2 if he had opened the new company.  D2 replied he had not because he could not find a registered address and said that he needed time to rent an office desk.  D2 explained he could not use his home address because he was still living with his ex-wife and did not want her to know about the new company. 

68.  A few days later D1 informed D2 that he had a company address and office desk that he could use temporarily for correspondence.  On 21 December 2012  D1 and D2 went together to register Asia Trading[58]. In cross-examination D2 said  D1 filled out the application for business registration for him[59].

69.  On 9 January 2013 D2 opened the bank account for Asia Trading with the Bank of East Asia and deposited the sum of $5,000 in the account.  In cross-examination D2 agreed D1 accompanied him to open the bank account but said that the bank account was not exclusively for doing business with D1 and his ‘boss’[60].

70.  On 22 January 2013 the bank telephoned D2 to notify him that a remittance of US$36,000 odd had been deposited in his account.  In cross-examination D2 said he did not know that the ‘boss’ was going to remit money to the account[61].

71.  The bank asked D2 if he was clear about the remittance.  D2 told the bank he needed to check with his friend before he could reply.  D2 gave D1 the name of the company as provided by the bank so that he could verify the remittance.  After D1 replied that his ‘boss’ said the money was for buying clothes D2 called the bank to confirm the remittance.  D2 explained that D1 was the middleman and that he gave D1 a price but did not know the price given to the ‘boss’.  When the money was deposited in the account D2 therefore approached D1 to clarify the remittance.

72.  On 24 January 2013 the bank again notified D2 that a remittance of US$31,000 odd had been deposited in the account.  D2 again told the bank he needed to make enquiry about the remittance with his friend before he could reply.  After D1 told D2 of the reply from his ‘boss’ D2 called the bank and said there was no problem.  

73.  In cross-examination D2 said that apart from asking D1 about the remittances he did not check the source of the funds or the companies who remitted the monies, the names of which were given to him by the bank[62].

74.  The same day D2 discussed with D1 about buying and selling old clothes.  D2 arranged with D1 a time to withdraw the money and to meet the ‘boss’.  In cross-examination by Mr Laskey on behalf of D4, D2 said he only met the ‘boss’ in February but did not talk to him directly and could not remember what was said at the meeting. 

75.  In cross-examination by Mr Chau on behalf of the prosecution, D2 said that he probably met the ‘boss’ two to three times.  When Mr Chau put that D2 was doing business with a ‘boss’ who he knew nothing about, D2 replied that when selling clothes in the Salvation Army he did not know the customers. 

76.  In the afternoon D1 suggested to withdraw $270,000 in preparation for buying and selling old clothes in a few days.  When withdrawing the money, the bank asked why so much money was withdrawn.  D2 told the bank staff the money was for buying old clothes and that he could show them the receipt later on. 

77.  D2 took the receipts issued by the Salvation Army, exhibit D1, to the bank but could not remember when that was but was probably at the end of January or early February.  D2 said the receipts were for transactions by Asia Trading Co Ltd.  In cross-examination D2 said that the receipts were not for the order of D1[63]. 

78.  After withdrawing $270,000, D1 informed D2 that he had received a call from his ‘boss’ saying that the clothes were not suitable and that the remittance had to be returned.  D2 explained that in December he had told D1 to take his ‘boss’ to the car park of the Salvation Army to check out the old clothes therefore when the remittance was made he felt they knew what they wanted.  D2 then gave the $270,000 together with $14,500 of his own money to D1 to give to the ‘boss’. 

79.  The next day, 25 January 2013, D1 informed D2 that his ‘boss’ required all the monies remitted to be returned to him.  After exchanging the US dollar into Hong Kong dollar by phone banking on 26 January 2013 D2 withdrew $100,000 cash on 28 January 2013 and issued a cheque with the payee left blank in the sum of $130,000.  D2 gave both the cash and cheque to D1 telling him that it was up to him how he used the cheque. 

80.  D2 explained that he did not withdraw all the money in cash because it seemed that before 28 January the bank had informed him that there was something wrong with a remittance and he had told the bank not to deposit any more money.  When D1’s ‘boss’ kept asking him for a refund D2 found there must be something wrong therefore he withdrew the cash and issued the cheque so that he could follow up if something went wrong. 

81.  D2 also explained that he did not issue a cheque for $230,000 because he did not want to inconvenience D1 and because he was trying to do business with D1’s ‘boss’ he did not want to offend the ‘boss’ by not paying him in cash.     

82.  When handing over the cash and the cheque D2 did not know the total amount to be returned.  D2 therefore told D1 to pay the difference first and he would return the money in the afternoon.  In the afternoon after checking with the bank if any fees had been charged D2 found the outstanding balance was $11,300.  D2 then withdrew $10,000 from the ATM and with the money on him gave $11,300 to D1. 

83.  The next day, 29 January 2013, Ms Ngai from the bank telephoned D2 and informed him that money would be deposited in his account.  D2 told Ms Ngai he was not clear about the remittance and asked her not to deposit the money in the bank. 

84.  D2 did not suspect anything illegal about the remittances on 22 January and 24 January and only became suspicious when D1’s ‘boss’ asked for return of all the remittances.  In cross-examination when Mr Chau put the prosecution case that D2 either knew or at least suspected the remittances were from illegal sources D2 replied that he did suspect.  In answer to the court D2 said he suspected whether Joe was doing any business. 

The evidence of D1

85.  The following is a summary of D1’s evidence relevant to charges 3 & 4.  D1, a taxi driver, testified that around November 2012 a friend of his elder brother introduced him to a foreigner to do some business in Mainland China.  The friend of his brother was Man Yiu Pun, who D1 identified as D3.  D1 had known D3 for over ten years and knew that D3 traded in jade as well as doing other business. 

86.  The foreigner was called Joe.  D1 was told the full name of Joe but could not understand the African pronunciation.  D1 said Joe was also called Kingsley. In court D1 identified D4 as Joe.

87.  After D3 told D1 about Joe wanting to do business, D1 met Joe together with D3 in a restaurant in Sham Shui Po.  Joe said he would like to source used clothes; inferior/substandard goods such as garments which were popular in the third world and little ornaments in Hong Kong and Mainland China.

88.  D1 tried to source goods in Mainland China using his connections from the time he worked in Mainland China.  D1 however received no reply from his connections.

89.  In Hong Kong D1 asked D2, a fellow taxi driver, if he could help.  D1 knew that D2 traded used clothes with the Salvation Army and had a licence to buy used clothes from the Salvation Army.  D2 promised to help D1 buy used clothes with his licence. 

90.  In cross-examination by Mr Cheng on behalf of D2, D1 agreed that he told D2 that he had a ‘boss’ who would be interested in buying a large quantity of old clothes, electrical appliances etc.   In cross-examination by Mr Chau on behalf of the prosecution, D1 said that he did not call Joe ‘boss’ when he met Joe face to face but would tell people he had a ‘boss’ who wanted to source goods.

91.  D1 explained in cross-examination and re-examination that this was just a Cantonese expression like, “Let me ask the ‘boss’ first” and in answer to the court D1 said that many people spoke in this way.  In further re-examination D1 confirmed that D4 was not his ‘boss’ and repeated this was just an expression he used. 

92.  In a second meeting, the exact time of which D1 could not remember, Joe asked D1 to set up a company.  D1 therefore established Worldwide Trading.  Admitted in evidence is that D1 registered Worldwide Trading as a sole proprietorship[64] and opened a bank account[65]. D1 testified that all the money deposited in the bank account of Worldwide Trading belonged to Joe; he gave the ATM card to Joe; on the instructions of Joe he issued cheques made payable to Julius Sendegeya and issued a cash cheque for $520,000 which he cashed and gave to Joe. 

93.  D1 also testified that before Worldwide Trading was registered and the bank account opened Joe said he could not open an account because he did not have an exact address, therefore D1 allowed Joe to use his personal savings account to receive goods payment[66].

94.  In cross-examination by Mr Chau D1 said that he knew very little about Joe and that Joe told him that because he was Nigerian and did not have a fixed address he could not register a company or open a bank account.

95.  D1 explained that because D2 had filed a divorce with his wife D2 did not want his wife to know too much about his financial position.  D2 therefore set up Asia Trading to do the business of used clothes. 

96.  In cross-examination by Mr Chau D1 said he helped D2 fill out the application for registration of a business[67] and in answer to the court said that he went together with D2 to register Asia Trading.  The application for registration of a business is dated 21 December 2012 the same day as Worldwide Trading[68].

97.  D2 having no address Joe agreed that D2 could temporarily use the address of Worldwide Trading as the registered address of Asia Trading. 

98.  At the beginning of his evidence D1 said that he had never been to the address of Worldwide Trading[69]. Asked by Mr Chan why he used the address D1 explained that because he had been bankrupt he had no address he could use and therefore Joe said he could use the address of his friend on a temporary basis.  D1 said he was declared bankrupt in 2004 and that the bankruptcy order was discharged in 2008. 

99.  In cross-examination by Mr Chau, D1 explained that he did not use his home address as the address of Worldwide Trading because the home address was very personal and that he had no other address that he could use. 

100.  Later in evidence D1 explained that he did not go to the registered address because it was a temporary address and he thought that he would find an exact office address to do business after the Lunar New Year[70].

101.  In cross-examination, by Mr Cheng on behalf of D2, D1 agreed that D2 told him that to do the business he needed to set up another company; that when he asked D2 if the new company had been set up D2 told him it was not convenient to use his home address; that after a few days he gave D2 the temporary address; D2 told him that all dealings with the Salvation Army were on a cash basis and that his ‘boss’ and customers could go to the Salvation Army warehouse and look at the goods.    

102.  D2 not wanting his wife to know about the business D1 therefore kept the business registration certificate[71] in his home together with the credit advices which had been given to him by Joe[72].  Joe also gave D1 the ATM card collection notification[73] which D1 then gave to D2.  After D2 collected the ATM card D2 left the letter with D1.  In cross-examination by Mr Chau on behalf of the prosecution D1 said he did not ask about the source of the funds when he was given the credit advices. 

103.  D1 said he was aware that D2 had opened a bank account when D2 told him he had opened the account using the business address and asked him to pay attention to whether any banking documents arrived.  D1 did not take part in the operation of the bank account.  Later in his evidence D1 said he went to the bank with D2 when D2 opened the bank account. 

104.  D1 was not aware of the remittance made on 22 January 2013 until Joe rang him asking him to inform D2 that a remittance had arrived for goods payment.   D1 then informed D2.   D1 said he did not think he was informed about the remittance made on 24 January 2013. 

105.  In cross-examination, by Mr Cheng on behalf of D2, D1 agreed that D2 telephoned asking him about the first remittance; that he told D2 he needed to enquire about it with his ‘boss’ and rang back saying the money was from his ‘boss’. Similarly, D1 also agreed D2 telephoned asking him about the second remittance; that he told D2 he needed to enquire about it and that after a short while he rang back saying the money was from his ‘boss’.    

106.  D1 remembered that on the day D2 gave him $270,000 cash he said that the money was originally used for payment of clothes however the order had been cancelled. D2 told D1 to give the money back to Joe.  

107.  In cross-examination, by Mr Cheng on behalf of D2, D1 agreed that he told D2 to withdraw $270,000 for the purchase of old clothes by his ‘boss’; that after the withdrawal of $270,000 it seemed that in the evening he told D2 that his ‘boss’ said the clothes were not suitable and his ‘boss’ wanted the money back and that together with the $270,000 he thought D2 gave him $14,500 of his own money to make up the amount of the first remittance.   

108.  D1 explained that D2 did not give the money direct to Joe because he had not yet introduced D2 to Joe.   D1 introduced D2 to Joe around February 2013 after the bank account was closed.  In cross-examination, by Mr Cheng on behalf of D2, D1 agreed at the meeting D2 said he was not in a position to continue the business with Joe.  In cross-examination by Mr Chau on behalf of the prosecution D1 said that prior to introducing D2 to D4 in February 2013 D2 did not talk to D4 because D2 did not have D4’s telephone number and he did not give D2’s telephone number to D4. 

109.  On 28 January 2013 D2 gave D1 a cheque in the sum of $130,000[74].   D1 cashed the cheque the same day.  When cashing the cheque, D1 told the bank staff the money was for goods payment therefore the staff wrote on the back of the cheque in Chinese “To pay the goods payment”.

110.  D1 explained that on the day the remittance arrived Joe said the money was originally for buying used clothes but the purchase would not be made now so he had to get the money back.  D2 therefore withdrew $100,000 cash which he gave to D1 together with the cheque and told him to give the money to Joe.  D2 did not know the exact amount to give and told D1 to give $230,000 to Joe first and if there was a difference asked D1 to pay Joe on his behalf and he would settle with him later.   D1 explained that D2 gave him a cheque because he did not want to withdraw so much cash in one go. 

111.  In cross-examination, by Mr Cheng on behalf of D2, D1 agreed that the day after he was given the $270,000 he called D2 and told him Joe wanted the second remittance paid to him in cash and that D2 repaid him $11,000 which was the difference he paid on behalf of D2.   

112.  D1 said he was the person referred to by Ms Ngai as surnamed Chun who accompanied D2 to the Bank.   D1 explained he went to the bank with D2 because D2 told him some money had to be returned to the bank.  In the bank D2 told Ms Ngai to return the money.  In answer to the court D1 said he went to the bank with D2 to get a better understanding because D2 told him the bank said there was something wrong with the remittances. 

113.  When D1 gave the money to Joe he did not suspect the remittances were from illegitimate source because Joe traded in used clothes and all the buying and selling was to be in cash.  D1 explained that he rendered assistance with regard to Asia Trading because he wanted the buying and selling of used clothes to be successful and said that he did not receive any reward for rendering assistance or for giving the money to Joe. 

Video recorded interviews

114.  In the three video recorded interviews D1 was principally asked about the bank account of Worldwide Trading (Account A) and his personal savings account (Account B), which formed the subject of charges 1 and 2. 

115.  In the course of the first video recorded interview D1 referred to D2 and the setting up of Asia Trading[75]. In the second video recorded interview D1 was asked further questions about D2 and the setting up of Asia Trading[76]. D1 was not asked any questions about D2 or Asia Trading in the third video recorded interview and was not asked in any of the interviews about the specific transactions in the bank account of Asia Trading, including the cheque cashed by him in the sum of $130,000. 

116.  In summary D1, inter alia, said that;

(a) he mentioned to the black man[77] that he had a friend who was engaged in the trading of used clothes with the Salvation Army[78];

(b) his friend was a fellow taxi driver called ‘Kelvin’ with the surname Hui[79], who he also called Lok Chai[80];

(c) the black man told him to tell his friend to set up a company with the same address as Worldwide Trading so he could trade in used clothes with the friend, which trade would be separate from Worldwide Trading[81];

(d) Worldwide Trading and Asia Trading were set up together[82];

(e) after Asia Trading was set up the black man transferred money into the account for trading in used clothes[83];

(f) the black man did not find the used clothes from the Salvation Army suitable[84];

(g) the business registration certificate of Asia Trading was kept in his home because Kelvin Hui did not want his wife to know about the company[85]; and

(h) two credit advices and a letter notifying collection of a new ATM card issued by the Bank of East Asia in respect of the account for Asia Trading, which were also found in his home, were given to him by the black man also because Lok Chai did not want his wife to know[86].

Evidence of D4

117.  D4 could only remember meeting D1 once when he had been out drinking with D3 and D3 rang D1 to drive them home in his taxi.  D4 said he never had any business with D1 and would not even recognise him if he sees him in the street.  D4 could not remember ever meeting D2.  In cross examination D4 denied all the allegations made against him by D1 and D2. 

118.  In a video recorded interview D4 told the police, inter alia, that he did not know and had not heard of the name Chun Chung Kwong or Patrick Chun (D1) or Hui Lok Tao (D2); did not recall meeting Chun Chung Kwong; had never heard of Worldwide Trading; had no business with Worldwide Trading;  did not tell Chun Chung Kwong to set up Worldwide Trading and Chun Chung Kwong did not give him any money[87].

Discussion

119.  I have carefully considered all the evidence together with the submissions of Mr Chau and Mr Cheng.

120.  In evidence D2 admitted that the monies remitted to the account of Asia Trading were withdrawn and given to D1 to give to Joe (D4).  D1 also admitted that the money was given to him by D2 to give to Joe.  I am satisfied full weight is to be attached to these admissions in court.  I reject the evidence of D4 that he had no dealings with D1 and D2.

121.  I have no hesitation in rejecting D2’s evidence that he registered Asia Trading and opened the bank account in order to buy used clothes from the Salvation Army for someone described by D1 as ‘boss’ and that he withdrew the money to buy used clothes only for the order to be cancelled by the boss whereupon he refunded the money to the ‘boss’.   

122.  As already summarised in cross-examination D2 said that he only learnt afterwards that the name of the ‘boss’ was Joe and only met Joe in February, which was after all the money had been withdrawn and in cross-examination D1 said that prior to introducing D2 to D4 in February D2 did not talk to Joe[88].  I do not find credible D2 would register a company to do business with someone who at that time he had not met; did not know his name and had not spoken to. 

123.  I do not find credible D2’s evidence that he could not use his company Asia Trading Co Limited, which he jointly owned with his wife and which had the licence with the Salvation Army, because he was going through a divorce with his wife and did not want her to know what he was doing.

124.  In evidence D2 produced five receipts from the Salvation Army (exhibit D1) which he said were the receipts given to the bank.  Asked by Mr Cheng whether the transactions were by the new company Asia Trading or the company jointly owned with his wife Asia Trading Co Limited, D2 replied, “The one jointly owned with my wife”. 

125.  Asia Trading was registered on 21 December 2012.  The dates of the receipts are 11, 15, 22, 25 and 28 January 2013, all after Asia Trading was registered.  

126.  I do not find credible D2’s evidence that initially he was unable to register a company because he could not find an address.  It is no coincidence D1 and D2 both registered companies on the same day with the same address and opened bank accounts which received monies that were withdrawn and given to Joe. 

127.  I find D2’s evidence that he needed to set up another company because he did not want his wife to know was entirely contrived in an attempt to explain why he needed to set up another company when he already had a company which had the licence to buy used clothes from the Salvation Army.

128.  I do not find credible D2’s evidence in cross-examination that he did not know money was to be remitted to the account.  I find inherently improbable that buyers of goods, let alone overseas buyers, would in the normal course of business remit payment for goods to a company who they had no dealings with.  

129.  I do not find credible D2’s evidence that after he withdrew $270,000 he was told by D1 that his ‘boss’ said the clothes were not suitable and that the remittance was to be returned to his ‘boss’.  I find inherently improbable that D2 would return the money to someone who at that time he had not met; did not know his name and had not spoken to instead of returning the money to the company which remitted the money to the account.  

130.  I do not find credible D2’s evidence that on being told to return all the monies remitted to D1’s ‘boss’ D2 found there must be something wrong and therefore withdrew part in cash and issued a blank payee cheque so that he could follow up if something went wrong. 

131.  It beggars belief on finding something wrong D2 nevertheless withdrew the money part in cash and part by blank payee cheque to give to someone who at that time he had not met; did not know his name and had not spoken to.  I do not find credible D2 withdrew part in cash and issued a cheque because he did not want to inconvenience D1 or offend his ‘boss’. 

132.  I do not find credible D2’s evidence that he submitted the receipts, exhibit D1 because he told the cashier that he withdrew $270,000 for buying old clothes and that he could show them the receipts later on.  I find inherently improbable that the bank would allow D2 to withdraw $270,000 if at that time they required D2 to produce documents to prove the remittance. 

133.  I accept the evidence of Ms Ngai that D2 told her the two remittances were payments to him by customers for selling clothes and promised to give the bank the trading documents, which he never did and instead gave the receipts, exhibit D1, which according to D2 were receipts for the company jointly owned with his wife Asia Trading Co Limited and not related to the remittances. 

134.  I reject the evidence of D2 that Asia Trading was set up to do business of buying used clothes; that the monies were withdrawn first to buy used clothes and secondly as a refund and that D2 did not suspect anything illegal about the remittances made to the bank account.  I also note that no import or export declarations as required by Regulations 4 & 5 of the Import and Export (Registration) Regulations[89] were lodged by Asia Trading whose business was stated as “Import & Export, Resources” on the application for registration[90].

135.  In rejecting D2’s explanations for registering Asia Trading and withdrawing the monies I have carefully considered the submission of Mr Cheng that D2 was acting through D1, a “middleman”.  D1 was a friend and fellow taxi driver who D2 had known since 2008 and who knew D2 was engaged in buying clothes from the Salvation Army[91]. This submission does not cause me to doubt the findings I have made. 

D1

136.  In rejecting D2’s evidence I have carefully considered the evidence of D1 which was largely consistent with the evidence of D2 together with the content of the video recorded interviews summarised earlier.  In oral submission Mr Cheng asks the court to accept the evidence of D1 but does not seek to rely on anything said by D1 in the video recorded interviews.

137.  I have no hesitation in rejecting D1’s evidence that D2 set up Asia Trading to do the business of used clothes with Joe, for example I do not find credible D1’s evidence that D2 told him that to do the business he had to set up another company because he did not want his wife to know too much about his financial position. 

138.  When Mr Chau on behalf of the prosecution cross-examined D1 about his involvement with Asia Trading[92], D1 said it was D2’s idea to set up Asia Trading because he knew Joe wanted to source old clothes and not Joe who told him to ask D2 to set up a company to do business.  

139.  This evidence was contrary to what D1 told the police in his first video recorded interview.  Although the video recorded interviews cannot be used against D2 unless D1 adopted the content in evidence, I am satisfied that in assessing the credibility of D1 the court can consider the content of the interviews. 

140.  D1 told the police that the black man (D4) told him to ask Hui (D2) to set up a company to trade used clothes with him using the same address as Worldwide Trading[93]. When Mr Chau cross-examined D1 on this part of the interview D1 said what he told the police was not true and that he lied that the black man told him to ask D2 to set up a company because he was nervous having been arrested for the first time. 

141.  Whilst accepting that anyone being arrested for the first time would be nervous, I do not find this explanation credible.  At the very beginning of cross-examination Mr Chau asked D1 other than receiving $30,000-40,000 as a reward was there any other lies or anything not true. D1 replied, “No, I don’t think so.  No. Should be no”[94].

142.  In the second video recorded interview, the day after his arrest,  D1 repeated that the black man told him to ask D2 to set up a company[95].  When the court drew this part of the interview to the attention of D1 and asked if he had anything to say, D1 replied no.

143.  I do not find credible D1’s evidence that D2 said he had no address and that it was inconvenient to use his home address as the registered address of the new company.  I do not find credible D1’s evidence that he kept the business registration certificate, credit advices and notification for ATM collection in his home because D2 did not want his wife to know about the business. 

144.  I find inherently improbable that if Worldwide Trading and Asia Trading were registered to do genuine business D1 would use an address which he had never been to and which was given to him by someone who said he did not have a fixed address to open his own bank account and who in cross-examination D1 said he knew very little about. 

145.  It is no coincidence that D1 and D2 both registered companies on the same day with the same address, which was an address in a residential building, and opened bank accounts which received monies that were withdrawn and given to a person called Joe. 

146.  I find D1’s evidence that D2 needed to set up another company because he did not want his ex-wife to know was entirely contrived in an attempt to explain why D2 set up another company when he already had a company which had the licence to buy used clothes from the Salvation Army and to try explain why company documents were not kept by D2.  

147.  I do not find credible D1’s evidence that $270,000 was returned to Joe because the order had been cancelled.  Similarly, I do not find credible D1’s evidence that four days later $230,000 was withdrawn, $100,000 cash and a cheque for $130,000, which D1 cashed, because Joe told him the purchases would not be made now and he had to get the money back. 

148.  I find this evidence entirely contrived to try explain why large sums of money were withdrawn in cash and given to Joe shortly after being remitted.  It beggars belief that the two remittances were not returned to the companies which remitted the money but instead were given to someone who said the orders were cancelled.  The fact that on the back of the cheque is written for goods payment does not cause me to doubt this finding. 

149.  I reject the evidence of D1 that Asia Trading was set up to do business of buying used clothes; that the monies were withdrawn first to buy used clothes and secondly as a refund and that D1 did not suspect anything illegal about the remittances made to the bank account. I am satisfied no weight is to be attached to the statements made by D1 in the video recorded interviews explaining why Asia Trading was set up and why monies were remitted to the account.

150.  Charges 1 & 2 having been declared of no legal effect, I am satisfied that it is not necessary for me to detail the evidence of D1 regarding these two charges suffice to say that I have no hesitation in rejecting D1’s evidence that he set up Worldwide Trading and opened the bank account to do genuine business with Joe and before the company account was opened allowed Joe to use his personal savings account to receive goods payment. 

151.  For example, I do not find credible D1, a former bankrupt, would set up a company and open a bank account to do business with someone he said in cross-examination he knew very little about, let alone lend him his personal savings account. 

152.  No business was ever entered into between D1 and Joe.  I am satisfied so I am sure that D1’s evidence he set up Worldwide Trading and opened the bank account to do genuine business with Joe and let Joe use his personal savings account to receive goods payment was entirely contrived in an attempt to try explain why he set up Worldwide Trading, opened a bank account and allowed Joe to use his personal savings account. 

153.  I am satisfied so I am sure that D1 not only agreed with Joe to deal with the money in the company account and in his personal savings account but also carried out the agreement, D1 and Joe having reasonable grounds to believe the monies in the two accounts in whole or in part, directly or indirectly, represented the proceeds of an indictable offence. 

154.  Nothing said by D1 causes me to doubt the findings I have made. 

155.  I remind myself that the rejection of the defence evidence as to why Asia Trading was set up and why Joe was allowed to use the account is not determinative of the issues in the case.  D2 has nothing to prove.  A case in which defence evidence is called and is not believed is no different from one in which no evidence is called.  In either case the burden is on the prosecution to prove the defendant’s guilt beyond reasonable doubt.

Reasonable grounds to believe

156.  By allowing Joe to use the bank account of Asia Trading D2 concealed the true recipient of the monies remitted to the account.  In HKSAR v Wong Chor Wo & another the Court of Appeal observed[96]:

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

157.  I do not find credible D1’s evidence that when the bank queried the remittances in the account he went to the bank with D2 to get a better understanding of what the problem was. 

158.  D2 went with receipts, exhibit D1, which did not relate to the remittances.  I am satisfied so I am sure the only inference to draw from D1 accompanying D2 to register Asia Trading, open the bank account and go to the bank when the receipts were produced, is that D1 was there to ensure that the bank did not discover that Joe, a person D1 knew very little about and who D2 had not met, did not know his name and had not spoken to, was using the account.  The fact that D2 said other remittances should be returned does not cause me to doubt this finding.  

D2

159.  Having regard to all the circumstances, including:

(a) D2 did not report to the Inland Revenue Department any income for himself or on behalf of Asia Trading for the period 1 April 2011 to 31 March 2015;

(b) D2 did not have any real property;

(c) D2 allowed Joe to use the account thereby concealing the true recipient of the monies remitted to the account;

(d) D2 withdrew the money shortly after the remittances were credited to the account and gave the money to D1 to give to Joe;

(e) at the time D2 allowed Joe to use account and withdrew the money for Joe, D2 had not met Joe, did not know his name and had not spoken to him;

(f) the inherent improbability that a buyer of goods would in the normal course of business remit payment for goods to a company who they had no dealings with; and

(g) D1 accompanied D2 to open the bank account and go to the bank when the receipts were produced to ensure that the bank did not discover that Joe was using the account,

I am satisfied so I am sure the only inference to draw is that D2, together with D1 and Joe, had reasonable grounds to believe the remittances in whole or in part, directly or indirectly, represented the proceeds of an indictable offence and that anyone looking at those grounds objectively would so believe.

D1

160.  Having regard to all the circumstances, including:

(a) D1 and D2 both registered companies on the same day with the same address, an address which D1 had never been to, and opened company bank accounts which received monies that were withdrawn and given to Joe;

(b) in cross-examination D1 said he knew very little about Joe;

(c) D1 accompanied D2 to open the bank account and go to the bank when the receipts were produced to ensure that the bank did not discover that Joe was using the account;

(d) D2 allowed Joe to use the account thereby concealing the true recipient of the monies remitted to the account;

(e) D2 withdrew the money shortly after the remittances were credited to the account and gave the money to D1 to give to Joe, including a cash cheque in the sum of $130,000, which D1 cashed;

(f) at the time D2 allowed Joe to use account and withdrew the money for Joe, D2 had not met Joe, did not know his name and had not spoken to him; and

(g) documents relating to Asia Trading were found in D1’s residence, including credit advices of the two remittances,

I am satisfied so I am sure the only inference to draw is that D1, together with D2 and Joe, had reasonable grounds to believe the remittances in whole or in part, directly or indirectly, represented the proceeds of an indictable offence and that anyone looking at those grounds objectively would so believe.

Joe

161.  I am satisfied so I am sure the only inference to draw is that by using the account Joe must have known that the remittances were the proceeds of crime.  Even if Joe did not know I am nevertheless satisfied so I am sure by using the account to receive the monies Joe had reasonable grounds to believe that the remittances were the proceeds of an indictable offence and that anyone looking at those grounds objectively would so believe.

Verdict

162.  In reaching my verdict I have carefully considered the submission of  Mr Cheng[97] as particularised in paragraphs 4-6 of the closing submission of D2, including that D2 was acting through a “middleman” D1, a friend and fellow taxi driver who he had known since 2008 and knew D2 was engaged in buying clothes from the Salvation Army. Nothing said by Mr Cheng causes me to doubt the findings I have made. 

163.  I am satisfied so I am sure there are no material and significant discrepancies, improbabilities or omissions in the evidence, which cause me to doubt the findings I have made.  I am satisfied so I am sure the prosecution have proved all the elements of charge 3 beyond reasonable doubt.  D2 is convicted of charge 3.  No verdict is therefore necessary on the alternative charge 4, which is left on the court file not to be proceeded with without leave of the court or the Court of Appeal. 

REASONS FOR VERDICT D3

Charges 5 & 9

Charge 5

164.  The particulars of charge 5 read as follows: 

“Man Yiu-pun, between a date unknown in December 2012 and the 21^st day of January 2013, both dates inclusive, in Hong Kong, conspired together with a Nigerian male OKAFOR Joek Kingsley, knowing or having reasonable grounds to believe that property, namely a total sum of $7,653,697.40 Hong Kong currency, in whole or in part directly or indirectly represented any person’s proceeds of indictable offence, to deal with the said property.”

Charge 9

165.  The particulars of charge 9 read as follows: 

“Man Yiu-pun, on or about the 17^th day of September 2012, in Hong Kong, conspired together with a Nigerian male OKAFOR Joek Kingsley, knowing or having reasonable grounds to believe that property, namely a total sum of $523,382.67 Hong Kong currency, in whole or in part directly or indirectly represented any person’s proceeds of indictable offence, to deal with the said property.”

Introduction

166.  The monies referred to in charge 5 are monies deposited in the account of Asia Supply Resources held with the Nanyang Commercial Bank (Account D).  Asia Supply Resources was registered as a sole proprietorship by D3 on 26 October 2012.  On 30 October 2012 D3 applied to open the bank account and was the sole signatory of the account.

167.  Between 1 December 2012 and 3 January 2013 a total sum of HK$7,653,697.40 was deposited in the account[98]. Save for the initial deposit of $50,000 cash the remaining monies deposited were by way of eight overseas remittances. Between 6 December 2012 and 20 January 2013 all the monies except $22.38 were withdrawn, mostly by cheque including eleven cheques deposited in D1’s personal savings account (Account B)[99].  The balance of the account was withdrawn when the account was closed on 21 January 2013.

168.  The sum of $523,382.67 referred to in charge 9 is monies remitted on 17 September 2012 to the personal savings account of D3 held with HSBC (Account G).  On 19 September 2012 $560,000 cash was withdrawn from the account[100].   The account was opened in 1987 and D3 was the sole authorized signatory to operate the account. 

Prosecution case

169.  The prosecution case in summary is that D3 conspired with Okafor Joek Kingsley to set up Asia Supply Resources and open the bank account to deal with monies remitted to the account, D3 and Okafor Joek Kingsley knowing or having reasonable grounds to believe the monies represented the proceeds of an indictable offence (charge 5)[101] and to deal with monies remitted to the personal savings account on 17 September 2012, D3 and Okafor Joek Kingsley knowing or having reasonable grounds to believe the monies represented the proceeds of an indictable offence (charge 9)[102].     

Defence case

170.  In summary the case of D3 is that he set up Asia Supply Resources and opened the bank account for his friend Joe (Okafor Joek Kingsley) to do business because his friend did not have proof of address and therefore could not register a company and open a bank account (charge 5).  In September 2012 D3 helped his friend Joe to receive a remittance from his major customer by lending his personal savings account to Joe because Joe did not have a bank account (charge 9).  D3 did not suspect the legitimacy of the monies remitted to the accounts.     

Evidence

171.  Most of the prosecution case was admitted with only one witness called DPC 20920 (PW1), who visited the registered address of Asia Supply Resources.  D3 elected to give evidence and called one witness, his sister Man Yung Kuen. 

Interviews

172.  Admitted in evidence is that D3 was arrested on 2 May 2013 by PC 24 for dealing with property known or believed to represent the proceeds of an indictable offence[103].  Admitted in evidence are two written records of interview taken on 3 May 2013 and 21 August 2013 and two video recorded interviews conducted on 7 November 2013 and 29 August 2014 in which D3 explains, inter alia, why he set up Asia Supply Resources and why he lent the company account and his savings account to D4[104].

173.  I will first summarise the content of the interviews.  In the first written record of interview D3 is asked about the remittance of $523,382.67 to his personal savings account on 17 September 2012 and the withdrawal of $560,000 on 19 September 2012.  In the second written record of interview D3 supplies the date of birth and passport number of Okafor Joek Kingsley.

174.  In the video recorded interviews D3 is principally asked about the bank account of Asia Supply Resources.  In the first record of interview D3 is asked about the eleven cheques deposited in D1’s personal savings account (Account B) and in the second video recorded interview D3 is asked about the eight overseas remittances[105].

Summary of the written records of interview and the video recorded interviews

175.  In summary D3, inter alia, said that:

(a) he used to trade in jade ornaments but was now half-retired and recently helped a friend sell red wine[106];

(b) he no longer needed to pay tax[107];

(c) about seven years ago he came to know a casual friend, a Nigerian called OKAFOR, Joek Kingsley (Ah Joe) in a bar in Lan Kwai Fong, who he would drink beer with when free and sometimes do translation when Joe purchased goods in Yuen Long[108];

(d) he had seen the old identity card of Joe[109];

(e) occasionally he would help Joe move goods for which Joe would give him tea money if Joe had earnt some money[110];

(f) Joe traded new and second hand electrical appliances in Yuen Long and then sent them to Africa for trading[111];

Personal savings account

(g) the account had been opened for 30 years and was mainly used to pay expenses and bills[112];

(h) in September 2012 Joe said he had a major customer who would deposit money to his bank account[113];

(i) Joe did not have a bank account and asked to borrow his account to receive the deposit[114];

(j) he helped his friend by lending his account[115];

(k) after checking the sum of $523,382.67 had been deposited in the account he went with Joe to the bank and withdrew $560,000 of which he immediately handed over $523,382.67 to Joe[116];

(l) he withdrew a bit more for his own use[117];

(m) he knew nothing at all about the source of the money[118];

(n) he did not receive a reward for helping his friend[119];

Asia Supply Resources

(o) he set up Asia Supply Resources in 2012[120];

(p) the registered address in Canton Road was the office of his former partner in the jade trade which he used as a correspondence address only[121];

(q) initially the company was to be set up with a black guy (Joe) who asked him to do business together but Joe had no proof of address and was not allowed to register[122];

(r) except for paying the registration fee he did not contribute any capital[123];

(s) he was asked to contribute several hundred thousand but refused because he did not believe in those black guys[124];

(t) the business of Asia Supply Resources was buying miscellaneous goods such as clothes; new and used electrical appliances; auto parts and plastic flowers, which Joe would ship to Nigeria[125];

(u) he opened the bank account and was the only person who could sign the cheques[126];

(v) the account was only used by Joe[127];

(w) he knew nothing about the money other than it was for purchasing goods[128];

(x) he trusted Joe with regard to profit, Joe on quite a number of times when there was money to share giving him $2000 to $3000 tea money but did not give him the exact amount of profit earned saying the profit margin was very small[129];

(y) he could not remember the total amount received from Joe[130];

(z) he did not think receiving money without contributing capital was unreasonable because he always bought goods for Joe and helped Joe transport the goods[131];

(aa) he threw the company chops away and returned the cheque book to the bank because the company was no longer in operation[132];

Eight overseas remittances

(bb) he did not know the companies which made the remittances and was told by Joe that his customers remitted the money[133];

(cc) every time money was remitted to the account Joe informed him and instructed him to issue cheques which he gave to Joe[134];

Withdrawal by eleven cheques deposited in D1’s personal savings account (Account B)

(dd) he identified his signature on all eleven cheques and that he wrote the name of the payee on three of the cheques[135];

(ee) the cheques were given to Joe[136];

(ff) he did not deposit the cheques in the account of Chun Chung Kwong (D1)[137];

(gg) Chun Chung Kwong (D1) was his friend who he came to know through D1’s elder brother and who he had known for about ten years[138];

(hh) he had contact all the time with D1 but no business dealings[139];

(ii) he introduced D1 to Joe, in a taxi, to do business together but was not clear about their business dealings[140];

(jj) when D1 told him something had gone wrong he telephoned Joe and asked Joe why he got his friend into trouble to which Joe said it was nothing to do with him[141];

(kk) after he was arrested and D1 was arrested he met with Joe and D1 in a taxi when Joe said he did not mess things up[142];

Suspicion

(ll) he did not find the deposit of the eleven cheques suspicious because he had asked D1 to source goods in Mainland China for Joe and did not have the feeling Joe was doing something illegal[143];

(mm) he started to suspect when the bank contacted him saying money had been wrongly remitted but did not think of reporting his suspicion to the police[144];

(nn) Joe said he had contacted the client and there was no problem[145];

(oo) Joe had an argument with the bank and the bank closed the account giving the balance in the account to him[146];

(pp) the day before the first video recorded interview (7 November 2013) he saw Joe together with another black guy and wanted to call the police but did not because Joe could understand Cantonese and therefore Joe would have known he was calling the police[147].

Agreement to deal with property

Asia Supply Resources (Account D)

176.  Admitted in evidence is that D3 registered Asia Supply Resources as a sole proprietorship[148]. The application for registration of a business is dated 26 October 2012 and states that the business commenced that day[149].

177.  Admitted in evidence is that on 31 October 2012 D3 on behalf of Asia Supply Resources opened a bank account with the Nanyang Commercial Bank[150].  D3 was the sole signatory of the account[151].

178.  The bank statements and documents exhibited in the banker’s affirmation show that between 1 December 2012 and 3 January 2013 a total sum of HK$7,653,697.40was deposited in the account[152]. Save for the initial deposit of $50,000 cash the remaining monies deposited were by way of eight overseas remittances.

179.  Between 6 December 2012 and 20 January 2013 all the monies except $22.38 were withdrawn by cheque or ATM.  The balance of the account was withdrawn when the account was closed on 21 January 2013.

180.  Also admitted in evidence are the movement records of D3[153].  The movement records of D3 show that D3 was in Hong Kong on the days of all the transactions between 1 December 2012 and 21 January 2013 except on 12 December 2012 and between 11 & 13 January 2013 when withdrawals were made by ATM[154]. 

181.  In the video recorded interviews D3 admitted, inter alia, that he opened the bank account for Joe (Okafor Joek Kingsley) to use; he was the only person who could sign the cheques and that every time money was remitted to the account Joe instructed him to issue cheques which he gave to Joe[155]. I am satisfied full weight is to be attached to these admissions. 

182.  I am satisfied so I am sure on this evidence the only inference to draw is that not only did D3 agree with Okafor Joek Kingsleyto deal with the money in the bank account but that D3 also carried out the agreement by issuing cheques which he gave to Okafor Joek Kingsley.   

183.  I also note in evidence D3 testified, inter alia, that he registered Asia Supply Resources and opened the bank account for Joe (Okafor Joek Kingsley); Joe gave him $50,000 to open the account; he gave the ATM card to Joe; and issued the cheques on the instructions of Joe[156].

Personal savings account (Account G)

184.  Admitted in evidence is that on 28 September 1987 D3 opened a savings account with HSBC[157].  D3 was the sole authorized signatory to operate the account[158].

185.  The account history report exhibited in the banker’s affirmation shows that on 17 September 2012 the sum of $523,382.67 was remitted to the account and that on 19 September 2012 $12,350 was withdrawn by transfer and $560,000 was withdrawn in cash[159].

186.  The movement records of D3 show that D3 was in Hong Kong on 17 September 2012 and 19 September 2012[160].

187.  In the first written record of interview D3 admitted, inter alia, that he lent the account to Joe (Okafor Joek Kingsley) and that he withdrew $560,000 of which he immediately handed over $523,382.67 to Joe[161]. I am satisfied full weight is to be attached to these admissions. 

188.  I am satisfied so I am sure on this evidence the only inference to draw is that not only did D3 agree with Okafor Joek Kingsley to deal with the $523,382.67 remitted to his personal savings account but that D3 also carried out the agreement by withdrawing the money from the account, which money he gave to Okafor Joek Kingsley.   

189.  I also note in evidence D3 testified, inter alia, that Joe informed him of the remittance of $523,382.67 and that together with Joe he went to the bank and withdrew $560,000, all of which he gave to Joe[162].

Knowing or having reasonable grounds to believe

Prosecution evidence

190.  Admitted in evidence is that D3 did not report to the Inland Revenue Department any income for himself or on behalf of Asia Supply Resources for the period 1 April 2011 to 31 March 2015[163]; did not have any real property[164] and that between 1 January  2012 to 1 January 2015 no import or export declaration was lodged by Asia Supply Resources[165]. 

Evidence of DPC 20920 (PW1)

191.  On 17 September 2013 DPC 20920 visited the registered address of Asia Supply Resources as stated on the application for registration of a business[166].  DPC 20920 found the premises on the 2nd floor was residential and the whole building was residential. 

192.  In cross-examination by Mr Cheung, on behalf of D3, DPC 20920 said that when he knocked on the door a male answered the door; he could not remember the name of the male; he did not enter the premises; and that he could see the living room when the door was opened but could not see an office table inside the premises.  In re-examination DPC 20920 said he could see a sofa and a tea table.

193.  DPC 20920 agreed he made no mention of going to the premises in his first witness statement dated 28 April 2014 and only mentioned this in his second witness statement dated 28 November 2017 but without mentioning the particulars of the person he saw or what he saw inside the premises.  DPC 20920 disagreed that he never went to the premises on that day or any other day. 

Defence evidence

194.  The following is a summary of D3’s evidence relating to the bank account of Asia Supply Resources (Account D) and his personal savings account (Account G) together with the evidence of his sister Man Yung Kuen.  

195.  In summary D3, aged 70, testified that he was retired but could not remember when he retired.  Before retiring D3 traded in jade since 1986 from premises on the 2/F of 550 Canton Road, which belonged to his younger sister Man Yung Kuen[167].  Inside the premises was a sofa, fax machine, telephone and machines for grinding jade.  D3 had no need to pay rent which was confirmed by the evidence of his sister. 

196.  In the first video recorded interview D3 said the address at Canton Road was that of his former partner.  In answer to the court D3 said that his former partner was his brother-in-law[168].

197.  The sister testified that she purchased the property in 1984; that the usage of the property was both residential and commercial; and that the property was used for the jade business of her husband and D3.  Inside the premises was an office desk, chairs, telephone, fax machine, cabinet and stationery.  The property had never been used for residential purpose.  During cross-examination the sister said the previous owner had also used the property as an office[169].   

198.  In answer to the court the sister said she did not know what the permitted use of the property was and had not checked the title deeds, which were kept in a safe.  In questions arising the sister said that she bought the property through a property agent; that her husband told her the property could be used for commercial purposes and that she never received any notice from the Government informing her that the use of the property was illegal[170]. 

Asia Supply Resources

199.  About six or seven years ago D3 became acquainted with a black man called Joe, who D3 identified in court as D4.  D3 and Joe often met in Lan Kwai Fong for meals and drinking. 

200.  One day, the year of which D3 could not remember, Joe told D3 he did trading in Hong Kong and took D3 to a container depot in Kam Tin where many foreign persons were working, mostly black people, helping Joe pack goods onto containers, including old and new electrical appliances, clothes, shoes and daily necessities.   

201.  Later when having a meal together Joe said he would like to establish a company in Hong Kong for business and shipping goods.  Joe explained that previously he had a friend who shipped goods and received money for him but his friend was too busy and could no longer help him.  Joe therefore wanted to establish his own company. 

202.  D3 took Joe to register the business but because he was a foreigner and could not produce proof of residence Joe could not register the business.  Joe therefore asked D3 to apply for business registration and open a bank account for him. D3 agreed and registered Asia Supply Resources and opened the bank account with the Nanyang Commercial Bank. 

203.  In the business registration the residential address is an address in Sham Shui Po[171].  In answer to the court D3, after confirming he told the police he had lived in Yuen Long for six to seven years, said he was instructed by Joe to write this address and that he had no idea whose address this was[172]. In cross-examination by Mr Chau, on behalf of the prosecution, D3 said that the reason he did not ask D4 why he could not produce proof of address was because he did not think about it. 

204.  D3 said he agreed to help Joe set up the company and open the bank account “Just for the reason of helping a friend”.  In cross-examination by Mr Chau D3 said that the only reason he opened the bank account was to help his friend, who being a foreigner could not open an account.

205.  D3 used the premises in Canton Road as the business and correspondence address of Asia Supply Resources because he had always used the premises for business and had no need to pay rent.  During cross-examination by Mr Chau D3 clarified that the address was used for correspondence only and not for the business of Asia Supply Resources. 

206.  After opening the bank account D3 gave Joe the bank card and password for making withdrawals so that it would be more convenient for Joe to withdraw money.  D3 kept the cheque book locked in the office. D3 also went to the container depot several times after the bank account was opened.

Bank accounts

Personal savings account (Account G)

207.  Mr Cheung did not ask D3 the circumstances he came to let Joe use his personal savings account.  In the first written record of interview D3 explains that in September 2012 Joe said his major customer wanted to deposit money in his account but he did not have an account and asked to borrow D3’s account.  D3 regarded this as helping a friend[173].

208.  In evidence D3 testified that Joe informed him that the remittance of $523,382.67 was deposited by his customer and that the money had to be withdrawn to pay for goods.  On 19 September 2012 D3, accompanied by Joe, went to the bank and withdrew $560,000.  D3 gave all the money to Joe. 

209.  D3 was later referred to the record of interview where he said he only gave $523,382.67 and kept the rest for his own use[174].  D3 said as this was so long ago he could not clearly remember how much he gave to Joe. 

210.  In cross-examination by Mr Chau, D3 said that because it was too long ago he could not remember clearly the transfer withdrawal of $12,350 made on the same day[175].  D3 disagreed this was his reward.  

211.  D3 said that the remittance of $89,804.88 on 20 September 2012 was also for goods payment remitted by Joe’s customer.  In cross-examination by Mr Chau, D3 said that the remittance of $66,321.74 on 14 September 2012 was also for goods payment[176].

Asia Supply Resources Account (Account D)

Deposits

212.  The initial deposit of $50,000 was given by Joe to open the account.  The remaining sums credited to the account were eight overseas remittances.  After each remittance D4 informed D3 that money was remitted by his customers for payment of goods. 

213.  In cross-examination by Mr Chau, D3 said that the bank would send him a credit advice notifying him of the remittance; no one from the bank telephoned him informing him of the remittances; he made no enquiries of any of the companies making the remittances; and did not ask Joe about the companies or to see the goods. 

Withdrawals

214.  Monies were withdrawn by cheque and ATM.  D3 issued a total of eighteen cheques one of which was dishonoured and returned to the bank.  D3 did not know why the cheque was returned.  D3 signed all the cheques which were issued on the instructions of Joe, who said that he needed the money for payment of goods. 

215.  Eleven of the cheques (including the dishonoured cheque) were made payable to D1[177].  On the instructions of Joe, D3 wrote the name of D1 as the payee on five of the cheques and left the payee blank on the other cheques.  D1 gave all the cheques to Joe. 

216.  D3 had known D1 for many years.  D3 never told D1 he was doing trading with Joe; never told D1 that Joe was his partner; never asked D1 to give his personal account to him; did not tell D1 that monies were to be deposited in his account to make the account look better or easier to apply for a loan; and did not tell D1 that the $950,000, the amount of the first cheque made payable to D1, was deposited in his account. 

217.  In cross-examination by Mr Chau D3 said that he did not ask Joe why monies were being transferred to D1 because he knew D1 and Joe were doing business together. 

218.  Except the first cheque issued in the sum of $25,000 copies of the other six cheques, made payable to Chan Wai Kin; Grace Garcia Casia (PW4) and Sendegeya Julius, are exhibited to the banker’s affirmation of Asia Supply Resources[178].  On the instructions of Joe, D3 wrote the name of the payees on these cheques.  D3 could not remember who was the payee for the cheque in the sum of $25,000.

219.  In cross-examination by Mr Laskey, on behalf of D4, D3 said that he had not met Julius Sendegeya[179]. When Mr Laskey put that if he did business with an African/black man this was not with the defendant but with another black man, D3 disagreed and said that he only knew one black man who was Joe.

220.  Later in cross-examination D3 agreed that he gave away an old television to someone introduced by Joe[180]. D3 explained that the television was for Joe and not someone else and that Joe sent someone to take the television away.  D3 agreed this person was a black man.

221.  D3 said he never saw this man again and disagreed with Mr Laskey that he came to know this person; came to know that he was called Julius Sendegeya and that he did business with Julius Sendegeya.  D3 said he came to know the name Julius Sendegeya when Joe asked him to write the name on the cheque. 

222.  In cross-examination by Mr Chau, D3 said that he did not know who Grace was when he wrote her name on cheques; that Joe did not tell him Grace was his girlfriend and that he did not ask what the cheques were for.  

223.  D3 did not make any withdrawals by ATM, which withdrawals were probably made by Joe because D3 had given Joe the ATM card.   

224.  D3 never had any suspicion about the legitimacy of the monies withdrawn from the bank accounts because Joe had brought him to look at his business; D3 had helped Joe source goods by introducing D1 to him to buy goods from Mainland China and because Joe’s business was big, Joe having received so much business money for payment of goods. 

225.  In cross-examination by Mr Laskey D3 said that he did not discuss business with D4 but said he could introduce D4 to a friend in Mainland China who did business involving oil and grains.  Although D4 had given D3 details of his passport to apply for a visa D3 was unable to contact his friend therefore nothing happened.

The evidence of D1

226.  The following is a summary of D1’s evidence relevant to charges 5 & 9.  D1, a taxi driver, testified that around November 2012 a friend of his elder brother introduced him to a foreigner to do some business in Mainland China.   The friend of his brother was Man Yiu Pun, who D1 identified as D3.  D1 said the foreigner was a Nigerian called Joe who he identified in court as D4[181]. 

227.  D1 had known D3 for over ten years and knew that D3 traded in jade as well as doing other business.  D1’s understanding was that D3 and Joe were partners doing trading together. 

228.  In cross-examination when Mr Cheung, on behalf of D3, put that D3 never said he was doing trading together with Joe, D1 replied that at the time D3 said they were doing trading; his understanding was that they might be partners doing trading together; and that maybe he had misunderstood what D3 said to him.  

229.  After D3 told D1 about Joe wanting to do business, D1 met Joe together with D3 in a restaurant in Sham Shui Po.  Joe said he would like to source used clothes; inferior/substandard goods such as garments which were popular in the third world and little ornaments in Hong Kong and Mainland China.

230.  In a second meeting with D3 and Joe, the exact time of which D1 could not remember, D1 was asked to give a reply as soon as possible whether he could source the goods. 

231.  In the second meeting Joe also asked D1 to set up a company to do this work.  D1 therefore registered Worldwide Trading mainly with the intent to do business with Joe and D3.  D1 also testified that before Worldwide Trading was registered and the bank account opened Joe said he could not open an account because he did not have an exact address, therefore D1 allowed Joe to use his personal savings account to receive goods payment. 

232.  In cross-examination by Mr Chau, on behalf of the prosecution, D1 said that he knew very little about Joe and that Joe told him because he was Nigerian and did not have a fixed address he could not register a company or open a bank account.

233.  The bank account of Worldwide Trading (Account A) was the subject of charge 1 and the personal savings account (Account B) was the subject of charge 2.  Charges 1 & 2 having been declared of no legal effect, I am satisfied that it is not necessary for me to detail the evidence of D1 regarding these two charges, except where the evidence is relevant to charges 5 & 9. 

234.  In the second meeting Joe said that money would be deposited in D1’s personal savings account for the goods payment and to make the account look better.  D1 understood that many people did this to make the account look better for the convenience of obtaining letters of credit or a loan.  During cross-examination by Mr Chau, when the court clarified with D1 whose account would look better, D1 said that their account (D3 & Joe) would look better, not his personal savings account.

235.  In cross-examination when Mr Cheung put that there was only one meeting when D1 met Joe and D3, D1 replied, “I think two occasions”.  In cross-examination by Mr Laskey, on behalf of D4, D1 also disagreed that he only met D4 on one occasion. 

236.  When Mr Cheung put that D3 never said money would be deposited to make the account look better, D1 replied that as far as he remembered it was mentioned.  In cross-examination by Mr Chau, D1 said both D3 and D4 were present when this was said but could not remember who said this. 

237.  D1 said when he gave the account number both D3 and D4 were present and that he “put it there”.  In cross-examination by Mr Cheung D1 said that he gave the account number to Joe; that D3 was present and that D3 did not ask him for the account number.  

Cheques drawn on the account of Asia Supply Resources

238.  The first cheque in the sum of $950,000 was deposited in D1’s personal savings account on 10 December 2012.  D1 testified he did not recognise the signature on the cheque and at the time did not know the company Asia Supply Resources which name had not been mentioned to him by D3 or Joe. 

239.  D3 was the one who told D1 about the deposit.  D1 said he remembered that D3 probably called him saying that Joe informed him $950,000 had been deposited in the account.  In cross-examination D1 disagreed with Mr Cheung that D3 never informed him about the deposit of $950,000.  D1 said that he remembered clearly that D3 telephoned him.

240.  Between 10 December 2012 and 7 January 2013 ten more cheques drawn on the account of Asia Supply Resources were deposited in D1’s personal savings account.  D1 did not remember who told him about the cheque deposits made on 14 December and 21 December 2012.  Joe informed D1 about all the other cheque deposits.

241.  In cross-examination, by Mr Chau, D1 said he did not know the source of any of these cheques and repeated he was told they were for the goods payment.  D1 said he was not shown any documentation for the goods payment and never asked where the money was from.  

Cash withdrawals from D1’s personal savings account (Account B)

242.  After the cheque for $950,000 was deposited in D1’s personal savings account D3 told D1 that Joe asked for $430,000.  On 11 December 2012 D1 withdrew $430,000 which he gave to Joe the same day. 

243.  Between 11 December 2012 and 30 January 2013, including the withdrawal of $430,000, D1 made seventeen cash withdrawals[182]. Apart from D3 telling him to withdraw the $430,000, D1 said that he was informed by Joe to withdraw the money.  Most of the time D1 gave the money to Joe on the same day the money was withdrawn.  On a few occasions D1 gave the money to Joe’s assistant. 

244.  In cross-examination by Mr Cheung D1 said that D3 was not present when he gave the money to Joe or his assistant. 

Video recorded interviews

245.  In the three video recorded interviews D1 told the police, inter alia, about D3 introducing him to D4; the deposit of cheques in his personal savings account and the withdrawal of that money. The content of the interviews are largely consistent with D1’s evidence except to who some of the money deposited in his account belonged to and to who he gave the money[183].  

The evidence of D4

246.  The following is a summary of D4’s evidence relevant to charges 5 & 9.  D4 testified that he met D3 in Lan Kwai Fong three to four years before he was arrested[184]. Normally he would go out drinking with D3 in Wanchai and Lan Kwai Fong. 

247.  D4 never asked D3’s help to open a bank account.  D3 never gave D4 any ATM card; D3 did not transfer money to D4 and did not give money to D4. D4 did not take D3 to a container depot in Kam Tin. 

248.  This evidence was largely consistent with what D4 told the police in a record of interview[185] and a video recorded interview[186].

249.  D4 testified the only discussions he had with D3 about business never materialised.  D4 introduced D3 to Julius Sendegeya in a restaurant after which Julius Sendegeya collected an old television from D3’s home.  D4 also introduced D3 to Miss Casia in a restaurant when he joked that D3 needed a girlfriend and asked Miss Casia to introduce someone to him.  About two weeks later Miss Casia brought her friend Jane to D4’s home when they met D3

250.  D4 could only remember meeting D1 once when he had been out drinking with D3 and D3 rang D1 to drive them home in his taxi.  D4 said he never had any business with D1 and would not even recognise him if he sees him in the street. 

Discussion

251.  I have carefully considered all the evidence together with the submissions of Mr Chau and Mr Cheung.

252.  In evidence D3 admitted that he registered Asia Supply Resources and opened the bank account for Joe (Okafor Joek Kingsley); that he gave the ATM card to Joe; monies remitted to the account were withdrawn by cheques which he signed and gave to Joe; and that he allowed Joe to use his personal account to receive money which he withdrew and gave to Joe. 

253.  In the written record of interview D3 admitted he lent his personal account to Joe and in the video recorded interviews admitted that only Joe used the bank account of Asia Supply Resources and that he issued cheques which he gave to Joe. 

254.  I am satisfied full weight is to be attached to these admissions.  I reject the evidence of D4 that he never asked D3’s help to open a bank account; D3 never gave him any ATM card; D3 did not transfer money to him and did not give him any money.

255.  I have no hesitation in rejecting D3’s evidence and the explanations in the interviews that he registered Asia Supply Resources and opened the bank account for Joe to do business; that he lent his personal account to Joe because Joe said his major customer wanted to deposit money; and that he had no suspicion about the legitimacy of the monies withdrawn from the accounts because Joe had brought him to look at his business; he had helped Joe source goods by introducing D1 to him and Joe’s business was big.  

Cheque withdrawals

256.  I do not find credible D3’s evidence that the monies remitted to the account of Asia Supply Resources were goods payment by Joe’s customers. 

257.  As noted earlier between 1 December 2012 and 3 January 2013 a total sum of HK$7,653,697.40 was deposited in the account of Asia Supply Resources.  Save for the initial deposit of $50,000 cash the remaining monies deposited were by way of eight overseas remittances[187].

258.  After each overseas remittance the defendant issued cheques transferring the monies to other accounts.  The defendant issued eighteen cheques totalling $7,330,000, eleven to D1’s personal account (Account B)[188]; one to Chan Wai Kin; three to Grace Garcia Casia (PW4) and two to Julius Sendegeya.

259.  In cross-examination when Mr Chau, on behalf of the prosecution, asked D3 why the money could not be transferred direct to D1, D3 replied that before he had introduced D1 to D4 to do business D4’s money had already been deposited into the account, therefore out of convenience money continued to be deposited into the account.  

260.  I have no hesitation in rejecting this explanation.  The first of the eight overseas remittances was credited to the account on 7 December 2012 and the first cheque made payable to D1 in the sum of $950,000 is dated 8 December 2012[189].  Apart from the initial cash deposit on opening the account no other monies had been deposited in the account prior to the first overseas remittance. 

261.  It beggars belief that over $7 million was deposited in the account for convenience.  Further, I find inherently improbable that buyers of goods, let alone overseas buyers, would in the normal course of business remit payment for goods to a company who they had no dealings with. 

262.  I do not find credible D3’s evidence that he did not tell D1 that cheques drawn on the account of Asia Supply Resources were to be deposited in his personal account (Account B). 

263.  Eleven cheques in the total sum of $5,380,000 were drawn on the account of Asia Supply Resources and deposited in the personal savings account of D1 during the period 10 December 2012 and 7 January 2013.  I find inherently improbable that D3 did not tell D1, a friend he had known for a long time, that substantial monies were being transferred to his account. 

Personal savings account

264.  I do not find credible D3’s evidence that the deposit of $523,382.67 in his personal account was deposited by Joe’s customer and the explanation in the written record of interview that he lent his personal account to Joe because Joe said his major customer wanted to deposit money.  

265.  I find inherently improbable that a buyer of goods would in the normal course of business pay for goods by remitting payment to a personal savings account of someone they did not know and who they had no dealings with. 

Trust

266.  I do not find credible D3’s evidence that he was just helping a friend and that he had no suspicion about the monies remitted to his account.  In the first video recorded interview D3 said he did not contribute any money to Asia Supply Resources because he did not believe in those black guys[190].  In answer to the court when asked what he did not believe in those black guys D3 said that he was afraid they would cheat him out of his money so he did not believe them. 

267.  I find inherently improbable that D3 would register a company and open a bank account for D4 just to help a friend if he believed those black guys might cheat him.

268.  I find the evidence that D3 registered Asia Supply Resources and opened the bank account because D4 was a foreigner, who had no proof of address and therefore could not open a bank account; that D4 took D3 to a container depot before and after the bank account was opened to see the business and that D4 had a lot of business, was entirely contrived in an attempt to show that the registering of Asia Supply Resources and the opening of the bank account was for genuine business and that the personal account was used for genuine business.

269.  I reject that Asia Supply Resources was registered to do genuine business and reject that there was any genuine business.  I also note that no import or export declarations as required by Regulations 4 & 5 of the Import and Export (Registration) Regulations[191] were lodged by Asia Supply Resources whose business was stated as “Import & Export Trading”, on the application for registration[192].

270.  In rejecting that Asia Supply Resources was registered to do genuine business and that there was any genuine business, I have attached no weight to the evidence that DPC 20920 found the registered address of Asia Supply Resources was a residential building. 

271.  On the evidence of D3’s sister I accept the premises were used as business premises by her husband and D3 for their jade business, notwithstanding this may have been contrary to the permitted use of the premises.  The fact the premises were used as a business address by D3’s brother-in-law and previously by D3 for their jade business does not cause me to doubt the findings I have made.

272.  In rejecting D3’s evidence of the reasons why he set up Asia Supply Resources; transferred the monies by cheque and lent his personal account to Joe, I have carefully considered the submission of Mr Cheung that it was not unusual for D3 to believe D4 and follow D4’s instructions, D4 being someone D3 had known for more than 6-7 years[193]. This submission does not cause me to doubt the findings I have made. 

D1

273.  In rejecting D3’s evidence I have carefully considered the evidence of D1.  D1’s evidence is consistent with the evidence of D3 in that D3 introduced D1 to Joe to do business and inconsistent with regard to the issue of the cheque for $950,000 drawn on the account of Asia Supply Resources and deposited in the personal savings account of D1. 

274.  In his oral submission Mr Cheung asks that the court accepts D1’s evidence which is consistent with D3’s evidence and reject D1’s evidence regarding the cheque for $950,000.  Mr Cheung does not rely on anything said by D1 in the video recorded interviews.  

275.  I have no hesitation in rejecting D1’s evidence that D3 introduced him to Joe to do business in Mainland China and that cheques were deposited in his personal savings account for goods payment and to make the account of the payer look better.  For the reasons already given when considering D1’s evidence in D2’s case, I reject D1’s evidence that he set up Worldwide Trading and opened the bank account to do genuine business with Joe and allowed Joe to use his personal savings account to receive goods payment[194]. 

276.  Nothing said by D1 causes me to doubt the findings I have made. 

277.  I remind myself that the rejection of D3’s evidence is not determinative of the issues in the case.  D3 has nothing to prove.  A case in which defence evidence is called and is not believed is no different from one in which no evidence is called.  In either case the burden is on the prosecution to prove the defendant’s guilt beyond reasonable doubt.

Reasonable grounds to believe

278.  By registering Asia Supply Resources and opening the bank account for Joe (Okafor Joek Kingsley) to use, D3 concealed the true holder of the account and the recipient of the monies remitted to the account.

279.  I am satisfied so I am sure by transferring monies to the accounts of D1; Grace Garcia Casia (PW4); Julius Sendegeya and Chan Wai Kin, the only inference to draw is that these transfers were to conceal and disguise the true recipient of the monies passing through the account. 

280.  By allowing D4 to use his personal savings account D3 concealed the true recipient of the monies deposited in the account.

281.  As the Court of Appeal observed in HKSAR v Wong Chor Wo & another at para 108[195]:

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

Asia Supply Resources

282.  Having regard to all the circumstances, including:

(a) D3 did not report to the Inland Revenue Department any income for himself or on behalf of Asia Supply Resources for the period 1 April 2011 to 31 March 2015;

(b) D3 did not have any real property;

(c) D3 registered Asia Supply Resources and opened the bank account for Joe to use thereby concealing the true holder of the account and the recipient of the monies remitted to the account;

(d) shortly after the remittances were credited to the account D3, on the instructions of Joe, issued cheques transferring the monies; and

(e) the inherent improbability that buyers of goods would in the normal course of business remit payment for goods to a company who they had no dealings with,

I am satisfied so I am sure the only inference to draw is that D3 together with Joe had reasonable grounds to believe the monies deposited in the account, in whole or in part, directly or indirectly, represented the proceeds of an indictable offence and that anyone looking at those grounds objectively would so believe.

Joe

283.  I am satisfied so I am sure the only inference to draw is that by using the account Joe must have known that the remittances were the proceeds of crime.  Even if Joe did not know I am nevertheless satisfied so I am sure by using the account and receiving the cheques Joe had reasonable grounds to believe that the remittances were the proceeds of an indictable offence and that anyone looking at those grounds objectively would so believe.

Personal savings account

284.  Having regard to all the circumstances, including:

(a) D3 did not report to the Inland Revenue Department any income for himself or on behalf of Asia Supply Resources for the period 1 April 2011 to 31 March 2015;

(b) D3 did not have any real property;

(c) D3 allowed Joe to use the account thereby concealing the true recipient of the deposit of $523,382.67, which shortly after D3 withdrew and gave to Joe; and

(d) the inherent improbability that a buyer of goods would in the normal course of business remit payment for goods to a personal savings account of someone they did not know and who they had no dealings with,

I am satisfied so I am sure the only inference to draw is that D3 together with Joe had reasonable grounds to believe the deposit of $523,382.67 in whole or in part, directly or indirectly, represented the proceeds of an indictable offence and that anyone looking at those grounds objectively would so believe.

Joe

285.  I am satisfied so I am sure the only inference to draw is that by using the account Joe must have known that the deposit of $523,382.67 was the proceeds of crime. Even if Joe did not know I am nevertheless satisfied so I am sure by using D3’s personal savings account to receive the money Joe had reasonable grounds to believe that the remittances were the proceeds of an indictable offence and that anyone looking at those grounds objectively would so believe.

Verdict

286.  In reaching my verdict I have carefully considered the submission of  Mr Cheung as particularised in paragraphs 34-44 of the closing submissions of the 3rd defendant, including that it was not unusual for D3 to believe D4 and follow D4’s instructions, D4 being someone D3 had known for more than 6-7 years[196].  Nothing said by Mr Cheung causes me to doubt the findings I have made. 

287.  I am satisfied so I am sure there are no material and significant discrepancies, improbabilities or omissions in the evidence, which cause me to doubt the findings I have made. 

288.  I am satisfied so I am sure the prosecution have proved all the elements of charge 5 beyond reasonable doubt.  I am satisfied so I am sure the prosecution have proved all the elements of charge 9 beyond reasonable doubt, charges 5 & 9 having been considered separately.  D3 is convicted of charges 5 & 9.

REASONS FOR VERDICT D4

D4 (charges 6, 7 & 8)

289.  The particulars of charge 6 read as follows: 

“OKAFOR Joek Kingsley, on a date unknown in December 2012, in Hong Kong, together with CASIA Grace Garcia, knowing or having reasonable grounds to believe that property, namely a sum of $130,000.00 Hong Kong currency, in whole or in part directly or indirectly represented any person’s proceeds of indictable offence, dealt with the said property.”

290.  The particulars of charges 7 and 8 are the same save that the date for both charges is a date unknown in January 2013 and the amounts are $280,000 and $240,000. 

Introduction

291.  The monies referred to in the charges are monies deposited in two bank accounts opened by Casia Grace Garcia, a domestic helper. Miss Casia was the sole signatory of both accounts.  

292.  The prosecution case in summary is that in December 2012 and January 2013 Miss Casia allowed D4 to use the bank accounts to receive monies which Miss Casia withdrew and gave to D4, Miss Casia and D4 knowing or having reasonable grounds to believe the monies represented the proceeds of an indictable offence. 

293.  The defence case in summary is that D4 did not use the accounts and did not receive any money from Miss Casia.  

Evidence

294.  The prosecution called Miss Casia (PW4).   All the remaining evidence was admitted.  D4 elected to give evidence.  No witnesses were called on his behalf. 

Uncharged acts

295.  When considering the case against D2 and D3, D1, D2 and D3 testified that they set up Worldwide Trading; Asia Trading Co and Asia Supply Resources for D4.  Monies remitted to the company bank accounts were either withdrawn and given to D4 or transferred on the instructions of D4.  D1 and D3 also allowed D4 to use their personal accounts to receive monies which they withdrew and gave to D4. 

296.  D4 is not charged with any of the charges brought against D1, D2 and D3.  The evidence of D1, D2 and D3 is therefore evidence of uncharged acts against D4.  The prosecution in court and in their written closing submissions state that they do not rely on the uncharged acts against D4[197].

297.  However, in the prosecution’s supplemental closing submissions they do appear to rely on these uncharged acts, in particular the second and third points on page six under the heading “D4: knew or had reasonable grounds to believe”.

298.  For the avoidance of any doubt in reaching my verdict I do not rely on any of the evidence of D1, D2 or D3 of uncharged acts against D4. 

Prosecution evidence

299.  Admitted in evidence is that Miss Casia opened a savings account with the Bank of China on 11 December 2012 (Account E) and a savings account with the Hang Seng Bank on 18 December 2012 (Account F) [198]. Miss Casia was the sole signatory of the accounts[199]. 

300.  The three sums subject of charges 6, 7 & 8 were monies deposited in the accounts of Miss Casia by cheques drawn on the account of Asia Supply Resources[200].   Admitted in evidence is that D3 registered Asia Supply Resources as a sole proprietorship on 26 October 2012[201] and opened the bank account on 31 October 2012[202].

301.  Admitted in evidence is that D4 did not report any income for himself or on behalf of any company for the period 1 April 2011 to 31 March 2015 and did not have any real property[203].

Evidence of Miss Casia (PW4)

302.  Miss Casia, a single lady from the Philippines, came to Hong Kong in October 2010 to work as a domestic helper.  Miss Casia testified under immunity from prosecution[204].

303.  In summary Miss Casia testified that she opened the Bank of China account on 11 December 2012 because she was thinking of putting her salary in the account. Miss Casia however did not put any salary in the account and instead put her salary in the Hang Seng Bank account which she opened on 18 December 2012 because she found the Hang Seng Bank account more convenient. 

304.  Miss Casia explained that she had opened the Bank of China account because there was no charge.  In answer to the court Miss Casia said the convenience was that the Hang Seng Bank had more ATM machines and no balance was required to keep the account open[205].

305.  Miss Casia said that it was her decision to open the bank accounts and that prior to opening these bank accounts she had not opened any other bank accounts since coming to Hong Kong in 2010.  In cross-examination Miss Casia confirmed no one instructed her to open the bank accounts[206].

306.  Miss Casia was the sole signatory of the bank accounts[207].  Miss Casia testified that she allowed a person called Kingsley to use the accounts and gave him the Bank of China ATM card.  Admitted in evidence is that Miss Casia identified D4 as Kingsley in an identification parade held on 25 June 2016[208].

307.  Miss Casia came to know D4 in mid-October 2012 through an online dating site “hongkongcupid.com”.  In cross-examination Miss Casia said she was new to the dating site and that D4 was the first person she linked up with.  

308.  Initial contact was by telephone when Miss Casia called the number given by D4.  About two weeks later Miss Casia met D4 for the first time at the Yuen Long MTR station when D4 invited her for lunch. 

309.    A week later D4 invited Miss Casia to go to his home in Yuen Long for breakfast.  Miss Casia stayed for three to four hours during which time D4 said he was divorced and that he had just returned from Nigeria. 

310.  The next meeting was in December when Miss Casia again went to the home of D4.  On this occasion D4 told Miss Casia he had a plastic flower business and that his partner wanted to send him money.  In cross-examination Miss Casia agreed that on one occasion when she went to D4’s home and commented that she found the plastic flowers beautiful D4 said that was his business.  

311.  D4 said that he was unable to open a bank account because he was processing his papers and asked Miss Casia if she had a bank account.  When Miss Casia replied yes, D4 asked if he could borrow the account so that his partner could send him money.  D4 did not mention the name of his business partner. 

312.  Miss Casia agreed to lend her Bank of China account to D4 because she wanted to help D4 who was her friend.  Miss Casia testified that D4 was a normal friend and that the relationship did not progress to an intimate one.   

313.  D4 said he would inform Miss Casia when the money was to be deposited so that she could check her account. 

Bank of China account (Account E)

314.  In mid-December, the date of which Miss Casia could not remember, D4 called her saying money had been deposited in the account.  Miss Casia checked her account and saw that $130,000 had been deposited in the account. 

315.  The money was deposited in the account on 14 December 2012 (Friday)[209].  This was the first transaction after the account was opened.  Miss Casia confirmed that prior to the deposit she had not used the account.  

316.  D4 told Miss Casia to withdraw $100,000 cash and take it to the Hung Hom MTR station.  Miss Casia withdrew the money on 17 December 2012 (Monday)[210].  After withdrawing the money Miss Casia went straight to the Hung Hom MTR station where she gave the money to D4 in an envelope together with the ATM card.  Miss Casia gave the ATM card to D4 because the money in the account was not her money. 

317.  In January 2013 D4 telephoned Miss Casia and asked her to check the account because his friend had deposited $280,000.  Miss Casia checked her account and saw that $280,000 had been deposited in the account.   

318.  The money was deposited in the account on 2 January 2013[211]. 

319.  The next day 3 January Miss Casia withdrew $180,000[212].  The same day Miss Casia went to the Hung Hom MTR station and gave D4 the cash in an envelope. 

320.  D4 also asked Miss Casia to withdrew $50,000 because he could only withdraw small amounts by ATM.  Miss Casia therefore withdrew $50,000 on 7 January[213].  After withdrawing the money Miss Casia kept the money in her employer’s home until she next went to D4’s home on her day off, a Saturday, when she gave the money to D4. 

321.  The bank account was closed on 7 June 2013 after Miss Casia received a letter from the bank asking her to close the account.  D4 never returned the ATM card to Miss Casia.  Miss Casia did not make any withdrawal by ATM.

Hang Seng Bank account (Account F)

322.  Mr Chau did not ask Miss Casia the circumstances she came to lend this account to D4.  In answer to the court Miss Casia said that she told D4 about this account over the phone at which time D4 asked for the account number.  Miss Casia said she did not know why the Bank of China account was not used[214]. 

323.  In further re-examination Miss Casia said that D4 told her that his friend would send money to the account and that he would call her when the money was in the account.

324.  In January 2013 D4 telephoned Miss Casia and asked her to check the account.  Miss Casia checked her account and saw that $240,000 had been deposited in the account.   

325.  The money was deposited in the account on 2 January 2013[215]. 

326.  D4 told Miss Casia to withdraw $200,000.  Miss Casia withdrew the money on 4 January[216]. The same day Miss Casia again went to the Hung Hom MTR station and gave D4 the cash in an envelope.

327.  Between 9 January and 11 January 2013 Miss Casia made three withdrawals of $10,000 and one withdrawal of $1,000 by ATM[217]. Miss Casia explained that D4 had asked her to transfer the remaining money to his friend however Miss Casia did not know how to transfer money and instead withdrew the money by ATM.  Miss Casia kept the money in her room and later gave D4 $30,000 at the Nam Cheong MTR station.  Miss Casia thought this was about two weeks after she withdrew the $200,000.

328.  Miss Casia said the last time she saw D4 was at the Mei Foo MTR station.  Miss Casia thought this was February or March, about two months after she handed the $30,000 to D4 at the Nam Cheong MTR station.  On this occasion Miss Casia withdrew some money by ATM.  Together with the money she already had she gave D4 a total of $10,000. 

329.  After the Mei Foo meeting Miss Casia had no further contact with D4.  Miss Casia tried to call D4 but he did not answer her calls and when she went to his home no one answered the door. 

330.  Miss Casia said she did not receive anything for lending her bank accounts to D4. 

331.  Miss Casia did not know the source of the three deposits; had not seen the cheques made payable to her and drawn on the account of Asia Supply Resoures[218]; did not know and had never heard of Asia Supply Resources; had no connection or transaction with Asia Supply Resources and did not know why monies were deposited in her account. 

332.  When the names of D2, D3 and D4 were put to her, Miss Casia said that she had no contact with them.  In cross-examination Miss Casia agreed that she brought a friend to D4’s home.  Mr Laskey then pointed out D3 and said that D3 was present in D4’s home on that occasion, Miss Casia agreed. 

333.  When Mr Laskey asked Miss Casia to call D3 Mr Man, Miss Casia immediately said that she knew him as Mr Lim.  Miss Casia said that together with her friend, who was called Jane, she met Mr Lim twice, once at D4’s home and once when they all went together for “Yam Cha”.  In re-examination Miss Casia said that when D4 introduced her to D3 he said D3 was called Mr Lim.

334.  In cross-examination Miss Casia said she did not know a person by the name of Julius Sendegeya and that D4 did not introduce her to any other African male.

335.  Miss Casia explained other transactions in the account included deposit of salary; a loan obtained from a finance company; monies which were remitted to the Philippines including the loan and other personal transactions although Miss Casia could not remember every transaction. 

Interviews

336.  Admitted in evidence is that on 17 December 2013 D4 was arrested for obtaining property by deception[219]. On the same day D4 gave a voluntary record of interview[220].  In the interview D4 was told the police were investigating a money laundering case where a Brazilian company was deceived into remitting US$67,692 (HK$523,382) to the account of D3, which is the subject of charge 9. 

337.  D4 was not asked any questions relating to the accounts of Miss Casia.  Mr Chau explained that the record of interview was admitted to provide background information and relationships with other defendants.   

338.  In summary D4 told the police that Man Yiu Pun (D3) was his social friend who he sometimes went out dancing and drinking with and who he had known for over three years[221]; he did not have any working relationship with D3[222]; he was a business man and trader who mostly operated in Sham Shui Po and Kam Tim and sometimes carried money from Nigeria to Hong Kong to buy goods[223]; he always shipped goods to Nigeria and most of his business money was from Nigeria sometimes by hand[224]; he had a savings account with the Hang Seng Bank[225]; he did not borrow a bank account from anybody[226]; and he did not know D3’s bank account[227].

339.  Admitted in evidence is that on 25 April 2014 D4 was arrested for dealing with property known or believed to represent proceeds of an indictable offence[228].  On the same day D4 gave a voluntary video recorded interview[229]. In the interview the police asked D4 about money laundering concerning Worldwide Trading and Asia Supply Resources.  D4 again was not asked any questions relating to the accounts of Miss Casia.  The video recorded interview was also admitted to provide background information and relationships with other defendants.   

340.  In summary D4, inter alia, said that he was married[230], he lived in Yuen Long and had been living in Hong Kong for around 15 years having first come to Hong Kong in 1997[231]; he was a business man trading in electronics, garments and many other things[232]; he did not have a company or have a bank account[233]; he normally bought goods which he shipped to Nigeria to sell and then bring the money to Hong Kong to buy more goods[234]; Man Yiu Pun (D3) was just an ordinary friend who he met in a Wanchai bar three or four years before[235]; he did not see D3 very often and last spoke to him one to two years ago[236]; he did not receive any money from D3 or instruct D3 to do anything and did not know a company called Asia Supply Resources[237]; and his friends call him Kingsley or Joe[238].

Defence evidence

341.  D4 gave evidence in English[239]. In summary D4, aged 44, testified that he was born in Nigeria and came to Hong Kong in 1997.  He was married in 2001 and divorced in 2012. 

342.  In cross-examination by Mr Chau, on behalf of the prosecution, D4 said that his wife was a Hong Kong resident and that at the time of his marriage he was on a dependent visa and that after his divorce he was in Hong Kong on a visitor visa.  In answer to the court D4 said as a visitor he understood he was not allowed to work. 

343.  D4 had a company called Joel Kingsley International which exported new and old electronics to Nigeria.  In cross examination by Mr Chau, D4 said the company was established in 2001 and closed between 2003 and 2004 when the bank account for the company was also closed. 

Grace Garcia Casia

344.     D4 had a relationship with Miss Casia.  Mr Laskey did not ask D4 how he came to know Miss Casia.  In cross-examination by Mr Chau D4 agreed he met Miss Casia through the online dating site hongkongcupid.com but could not remember who initiated the contact.  D4 said this was probably between September and November 2012. 

345.   D4 explained the circumstances the relationship came to an end.  When D4 was planning a trip back to Nigeria Miss Casia was expecting that he would marry her.  D4 told Miss Casia that he could not marry her, that they were only boyfriend and girlfriend and that he was not interested in a long term relationship.

346.  In cross-examination by Mr Chau, D4 said that probably this was one of the reasons why Miss Casia made false allegations against him but he did not know what her reasons were and could not think of any other reason why she would make these allegations[240].

347.  Afterwards Miss Casia started posting pictures of D4 on Facebook and chatting with his family friends that he was going to marry her.  D4 instructed Miss Casia to delete the pictures on Facebook which Miss Casia did.

348.  When D4 returned from Nigeria he told Miss Casia that he had got married while in Nigeria.  Miss Casia was not happy and became angry.  D4 then separated with Miss Casia.  In cross-examination by Mr Chau, D4 said the relationship lasted for about three to four months. 

349.  D4 never asked to use the bank accounts of Miss Casia and never used her bank accounts.  Miss Casia did not give D4 her ATM card.

D3

350.  D4 met D3 in Lan Kwai Fong three to four years before he was arrested[241].  Normally they would go out drinking in Wanchai and Lan Kwai Fong. 

351.  D4 introduced D3 to Miss Casia when they went to have yam cha in a Chinese restaurant.  In the restaurant D4 joked that D3 needed a girlfriend and asked Miss Casia to introduce someone to him.  About two weeks later Miss Casia brought her friend Jane to D4’s home when they met D3. 

352.  D3 never transferred any money to D4.  The only discussion D4 had with D3 about business was when D3 said he had friends who were interested in buying crude oil and waste material for recycling from Nigeria.  D3 asked D4 if he could source the goods.  Although there were lengthy discussions nothing materialised from those discussions.  

353.  D3 also asked D4 if he would be the agent for a company in China to sell energy drinks in Africa.  Again, although D4 provided D3 with his passport details for the company in China to apply for a visa and issue a letter of invitation, D4 did not go to China because nothing materialised from those discussions. 

Michael

354.  Miss Casia told D4 about a boyfriend/ex-boyfriend called Michael who she had met in Worldwide Plaza in Central.  When D4 was having an argument with Miss Casia she told D4 she had met a friend but would not tell him who the friend was.  When D4 insisted that she tell him, Miss Casia said he was called Michael. 

355.  In cross-examination by Mr Chau, D4 said that the argument arose because Miss Casia was late for a meeting with D4 and did not answer his call.  

356.  On one occasion when Miss Casia visited D4’s home and was sleeping, D4 checked her phone and discovered that the number of Michael was the same number on his phone for Julius Sendegeya.  D4 therefore rang the number on Miss Casia’s phone. D4 heard the voice of Julius Sendegeya and then cut the phone.  After that D4 forgot about the issue. 

357.  Miss Casia also told D4 that she discussed business with Michael saying that Michael wanted to do business with her in the Philippines but did not tell D4 what the business was.  After that D4 forgot about this.  

358.  D4 was not aware that Miss Casia had met Julius Sendegeya. 

359.  D4 met Julius Sendegeya in Hong Kong.  Julius Sendegeya never operated for D4.  D4 also told the court about an occasion when Julius Sendegeya went to the home of D3 to collect a television.   Later D3 rang D4 asking whether Julius Sendegeya had called him.  D3 said he was looking for Julius Sendegeya because he had a sample of phones for him.  D4 said Julius Sendegeya had not called him and he did not know his whereabouts.  When D3 called D4 again asking for Julius Sendegeya, D4 said that he did not know anything about him anymore. 

360.  In cross-examination D4 said that Julius Sendegeya was not his assistant and had never worked for him; he never introduced Miss Casia to Julius Sendegeya and could not remember if Miss Casia had seen him together with Julius Sendegeya but probably she did not.  

Discussion

361.  In reaching my verdict on the charges against D2 and D3 I have rejected the evidence of D4.  The fact the evidence of D4 has been rejected on those charges does not mean the evidence of D4 on charges 6, 7 and 8 must also be rejected. Charges 6, 7 and 8 are to be considered separately.

362.  I have carefully considered all the evidence together with the submissions of Mr Chau and Mr Laskey.

363.  I have no hesitation in rejecting D4’s evidence.  I do not find his evidence credible.  For example, I do not find credible D4’s evidence that Miss Casia expected to get married and that the relationship ended because he refused to marry Miss Casia. 

364.  In cross-examination by Mr Chau, D4 gave another reason for the relationship ending, namely the discovery that Miss Casia was seeing Julius Sendegeya.  D4 said he was shocked when he found out that Michael was Julius Sendegeya. 

365.  Asked by Mr Chau if he confronted Miss Casia about this, D4 replied“Yes, I confronted her.  I tried to because, you know, these Filipinos sometimes they can date a lot of people, you know”.  D4 continued to say that Miss Casia told her Michael was an old friend and that she was about to do business with him and then he broke up with Miss Casia. 

366.  Mr Chau then asked:

Q. Right. So it’s because she was seeing someone behind your back that you broke off this relationship.

A. Yes.

Q. Did you confront Julius about this?

A. No.

367.  I do not find credible D4’s evidence that Miss Casia said she had met a person who was called Michael who D4 later found out was Julius Sendegeya.  In evidence D4 said on finding this out he forgot about this issue whereas in cross-examination he said on finding this out he broke up with Miss Casia. 

368.  I am satisfied so I am sure that D4’s evidence Miss Casia wanted to get married and that when he refused she was angry was entirely contrived in an attempt to provide a reason why Miss Casia would make false allegations against him and that the evidence she knew Julius Sendegeya (Michael), an old friend, who she was to do business with, was also entirely contrived in an attempt to show that Miss Casia was doing business with another black man and not D4. 

369.  I am satisfied so I am sure no weight is to be attached to the statements made by D4 in the written record of interview that he never borrowed a bank account from anybody. 

370.  I remind myself that the rejection of D4’s evidence is not determinative of the issues in the case.  D4 has nothing to prove.  A case in which defence evidence is called and is not believed is no different from one in which no evidence is called.  In either case the burden is on the prosecution to prove the defendant’s guilt beyond reasonable doubt.

Credibility of Miss Casia

Immunity against prosecution

371.  In reaching my verdict I remind myself that in considering the truthfulness and reliability of Miss Casia’s evidence that Miss Casia gave evidence under immunity from prosecution[242] and therefore the possibility that she may be lying in order to avoid prosecution[243].  

372.  In cross-examination Miss Casia explained that on returning from the Philippines her employer told her that the police were looking for her.  Miss Casia agreed that on hearing the police were looking for her she was a little frightened. About a month later Miss Casia said the police went to her employer’s home again and asked her if she knew someone called Joe. 

373.  Later Miss Casia gave a statement to the police in the Tsim Sha Tsui police station. Miss Casia said she was frightened when she realised the police were investigating criminal offences; she did not know if she would be in trouble and was worried when the police told her the money in her account was dirty money.

374.  Miss Casia said she could not remember whether in the first interview the police indicated she might be a witness; did not think whether her best chance to stay out of trouble was to cooperate with the police and agreed that in order to be protected by the immunity she had to repeat the allegations she had made against D4 when first interviewed by the police.

375.  I approach the evidence of Miss Casia with caution. 

376.  Mr Laskey submits the evidence of Miss Casia that she could not remember being taken through the content of the immunity by Mr Chau shows that her evidence was evasive[244].

377.  I have no hesitation in rejecting this submission.  Miss Casia gave evidence over two days on 13 and 14 December 2017.  At the beginning of her evidence Miss Casia confirmed the police served the immunity to her on 2 December 2017; read the content to her and gave her a copy.  Mr Chau then took Miss Casia through the content of the immunity which Miss Casia said she understood.   

378.  The next day when Mr Laskey referred Miss Casia to the fact she had been taken at some length through the immunity that had been given to her not so long ago and Miss Casia replied she could not remember, the immunity was not shown to Miss Casia at that time.  Mr Laskey then asked Miss Casia if she remembered being taken through the immunity at the start of her evidence.  Miss Casia replied yes after the court explained that she was being referred to the document shown to her in court the day before. 

379.  This submission does not cause me to doubt the evidence of Miss Casia.

Intimate relationship

380.  Mr Laskey submits that Miss Casia was not only reluctant to disclose her sexual relationship with D4 but deliberately lied thereby casting doubt as to the truthfulness of her evidence[245]. I have no hesitation in rejecting this submission. 

381.  Miss Casia testified that the first time she went to D4’s home she had breakfast and chatted with D4 after which she left.  The next time Miss Casia went to D4’s home was when D4 asked to borrow her bank account.  Miss Casia agreed because she was helping a friend. 

382.  Mr Chau then asked Miss Casia what exactly was her relationship with D4.  Miss Casia replied just friends.  Asked if they were normal friends or something more than friends Miss Casia replied normal.  The court concerned with what was regarded as a normal relationship Mr Chau asked whether the relationship progressed to an intimate relationship.  Miss Casia replied no. 

383.  In cross-examination Mr Laskey asked Miss Casia whether she was saying that at no time did she have what might be called an intimate relationship with D4.  Miss Casia replied “We’re just friends, no sir”.   Mr Laskey then put to Miss Casia that on occasions she had sexual intercourse with D4.  Miss Casia replied yes and agreed that when she went to D4’s home it was not just breakfast and chatting but involved having sex.

384.  Mr Laskey continued his cross-examination and put that a time came when Miss Casia wanted D4 to marry her.  Miss Casia disagreed.  Miss Casia further disagreed that she had other male friends and that she discussed with D4 her relationship with a person called Michael.  Miss Casia said she did not know a person called Michael and could not remember the name Michael.

385.  Later in cross-examination Mr Laskey asked Miss Casia about posting ‘things’ about D4 and her on Facebook.  Miss Casia said that she posted a photograph taken in D4’s home on Facebook.  Miss Casia described the photograph as a selfie showing her sitting side by side with D4.  D4 told Miss Casia he did not like his photograph on social media and asked Miss Casia to remove the photograph. Miss Casia wanting to remain friends with D4 removed the photograph the next day.

386.  Miss Casia disagreed she put messages on Facebook that she might be getting married to D4 and that D4 was angry about these messages.  Miss Casia also disagreed that on one occasion when D4 came back from Nigeria he told Miss Casia he was married which upset her.  Miss Casia said that D4 did not say anything like that and nothing happened like that.  At the end of cross-examination Miss Casia disagreed the last time she saw D4 was in May or June when D4 told her that he had got married.  Miss Casia said she did not know anything about that. 

387.  In re-examination Miss Casia said that at no time did D4 ever say he was married and said she did not know what was meant by an intimate relationship. 

388.  While Miss Casia may at first have been reluctant to say her relationship was intimate/sexual as soon as Mr Laskey put she had sexual intercourse with D4, including on the day she went for breakfast, Miss Casia agreed.  Miss Casia’s apparent reluctance to tell the court in examination that she had a sexual relationship with D4 does not cause me to doubt her evidence that she lent her bank accounts to D4.  

389.  I accept Miss Casia’s evidence that she never asked D4 to marry her; did not post messages on Facebook that she was going to marry D4; D4 never told her he was married; and that she did not know a person called Michael.

Opening of the bank accounts

390.  Mr Laskey submits that Miss Casia’s explanation that she opened the Hang Seng Bank account for convenience is far from satisfactory and indicates that her evidence may not be a full or true account of the facts.  This Mr Laskey submits goes to the credibility of Miss Casia showing that she has not given a full and honest account of her banking arrangements, which goes to the heart of the case[246].

Bank of China account (Account E)

391.  The Bank of China account was opened on 11 December 2012, a Tuesday and the first cheque deposit of $130,000 was on 14 December, a Friday[247].  As summarised earlier Miss Casia testified that when she went to D4’s home for the second time D4 asked her if she had a bank account and when she replied yes D4 asked to borrow the account[248].

392.  In answer to the court Miss Casia said that D4 asked her if she had a bank account on her day off, which was a Saturday. When the court asked Miss Casia to explain how she could have told D4 on a Saturday she had a bank account when the account was opened on a Tuesday and the first deposit was on Friday of the same week, Miss Casia was unable to explain[249].

Hang Seng Bank account (Account F)

393.  The Hang Seng Bank account was opened on 18 December 2012.  As summarised earlier Miss Casia testified that she opened the Hang Seng Bank account for convenience. In answer to the court Miss Casia said that the convenience was that the Hang Seng Bank had more ATM machines and no balance was required to keep the account open[250].

394.  Whilst I have my reservations with regard to Miss Casia’s evidence as to the circumstances she opened the Bank of China account and that it seems unlikely that seven days later she opened the Hang Seng Bank account simply for convenience, this evidence does not cause me to doubt Miss Casia’s evidence that she lent both the accounts to D4; D4 told her when monies were deposited in the accounts; D4 asked her to withdraw the monies from the accounts and that she withdrew the money which she gave to D4.  

The last time Miss Casia saw D4

395.  Mr Laskey submits that Miss Casia being unsure when she last met D4 it is doubtful if she could really remember that she met D4 on the days she mentioned in her evidence and that it is possible she has mixed up the meetings with D4 with meetings with other people, who may have been involved in the bank accounts instead of D4[251]. I have no hesitation in rejecting this submission.

396.  This submission refers to the evidence given by Miss Casia in examination-in-chief. After Miss Casia gave evidence that she withdrew $100,000 from the Bank of China account on 17 December 2012 and handed the money to D4, Mr Chau asked what happened next.  Miss Casia replied “I have no more contact with him.”   

397.  Mr Chau then referred Miss Casia to the deposit in her account on 2 January 2013. Miss Casia explained D4 called her in January to check the account saying his friend had deposited money in her account.  Mr Chau then asked Miss Casia, “There was contact after 17 December, is that correct?” Miss Casia replied “It is by telephone only”.

398.  After the court explained what was meant by contact Miss Casia repeated by telephone only.  Mr Chau then asked Miss Casia whether she saw D4 again in person after 17 December.  Miss Casia replied “I remember it was Christmas time we met again”.  When the court clarified the earlier answer, “I have no more contact with him”, Miss Casia replied there was no more contact after January.

399.  Mr Chau next asked how many meetings were there after 17 December.  Miss Casia replied the next meeting was on 25 December.  The evidence continued with Mr Chau asking, “After that anymore?” Miss Casia replied “It was in January already.”  Mr Chau next asked “Did you see him again after Christmas day?”.  Miss Casia replied no.  Mr Chau then asked “After you gave him money on 17 December you only saw him one more time, is that correct?”, Miss Casia replied yes. 

400.  In cross-examination when Mr Laskey referred to this evidence and asked Miss Casia if she agreed that is what she said Miss Casia first replied, “What I said was after I gave him the money in Mei Foo, that’s what I remember, the last time I saw him”.  When Mr Laskey repeated what Miss Casia had said earlier in evidence, Miss Casia replied “Yes, we did not see each other after that. It was in January when I gave him the money that I withdraw”. 

401.  During cross-examination when the court sought clarification how Miss Casia could see D4 in January if she did not see him after Christmas day Miss Casia replied, “We did not see each other personally, we just talked on the phone”.  Asked by the court to explain that answer Miss Casia said, “I saw him on Christmas then for a short time, and then we just talked over the phone, and then in January, then that is the time that we saw each other again, in January”.

402.  The examination of Miss Casia continued by asking what happened on Christmas day after which she was taken through the transactions in her accounts.  Miss Casia testified she saw D4 again on five occasions when she handed money over to him, four times in January and once in February or March. 

403.  Miss Casia said the fourth occasion was at Nam Cheong MTR station and the last time was when she withdrew the money at the Mei Foo MTR station, which was also the last time she saw D4. 

404.  In cross-examination Miss Casia was referred to her first witness statement in which is written that she last saw D4 in Nam Cheong MTR station in early 2013. Miss Casia said that she thinks she told this to the police.  At the end of cross-examination when Mr Laskey put that the last time she saw D4 was in May/June 2013 Miss Casia replied, “That I can remember”.  Asked by Mr Laskey if she went to D4’s home in May/June 2013 Miss Casia said she could not remember.  Mr Laskey then put that the last occasion when she saw D4 was when D4 told her that on his last trip to Nigeria he got married.  Miss Casia replied, “I don’t know anything about that”.

405.  In re-examination when asked why she said she remembered the last time she saw D4 was in May/June 2013 Miss Casia replied that she was not really sure and can only remember the last time was Mei Foo.  Asked why she told the police in her witness statement the last time she saw D4 was at Nam Cheong station Miss Casia replied that was what she remembered when she gave the statement but now recalled the last time was at Mei Foo. 

406.  Although at times Miss Casia’s evidence as to when she last saw D4 is inconsistent, looking at Miss Casia’s evidence as a whole and taking into account the events described by Miss Casia were over four years ago, this inconsistency does not cause me to doubt her evidence.  I am satisfied so I am sure that Miss Casia is telling the truth when she says that she lent both the accounts to D4; D4 told her when monies were deposited in the accounts; D4 asked her to withdraw the monies from the accounts and that she withdrew the money which she gave to D4.  

Business

407.  In cross-examination Miss Casia said that she had mentioned to D4 that she was thinking of doing business when she goes home to the Philippines, the business of sending dresses and bags from Hong Kong to the Philippines.  D4 said he would help Miss Casia but he did not help her and nothing happened.  Later in cross-examination Miss Casia disagreed she told D4 that she had started some business. 

408.  In re-examination Miss Casia explained that this was only a plan because she was still renewing her contract and whilst in Hong Kong she did not do any other work. 

409.  I accept Miss Casia’s evidence that she did not do any other work in Hong Kong. 

410.  Having carefully considered all the evidence; approached the evidence of Miss Casia with caution and considered the submissions of Mr Laskey, I find Miss Casia tried her best to recollect the events of late 2012 and early 2013, almost five years ago.  I accept Miss Casia’s evidence that she lent her bank accounts to D4 who informed her when money was deposited in the accounts; asked her to withdraw the money and that she withdrew the money which she gave to D4. 

Dealing with property

411.  I am satisfied so I am sure by using the accounts of Miss Casia the only inference to draw is that D4 together with Miss Casia dealt with the monies particularised in each charge.

Knowing or having reasonable grounds to believe

412.  The Court of Appeal observed in HKSAR v Wong Chor Wo & another at para 108[252]:

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

413.  In the written record of interview D4 said that he had a savings account with the Hang Seng Bank[253] whereas in the video recorded interview the defendant said that he did not have a bank account[254].  The written record of interview was conducted on 17 December 2013 and the video recorded interview was conducted on 25 April 2014[255]. 

414.  In cross-examination by Mr Chau, on behalf of the prosecution, D4 confirmed that he had a bank account with the Hang Seng Bank and that he told the police about this account in the written record of interview.  D4 explained that he told the police in the video recorded interview that he did not have a bank account because the account had been closed after he had been interviewed by the police in December 2013. 

415.  Having regard to all the circumstances, including:

(a) D4 did not report to the Inland Revenue Department any income for himself or on behalf of any company for the period 1 April 2011 to 31 March 2015;

(b) D4 did not have any real property;

(c) Miss Casia gave D4 the ATM card for the Bank of China account;

(d) on the instructions of D4 Miss Casia withdrew money from the accounts which she gave to D4; and

(e) D4 had his own bank account with the Hang Seng Bank,

I am satisfied so I am sure the only inference to draw is that D4 together with Miss Casia dealt with the monies particularised in each charge, having reasonable grounds to believe the monies in each charge in whole or in part, directly or indirectly, represented the proceeds of an indictable offence and that anyone looking at those grounds objectively would so believe.

416.  In reaching my verdict I have carefully considered the submission of  Mr Laskey, including the fact that not one single document contains the name of D4 or links D4 with any of the alleged money laundering transactions[256].  Nothing said by Mr Laskey causes me to doubt the findings I have made. 

417.  I am satisfied so I am sure there are no material and significant discrepancies, improbabilities or omissions in the evidence, which cause me to doubt the findings I have made.  I am satisfied so I am sure the prosecution have proved all the elements of each charge beyond reasonable doubt, each charge being considered separately.  D4 is convicted of charges 6, 7 & 8.

DCCC431/2017

[2018] HKDC 509

ANNEXURE

DCCC 431/2017

[2018] HKDC 509

RULING

1.  The defence objected to the admissibility of three video recorded interviews taken from D1 on 24 June 2013 (exhibit P33); 25 June 2013 (exhibit P34) and 11 September 2013 (exhibit P35) on the grounds of oppression and/or inducements as particularised in the written grounds of objection submitted by Mr Chan[257].    

2.  Guided by the decision in HKSAR v Okafor[258]as applied in HKSAR v Ip Chun Yin[259]these are my reasons for ruling the video recorded interviews admissible in evidence.

Evidence

3.  The prosecution called two witnesses DPC 20920 (PW1), who arrested D1 and conducted the video recorded interviews and DPC 34123 (PW2), who was present when D1 was arrested and monitored the first two video recorded interviews[260].  D1 elected to give evidence.  No witnesses were called on his behalf.

Prosecution evidence

4.  Admitted in evidence is that at 0735 hours on 24 June 2013 DPC 20920 arrested D1 at his home for dealing with property known or believed to represent the proceeds of an indictable offence[261]. 

5.  At about 0825 hours the police including DPC 20920 and DPC 34123 took D1 from his home to the Tuen Mun police station in a government private car, arriving at 0853 hours. During that time nothing was said to D1 or by D1.  

6.  At 0856 hours DPC 20920 served on D1 a Notice to Persons in Custody[262].  D1 had no requests to make.  DPC 20920 then conducted the first video recorded interview between 1110 and 1248 hours which was monitored by DPC 34123.  The next day DPC 20920 conducted the second video recorded interview between 1324 and 1447 hours which was also monitored by DPC 34123.  On 11 September 2013 DPC 20920 conducted the third video recorded interview between 1101 and 1222 hours. 

7.  DPC 20920 and DPC 34123 testified that they did not nor did anybody else in their presence at any time use force, threaten or act oppressively towards D1.  In cross-examination DPC 20920 and DPC 34123 denied the allegations put to them by Mr Chan as particularised in the grounds of objection.    

Defence evidence

8.  D1’s evidence was largely consistent with the grounds of objection.  Specifically, with regard to the first video recorded interview, D1 said that he gave the answers at counters 335-336; 399-404 and 1267-1278 according to the instructions given to him by DPC 20920 when walking to the car[263]; gave the answers at counters 481-490 and 527-534 because he felt DPC 20920 was forcing him to remember and the answers at 757-774; 1059-1060 and 1303-1304 because he thought if he said according to what DPC 20920 had said he would be fine; the case would end and by repeatedly asking him whether the receipt of $30,000-40,000 was unreasonable DPC 20920 was coaching him to agree the receipt of the money was unreasonable[264].   

9.  In cross-examination D1 agreed that DPC 20920 did not tell him to say money was obtained unreasonably. 

10.  Specifically, with regard to the second video recorded interview, D1 said that he gave the answers at counters 27-36 according to the instructions given to him by DPC 20920 in the toilet prior to the interview[265]; and gave the answers at counters 665-668 because DPC 20920 said he must have received $30,000-40,000 and by repeatedly saying this was unreasonable DPC 20920 guided him to answer it was unreasonable[266].     

11.  Specifically, with regard to the third video recorded interview, D1 said that he gave the answers at 681-698; 715-716 and 829-830 because DPC 20920 had previously given him pressure to say the receipt of $30,000-40,000 was unreasonable and gave the answers he was greedy at 839-842 and 1097-1098 because DPC 20920 had said he must have received $30,000-40,000 and spent all the money explaining that if he was not greedy how could he have spent the money[267].     

12.  In cross-examination D1 agreed that DPC 20920 did not tell him to say he was greedy. 

Ruling     

13.  I carefully considered all the evidence and submissions of Mr Chau and Mr Chan.  The issue was one of credibility.  Admitted in evidence was that D1 had no criminal record in Hong Kong[268].  The defendant testified that he had never been arrested before. I directed myself as to good character in accordance with the decision in  HKSAR v Tang Siu Man[269].

14.  I had no hesitation in rejecting D1’s evidence.  I did not find his evidence credible.  The rejection of the defence evidence was not determinative of admissibility. The burden of proving admissibility was on the prosecution to prove beyond reasonable doubt.

15.  Having carefully considered all the evidence I was satisfied so I was sure that the police officers were witnesses of truth who gave credible and reliable evidence. I rejected that DPC 20920 spoke to the defendant on the way to the police car and in a toilet prior to the second video recorded interview. 

Oppression

16.  Mr Chan submitted that the questioning of D1 in the three video recorded interviews was oppressive[270]. 

17.  Oppressive conduct is conduct which tends to sap the will of an accused so that he makes an admission when he would otherwise have stayed silent (see R. v. Prager[271]as applied in HKSAR v Leung John Timothy @ Leung Chiu Ming[272]).  In Secretary for Justice v Lam Tat Ming[273]the Court of Appeal citing Prager affirmed that oppression is conduct by a person in authority which tends to sap and does sap the will of the accused so that he makes the statement. 

18.  The issue of whether or not there has been oppression in a particular case is essentially a question of fact. 

19.  The police have a duty to investigate cases[274].  A police officer has a right to ask questions and can ask the questions more than once[275].  In R v Paris[276] the court said:

“Of course, it is perfectly legitimate for officers to pursue interrogation of a suspect with a view to eliciting his account or gaining admissions.  They are not required to give up after the first denial or even after a number of denials.”

20.  By asking questions the suspect is given the opportunity, should he choose to do so, to explain any of the matters of which the police are investigating.  A time may however come where the questioning becomes oppressive. 

21.  I was satisfied that the questioning of D1, looked at individually and cumulatively was not oppressive.  I did not find anything suggestive of a sapping of D1’s will. 

22.  In the first video recorded interview the defendant explained that he set up Worldwide Trading with a foreigner hoping to do business with him and make some money[277].  The defendant first mentioned receiving $30,000-40,000 at counter 336.  The defendant explained that the foreigner intermittently gave him money saying that profit had been earned[278]. 

23.  At counter 347 DPC 20920 asked the defendant whether he contributed any capital to the company.  Apart from paying the registration fees for opening the company the defendant said he did not contribute any capital and repeated that he was given the money because the company was set up to do trading together[279]. 

24.  At counters 755-758 DPC 20920 repeated the earlier answers of the defendant that he did not contribute any capital and had received $30,000-40,000.  DPC 20920 then for the first time at counter 759 asked the defendant if he found the money was unreasonably obtained.  The defendant repeated his earlier answer that he was told the money was earned. 

25.  When DPC 20920 repeated the question whether the defendant found it was unreasonable that he was given $30,000-40,000 when he had not contributed any money, the defendant replied “right”.  This was followed by DPC 20920, more than once, seeking confirmation from the defendant that he found the receipt of the money was unreasonable[280].  Towards the end of the interview DPC 20920 again sought confirmation from the defendant that he found the receipt of the money was unreasonable [281].

26.  I was satisfied the repeating of the question and seeking confirmation from the defendant that the receipt of the money was unreasonable was not oppressive.  I did not agree with Mr Chan that the defendant changed his answer from a denial to a concurrence[282].  At counter 768 the defendant when saying he found it a little bit unreasonable again explained that the money was earned   I am satisfied there was no sapping of the defendant’s will and that the defendant said what he wanted to tell the police. 

27.  Similarly, in the second and third video recorded interviews, the third interview being conducted nearly three months later, when DPC 20920 asked the same questions and repeated what the defendant had said in the first video recorded interview, the defendant did not answer any differently to what he had said in the first video recorded interview[283]. 

28.  Mr Chan also submitted that there were instances in the first and second video recorded interviews where DPC 20920 criticised the answers given by the defendant thereby making the interview oppressive[284].  I had no hesitation in rejecting this submission. 

29.  In the first video recorded interview there was nothing oppressive in DPC 20920 telling the defendant he should roughly remember how many times he went to the bank to withdraw money.  When asked to remember where he handed over the money to the foreigner the defendant insisted he could not remember.  In the second video recorded interview the defendant said he did not find the setting up of another company implausible (unreasonable).   

30.  The transcript rather than showing the interview was oppressive showed that the defendant was allowed to answer in the way he wanted.  I found there was no sapping of the defendant’s will. 

31.  Having carefully considered all the evidence and the submissions made I found I was satisfied beyond reasonable doubt that D1 gave the three video recorded interviews voluntarily, each interview being considered separately. 

32.  In reaching this finding I carefully considered everything said on behalf of D1 by Mr Chan, including that towards the end of the first video recorded interview DPC 20920 did not stop the interview when the defendant asked to go to the toilet but instead continued with the interview[285]. 

33.  The interview lasted another fourteen minutes during which the defendant did not repeat his request to go to the toilet.   Whilst DPC 20920 should have paused the interview the fact the interview continued did not cause me to doubt the remainder of the interview was given voluntarily, the defendant having again been cautioned. 

34.  Nothing said by Mr Chan caused me to doubt that D1 gave the three video recorded interviews voluntarily. 

35.  At all times the defendant was made aware of his rights having been cautioned at his home; having been served with a Notice to Persons in Custody on arrival at the police station and having been cautioned in all the video recorded interviews.

36.  Applying the principles established in HKSAR v Lam Tat-ming[286]I found no grounds to exercise my discretion to exclude from evidence the video recorded interviews on the grounds of unfairness.