HKSAR v. SO NOK YI AND OTHERS

DCCC 628/2014

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 628 OF 2014

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Reasons for Verdict
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1. My verdict in respect of the charges is as follows.

    The 2nd defendant is convicted on Charges 1, 2 and 4.

    The 3rd defendant will be convicted on Charges 2 and 4.

    The 4th defendant is acquitted of all charges and is discharged.

2. The defendants are alleged to have been involved in a number of conspiracies to defraud.  The conspiracies all involve tricking sellers of goods on the internet to accept payment for goods by way of fraudulent cheques paid into their accounts.  These cheques would not be subsequently honoured by the issuing banks.

3. Contact would be made with the seller by WhatsApp.  Arrangement would be made for the seller to be met by a conspirator, who would authenticate the goods and persuade the seller to accept payment by way of a payment into the seller’s bank account by cheque.

4. The payment would be made by putting a false cheque into the seller’s account using an ATM.  The seller would be shown the purported payment and persuaded to hand over the goods on the strength of the account balance shown at the ATM.

5. The cheque would be dishonoured by the issuing bank.

6. The defendants allegedly had different roles. The 1st and 5th defendants have pleaded guilty.  The 1st defendant was the person who met the seller and persuaded them to accept payment by way of a credit to their bank account by cheque.  The 5th defendant was responsible for the banking by putting the false cheques into the seller’s account by way of an ATM machine.  The 2nd defendant is said to be the mastermind of the whole operation; whereas the 3rd and 4th defendants are said to have been responsible for transporting the 1st and 2nd defendants to the locations where they met the sellers and the 5th defendant to the ATM machine.

7. D1 has given evidence as a prosecution witness.

8. There are totally four separate conspiracies charged, the first being on 28 February 2014, the remaining three being on 7 March 2014.

9. D1 pleaded guilty to the three conspiracies on 7 March 2014.  D2 and D3 are charged with all four conspiracies.  D4 is charged with the three conspiracies on 7 March 2014.

The Issues

10. D2 denied he was the organiser.  He said he had not been with D1 on 28 February, and although he had been present on 7 March, he was not involved in the offences committed by D1 and D5.

11. D3 said he met D1 and D2 on 28 February, but it was only after they committed the 1st offence he became aware of their criminal plan.  He was with them on 7 March, but he had earlier refused to be involved.

12. The 4th defendant admitted he had driven D1, D2 and D3 on 7 March.  He said he only became aware of what they were up to just before he was arrested when D3 told him that crimes were being committed. By that time, all four offences had been completed.

13. The prosecution case consists of the evidence of D1, three of the sellers, the evidence of surveillance officers, arresting and exhibit officers on 7 March and the contents of a Samsung phone found in the car.  The banking operation was proved by banker’s affirmation.  There were video-recorded interviews of the 3rd and 4th defendants which were not challenged.

14. The narrative is as follows.  The 1st defendant said she met the 2nd defendant at a disco in Tsim Sha Tsui.  That is, the DG Disco.  He asked her to do handovers for him.  She would be paid transportation fee.

15. On 28 February, D2 called her in the morning to do handovers.  He gave her a SIM card to communicate with him.  The first handover failed because the seller wanted cash.  That is Charge 1.  Then D2 asked her to go to Tsim Sha Tsui to get a watch.  D2 told the seller his name was Jimmy, and D1 was to do the handover on behalf of Jimmy.  D1 was told by D2 to use the name Kary.  D1 met the seller in Tsim Sha Tsui.  She authenticated the watch.  D2 arranged for a cheque to be deposited.  The watch was sold for HK$70,000.  D1 said she left to go to Mong Kok, where she gave the watch to D2.  The seller, a Mr Chan, gave evidence that the watch was a Panerai, sold for HK$70,000.  He contacted D1 at 2.25 on 28 February.  He gave his bank details to her.  After the cheque was deposited, he checked the balance at the ATM.  As the deposit was shown, he gave the watch to D1.  Later he found that there was no actual deposit.  He later saw the watch for sale in a shop and contacted the police.

16. D1 said that she had seen D2 take the watch to a watch shop, and she waited outside, and they then boarded D3’s vehicle.  D1 had met D3 three months before.  On board the vehicle, D2 gave her $10,000.  D1 then realised she was involved in a fraud.

Charge 2

17. The remaining offences all occurred on 7 March 2014.  D1 gave evidence of other attempted handovers which failed because the sellers wanted cash payment.  She also did not remember or evidence the events relating to the 3rd charge.

18. In respect of Charge 2, D1 said she had gone to Mong Kok MTR to meet a woman selling an orange Hermes bag.  D1 checked its authenticity and agreed a price, she said, of 24,000.  It was actually 21,000. D2 arranged for the deposit of money.  D1 accompanied the woman to an ATM to check that the sum of money would appear to have been transferred.  There was a sum of money transferred, but unavailable.  The bag was handed over to D1.  D1 then went over to a vehicle driven by D4 with D3 and D4 also on board.  D1 gave the orange bag to D2.  The seller, Miss Liu, confirmed she had sold the bag to Kary.  They had met for the handover shortly after 2 pm at HSBC in Mong Kok, where the ATM had been checked.  Miss Liu had given her bank account details to Kary, who had phoned them to her boyfriend.  She checked the ATM to see that the sum was there.  It said unavailable.  Miss Liu gave the bag to Kary.  She thought the sum would soon be available.

19. Following this, D1 said that the 4th defendant drove all of them to Festival Walk in Kowloon Tong, where the events of the 4th charge took place.

20. The prosecution say there was another handover in Mong Kok, which is Charge 3.  As far as Charge 3 is concerned, there is only circumstantial evidence, as D1 did not evidence it.  D1 was unable to recall the events of the 3rd charge.

21. There was surveillance evidence that showed around 1425, D1 had alighted from the car - that is, RR556 - in Mong Kok, and walked to the basement of HSBC to meet a male.  There had been some interaction between them.

22. WhatsApp messages found on the white Samsung phone recovered from the vehicle showed what appeared to be inquiries about the purchase of a watch for 44,000 and for a meeting at HSBC in Mong Kok.  D5 deposited a cheque in favour of Mr Ngai Kam‑hoi to his account at 1500 hours in the sum of $44,000.

Charge 4

23. The handover was outside Broadway at Festival Walk.  D1 used the name Kary and was claiming to make the purchase on behalf of her boyfriend.  The goods were a blue Hermes bag.  There was a 45-minute delay in making the payment.  Eventually the transfer was made, and the bag was sold for, she said, 24,000, but it appears to be 21,000.  The seller was Miss Au.  She met Kary at 4 pm at Festival Walk.  The bag had been checked.  Miss Au gave Kary her bank details on a piece of paper.  Matters were delayed.  Eventually the money appeared in Miss Au’s account, and she gave the bag to Kary.  Later the transfer of funds was said to be invalid, but Kary had gone.  D1 left by MTR and took the bag to D2 outside Langham Place in Mong Kok.

24. When D1 and D2 met, he was on board D4’s vehicle with D3 and D5.  D1 was then sent out with D2 to do another handover.  Shortly after this, they were all arrested.

Surveillance Evidence

25. On 7 March, D1 was under surveillance by the police.  At 1425 the white car, registered number RR556, drove to the vicinity of Langham Place, Mong Kok, and parked.  D4 was the driver.  D3 was sitting in the front passenger seat.  D1 alighted from the vehicle and went to the Mong Kok MTR, where she met the seller in Charge 2.  They both went to the Hang Seng Bank ATM at 1440.  The lady gave D1 an orange bag.  D1 left, and at 1448 the car, RR556, appeared.  D1 got into the car and gave D2 the orange bag.  D1 alighted from the car and went to the basement of HSBC where the third offence is said to have taken place.  She arrived there at 1451.  Around that time, D2 and D3 were seen to appear at the HSBC basement.  They appeared to be observing D1 as she conducted the transaction at that location.  At 1506 D1 left and walked together with D2 and D3 to Langham Place, where the car was parked. They boarded the vehicle.  D4 then drove to Festival Walk where D1 took part in the events of the 4th charge.  Eventually D1 returned to Mong Kok by MTR and went to Langham Place, Portland Street.  She met D2 and D3.  D1 handed the orange bag with the blue Hermes bag inside to D2.

The Arrest and Caution

26. Police intercepted D2, D3 and D4 at 1711 hours in Portland Street, Mong Kok around the vehicle RR556, and D3 and D4 subsequently made explanations in video-recorded interviews.  A white Samsung phone was found in the vehicle, together with the Hermes bags.  WhatsApp messages from the sellers were found and exhibited.  In summary, at the time D3 said that on 7 March D3 had asked D4 to take him for a ride.  D3 asked D1 to join them at 1400.  D3 and D4 had picked up D1 and D2 and asked to be driven to Festival Walk.  D1 had later asked D3 to drive to Choi Hung, where they picked up D5.  On 28 February D1 had introduced D2 to him in Mong Kok.  D2 had asked D3 to participate in the scam of deceiving sellers by depositing invalid cheques.  D3 refused.  D2 asked him to be the driver only.  He would pay $300 for petrol.  D3 drove them to Kwai Chung Plaza and back to Mong Kok.  He was paid $500.

27. D4 said on 7 March, D3 had asked him to come for a meal.  He would treat him and fill up his petrol tank.  D4 drove his mother’s car, and they met in Kowloon Tong.  They drove to Tsing Yi, where they picked up D2 and D1.  They all drove to Langham Place, where D1 left to get a bag.  D2 had asked D4 to drive to Choi Hung Estate, where D5 had been picked up.

28. While they were on their way to San Po Kong, D5 said he had forgotten the cheques.  D2 had been angry.  They had returned to pick up the cheques, and drove to Mong Kok, where D2 had asked D5 to deposit the cheques.  Because of what had been said, D4 had become suspicious.  He asked D3 if they were practising deception.  D3 said it was something like that, but he was only responsible for driving.

29. The fact of the existence of the charged conspiracies, with the exception of Charge 3, was not disputed.  It was argued by each defendant that there was insufficient evidence to show that they had entered into the respective agreements charged.

30. In the defence case, the 2nd defendant, 3rd defendant and 4th defendant each gave evidence.

31. D2 said he had met D1 through D3.  That was at the end of 2013.  He became D1’s boyfriend.  At the time he ran an online florist business.  D1 had told him she wanted to buy Hermes wallets.  D2 said he would look online for her.  He had already become involved romantically with D1’s friend Cody.  This made D1 very angry.  He had not seen D1 or D3 on 28 February or made any calls to them.  He had met D1 on 7 March. She had told him she had made arrangements with the sellers of two wallets to meet them on the 7th.  D1 asked him to come along.  He met D1 at 1 pm in Tsim Sha Tsui.  D4 was driving the vehicle.  D3 was also in the car.

32. In Mong Kok D1 left the vehicle, and later came back with a bag.  She asked D2 to look at the bag to see if it was authentic. D2 checked the bag.  It was genuine.  D1 then asked to be driven to Festival Walk, where she was dropped off in order to meet another seller.  They waited in the car outside.  Eventually D1 came back with the blue wallet.  D2 inspected it and said it was genuine.  Following this, they went to Choi Hung to pick up D5, and then returned to Mong Kok to see a movie, where they had been arrested.

33. D2 said he was not aware that D3 and D5 had been involved in fraudulent transactions involving cheques in relation to the obtaining of the two bags.

34. D3 said that on 23 February he had not met D1 and D2 until after 4 pm.  He drove to Mong Kok to meet D1, and D2 had been there as well.  He saw D2 give a bag to D5.  D2 had been introduced as the deputy CEO of a finance company.  D2 had offered him work depositing cheques that could not be cashed.  D3 had declined, as it seemed to involve cheating others.  He drove them around and was given $500 for petrol.

35. On 7 March he made an appointment to meet D4 for a meal.  They met at Kowloon Tong MTR.  D4 was driving a car.  D1 called him, asking to meet for a meal.  He agreed, and they drove to Maritime Square in Tsing Yi to collect him.  On arrival, D1 was together with D2.  D1 said she had something to do and asked to go to Mong Kok.  They all drove to Mong Kok and stopped at Langham Place, where D1 and D2 got off.  D3 got off with D2.  They went to buy drinks.  D1 called D2, and they went over to the basement of HSBC to see her.  They then boarded the car and drove to Festival Walk at D1’s request.  D1 alighted at Festival Walk.  D2 asked to drive to Choi Hung, where D5 got on board the vehicle.  D2 asked D4 where the nearest Hang Seng Bank was.  D4 checked his phone.  They went to the bank, where D5 got off.  After this, they went to Mong Kok, where D1 handed a bag to D2.

36. The police later arrested them beside the car.

37. D4’s case, as given by him in evidence, is that he was only a driver.  He only became suspicious of the fraudulent activities after D5 was picked up at Choi Hung.  D5 spoke about being followed by police. When they reached Mong Kok, D4 asked D3 what was going on.  After D3 answered, D4 said he knew they were committing frauds.  Of course, by then all four offences had been completed.

The Charges

38. There are four charges of conspiracy to defraud, contrary to Common Law and section 159C(6) of Cap 200.  The dates and victims are different, but the common dishonest false representations pleaded in each charge are:

(a) that the said So Nok-yi’s - that is, D1 - partner or friend had deposited a sum as the purchase price for a piece of goods the said seller would then sell to the said So Nok-yi;

(b) that the said sum of money had been deposited to the bank account of the said seller; and thereby

(c) causing and inducing the said seller to part with this piece of goods to the said So Nok-yi.

39. The legal requirements are the essence of a conspiracy is an agreement to commit a criminal offence, and the prosecution must prove beyond reasonable doubt that each defendant agreed to join the conspiracy, intending to commit the criminal offence which is the object of the conspiracy, and have the requisite mens rea to that effect.  The defendant must also be dishonest and intend to defraud the victim.  To conspire to defraud is to become a party to an agreement with another or others to use dishonest means:

(a) with the purpose of causing economic loss to or putting at risk the economic interest of others, or with the realisation that the use of those means may cause its loss or put its interest at risk.

40. In determining whether the means agreed are dishonest, it is appropriate to apply the two-stage test found in the case of Ghosh.

41. The case against each defendant is to be decided separately.  The evidence of admissions and recorded interviews of defendants only provides evidence against the defendant who made that admission.

42. There was a common issue of all defendants that the prosecution could not prove the conspiracy alleged in the 3rd charge that that conspiracy existed.  In this charge, D1 gave no evidence on this charge.  The alleged victim, Ngai Kam‑hoi, did not give evidence.  The evidence came from the following sources:  surveillance evidence that D1 disembarked from RR556, walked to the basement of HSBC building, and met a man; that the WhatsApp messages found on the white Samsung telephone in RR556 appeared to show inquiries about the purchase of a watch for $44,000; the meeting for sale had been arranged for HSBC in Mong Kok at 1430, the seller arriving at 1448.  D5 deposited a cheque at 1500 hours.  The cheque was for 44,000 to the account of Mr Ngai Kam-hoi.  The cheque was not honoured.

43. The prosecution say that from these facts the existence of the 3rd charge of conspiracy can be inferred.  Such inference must be irresistible.

44. I find in the absence of either the victim or D1’s evidence the nature of the agreement must remain opaque.  That charge fails and must be dismissed against D2, 3 and 4.

The Remaining Charges and Defendants

45. D2 faces Charges 1, 2 and 4.  D2 does not appear to contend that the alleged conspiracies did not exist.  It must be conceded that they did and their operation was fraudulent.  What is said is that the only evidence linking him to these agreements comes from unreliable sources such as the accomplice witness, D1, and fellow defendants who all have their own interests to serve.  It is said this evidence should be rejected. 

46. Simply stated, D2’s case is that he was not involved on 28 February and that in relation to 7 March, he was there to help D1 authenticate her purchases.  He was ignorant of D1 and D5’s fraudulent operation.

47. D1 in her evidence claimed to place him as the mastermind of the operation and the director of each individual agreement to defraud.  It is her evidence he gave her the story to tell to the seller, arranged the meeting with the seller, provided her with a SIM card to make contact, and paid her for her efforts.

48. Were D1’s evidence to be accepted as truthful and reliable, then it would provide clear evidence of D2’s guilt on each charge.  D2 submitted that D1 was a dishonest and unreliable witness.  It was said she had been inconsistent about when she agreed to work for D2.  She had mentioned incidents that did not appear in any of her interviews.  She was inconsistent as to how much she was paid; as to why she needed the money; she was lying about whether the 2nd defendant had been her boyfriend; she had certainly mentioned her boyfriend when talking to the sellers of the goods, saying that certain of the goods were a gift from her boyfriend and that her boyfriend was queuing at the bank.

49. When considering the 1st defendant’s evidence against the 2nd defendant, I bore in mind that she was an accomplice.  She was heavily involved in the crime.  There is always a need for caution in approaching the evidence of a participant in a criminal enterprise.  She was giving evidence no doubt with the expectation of a reduced sentence for her crimes.  There is always the risk of exaggeration in such circumstances. 

50. I also considered the matters raised by the 2nd defendant in submission, particularly the inconsistencies, and also that at times the 1st defendant had difficulty in remembering her total involvement.  For example, she completely omitted the events relating to the 3rd charge.

51. The 1st defendant was required to recollect many details.  It is hardly surprising she was confusing as to some of the facts, particularly as to matters as to when she first met a particular defendant or friend, how much she was paid on a particular occasion, or what the agreed price for a particular bag or watch was.

52. My overall impression of the 1st defendant was that she was trying her best and that she was truthful and reliable about the salient features of these conspiracies.

53. There was clear, reliable supporting evidence from the victims of the banking transactions for the existence of the conspiracies in Charges 1, 2 and 4.  In respect of the charges, the evidence of the 4th defendant also implicated the 2nd defendant.  D4 was present when D2 arranged for the 5th defendant to deposit the cheques in San Po Kong in relation to Charge 4.  D4 also confirmed the Samsung phone used in negotiations with the sellers belonged to D2.

54. I noted the coincidences made by D2 and D4’s testimony.  However, they were clearly truthful observations by them.

55. D2’s evidence is also quite unbelievable.  He simply claims that the 1st defendant, the 3rd defendant and the 4th defendant are all lying when they implicate him.  His own explanation is improbable.  He said the 1st defendant asked him along on 7 March to authenticate Hermes bags, yet she only brings them over for his authentification after she has purchased them.  D2 has to say this because this is what the surveillance evidence shows, yet it results in D2 having to make up what is a transparent falsehood.

56. The weight of the evidence clearly exposes the 2nd defendant’s evidence as untruthful, and I reject it in its entirety.

57. There is clear reliable evidence on each charge that shows that D2 was part of the agreement to defraud on each charge he faces.  On Charge 1, the evidence of D1 is that D2 had taken her to do the handovers and given her a SIM card.  He instructed her to go to Tsim Sha Tsui to deal with the handover of the wallet.  D1 was told to inform the seller she was a friend of Jimmy, a name D2 had told her he was using in negotiations with the seller.  D1 gave D2 the bank details of the seller.  D1 gave the watch to D2.

58. D3 also told us that he saw D1 give a bag to D2.  He also explained the nature of the scam to D3.

59. All this evidence, which I accept, is compelling evidence of the 2nd defendant’s involvement in the overt acts of this conspiracy and provides compelling evidence of his part of the agreement charged, and he is clearly guilty of the conspiracy charged in Charge 1.

60. In respect of Charge 2, D1 met the seller on the arrangement of D2 and sent the details of the seller’s bank account to D2, handed the Hermes bag to D2 - this was observed by surveillance officers and D4 - and again, this evidence is truthful and reliable and fully proves D2’s participation in the agreement charged in the 2nd charge.

61. In respect of Charge 4, D1 was delivered to Festival Walk.  D1 was instructed to say that it was a gift from her boyfriend and arrange to transfer the funds.  The bag was delivered to D2 by D1 in Mong Kong.  D4 said that D2 had asked him to drive to Festival Walk, and after D5 was picked up in Choi Hung, D5 was asked about the cheques by D2.  D4 also located the bank and delivered D5 to the bank at D2’s request.  D4 also said he heard D2 give D5 an account number over the white Samsung phone.  Surveillance also confirmed that D1 handed over the orange Hermes bag to D2 in Mong Kok.

62. Again, all this evidence, including D1’s evidence, provides clear and cogent evidence of the 2nd defendant’s part in the conspiracy in Charge 4, and I convict him of that offence.

63. Turning to D3, D3 faces Charges 1, 2 and 4.  On Charge 1, D3’s case is that he drove D1 and D2 only after the offences were completed on 28 February, and that on 7 March he was merely a passenger and not part of any agreement.

64. In respect of the 1st charge, D1 said she gave the watch to D2 in Mong Kok, where they boarded D3’s vehicle.  In cross‑examination she agreed this occurred at 4 pm after the offence in Charge 1 was completed. This was in accordance with D3’s evidence.  It was only then that D2 had asked him to deposit cheques, which he refused.  He drove them to Richland Gardens, where he was paid $500 for petrol.

65. In respect of the other charges, D1 was unable to say anything about D3 other than that he was in the car and that there was no discussion about what they were up to.  D3 said he was there on 7 March as a result of wanting to meet D4 for a meal, which is also D4’s version.  D3 said D1 had asked him to pick her up.  She did not confirm this.  He got off the car with D2 to get a drink in Mong Kok.  He also suspected D5 of depositing cheques, but said he did not actually know what he was doing.  He had also commented on the value of one of the wallets that D1 had given to D2.  Otherwise, he was simply a passenger offering no actual assistance to anybody.

66. In submission it was said that D1 did not appear aware of his participation in the agreement.  The prosecution referred to what D3 had said in his video-recorded interview, where he said that on 28 February he met D1 and D2 at 1.30 pm, when D2 told him about the arrangement of depositing false cheques and defrauding sellers.  D3 said that after that, D1 got into the car with a bag of things, that he drove them to Kwai Chung from Mong Kok, where D2 taught D1 what to say to the customer.  They alighted the car in Kwai Chung and returned with the bag.  D5 was contacted and given a bag to sell by D2.  D3 then drove them to Richland Garden.  He said they left Kwai Chung at 2.30 pm and arrived in Mong Kok at 3 pm.

67. The evidence of the victim in Charge 1 was that he met D1 at the basement of the one in Tsim Sha Tsui at 2.25 pm.  This is when D3 says he is at Kwai Chung.  D1 says that they met only after this offence was completed.  It is clear that the admission in the video-recorded interview was at odds in both location and timing to the commission of the first offence.

68. His participation in that agreement therefore cannot be proved beyond reasonable doubt and is dismissed.

69. The remaining charges are Charges 2 and 4.  The prosecution say that by 7 March, D3 was well aware of the scam, that he arranged for D4 to drive and provide transportation for D1, D2 and D5 whilst they committed Charges 2 and 4, that D3 paid for the petrol expenses, which illustrates his responsibility for providing transportation.

70. D3 admits he was present throughout and had asked D4 to drive him.  He was aware of D1 bringing back wallets to the car and D5 using the ATM to deposit cheques.

71. The defence say that there is no other evidence other than that D3 was a passenger.  He may suspect or even know what was going on, but that is not the same as being part of an agreement to commit the offences.  There was no role for D3 to play.  He had not even been there in the morning when D1 and D2 were involved in a failed fraudulent attempt to get a watch.

72. D1 does not say D3 arranged or was asked to arrange transport.  The only evidence on this is what D3 and D4 say, which is they were meeting for a meal, when D2 asked to be taken to Mong Kok after D1 was picked up.  Thereafter it was D2 who provided instructions to go to Kowloon Tong and Choi Hung.  They say there is no evidence of D3 being anything but a passenger, his mere presence in these circumstances not being sufficient evidence to draw the irresistible inference that he was party to the two agreements charged.

73. The undisputed evidence shows that D3 was fully aware of the modus and details of the agreement to defraud sellers on 28 February when D2 had told him that, and D3 was amenable to provide transportation on the basis of receiving payment.  On 7 March, the 3rd defendant had arranged with the 4th defendant to provide the transportation. It was the 4th defendant’s mother’s car.  D3 remains in the vehicle except to get out with D2 as shown by the surveillance.  He remains in the company of D2 when they go to see D1.

74. Later on, after dropping D1 and collecting D5, D3 pays for petrol, as evidenced by D4.  This appears to show the 3rd defendant accepts responsibility for the provision of fuel or the cost of provision of fuel, which is one of the responsibilities of a conspirator or person who is party to that agreement.

75. I find that these facts do in fact provide a clear basis on which to draw the irresistible inference that the 3rd defendant was part of the agreement in the 2nd and 4th charges.  In reaching this conclusion, I reject that part of the 3rd defendant’s evidence where he says he was only a bystander or passenger.  I find that to be untrue and contrary to a rational assessment of all the evidence in his case.

76. The 3rd defendant is convicted of Charges 2 and 4.

77. As far as the 4th defendant is concerned, he faces the two remaining charges on 7 March.  He is alleged to have entered the two conspiracies by agreeing to be the driver.  The evidence against him consists of his admitted presence driving the vehicle at the relevant times and the contents of his video‑recorded interview explanation to the police.

78. The prosecution asks that the exculpatory part of that statement be rejected and that I draw the inference from the other undisputed facts that D4 was in fact a party to the necessary agreements.

79. The case of D4 was that he only became fully aware of the fraudulent nature of D1’s and D2’s activities when D3 told him just prior to his arrest.  It was observed that the 1st defendant did not know D4.  D1 gave no evidence that implicated D4.  There was no evidence of any discussion of the frauds by the parties on 7 March.  There was no evidence that D4 left the car on 7 March.  What there is evidence of was that there was a discussion that occurred when D5 was collected.  D5 mentioned that he thought he was being followed by the cops.  D4 drove D5 to the bank and was aware of D2’s feeding his account details over the phone.  D4 said he found this suspicious, yet he did not have a clear picture.

80. The fact that he was unclear is evident in his question to D2 in Mong Kok when he asked, “What are we doing?  Things like stealing, cheating, conducting frauds?”

81. The 4th defendant gave evidence.  His evidence was in much the same terms as his video-recorded interview.  I did not find that the 4th defendant’s explanation was necessarily shown to be false in cross-examination.  Clearly his explanation is possible and consistent with other evidence in the case.  This evidence is capable of introducing reasonable doubt as to whether D4 ever had the necessary knowledge and intent when he agreed to drive the car.

82. He is therefore acquitted of the two charges he faces.