HKSAR v. WOO YUET SIM AND ANOTHER

DCCC 1088/2015

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL ACTION NO 1088 OF 2015

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REASONS FOR VERDICT

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INTRODUCTION

1.  The second defendant (D2) faces 11 charges of lending money at an effective rate of interest which exceeds 60% per annum, contrary to s 24(1) and (4) of the Money Lenders Ordinance, Cap 163, commonly known as “loan sharking”.  (Charges 1 to 11)  The offences are said to have spanned a period of 4 years between 8 August 2005 (for Charge 3) and a day unknown in August 2009 (for Charge 10).  The respective dates of offences, loan amounts and borrowers concerned are listed in the Schedule attached.

2.  Besides, D2 is jointly charged with the first defendant (D1) for one charge of conspiracy to deal with property known or believed to represent proceeds of an indictable offence, contrary to s 25(1) and (3) of the Organized and Serious Crimes Ordinance, Cap 455 (“OSCO”) and ss 159A and 159C of the Crimes Ordinance, Cap 200.  The offence, which is commonly known as “money laundering”, is said to have occurred between 4 May 2009 and 14 May 2011 and the property concerned was a total sum of $4,336,000.01 Hong Kong dollars in D1’s bank account held with the Hongkong and Shanghai Banking Corporation Limited (“HSBC”). (Charge 12) 

MAJOR ISSUES

3.  As regards Charges 1 to 11, judging from the way the prosecution witnesses who were named as borrowers (“the borrowers”) were cross-examined, there can be little dispute that each of them had in fact obtained loans and paid interests.  However, of all the borrowers only PW8 could identify D2 as his lender.  Apart from identity, there is also an issue of reliability of the evidence of the borrowers concerning details of their respective loans.  In particular, it is noted that the borrowers were only asked to give their first statements to the police about 4 or 5 years after the incidents they testified about.  In addition, many of the borrowers had at the material times borrowed from different sources.  Therefore, their memory of the loans which are the subject matters of the charges is naturally called into question.  On the other hand, D2’s case is that he did not know any of the borrowers and had not lent money to any of them.   

4.  As regards Charge 12, there is no dispute that D1 had let D2 have the use of her aforesaid HSBC bank account and she had since retained no control over it.  Also, D2 does not dispute the monies subsequently deposited into D1’s bank account were in fact his.  The prosecution case is that D1 agreed to let D2 use her bank account when she had reasonable grounds to believe that D2 would use it to launder his proceeds of indictable offence.  As regards D2, even though the prosecution say that the deposits, or at least some of them, were his proceeds so that he must have known about their nature, perhaps out of abundance of caution they also say that D1 at least had reasonable grounds to believe that the deposits were proceeds of an indictable offence.  As regards the defence, D2 says that the proceeds came from his trading in parallel goods which was legitimate.  It is the case of both defendants that they had neither knowledge nor reasonable grounds to believe that the monies were proceeds of any indictable offence. 

LEGAL PRNICIPLES

General

5.  I bear in mind that the burden is on the prosecution to prove their case beyond reasonable doubt.  Moreover, the case against each defendant is to be considered independently and separately.  In case of D2 who is facing more than one charge, each of his charges is also to be considered independently and separately.  On the other hand, the defendants are not required to prove anything.  D1 chose not to give or call any evidence.  This is her right and no adverse inference would be drawn because of the exercise of this right.  As regards the evidence of D2, when considering his credibility, the tribunal of fact should not only have regard to that which it is satisfied is true, but also to those facts in the defence evidence which it finds might be true: Lee Fuk Hing v HKSAR.[1]  

6.  Insofar as the prosecution relies on any inferences to support the charges, such inferences are not to be drawn against any of the defendants unless they are the only reasonable interferences available from the direct facts proved: Kwan Ping Bong & Another v R.[2]  

7.  Both defendants had made statements under caution which are adduced by way of admitted facts.  Their respective statements under caution are “mixed statements” which contain both inculpatory and exculpatory parts: see HKSAR v Yuen Man Tung.[3]  Both the inculpatory and exculpatory parts are evidence for the purpose of determining where the truth lies.  It is trite law, however, that the court, as the tribunal of fact, is entitled to attach different weights to different parts of a defendant’s out of court statements: see generally Criminal Evidence in Hong Kong, by Bruce & McCoy, at V[1203]-[1250].

8.  Furthermore, I remind myself that what one defendant said under caution is not evidence against the other and that the court would not compare out-of-court statements given by different defendants to determine if they are true: see Wong Wai Man & Ors v HKSAR;[4] and also generally Criminal Evidence in Hong Kong, ante, at V[1055]-[1100].  On the other hand, under the principle in R v Myers (Melanie),[5] the contents in defendant A’s cautioned statement which were favourable to defendant B could be used in support of defendant B’s defence: see HKSAR v Ho Ching Wah.[6]

9.  Both of the defendants have a clear record.  In the case of D1, even though she did not give evidence, she seeks to rely on what she said in her statements under caution.  In the circumstances, I give myself the good character direction in favour of each of the defendants in relation to both propensity and credibility: Tang Siu Man v HKSAR (No 2).[7]

Conspiracy

10.  S159A(1), Crimes Ordinance[8] defines what a statutory conspiracy is.  It is the agreement to commit an offence and the intention to take part that form the offence of conspiracy: see R v Anderson.[9]  A conspiratorial agreement can be expressed or implied or partly expressed and partly implied. Proof of its existence is generally a matter of inference: see R v Brisac;[10] and Churchhill v Walton.[11]

S25 of OSCO

11.  Monies passing through a bank account are clearly property: see the definition of “property” in s 2, OSCO as read with the definition of “property” in s 3, the Interpretation and General Clauses Ordinance, Cap 1.

12.  The actus reus of an offence under s 25, OSCO is “dealing” with property.  “Dealing” in relation to property is defined in s 2(1) of the Ordinance and it includes (insofar as it is relevant to the present case):-

(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.

13.  The mens rea of an offence under s 25 has two limbs: “knowing” or “having reasonable grounds to believe”.  The court has repeatedly pointed out that the prosecution do not have to prove, as an element of an offence under s 25, that the property concerned in fact represents the proceeds of an indictable offence.  The quality of the property being such proceeds is an element in the mens rea but not the actus reus: see HKSAR v Wong Ping Shui;[12] Oei Hengky Wiryo v HKSAR (No 2);[13] and HKSAR v Yeung Ka Sing Carson. [14]

14.  As to the test for determining whether an accused had “reasonable grounds to believe”, in Carson Yeung’s case the court confirmed their earlier decision in HKSAR v Pang Hung Fai[15]that the test is that propounded by the Appeal Committee in Seng Yuet Fong v HKSAR,[16] 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.”

15.  Moreover, in deciding whether a defendant had reasonable grounds to believe, the applicable standard is whether on the grounds available to him, the accused would have been led to have the requisite belief.  In determining this, the defendant’s beliefs, perceptions or prejudices are to be considered and given such weight as is warranted.[17]  The conclusion which a court reaches on the issue of whether a defendant had the relevant reasonable grounds to believe depends on the state of the evidence.[18] 

16.  As regards the indictable offence on which the money laundering is predicated, in HKSAR v Yang Sigai[19] the Court of Final Appeal stressed that under the second limb, there is no requirement that it must be proved that accused was actually aware of the crime that produced the relevant property dealt with by the accused.  The court also rejected the submission that it must be shown at least the accused knew of the nature of the activity that has brought about the property deal with.  Reference was made to the following paragraph from Carson Yeung’s case:-

“44. The current offence therefore focuses on the property – “any property” – and on the circumstances surrounding the defendant’s acts of dealing with that property. Obviously, if he can be proven to have known that the property represented someone’s proceeds of an indictable offence, the offence is established. But, if the defendant does not know for a fact that the property represented such proceeds (as is likely to be the case with professional money launderers who would make it their business not to know), it is sufficient for the prosecution to establish that, given the circumstances of which he was aware, surrounding his dealing with the relevant property, the defendant had reasonable grounds to believe that it represented the proceeds of someone’s indictable offence, whether committed in Hong Kong or abroad.”

17.  Lastly, although the Court of Appeal in HKSAR v Salim Majeb[20] rejected the submission made on behalf of the respondent that the judgment of the Court in HKSAR v Wong Chor Wo & Another[21] was authority for the proposition that “the lending by an account holder of the use of his account to a third party constitutes, by itself, a dealing with property” for the purposes of the offence of money laundering”, it went on to observe:[22]

“ That a person lends the use of their account to another is clearly a very important primary fact from which inferences may be drawn, both as to the account holder’s joint participation with the third party in any subsequent criminal use of the account and as to his state of mind in respect of the transactions involved in that subsequent use. However, what inferences can be drawn, and what inferences should be drawn will always be a fact sensitive matter which will vary from case to case.”

The above passage is followed in the recent judgment of the Court of Appeal in HKSAR v Jariabka Juraj[23] which was decided after the judgment of the Court of Final Appeal in Carson Yeung’s case.

PROSECUTION EVIDENCE

Charges 1 and 2

18.  The prosecution evidence of the loans which were the subject matters of these two charges comes mainly from PW4 who is a goods delivery driver.  PW4 gave evidence that after he was declared bankrupt in 2005 he asked his then girl friend Chan Yuen Yee (PW5) to open for him a bank account in her name.  PW5 complied and opened an account with Hang Seng Bank.  PW4 obtained the bank card from her and since then had the sole use of the bank account. 

19.  PW4 said further that after bankruptcy he was unable to obtain any loans from financial institutions.  Through the introduction of a friend, PW4 borrowed money on several occasions from a person whom he addressed as “Ho Pak” (Uncle Ho) to ease his cash flow.  The first such loan was obtained in 2005 for $20,000 for which PW4 agreed to pay an interest of $2,000 every 15 days.  Subsequently, he met Ho Pak in the vicinity of Silver Spring Sauna in Portland Street, Mongkok and received $18,000 cash from the latter.  PW4 believed that the shortfall of $2,000 was deducted for interest. PW4 was given a piece of paper by Ho Pak written with details of a bank account for making repayment.  It appeared to PW4 that the name of the account holder belonged to a female.  It took him several years to clear that debt.  However, I note that this incident is not the subject matter of any charge.

20.  PW4 said in the years ensuing 2005 he had obtained further loans from Ho Pak.  PW4 said that he borrowed $1,000 and several hundreds in 2006 and 2007.  The interest was also 10% of the principal for every 15 days, so that in case of a loan of $1,000 the interest would be $100 for an installment, whereas in case of a loan of $300 the interest would be $30.  He made all the repayments by way of transfer deposit via ATM through PW5’s bank account.  After each repayment, PW4 would inform Ho Pak.  PW4 said also that in early 2009 he borrowed $5,000 from Ho Pak because he needed cash flow for the Chinese New Year and the terms of that loan were similar to the previous ones.  Again, I note the last mentioned loan of $5,000 is not the subject matter of any charge. 

21.  However, PW4 was unable to remember the dates or even the months of his loans:-

(i) As regards Charge 1, when PW4 was first referred to and asked about a credit entry of $1,000 in the bank account of Chan made on 17 November 2006,[24] he was unable to recall what that money was about. Even after PW4 had refreshed his memory by reading his (second) police statement,[25] he answered in a hesitant manner, saying “I think may be money I asked Ho Pak to lend me”.

(ii) As regards Charge 2, before PW4’s attention was drawn to the credit entry of $300 on 13 October 2007 ([P3], B9), his evidence was that he had borrowed several hundred dollars from Ho Pak rather than giving an exact amount of $300. When PW4 was asked what that $300 credit entry was about, he said he had no recollection. It was only after he was allowed to refresh his memory for a second time from his aforesaid police statement that he said that the $300 was also a loan from Ho Pak.

22.  Moreover, PW4’s cross-examination revealed further problems concerning his evidence about the $1,000 and $300 which he said were loans from Ho Pak:-

(i) PW4 did not in fact have any independent recollection about the two aforesaid credit entries of $1,000 and $300 and his evidence about them depend almost solely on what was contained in his police statement which was made 4 to 5 years after the event;

(ii) PW4 had not mentioned anything about the two relevant credit entries in his first police statement made in August 2011;

(iii) the way the police took statement from PW4 is also problematic in that the statement taking officer had pointed out the two sums in the bank records and asked PW4 if they were loans from Ho Pak. It is therefore doubtful whether PW4 could have recognized the entries, had the statement taking officer not pointed them out to him; and

(iv) as shown in the bank statement, there were in fact many other credit entries of relatively small amounts around the material periods of time. For example, there were other credit entries of $1,000 on 5 June 2006 and 30 November 2006 respectively and there were a number of credit entries each of them of a few hundred dollars both before and after 13 October 2007. PW4 agreed that during that period of time he had borrowed money from other people as well. He agreed further that the two credit entries on 17 November 2006 and 13 October 2007 relied upon by the prosecution could have been loans from persons other than Ho Pak.

23.  That said, there were bank entries in D2’s bank account held with Hang Seng Bank[26] showing that:-

(a) as regards Charge 1, on 17 November 2006 there was a transfer of $1,000 to PW5’s bank account; and

(b) as regards Charge 2, on 13 October 2007 there was a transfer of $300 to PW5’s bank account.[27]

Charges 3-6

24.  The evidence of these charges comes mainly from Lau Wai Hung (PW1) who works in the Post Office.  PW1 gave evidence that he was in financial difficulties in 2000s and he borrowed from various finance companies. 

25.  Subsequently, through the introduction of a friend PW1 got a telephone number of a person called “Ho”.  It seems to PW1 that Ho was the surname but he was not sure.  PW1 rang that number and addressed the man he spoke to as “Ho Sang” (Mr Ho) and the latter responded to that address.  PW4 asked for a loan of a few thousand dollars to 10 thousand dollars.  However, because of the long lapse of time, he could not remember the exact amount of the loan.  After refreshing his memory from his bank records,[28] he said the loan was made on 8 August 2005 and for $5,000, which was to be repaid within a month together with an interest of $500 to $1,000.  PW1 said nothing was discussed as to what would happen if he failed to repay the loan within one month.  Later, PW1 said he cleared the debt within a month and he repaid a total of $5,500 including interest.  The repayment was made by way of deposit into a bank account designated by the other side but he no longer kept the account number.  (Charge 3)

26.  PW1’s attention was drawn to a deposit of $5,000 made to his bank account on 16 August 2006[29] which, he said, was another loan from Ho arranged through a phone call.  For that second loan, he had to repay a total of $5,500 to $6,000 (interest included) within a month.  He said he could not remember the exact amount of interest.  Similar to the previous occasion, the repayment was made by way of deposit into an account nominated by the lender.  (Charge 4)

27.  Then, PW1’s attention was also drawn to a deposit entry of $10,000 made to his bank account on 16 February 2007 which he thought was yet another loan from Ho.  He said that he had to repay $12,000 within a month.  He added that if the loan was not settled within a month, then he would have to pay interest.  He said that he settled the loan within a month and the repayment was made to an HSBC bank account.  He could not recall whether the same account number was given to him for making repayment on the previous occasions.  He thought that an HSBC account had also been used on those occasions.  (Charge 5)

28.  Lastly, he was asked about a deposit entry of $8,000 made on 7 September 2007 to his bank account.[30]  He said that it was also a loan from Ho arranged through a phone call and for which he had to pay an interest of $1,000 to $2,000 within one month which he did in October. Again, the repayment was made by depositing money into a HSBC bank account nominated by Ho.  He could not recall whether it was the same HSBC bank account as before.  (Charge 6)

29.  Concerning the lender, PW1 said he met Ho only once about 10 years ago at the time of the first loan.  The purpose of that meeting was for PW1 to give Ho a photocopy of his staff card.  PW1 could not recall where they met but said it would be in Mongkok. 

30.  In cross-examination, PW1 agreed that he had also borrowed money from family members and therefore it is possible that they had deposited monies into his bank account through ATM.  One such example of that was the deposit of $9,000 made on 14 February 2007.  PW1 said that when the police showed him ([P4], B1), he remembered that he had borrowed money.  I note that there were only two entries on B1, a deposit of $5,000 on 8 August 2005 and a withdrawal of the same amount on the same day.  PW1 agreed, however, that by just looking at the credit entry, he could not tell whether it was a loan from Ho or not.  The same also applies to the other three credit entries that he was asked about in his examination-in-chief.  PW1 also agreed that he could not remember the exact amount of interest that he had paid for the $8,000 loan in September 2007 (Charge 6).  He agreed that he had said in his witness statement that the interest for that loan was $800 instead of $1,000 to $2,000 as he said in the examination-in-chief.  

31.  Besides PW1’s evidence, there were entries in D2’s account held with Hang Seng Bank showing that:-

(a) as regards Charge 3, on 8 August 2005 there was a transfer of $5,000 to PW1’s bank account;[31]

(b) as regards Charge 4, on 16 August 2006 there was a transfer of $5,000 to PW1’s bank account;[32]

(c) as regards Charge 5, on 16 February 2007 there was a transfer of $10,000 to PW1’s bank account;[33] and

(d) as regards Charge 6, on 7 September 2007 there was a transfer of $8,000 to PW1’s bank account.[34]

Charge 7

32.  The evidence of this charge comes mainly from Lai Yung Kan (PW2) which to a limited extent is supported by the evidence of his former wife Fung Choi Yin (PW3).  PW2 is a retired CSD officer.  PW2 and PW3 had a son and a daughter from their marriage.  In 2004, PW2 was declared bankrupt and since then he was unable to obtain loans from financial institutions. 

33.  According to PW2, prior to his formal divorce in or around 2008, he had already been living apart from his family and staying with his then girl friend.  During that period, he had to pay PW3 and the children for their monthly living expenses.  That he did by depositing money into PW3’s bank account held with HSBC.  In March or April 2007, PW2 had difficulties paying PW3.  Through the introduction and arrangement of a work colleague, PW2 went to meet a man in a café in Mongkok.  Prior to that meeting, PW2’s colleague had already told him that the interest would be $2,000 per month.  PW2’s colleague had also told him that the lender was called “Simon”. Yet, during the meeting PW2 did not address the lender by any name and the lender had not introduced himself either. PW2 obtained from Simon $10,000 cash and Simon gave him a piece of paper with details of a HSBC bank account for PW2 to make repayment.   For that loan, PW2 repaid Simon a total $12,000 (principal and interest inclusive) in the following month through a cash deposit machine and he informed the lender by phone after the deposit was done.  I note, however, that the aforesaid loan is not the subject matter of any charge. 

34.  Towards the end of the first day of his evidence[35] when PW2 was asked whether he had obtained any further loans from ‘Simon”, he answered in the negative.  However, in the following morning[36] when PW2 continued his in-chief, he indicated that he had something to correct.  It later transpired that PW2 had read his police statement the previous night without leave of the court.  PW2 said that by the end of 2007 he had difficulties paying his family their living expenses again.  Therefore, he obtained from his aforesaid colleague the telephone number of Simon again, rang that number and asked for another $10,000.  The male who answered the call agreed to lend the money to PW2.  It appeared to PW2 that the male who answered the call was the same Simon whom he met on the previous occasion in the café in Mongkok.  PW2 provided the account of PW3’s bank account to Simon.  This time PW2 did not discuss with Simon about the interest, as he assumed that it would also be $2,000 a month.  For this second loan of $10,000, in the first two months PW2 did not have sufficient money to settle.  Therefore, PW2 paid two installments of interest at $2,000 each.  In the third month, he cleared the debt by repaying a total of $12,000.  When PW2 was asked why he was able to remember this second loan, he said that that was because he had been invited by the police to give a statement during which he was presented with the bank statement of his former wife showing a deposit of $10,000.

35.  PW3 gave evidence that she had only given her bank account details to PW2 so that if there were any deposits they must have come from him.  PW3 said also that PW2 was supposed to deposit living expenses into her bank account on the first or second day of each month after he had received his salary.  The payment from PW2 was not fixed and they ranged from $7,000 odd to $10,000 a month.  There were occasions that PW2 was late in paying and when that happened she would call and tell him that she had no money to spend.  PW3 said that prior to her formal divorce with PW2 she had no source of income other than the payment from him.  However, she did not know where PW2’s monies came from.  PW3 could not remember what the deposit of $4,000 on 14 December 2007 (which apparently was not from PW2) was about. 

36.  There are several difficulties with PW2’s evidence which bear on his reliability including the fact that he was testifying about events which had happened almost 9 years ago.  The following serve as examples:-

(i) he was not sure as to when he started living apart from his family and staying with his then girl friend, whether it was mid-2007 (as he said in his first answer), or early 2007 (after he was reminded of his evidence that his first loan from Simon was in March/April 2007) or in 2006 (as mentioned in his statement to the police made in March 2012);

(ii) at first, he was unable to remember the second loan. He gave evidence as to the existence of the second loan (the subject matter of Charge 7) only after he had read his statement without leave;

(iii) his statement to the police was made only in March 2012 which was almost 5 years after the event;

(iv) he was able to give the date of the second loan just because the statement taking officer showed him PW3’s bank record; and

(v) what the police showed to PW2 was a one-page document ([P5], B1) showing the activities of PW3’s account just between 11 and 17 December 2007. More importantly, it appears that the entry on 13 December 2007 was underlined before it was shown to PW2. Furthermore, PW2 agreed that it was only his guess that the deposit was the loan from Simon.

37.  Apart from the above, as regards interest under cross-examination PW2 agreed that there was no discussion about that between him and Simon at their meeting in the café in Mongkok.  He simply relied on what he had been told by his colleague.  As regards the second loan, he just assumed that the interest would be the same as before and he made two interest payments of $2,000 without being chased. 

38.  As regards identity, PW2 had only met Simon once.  According to him, the second loan was months after the first one and during the interim he had no contact with Simon.  PW2 agreed under cross-examination that it is possible that the person who spoke to him over the phone about the second loan was not the same person who he met in March/April 2007 in the café in Mongkok.

39.  There was an entry in D2’s account held with Hang Seng Bank showing a transfer of $10,000 to PW3’s bank account on 13 December 2007.

Charge 8

40.  The evidence of this charge comes mainly from Chu Bik-leung (PW8) who works in the Food and Environmental Hygiene Department as a hawker control officer.

41.  Around 22 May 2009 PW8 was in financial difficulties. On that day he went to a finance company in Mongkok called Professional Finance Company and applied for a loan of $10,000 but the application was not successful.  As PW8 was leaving, he met a man (later known as “Simon”) who asked him whether he wanted to borrow money.  Afterwards, in an eatery nearby (which he later said was McDonald) PW8 gave Simon his personal particulars and bank account number and asked for a loan of $10,000.  The term of the loan was that PW8 had to repay $12,000 within 30 days.  If PW8 failed to repay within time, an interest of $2,000 would be added every 30 days.  Repayment was to be made by depositing money into a bank account given by Simon.  PW8 said he obtained the loan of $10,000 on the same day.  PW8 identified the deposit of $10,000 made to his bank account on 22 May 2009 ([P6], B1) as the loan.  PW8 repaid the loan within 30 day by depositing cash into the bank account given by Simon, as Simon asked him not to do bank transfer.

42.  On 13 April 2015, PW8 attended an identification parade and identified D2 as Simon.  In cross-examination, he said that he was able to identify D2 because of his characteristics, namely his long neck, height and body built.  He agreed that he took about a minute looking at the line up before he made the identification.  He said that he had not assumed that Simon was there when he made the identification.

43.  Apart from PW8’s evidence, there was also an entry in D2’s bank account held with Hang Seng Bank showing a transfer of $10,000 to PW8’s bank account on 22 May 2009.

Charge 9

44.  The prosecution evidence mainly comes from Leung Kam Hung (PW6) who works as a good delivery driver.

45.  PW6 gave evidence that around July 2007 because of gambling he had to borrow money from different sources.  A friend referred him to a man who could help him.  PW6 went to see that man alone in Soy Street, Mongkok.  The purpose of the meeting was for PW6 to give the man copies of his identity card and address proof.  PW6 asked for a loan of $5,000 and he understood that he had to repay a total of $5,500 within 15 days.  Nothing was discussed as to what would happen if PW1 failed to repay within that period. Subsequent to the meeting, someone deposited $4,500 into his bank account.  PW6 understood that if one borrowed $5,000, he would only receive $4,500 but the repayment would still be $5,500.  PW6 made repayment by depositing the money through a cash deposit machine into an account nominated by the man.  After that he called and informed the other side.  He had no idea whether the one who answered his call was the same person that he had spoken to previously.  PW6 was asked about a deposit of $4,500 made on 20 July 2007 into his bank account ([P7], B1) and replied that it was the loan from the man.

46.  In cross-examination, PW6 agreed that he had been in debts for many years around 2007 and he had borrowed from various sources.  However, he said that the occasion he testified about was the only time that he had borrowed from an “unofficial source”.  He said that it was because the interest rate was too high.  However, he agreed that before the police showed him the bank records, he could not remember the date or even year of the loan in question.  He agreed that the only reason why he said the deposit of $4,500 made on 20 July 2007 was the loan from the male he met in Mongkok was because he was shown B1 by the police.  I note that B1 contains only 4 entries.  PW6 agreed that he could not be sure that this entry of $4,500 represented the loan from the man in Mongkok.  He agreed that he had not heard of the name of D2, Simon or Ho Pak.  PW6 said if he had failed to repay the debt in full, he would have to pay $500 every 15 days. 

47.  Apart from PW6’s evidence, there was an entry in D2’s account held with Hang Seng Bank showing a transfer of $4,500 to PW6’s bank account on 20 July 2007.[37]

Charge 10

48.  The evidence comes mainly from Yau Chung-hoi (PW7) who works for the Electrical and Mechanical Services Department.  He was keen on gambling and experienced financial difficulties when his daughter was born.  He had been to a number of finance companies.  In August 2009, after having been turned away by a finance company, he received a call from a male asking whether he wanted to borrow money.  That male said that for a month’s loan, the interest would be 10% of the principal.  PW7 did not ask what would happen if he was unable to repay the debt in full within a month.  An agreement was made for PW7 to meet the male at a MacDonald restaurant in Mongkok. 

49.  At MacDonald, PW7 met two males.  One of the males looked familiar and seemed to be a staff member of a finance company and the other male was introduced to PW7 as “Simon”.  After PW7 had given his copy identity card, address proof and contact details of family members to the staff member and was made to sign an IOU which did not specify the amount of loan, Simon took out $20,000 cash and handed it to PW7.  PW7 was told by the staff member that he had to repay $20,000 together with an interest of $2,000 within a month. 

50.  PW7 said that after the first loan, he had borrowed two further loans from Simon so that at one stage, he owed Simon as much as $50,000 and the monthly interest varied according to the total amount he owed.  However, PW7 could not recall the exact dates of those subsequent loans. I note that the subsequent loans were not the subject matter of any charges.  PW7 said that it was only until March 2010 that he was able to clear off all the debts owed to Simon.  The repayments were made by either by a direct transfer from PW7’s bank account to a HSBC account nominated by Simon or by depositing cash into that account.  PW7 could no longer remember the name of the account holder except that the surnamed started with “W”.  PW7 said after each repayment, he would call Simon to confirm that the money was received.  As far as he could recall, he had not made any repayment by phone banking.  That was because he wanted to have a receipt for each repayment and he would not have one if he repaid by phone banking. 

51.  Under cross-examination, PW7 said that the second loan was obtained after the 1^st interest payment of $2,000 in September 2009.  He confirmed that the maximum amount he owed to Simon was $50,000 and that was subsequently repaid in one go.  He could not be sure whether Simon had ever changed the repayment account.  He agreed, however, that he had not mentioned any change of account in his witness statement.

52.  As far as bank records are concerned, there were entries in PW7’s bank account and D1’s HSBC bank account (used by D2) showing the following:-

(a) on 15 September 2009, a withdrawal (by phone) of $4,000 from PW7’s bank account[38] and a deposit (by phone) of $4,000 into D1’s bank account;[39]

(b) on 22 September 2009, a withdrawal (by phone) of $2,000 from PW7’s bank account[40] and a deposit (by phone) of $2,000 into D1’s bank account;[41]

(c) on 16 October 2009, a transfer of $2,000 from PW7’s bank account[42] to D1’s bank account;[43]

(d) on 30 October 2009, a transfer of $2,000 from PW7’s bank account[44] to D1’s bank account;[45]

(e) on 18 November 2009, a transfer of $4,000 from PW7’s bank account[46] to D1’s bank account;[47]

(f) on 24 December 2009, a transfer of $2,000 from PW7’s bank account[48] to D1’s bank account;[49]

(g) on 31 December 2009, a withdrawal (by phone) of $2,000 from PW7’s bank account[50] and a deposit (by phone) of $2,000 into D1’s bank account;[51] and

(h) on 13 March 2010, a transfer of $2,000 from PW7’s bank account[52] to D1’s bank account.[53]

Charge 11

53.  The evidence comes mainly from Lee Tak Wah (PW9) who works in the field of building management.  According to PW9, in May 2009 he experienced financial difficulties and applied for a loan from Professional Finance Company in Mongkok intending to borrow $15,000.  However, that application was not approved as he still owed the company money then.  As he was leaving the company, he met a male who was distributing leaflets downstairs.  PW9 had met that male before in the finance company.  PW9 chatted with the male and was told that the latter had to way to help him out.  PW9 was asked to wait in the McDonald restaurant in Sai Yeung Choi Street.

54.  Later on the same day, he met the male and another man who was introduced to him as “Simon”.  Simon gave PW9 a piece of paper and PW9 wrote his name and address on it.  PW9 borrowed $5,000 from Simon for which he had to repay $6,000 in the following month by depositing the same into a bank account given by Simon.

55.  PW9 said it took him 5 months to clear the debt from Simon and every month he repaid $1,000 to $2,500.  Altogether, he had repaid around $8,000 to $9,000 in total.  Every time PW9 had made a repayment, he would make a call to Simon.  However, PW9 was not sure whether the one who answered his calls was the same person who he met in MacDonald.  PW9 said he had only borrowed once from Simon. 

56.  As regards bank records, there are the following entries:-

(a) on 6 July 2009, there was an ATM transfer withdrawal of $2,000 from PW9’s bank account[54] and a ATM deposit of $2,000 into D1’s bank account;[55] and

(b) on 6 November 2009, there was an ATM transfer withdrawal of $1,000 from PW9’s bank account[56] and an ATM deposit of $1,000 into D1’s bank account.[57]

The treasury accountant

57.  The calculation of the effective annual interest rates in respect of Charges 1 to 11 was done by Wong Wai Ting (PW11), who graduated from the Polytechnic University with a degree in accountancy. PW11 had worked in various private institutions for 8 years before she joined the Government as a treasury accountant in 2015.  Her expertise was not challenged and I found that she was qualified to give expert evidence on accounting matters. 

58.  PW11 based her calculation on the statutory formula stipulated in the Money Lenders Ordinance and also the data provided by the borrowers in their respective police statements.  Her evidence is not challenged and her witness statement[58] is admitted by agreement as P94.  

59.  In short, it was PW11’s evidence that:-

(a) for a borrower who was said to have received the full amount of the loan he asked for without any deduction and was required to pay 10% of the loan as interest every 15 days, if the loan (plus the first installment of interest) was fully repaid within 15 days, then the effective yearly interest rate would be 240% which was at its minimum. The effective yearly interest rate would become higher if the full repayment occurred after the first installment;

(b) for a borrower who was said to have received the full amount of the loan he asked for without any deduction and was required to pay 20% of the loan as interest for every month, if the loan (plus the first installment of interest) was fully repaid within the first month, then the effective yearly interest rate would also be 240% which was at its minimum. The effective yearly interest rate would become higher if the full repayment occurred after the first installment;

(c) for a borrower who was said to have received the full amount of the loan he asked for without any deduction and was required to pay 10% of the loan as interest for every month, if the loan (with the first installment of interest) was fully repaid within the first month, then the effective yearly interest rate would be 120% which was at its minimum. The effective yearly interest rate would become higher if the full repayment occurred after the first installment; and

(d) in the case of PW6 who was said to have received only $4,500 out of the $5,000 he had asked for and had to pay $500 as interest every 15 days, then the effective yearly interest rate would vary according to when full settlement was made. However, the minimum rate would occur when the settlement was made by payment a total of $5,500 at installment no. 6 which was 368.72%.

Admitted Facts

60.  The Admitted Facts [P93] cover the following areas and/or exhibits:-

(i) the chain of seizures;

(ii) the arrest and caution of the defendants and the admissibility of their video-recorded interviews;

(iii) the positive identification of D2 by PW8 on 13 April 2015 in a formal identification parade;

(iv) banker affirmations;

(v) a summary of the activities in D1’s HSBC bank account during the currency of Charge 12;[59]

(vi) D2’s companies;

(vii) D2’s properties; and

(viii) IRD Tax Returns of D1, D2 and D2’s companies.

NO CASE SUBMISSIONS

Defence submissions

61.  At the end of the prosecution case, Mr Davies for D2 and Ms Tso for D1 made submissions at half time in respect of all charges that the defendants were facing.  Mr Davies emphasised the weaknesses in the evidence of the borrowers as discussed above and also the fact that none of them (except PW8) could identify D2 as the person who had lent them loans at excessive rates.[60] In relation to all of the loan sharking charges, it was submitted that it is not clear whether there was any calculation of compound interest and what would happen if the principal had not settled in time. 

62.  As regards the charge of money laundering (Charge 12), Mr Davies submitted that since it relates to only two of the loan sharking charges (namely Charges 10 and 11),[61] so that if those two charges could not stand, Charge 12 should also fall away, there being no evidence of any illegal behaviour in the present case.  Ms Tso adopted Mr Davies’ submission and also emphasized that there is no evidence that D1 knew what was happening in her bank account after D2 after had taken the control of it.  It was also submitted that D1 had no reason to believe that the deposits into her account came from loan sharking or that she knew that D2 was lending money to other people.  

Legal principles

63.  Before considering the evidence, I will first set out the relevant legal principles.  To start with, the approach a judge must take when considering a no case submission is set out in R v Galbraith,[62] where Lord Lane CJ said,[63]

“How then should the judge approach a submission of “no case”? (1) If there is no evidence that the crime alleged has been committed by the defendant, there is no difficulty. The judge will of course stop the case. (2) The difficulty arises where there is some evidence but it is of a tenuous character, for example because of inherent weakness or vagueness or because it is inconsistent with other evidence. (a) Where the judge comes to the conclusion that the prosecution evidence, taken at its highest, is such that a jury properly directed could not properly convict upon it, it is his duty, upon a submission being made, to stop the case. (b) Where however the prosecution evidence is such that its strength or weakness depends on the view to be taken of a witness's reliability, or other matters which are generally speaking within the province of the jury and where on one possible view of the facts there is evidence upon which a jury could properly come to the conclusion that the defendant is guilty, then the judge should allow the matter to be tried by the jury. It follows that we think the second of the two schools of thought is to be preferred.”

64.  The court adopted the words of Lord Widgery CJ in R v Barker (Note)[64] where his lordship said,

“… even if the judge ” — our emphasis — “has taken the view that the evidence could not support a conviction because of the inconsistencies, he should nevertheless have left the matter to the jury. It cannot be too clearly stated that the judge's obligation to stop the case is an obligation which is concerned primarily with those cases where the necessary minimum evidence to establish the facts of the crime has not been called. It is not the judge's job to weigh the evidence, decide who is telling the truth, and to stop the case merely because he thinks the witness is lying. To do that is to usurp the function of the jury …”

65.  R v Galbraith has been consistently adopted by the courts in Hong Kong: see, eg, R v Ip Chi Keung.[65]

66.  As to how a trial judge should approach a prosecution’s case based on inferences when facing with a no-case submission, in my view the following said by Kempster JA in Attorney General v Li Fook Shiu Ronald,[66] which is about an application to discharge made under s 22 of the Complex Commercial Crimes Ordinance, Cap 394, is also applicable:-

“In relation equally to primary facts and to inferences to be drawn from such facts, his concern is not with present proof to his satisfaction but with potential future proof to that of a jury. Both primary facts and the inferences therefrom are ‘matters generally speaking within the province of the jury’ in the language of Galbraith. Both can critically be affected by later evidence or a lack of evidence from the defence. Assuming all proper directions, the test is not what the judge thinks the jury, and still less he, ‘must’ conclude at that moment, but what a jury ‘could, may or might’ properly conclude in the future.”

67.  Also, in Director of Public Prosecutions v Varlack,[67] the prosecution appealed the determination of the Eastern Caribbean Court of Appeal quashing the conviction of the defendant of murder on the basis that the judge had erred in rejecting a submission of ‘no case to answer’ at the close of the prosecution case.  The prosecution case against the respondent was circumstantial, being based largely on the evidence of telephone calls made between the defendants from which the prosecution sought to draw the inference that she knew of and agreed to a plan to kill the deceased.  In the advice of the Privy Council delivered by Lord Carswell, the authorities relevant to the issue of the proper approach to be taken to a submission on no case to answer were addressed.  Having said that the “canonical statement of law” was to be found in the judgment of Lord Lane CJ in R v Galbraith Lord Carswell cited the judgment of King CJ in the Supreme Court of South Australia in Questions of Law Reserved on Acquittal[68] as being an accurate statement of the law:-

“It follows from the principles as formulated in Bilick (supra) in connection with circumstantial cases, that it is not the function of the judge in considering a submission of no case to choose between inferences which are reasonably open to the jury. He must decide upon the basis that the jury will draw such of the inferences which are reasonably open, as are most favourable to the prosecution. It is not his concern that any verdict of guilty might be set aside by the Court of Criminal Appeal as unsafe. Neither is it any part of his function to decide whether any possible hypotheses consistent with innocence arc reasonably open on the evidence … He is concerned only with whether a reasonable mind could reach a conclusion of guilty beyond reaonab1e doubt and therefore exclude any competing hypothesis as not reasonably open on the evidence…

I would re-state the principles, in summary form, as follows. If there is direct evidence which is capable of proving the charge, there is a case to answer no matter how weak or tenuous the judge might consider such evidence to be. If the case depends upon circumstantial evidence, and that evidence, if accepted, is capable of producing in a reasonable mind a conclusion of guilt beyond reasonable doubt and thus is capable of causing a reasonable mind to exclude any competing hypotheses as unreasonable, there is a case to answer. There is no case to answer only if the evidence is not capable in law of supporting a conviction. In a circumstantial case that implies that even if all the evidence for the prosecution were accepted and all inferences most favourable to the prosecution which are reasonably open were drawn, a reasonable mind could not reach a conclusion of guilt beyond reasonable doubt, or to put it another way, could not exclude all hypotheses consistent with innocence, as not reasonably open on the evidence.”

68.  Lord Carswell went on to cite with approval a passage from the judgment of the Court of Appeal of England and Wales, Criminal Division delivered by Moses LJ in R v Jabber:[69] -

“The correct approach is to ask whether a reasonable jury, properly directed, would be entitled to draw an adverse inference. To draw an adverse inference from a combination of factual circumstances necessarily does involve the rejection of all realistic possibilities consistent with innocence. But that is not the same as saying that anyone considering those circumstances would be bound to reach the same conclusion. That is not an appropriate test for a judge to apply on the submission of no case. The correct test is the conventional test of what a reasonable jury would be entitled to conclude.” [Italics added.]

69.  In the end, Lord Carswell said that when one applies the above principle, it follows that the fact that another view, consistent with innocence, could possibly be held does not mean that the case should be withdrawn from the jury.  See also the recent case of the Court of Appeal in Secretary for Justice v Ng Siu Lun[70]where DPP v Varlack was applied in Hong Kong. 

Consideration – Charges 1 to 11

70.  Although many of the borrowers addressed their respective lender “Ho Sang”, “Ho Pak” or “Simon”, I would not assume that those names referred to the same person.  Similarly, in case a borrower said he obtained more than one loan from a person whom he had only met once, I would not assume that those loans necessarily came from the same lender.  This is not to say that the fact D2 had the word “Ho” in his name and has an English name “Simon” is not relevant.  It is only that, as I said, each charge has to be considered separately.  

71.  I have taken into account counsel submissions and considered the evidential difficulties concerning the evidence of the borrowers outlined above.  Nevertheless, in respect of the loan sharking charges:-

(a) as regards Charges 1 to 9, there is agreed evidence showing direct bank transfers from D2’s personal bank account to the bank accounts of the borrowers concerned. The dates and amounts of the transfers match the alleged loans which were the subject matters of those charges. In my assessment, based on the evidence of the borrowers and the agreed bank evidence, a reasonable jury properly directed would be entitled to draw the inference that the aforesaid bank transfers from him were in fact loans which were the subject matters of the charges and as testified by the borrowers concerned;

(b) as regards Charge 10, there is also agreed evidence showing direct bank transfers from PW7’s bank account[71] to D1’s HSBC bank account. In my assessment, based on PW7’s evidence and the agreed bank evidence, a reasonable jury properly directed would be entitled to draw the inference that the transfers from PW7 were repayments of the loans which, as PW7 said, were obtained from Simon. Moreover, as there is no dispute that D1’s bank account was in fact controlled by D2, a reasonable jury properly directed would be entitled to draw the further inference against D2 that he was the lender of the loan which was the subject matter of Charge 10;

(c) a reasonable jury would also be entitled to take the view that the aforesaid inferences have not been weakened by what D2 said under caution which is that he could not “recall anything” about the aforesaid transfers to the borrowers and the aforesaid transfers to in D1’s HSBC bank account;[72] and

(d) the defence submission that there was no evidence of any compound interest, with respect, fails to take into account PW11’s evidence that the interest rates she calculated were in fact the minimum rates which were most favourable to the defence and yet in each case the effective rate was still well in excess of the statutory maximum of 60% per annum.

72.  As regards Charge 11, although there were ATM withdrawals from PW9’s bank account and also ATM deposits into D1’s bank accounts of the like amounts on two separate occasions, there is nothing in the relevant bank affirmations to show that the withdrawals and deposits were corresponding transactions. PW9 had not made any identification of his lender.  In my assessment, the bank evidence is not capable of giving rise to a prima facie case that D2 was PW9’s lender or that the two deposits into D1’s bank account in question were loan repayments from PW9.

Consideration – Charge 12

73.  As regards Charge 12, in relation to both defendants I take into account the evidence of PW7 about his borrowings from Simon and his repayments into a bank account designated by Simon the holder of which had a surname beginning with “W”.  I take into account the bank evidence relating to Charge 10 discussed above.  I also take into account the size and pattern of deposits and withdrawals in D1’s HSBC bank account during the material period of time as summarised in Annex C of Admitted Fact, [73]  a copy of which is attached.

74.  In relation to D1 only, I also take into account the following:-

(a) the fact that she had never filed any tax returns;[74]

(b) her admissions that she and her friends had borrowed money from “Simon” and that he would charge them interests;[75] and

(c) her admissions that she allowed Simon to use her HSBC bank account in return for him deducting $3,000 from the debt she owed to him.[76]

75.  In relation to D2, I also take into account the following:-

(a) the aforesaid evidence relating to Charges 1 to 10 which is capable of proving that D2 had engaged in loan sharking and also D2’s admissions that he had an English name of “Simon” and was called “Ah Ho” by his friends;[77]

(b) D2’s admissions that D1 had lent him the use of her HSBC bank account;[78] and

(c) the fact that D2 had accumulated substantial wealth[79] which is inconsistent with his reported income during the relevant period as shown in his tax returns.[80]

76.  I have not lost sight of the exculpatory parts of the statements under caution given by the defendants.  In particular, I note that D1 had said under caution that Simon had assured her that he would not use her account for money laundering.  I note also that D2 had said under caution that the deposits into D1’s bank account related to his business of parallel goods.  However, in my assessment a reasonable jury properly directed having considered all the relevant evidence as a whole would be entitled not to attach any weight to those exculpatory parts. 

77.  Based on the above, in my assessment a reasonable jury properly directed would be entitled to draw the inference against each of the defendants independently that they had conspired together to deal with D2’s proceeds of an indictable offence.  

Ruling

78.  Based on the above, I rule that D1 has a case to answer on Charge 12, and D2 has a case to answer on all charges except Charge 11. 

DEFENCE EVIDENCE

D2

79.  It would be convenient for me to start with the case of D2.

D2’s statements under caution[81]

80.  Upon D2’s arrest at his residence on 17 March 2015, he said under caution that the deposits and withdrawals in his Hang Seng Bank account were the turnover of his parallel goods business. He said also D1 had given him her bank card which he used it in his parallel goods business for making payment of goods and wages. 

D2’s first video recorded cautioned interview[82]

81.  In D2’s first video recorded cautioned interview, he said among other things the following:-

(a) He had an English name “Simon” or his friends usually called him “Ah Ho”.[83]

(b) He set up New Oceanic Trading Ltd in around 2007.[84]

(c) He was also a shareholder of Water Club Sauna which starting running in 2008 and he obtained from that business a dividend and a salary of $13,000 a month in total.[85]

(d) Between 1985 and 2005, he worked as an employee in nightclubs.[86]

(e) He had four bank accounts, one with HSBC, one with Hang Seng Bank, one with Bank of East Asia and one with Bank of China.[87] The Hang Seng Bank account was all along used by him alone and no other.[88]

(f) He started to help other people in their business of parallel goods in 2005.[89] Then he ran his own business in 2007.[90]

(g) In 2009 he began using D1’s bank account for the convenience of parallel goods traders.[91] He had got to know D1 at the entrance of a mahjong school and that she had borrowed $3,000 from him.[92] It was D1 who suggested that he could use her bank card.[93] She asked him not to use the bank card for “so and so” and he replied that he would use the card for making transfers to employees.[94]

(h) He had not used D1’s bank card but had given it to an employee called Ah Shing who helped him in the parallel goods business.[95] He did not know the full name of Ah Shing and no longer had the means to contact the latter.[96] Although he had 4 bank accounts, he did not want Ah Shing to use any of his (D2’s) bank accounts, as he did not trust Ah Shing and sometimes he had to use the accounts himself.[97] He said that he had stopped using D1’s bank account as business had declined and also Ah Shing had disappeared.[98]

(i) Between 2000 and 2004, he had bought 5 properties, for each he paid about $300,000.[99] He paid a total of about $1.5 million and the money came from his salary which was about $20,000 to $23,000 a month.[100] He had sold 3 of the properties and made a profit of about $1.3 million. He had also sold one of the remaining properties and made a profit of about $ 3 million.[101] There was only one property left.[102]

(j) Subsequently, he did parallel goods business and earned about $600,000 to $700,000 a year.

D2’s second video recorded cautioned interview[103]

82.  In D2’s second video recorded interview which was also conducted on 17 March 2015, he was asked about various documents and bank records found in his residence.  He also said, among other things, the following:-

(a) He could not remember clearly what the transactions in his personal Hang Seng Bank account were about.[104]

(b) His current income was about $30,000 to $40,000 a month, which included the $13,000 from Water Club Sauna.[105] Apart from his income, he occasionally would receive refund of deposits relating to his parallel goods business but the amounts of which were not definite. Those refunds would be deposited into his personal Hang Seng Bank account. [106]

D2’s third video recorded interview[107]

83.  In D2’s third video recorded interview conducted on 18 March 2015, he was asked about, among other things, Charges 1 to 11.  He replied that he had no impression of the matters asked of him.

D2’s evidence in court

84.  The gist of D2’s evidence in-chief was as follows:-

(a) He had worked in nightclubs since 1986 for 10 odd to 20 years. In the beginning, his monthly income was about $12,000. He was promoted to manager in 1987 and his monthly income was raised to $19,000 and then to $22,000 to $23,000 half a year later.

(b) In 1990s, besides working in nightclubs in daytime, he also worked as a hawker at night selling BBQ squid, making around $500 to $700 a day.

(c) In late 1990s, he bought his first property at Man Yiu Building on Ferry Street in Jordan which cost about $800,000. The deposit was $300,000. However, he continued to live in public housing and rented the property out and did not live there. Subsequently, in 2008 he sold the property at $1.68 million.

(d) In 2003, he bought another property in Kwun Tong at $938,000 of which he paid $300,000 as deposit and the balance was financed by a mortgage. Again, he rented this second property out to cover most of the mortgage repayment.

(e) It seemed to him that he had purchased further properties in April, June and end of 2004 in Yuet Wah Street, Kwun Tong, the deposits for which was $300,000 each. Again, he rented all properties out. He paid the deposits out of his savings of $800,000 and he borrowed the shortfall from his elder sister living on the mainland.

(f) Since 2005, because of his liver problems he no longer worked in nightclubs or as a hawker. His liver problem became so serious that in December 2006 he was admitted to hospital and received a transplant. After the operation, he took a rest for about half a year. At the time, his monthly family expenses were about $11,000 to $12,000.

(g) Afterwards, through the introduction of his friend he got a job at Advance Technology Centre in Shueng Shui earning about $400 a day. His employer engaged in selling parallel imports including milk powder and diapers and he assisted his employer. He remained in that job up to around mid 2008.

(h) After leaving the aforesaid employment in 2008, he started his own business selling parallel imports including milk powder, diapers and other household goods to the mainland. The business was conducted on cash basis. The start-up capital was $50,000 which he had borrowed from his elder sister on the mainland.

(i) Initially, his profit was small. However, business got better gradually and he started to order goods directly from Japan in 2010 and it was also in the same year that he established New Oceanic Trading Limited. His customers were from the mainland and they had to pay a 80% deposit in cash for their orders, with the balance to be paid upon delivery. The goods were taken the border by traders (curriers) who would also bring money back when returned. There were hundreds of such curriers.

(j) He employed 6 to 7 employees to help him run the business. One of them was called Ah Shing. Ah Shing’s main duty was to follow up the money from the mainland. If time allowed, Ah Shing would bring the money from the mainland to the company. If not, he would deposit the money into D1’s bank account. Ah Shing worked for him up to 2013. When Ah Shing left, he took away many of D2’s business records.

(k) In 2012, owing to change in law D2’s business became a lot less and it eventually came to a stop at the end of 2014.

(l) As regards D1, he got to know her long time ago. They would chat when they met but actually they did not contact each other. In 2009, he lent her a few thousand dollars without charging any interest. When he asked D1 for repayment, she asked for a few days. He said he would not be free a few days later. D1 then suggested that she gave him her HSBC bank card and she would deposit money into her bank account. He then suggested that she gave him the bank card for his use in relation to his parallel goods business. D1 asked whether he would use her bank card for illegal purposes. After assuring her that he would not, he was given by D1’s bank passbook, bank card together with the password. His intention was to give the bank card to Ah Shing for him to collect money. He did not want to use his own bank account because he did not want to mix up that money from his rental income.

(m) As regards the money lending charges, he had never lent money to any of the borrowers concerned and he had never met PW8.

(n) He produced a set of documents, [D1] to [D61], showing that he had engaged in parallel goods business.

85.  Under cross-examination by Ms Tso, D2 said that D1 had only repaid him part of the money she had borrowed and she still owed him money. 

86.  Under cross-examination by Mr Turnbull, D2 said the following:-

(a) He had lent D1 $5,000 of which she had only repaid a few hundred dollars. He had met D1 once or twice in Jordan before he lent her money and that was in 2009. He did not give her his bank account details for her to make repayment because he did not want to mix up his monies. He said that his HSBC account was for receiving rental income and autopay, his Hang Seng bank account was for doing business. As regards his Bank of China account and Nangyang Bank account, both of which he had seldom use and he did not have the account details with him. D1 was only his acquaintance. He did not know whether she worked or had any income. He agreed to lend her money because the sum was not big, she said she had no money and she was elderly. He disagreed that because she was unable to repay and therefore he asked her to lend him her bank account.

(b) He started his parallel goods business in 2008. Initially, he trade in his own name without a corporate vehicle. The records he had at the time were only about supplies and deliveries of goods. Business was conducted on cash basis. He did not keep his business records for long and the records for 2008 to 2009 had all been disposed of. During that period of time, he re-invested most of his profits in stocks.

(c) Ah Shing started to work for him since 2008. However, D2 did not know his full name and only knew that Ah Shing was a mainlander. He did not have Ah Shing’s address. Ah Shing would stay in the warehouse most of the time. When D2 set up New Oceanic in 2010, Ah Shing became also responsible for the company’s documentation. He did not know how Ah Shing dealt with the company’s documents.

(d) He ceased working in nightclub after 2005. After that, he took rest. He had an operation in 2006. He started working again in mid 2007. He commenced his own business in 2008. He made a net profit of about $60,000 a month. He was aware that he had to pay tax on that.

(e) Besides Ah Shing, he also got two other employees - Ah Kuen and Ah Kei. All three of them would cross the border and collect money back from mainland purchasers. If D2 was still in the company when they returned, he would put the money into the safe. If not, the money would be kept by them temporarily.

(f) Some of the money collected from the mainland would be deposited into D1’s bank account. Although the money in that bank account actually belonged to him, the account was controlled solely by Ah Shing. He trusted Ah Shing to a certain extent as he had known Ah Shing for a long time. Ah Shing would withdraw money from D1’s account and gave it back to him. He did not let Ah Shing use his personal bank accounts for the business because he did not want Ah Shing to know about his personal matters.

(g) He agreed that New Oceanic had filed tax returns after it was set up in 2010 and he was responsible for the contents of its tax returns. However, he had not filed any tax return for his business in 2008. Upon being warned of his right not to incriminate himself for offences which he had not been charged, he chose not to answer why he had failed to do so.

(h) He was unable to explain why he told the police in the video-recorded interview that he started his parallel goods business in 2005.

(i) As regards D1’s bank card, he agreed that he told the police that he had spoken with D1 outside a mahjong school in Mongkok.

(j) He agreed that in his tax return filed for the financial year 2007/2008 he said that he was a hawker earning about $100,000 a year, which was roughly about $8,000 a month. His monthly expenditure at the time was about $12,000. The deficit, he said, was covered by his savings.

(k) He agreed that in his tax return filed for 2008/2009 he described himself as a manager of a sauna. He explained (for the first time) that his job as manager of the sauna did not require his attendance at the sauna. When it was pointed out to him that there was no mention in the tax return of any parallel goods business, he said that that was because his income from the business was not stable. When asked whether he realised that he was obliged to declare all his income, he chose not to answer.

(l) He was similarly asked about his tax returns filed for 2009/2010 and 2010/2011 in which he declared that he worked as manager of a sauna without mentioning anything about parallel goods business. He said that he had derived income from his business but he did not know the amount.

(m) He was asked about the tax return filed by New Oceanic for 2011/2012. He agreed that the information contained in the tax return came from him. He said that he did not declare the wages he paid his employees because they were paid in cash of which no records were kept. He disagreed that he in fact did not have any expenditure on salary.

(n) As regards Charges 1 to 11, he said he could not remember the transfers from his Hang Seng Bank account to the bank accounts of the prosecution witnesses concerned. He said those transfers were not loans but he did not know what they were. When he was asked to explain PW7’s transfers to D1’s bank accounts, he said he did not know if PW7 was a parallel goods trader. He denied that he had lent any money at excessive rates.

D1

87.  I now turn to what D1 said under caution. 

D1’s statement under caution[108]

88.  Upon D1’s arrest at her home on 16 March 2015, she said under caution the following:-

“As I was in debt to Simon Ho, (I) let him use an account. For the others, I’d know nothing about it."

D1’s video recorded interview[109]

89.  In D1’s video recording interview conducted on 16 March 2015 under caution, she said among other things the following:-

(a) She was addicted to gambling.[110] She had borrowed money from Simon and every now and then a repayment was made at sight. She just paid the interest. Some amount of principal was repaid at times.[111]

(b) She was told that Simon was also known as “Ah Ho”.[112]

(c) Later, Simon asked her if she had a bank account and if so, just gave it to him so as to save him the trouble of looking for her. She could then deposit whatever amount she had into the account. She asked him whether there would be a problem, as she had heard about things like money laundering. D1 replied that it would not be like that. He said that it was like her friend(s) repaying by installments. He just asked them to make deposits into the account.[113] She trusted Simon for what he said.[114] Simon said that he would deduct $3,000 from her debt.[115] Simon assured her that her bank account would just be used for collecting interest payments from others.[116]

(d) She allowed Simon to use her bank account and in return $3,000 was deducted from the debt she owed him.[117]

(e) When she borrowed money from Simon, she would call him and she mostly met him in Mongkok. She had friends who had also borrowed money from Simon.[118]

(f) After she had given the bank card to Simon, she had not paid attention to how he used it.[119]

(g) There came a time that she became scared. She told Simon that he had used her bank account for a long time and asked for its return. Simon said, “Okay” and asked her to go to cancel it. He just gave it to her that way.[120]

(h) She had asked Simon about the money in the bank account. She just knew that her card was used for collecting debts. She did not think it was money laundering.[121]

(i) She really did not know that it was something contrary to law. After some time, she was scared. She wanted to get the card back by saying that she had to make an application for public assistance. Simon said, “Okay, you go to cut it.”[122]

ASSESSMENT – DEFENDANTS’ ACCOUNTS

90.  I am full alive that the burden of proof lies with the prosecution.  However, purely for the sake of convenience I would first deal with the defence evidence.

D1

91.  I accept D1’s admission that she was addicted to gambling and that she had on more than one occasion borrowed money from Simon. I accept that she knew other people had also borrowed from Simon and Simon would charge his debtors interests.  I accept that she agreed to give her bank account to Simon for his use in return for a $3,000 deduction of the debt she owed him.  

92.  I accept that she had raised with Simon her worry that her bank account would be used for “money laundering”.  As to this, there is some support from what D2 said in his first video recorded interview that she asked him not to use the bank card for “so and so”.[123]  I am also prepared to accept her statement under caution that she was told by Simon that he would only use her bank account for the purpose of collecting money from other debtors including interest payments. 

93.  However, I reject the exculpatory parts of her statement under caution and attached no weight to them.  In particular, I reject her assertion that she believed that Simon would not use her bank account for money laundering.  My reasons are as follows:-

(a) Simon was not her close friend. To her, he was a money lender whom she would occasionally meet and he would charge her interests. There was simply not basis for her to believe in what he said; and

(b) she was obviously aware of the risk involved in holding over the control of her bank account to Simon and the very fact that she had raised her worry about “money laundering” with him is in my view indicative of her awareness of that risk; and

(c) her admission that she later became “scared” and asked for the return of her bank card, in my view, indicates that she did not in fact believe Simon.

D2

94.  I have taken into account that there were certain matters consistently asserted by D2 throughout his various out-of-court statements and his oral evidence in court.  Based on all the relevant evidence before me, I accept that he had lent money to D1.  I accept that D1 and D2 were not close friends: according to D2, they would chat when they met each other on the street.  Other than that, they would not contact each other.  I accept that there was an agreement between D1 and D2 that she lent him the use of her bank account and at the time she had expressed some concern.  I am prepared to accept that D2 had health problems.  I am also prepared to accept that he had engaged in the parallel goods business using the corporate vehicle of New Oceanic at Advanced Technology Centre in Sheung Shui in around March 2010 and onwards.

95.  Other than the above, however, I find that D1 is a dishonest witness and a large portion of what he said, whether under caution and in court, is not worthy of belief.  I form this view of D2’s credibility partly because of my observation of him giving evidence in the witness box and also because of the following:-

(a) I have taken into account that the loan sharking charges relate to matters dating back to as far as August 2005. However, D2 has completely failed to explain why he had made transfers to the borrowers named in the loan sharking charges and why there were transfers from PW7 to D1’s HSBC bank account which D1 had allowed him to use. I note that it had not been suggested to any of the borrowers that they were parallel goods traders (carriers). Besides, his evidence that he could not remember what the transfers to the borrowers were about also sit ill with his earlier evidence that each of his personal bank accounts had specific uses.

(b) D2’s evidence in court that he started taking part in the business of parallel imports as an employee in mid 2007 does not tally with what he said under caution that it was in 2005.

(c) D2’s evidence in court that he had commenced his own business in 2008 is also inconsistent with what he said in his cautioned interview that it was in 2007. In addition, neither of these two versions was supported by his tax returns. Furthermore, all the documents he produced in court were dated after the setting up of New Oceanic which was incorporated on 2 March 2010.[124] There is not a single document to show he had engaged in parallel goods business before 2010. No reason has been given as to why Ah Shing would have taken D2’s documents away when he left D2’s employ and why the documents D2 still retains relate only to New Oceanic.

(d) D2’s evidence in court about his alleged parallel goods business cannot explain the frequent cash deposits and transfers to his Hang Seng Bank account which began as early as 2004,[125] at which time he said he was working as a nightclub manager.

(e) D2’s evidence as to his work history and his oral evidence that he had ploughed back most of his profits into stock in 2008 and 2009 cannot explain how he could manage to purchase the various properties listed in the admitted facts during the period between October 2004 and January 2012.[126] This is especially so in view of his evidence that he was unable to work because of his liver problems between 2005 and mid 2007. His reported salary and rental income between 2007 to 2012 was only $1,818,407. The assessable profit of New Oceanic between 2011 and 2014 was only $1,345,939. On the other hand, the total purchase price of the 6 properties (5 apartments and 1 car parking space) totaled $19,618,000. Moreover, 3 of them (the 2 apartments and the car parking space in The Capitol of Lohas Park) were purchased in one go in July 2009.[127] I note also that in none of his cautioned interviews had D2 mentioned that he had an elder sister living on the mainland, let alone that she had provided him with finance.

(f) D2’s evidence of the degree of trust he had allegedly reposed in Ah Shing simply does not sit well with the very limited knowledge he said he had about that person. In particular, I find it inherently improbable that D2 knew neither Ah Shing’s full name, even though Ah Shing had worked for him for 5 years and he trusted Ah Shing so much that Ah Shing could decide what business records to keep and what to throw away.

(g) I find it inherently incredible that D1 would, as D2 said, volunteer to part with her bank account and give D2 the use of it, given that her was just her lender.

(h) I find D2’s reasons for not giving his bank account numbers to Ah Shing, namely that he did not want the latter to know his personal matters, most unconvincing. I note also that the documents D2 produced in court [D1 – D61] show that he had used his personal Hang Seng Bank account and also the bank account of New Oceanic for his parallel goods business and the bank account numbers were shown on those documents. As Ah Shing had allegedly handled all of D2’s business records, it would not have been difficult for Ah Shing to find out D2’s personal or New Oceanic’s bank account details.

(i) I see no valid reason why D2 had to give Ah Shing the use of D1’s bank account. D2 said in court that Ah Shing had got a permit to be in Hong Kong for up to 5 years. As such, Ah Shing could have opened a bank account instead of using D1’s bank account. D2 gave evidence in court that he had designated usages for each of his bank accounts. If that was the case, as he had already been using his own Hang Seng Bank account for his parallel goods business, it is difficult to see why he would all of a sudden also want to use D1’s bank account for his parallel goods business.

(j) I also find it inherently improbable that D2 would have given Ah Shing the sole control of D1’s bank account and hence his money in it as well.

96.  Based on the above, I reject what D2 said about the loan sharking charges; that it was D1 who proposed that he be given the use of her bank card; that he had told D1 that her bank account would only be used for making transfers to employees; that he had not charged D1 any interest for her loans and had not offered her anything in return for his use of D1’s bank account; that he took part in parallel goods business first as an employee and subsequently in his own name.  I also reject what he said about Ah Shing and his evidence that the transactions in D1’s bank account (after he had obtained the use of it in 2009) related solely to his parallel goods business.  Similarly, I attach no weight to those exculpatory parts of his various statements under caution.

ASSESSMENT – PROSECUTION EVIDENCE

97.  I now turn to the prosecution evidence.  I am fully alive that even though that I do not accept the defence case, it does not mean that I have to accept the prosecution case.  The prosecution still bears the burden of proof beyond reasonable doubt.

Charges 1-10

98.  Despite the difficulties concerning the borrowers’ evidence discussed above, having considered their evidence and having observed them giving evidence in the witness box I find that they are in general reasonable and credible witnesses trying their best to recollect the incidents concerning their respective cases.  I find that their evidence as to the amounts and dates of their respective loans is strengthened by the bank evidence so that I can satisfied beyond doubt that the loans they testified about were those as particularized in their respective charges.  In particular,

(a) I have taken into account that PW4 may have acted dishonestly by asking his then girl friend (PW5) to open a bank account for his use whilst he was an undischarged bankrupt. Nevertheless, I accepted his evidence that he had borrowed loans from “Ho Pak” including the loans which were the subject matters of Charges 1 and 2. I also accept his evidence that the interests for those loans were charged at the rate of 10% every 15 days;

(b) as regards Charges 3 to 6, I find that PW1 had borrowed loans from the person he called “Ho Sang”. I accept his evidence for the first loan ($5,000) he repaid a total of about $5,500 (interest included) within a month to settle, for the second loan ($5,000) he settled it by repaying a total of about $5,500 (interest included) within a month, for the third one ($10,000) he settled it by repaying a total of $12,000 within a month (interest included) and for the last loan ($8,000) he was charged an interest of about $1,000 on top of the principal for settlement within a month;

(c) I have taken into account that PW2 was evasive when he was asked about the colleague who had introduced him to Simon. However, that of itself does not cause him to doubt his credibility generally, as it is in my view understandable as PW2 may not wish to get his colleague involved. I accept that PW2 had through the introduction of his colleague obtained from a person called Simon a loan of $10,000 in March/April 2007. This is on the basis that that loan, being the first loan and one which PW2 had gone to Mongkok to meet Simon face to face, must have left a deep impression on him. I also accept that after the first loan of $10,000, PW2 sought and obtained a second loan of $10,000 which was the subject of Charge 7. I accept PW2’s explanation that he was initially unable to remember the second loan because at the material period he was troubled by his financial and marital problems which blurred his memory. It is in my view inherent improbable that PW2 would have testified about this second loan if it had not in fact taken place. I accept that for the second loan PW2 paid 3 monthly installments of interest totaling $6,000 on top of the principal. I can see no reasons for PW2 to make that up if it is not true. It matters not, in my view, whether it was the same person who lent PW2 money on the two occasions PW2 testified about. Although PW2 did not have any discussion with his lender(s) about interest on either of the two occasions, I draw the inference which I am sure is the only reasonable one that the lender of the second loan (Charge 7) had in fact charged PW2 an interest at the rate of $2,000 a month for 3 months;

(d) as regards Charge 8, I take into account that PW8 had only met Simon once in an eatery for about half an hour and the long time gap between the meeting in May 2009 and the identification parade in 2015. Nevertheless, I accept PW8’s identification that Simon was D2. I accept that PW8’s evidence that D2 had lent him $10,000 for which he repaid a total of $12,000 (interest included) within 30 days as agreed;

(e) as regards Charge 9, I accept that PW6 had asked for a loan of $5,000 from a man he met in Mongkok but received a deposit of $4,500 only. I find that the difference ($500) was deducted as interest. I find that PW6 repaid a total of $5,500 within 15 days by depositing money in a bank account nominated by the lender. I draw the inference, which I found to be irresistible, that the lender charged PW6 an interest at the rate of $500 every 15 days; and

(f) as regards Charge 10, I accept that PW7 borrowed several times including the $20,000 in August 2009 from a person called Simon and that the interest was $2,000 a month as agreed.

99.  As regards Charges 1 to 9, I draw the inference which I find to be the only reasonable one that the transfers from D2’s personal Hang Seng Bank account to the respective bank accounts of PW1, PW3,[128] PW5,[129] PW6 and PW8 were in fact loans.  Furthermore, having considered the evidence on each charge separately, I draw the inference which I find to be the only reasonable one that D2 was the lender of the loan in relation to each charge. 

100.  As regards Charge 10, I am satisfied beyond reasonable doubt that the transfers from PW7’s direct bank account to D1’s HBSC bank account were his repayments of the loan he borrowed from Simon.  I have found D2 was at the material time using D1’s HBSC bank account for collecting repayments from PW7.  I draw the inference which I find to be the only reasonable one that D2 was the lender of the $20,000 (Charge 10) referred to as Simon by PW7.   Besides, concerning the transfers by phone to D1’s bank account on 15 September 2009, 22 September 2009 and 31 December 2009 mentioned at §52(a), (b) & (g) above, I note that it was not the case of D2 that he had received any payments by phone transfer in relation to his parallel goods business.   D2 said his business was conducted on cash basis.  In the absence of any explanation from D2 as to the nature of those phone transfers, I draw the interference, which I find to be the only reasonable one, that they came from PW7’s bank account withdrawn by phone on those same days and also that they were PW7’s repayments to D2.  

101.  As regards the effective interest rates in respect of each of the charges, I note that PW11’s evidence is basically not challenged by the defence.  I have taken into account that PW1 gave a range rather than a precise figure for the amount of interest he had paid in respect of Charge 3, Charge 4 and Charge 6.  However, in view of the effect of PW11’s evidence as summarised in the discussion above, I am satisfied beyond doubt that in any event in respect of all of the charges the effective rate of interest were well in excess of 60% per annum.

Charge 12

D1

102.  As regards D1, having considered all the relevant evidence, I am sure and I find that the person she referred to as “Simon” was in fact D2.  I rely on the cumulative effect of the following evidence:-

(a) the evidence of PW7 that his lender was Simon and that he had made repayments into a bank account designated by Simon and that the surname of the bank account holder began with the letter “W”. I note that D1’s surname begins with W;

(b) D1’s own admission that she had lent her bank account to Simon for the purpose of receiving loan repayment;

(c) the agreed bank evidence showing that PW7 had made payments into D1’s HSBC bank account; and

(d) D2’s oral evidence in court that D1 had lent him her HSBC bank account. I note also that that part of D2’s evidence was not challenged by Ms Tso in cross-examination.

103.  Based on those inculpatory parts of D1’s admissions which I have accepted, there can be little dispute, as against D1, that she had agreed with D2 to lend him the use of her bank account.  As such, she must have expected that D2 would cause monies to be deposited to and withdrawn from her HSBC bank account.

104.  As regards D1’s state of mind, I have taken into account that D1 was aged 67 in 2009 and that she was a housewife.  I have also taken into account there was no explicit admission from D1 that D2 was lending her or other people money at an excessive interest rate.  However, as discussed above I find that at the material time D1 was alive to the risk of money laundering when D2 asked for the use of her bank account.  D1 said, and I accept, that D2 would charge her interest for her loans.  She also said that she knew that D2 would charge other people interests.  It is telling in my view that she agreed to lend her bank account to D2 in return for a $3,000 deduction of the debt she owed him.  It is also telling that after some time she was “scared” and she asked D2 for the return of her bank card. 

105.  As to the contention that D1 believed in D2’s assurance that her account would not be used for any illegal purposes, I find that she did not in fact believe D2.  From what D1 said in her cautioned interview, she was introduced to him for the purpose of borrowing money and she did not even know D2’s full name.[130]  Her relationship with him was only that of   a borrower and a lender.[131]  Similarly, according to D2’s oral evidence in court, he and D1 were not close friends.   I find that she was willing to let D2 use her bank account only because of the $3,000 loan deduction he promised her.

106.  In view of all the relevant evidence available relating to D2, based on HKSAR v Wong Chor Wo & Anor, I draw the inference, which I find to be the only reasonable one, that D1 had grounds for believing that D2 would use her bank account for the purpose of receiving, concealing or disguising his proceeds of an indictable offence and that those grounds are reasonable.  That is, that anyone looking at those grounds objectively would so believe.  With that state of mind, she agreed with D2 to lend him the use of her bank account. 

D2

107.  There is, as against D2, little dispute that he had agreed with D1 for her to lend him the use of her HSBC bank account and that agreement would entail D2 causing monies to be deposited and withdrawn from her bank account.  There is also little dispute that the monies subsequently deposited into her bank account in fact belonged to him. 

108.  As regards D2’s state of mind, the prosecution case against him is in fact one of knowledge, although they also rely on the “reasonable grounds to believe” limb.  Of course, if D2 was engaging in loan sharking during the alleged conspiracy period, then he would have the requisite knowledge.  As to this, I note that of all the loan sharking charges proven against D2, only Charge 8 and Charge 10 fall within the alleged conspiracy period.  Furthermore, only Charge 10 relates to D1’s bank account.  Nevertheless, the prosecution has established that D2 had used D1’s bank account for collecting his proceeds of loan sharking at least in relation to PW7.   Moreover, the evidence relating to Charge 8 is still relevant in that it shows that D2 was engaging in loan sharking in May 2009.

109.  In addition to the above, there is also the following agreed bank evidence:

(a) during the charge period, there was a total of $4,336,000.01 paid into D1’s HSBC bank account of which, I find, D2 had the sole control. Of this sum, three quarters (1,257 times) came from cash deposits and the remaining quarter from transfer deposits. The majority of the cash deposits were under $4,000 each. During the same period there were withdrawals totaling $4,336,060.01, almost all of which were made via ATM or in cash. The number, size and pattern of the aforesaid transactions are consistent with the prosecution case that D2 was using D1’s bank account to receive proceeds of his loan sharking activities.

(b) On the other hand, the fact that there were substantial amount of transfer deposits (totaling $1,019,900) into D1’s bank account is inconsistent with D2’s assertion that he had used that bank account solely for his parallel goods business which he said was conducted on cash basis. He had not mentioned anything in his evidence about those transfer deposits.

(c) In view of the total amount of money transacted in D2’s personal Hang Seng Bank account (deposits totaling $37,625,494.46 and withdrawals totaling $37,519,535.40)[132] and also the documents he produced in court which showed that account number, it is obvious that he had been using his personal bank account for his other business and also for other purposes including making transfers to the borrowers as discussed above.

110.  Although I am prepared to accept that D2 had conducted parallel goods business using the corporate vehicle of New Oceanic, the use of that company could not have happened before March 2010.  It might be that at some stage during the charge period D2 had also engaged in parallel goods business.  However, this does not mean that D2 could not have engaged in loan sharking.

111.  Based on all the evidence as a whole, I also draw the interference, which I find to be irresistible, that during the period between 4 May 2009 and 14 May 2011, besides the payments from PW7 there were other payments into D1’s bank account which were also proceeds of D2’s loan sharking activities.   Even if I were wrong about this, it would not affect the validity of the conviction of D2 on this charge.  As I have said, the charge can still be supported by PW7’s repayments into D1’s bank account. 

112.  Also, I am satisfied beyond any reasonable doubt that at all material times D2’s intention was to use D1’s bank account (at least partly if not solely) for the purpose of receiving, concealing or disguising the proceeds of his loan sharking activities which is an indictable offence.    

Conclusion

113.  Based on the above, I find that during the charge period there was an agreement between D1 and D2 for D2 to deal with payments that would be made to D1’s HSBC bank account.  In addition, each of them had the respective guilty state of mind.  In the case of D1, she had the requisite reasonable grounds to believe and in case of D2 the requisite knowledge.  Therefore, I find that the prosecution has proven its case against D1 and D2 on Charge 12 beyond reasonable doubt.

CONCLUSION

114.  D1 is convicted of Charge 12. 

115.  D2 is convicted of Charges 1 to 10 and 12.

Schedule

DCCC 1088/2015

Annex C

Breakdown of Cash Deposit of A/C 1 as follows:

DCCC 1088/2015

Annex C