HKSAR v. SINGH RAMANJIT

HCMA 129/2016

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO 129 OF 2016

(ON APPEAL FROM TWCC 3562 OF 2014)

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J U D G M E N T

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INTRODUCTION

1.  The appellant was convicted after trial by Deputy Magistrate Jacky Jim on 29 January 2016 of the offence of conspiracy to deal with property known or believed to represent proceeds of an indictable offence contrary to section 159A and 159C of the Crimes Ordinance, Cap 200 and section 25(1) and (3) of the Organized and Serious Crimes Ordinance, Cap 455 (“OSCO”).  He was sentenced on 17 February 2016 to 2 years and 6 months’ imprisonment.  By his notices of appeal, dated 19 February 2016, the appellant appeals against both conviction and sentence.

THE CHARGE

2.  The particulars of the charge, as amended, were as follows:

“...between 15^th day of January, 2013 and 16^th day of January, 2013, both dates inclusive, in Hong Kong, conspired with other person(s), to deal with property, namely a total sum of $276,810.40 of United States currency in the bank account numbered 012-7239-2057-057 held in the name of ARG Enterprises with the Bank of China (Hong Kong) Limited, knowing or having reasonable grounds to believe that the property in whole or in part directly or indirectly represents any person’s proceeds of an indictable offence.”

3.  In essence, the allegation was that these funds were the product of a typical commercial email scam.  The victim was a Spanish company, Metal Oxide S.A. (“Metal Oxide”), which believed it was remitting monies to HJM Resources Co. Ltd (“HJM”) when, in fact, they were deposited into a Bank of China (Hong Kong) Limited account opened in the name of ARG Enterprise (“ARG”) and operated by the appellant.

THE PROSECUTION CASE

4.  The prosecution case consisted of just one witness, three sets of admitted facts and a number of documentary exhibits.  Those parts of the admitted facts[1], which are relevant, prove that:

i. Someone called Mok Wing-lin Amy (“Mok”) owned HJM in Hong Kong.

ii. A Spanish company (no name provided) placed an order with her company in December 2012, the value of which was HKD2.2 million.

iii. The goods were sent by HJM but payment was not received.

iv. In February 2013, Mok was informed by the Spanish company that they had remitted funds of USD276,863.40 to a Bank of China account number 012-7239-2057-057 (“the BoC account”) in mid-January 2013 as a result of a bogus email.

v. The BoC account was opened in the name of ARG on 15 June 2012 by the appellant.  The appellant was the only signatory to that account.

vi. The appellant was the sole proprietor of ARG which was registered for business on 6 June 2012.

vii. On 15 January 2013, the BoC account received an inward remittance of USD276,810.40.

viii. On 16 January 2013, the appellant withdrew USD280,000 from the BoC account by way of three cashier orders in the sums of USD100,000, USD100,000 and USD80,000.

ix. The balance in the account of USD68.88 was withdrawn by the appellant on 17 January 2013.

x. The banking records were adduced as P16.

xi. The video recorded interviews with the appellant undertaken on the 6 March (P14), 23 May (P15) and 18 December 2013 (D2) were voluntarily made.

xii. The appellant had not filed any tax returns or paid any profits tax to the Inland Revenue Department for the period between 11 December 2007 and 10 December 2014.

5.  PW1 was the only prosecution witness.  She worked for New Baoshu Foreign Exchange Co. (“New Baoshu”).  She told the court that the appellant had made enquiries of her company on 15 January 2013, in the hope of exchanging USD280,000 into HKD.  At that time she completed a Customer’s Due Diligence Form which was exhibited in several guises, one of which was P15D.  This form was completed by the appellant and includes his name, address and ID number as well as a photocopy of his ID and the business card of his wife, who was present with him.  It also shows the conversion rate into HKD from USD of the USD280,000 which amounted to HKD2,170,840.  PW1 positively identified the appellant against his ID card at the time.  On 16 January 2013, PW1 was able to find another exchange bureau willing to accept USD280,000 and she informed the appellant to draw three cashier orders in the sums of USD100,000, USD100,000 and USD80,000 in favour of China Great Wall Coins Investment Ltd (“China Great Wall”).  The appellant duly withdrew those sums from BoC by means of cashier orders made payable to China Great Wall on the same day.  He submitted them to New Baoshu and in return received HKD2,170,840 in cash.

6.  That, Mr Lui on behalf of the respondent, says, is the top and bottom of his case.  There is clear evidence of monies received into the ARG account which had been obtained by deception.  If the court accepts the evidence of PW1, he submits that there is clear evidence of what happened to those monies up to the point at which the appellant received the cash and what happened to it thereafter.  The prosecution say that the actus reus of this offence is made out.

7.  As to the mens rea, he submits there are a number of indicators which assist the court in drawing the only reasonable inference that the appellant must have known (or at the very least have reasonable grounds to believe) that the monies were the proceeds of an indictable offence:

(1) The appellant made enquiries of PW1 on the same day that the monies were deposited into the BoC account.

(2) The monies were withdrawn very soon after the deposit.

(3) The account was open for only six months, it had very few deposits, all of which were for small sums of money.  The account was emptied and then closed immediately after the remitted funds had been withdrawn.

(4) This was a large amount of cash.  If it was for a genuine commercial transaction then the goods, buyer and seller would be better protected by a letter of credit, which is the usual manner of doing business.

(5) The cashier orders were made payable to China Great Wall and then encashed but the appellant could just as easily have withdrawn the monies in cash from BoC and saved himself time and expense if this was a legitimate exercise.

(6) There was no history of trading in that amount (or any significant amount) in any tax return for the past seven years nor any evidence of such within the BoC account.

(7) The only documentary support for any trading by the appellant with the alleged third party was an ARG Proforma Invoice for USD118,993 (D8).

(8) There was no other documentary evidence to support any suggestion of legitimate business between the appellant and anyone else.

THE DEFENCE CASE

8.   As best as I am able, I understand the appellant to say that he believed the monies to have been remitted into his BoC account by a person who called himself Mr Kingston (“Kingston”).  He and Kingston had been negotiating the purchase of wheelchairs since December 2012.  The appellant acted as a middle man between buyer and seller and would receive commission.  Because of this, he maintained different email accounts to deal with any buyer and seller separately.  In this case, the buyer was Kingston and the seller was a factory in Guangzhou.  D8, the Proforma Invoice for USD118,993, was one of a number of early invoices for the purchase of wheelchairs which were later amended.  It was not clear to the court who was supposed to raise the invoices in this case.  D8 was created by the appellant upon his computer but other invoices were apparently raised by the factory as there were no other invoices on his computer save for those which had been attached to emails.  In the normal course of business it should have been the factory which raised the invoices for the sale of the wheelchairs to its buyer.  The appellant said there were two other invoices, which amounted to around USD350,000, which were not exhibited.  Including those invoices, the value of the business was therefore in the region of USD468,000.  Kingston had remitted the USD276,810.40 to him on 15 January 2013 and had shown the appellant the telegraphic transfer documents.  But Kingston had then explained that he needed the monies returned to him as he had to pay for a shipment of toys.  Kingston told the appellant that if the appellant returned the monies, the purchase of the wheelchairs would go ahead but only after he had paid for the toys.  In return, Kingston engaged the appellant to check the shipment of toys and would pay him 3% of the value of the shipment for doing so.  In those circumstances, the appellant was to receive 3% commission for checking the toy shipment and 3% commission for the wheelchair deal.  The appellant maintained that it was Kingston who asked him to draw the three cashier orders and it was Kingston who directed that they should be payable to China Great Wall, a company to whom Kingston owed money.  He had therefore given Kingston the three cashier orders.  

9.   The appellant maintained that he had not gone to New Baoshu to exchange the cashier orders at all and he did not know how New Baoshu had obtained either his ID card or the business card of his wife.  He had no documentary support for this contention because the police had taken his computer and he had not had access to his email account.  He had been able to produce D3 and D4, which showed he was in email contact with someone called Kingston in respect of buying goods and he had produced the Proforma Invoice at D8, but all of these showed early negotiation.  He was not able to produce anything to show the later negotiations or the final agreement for sale and purchase nor was he able to provide contact details for the factory which was to supply the goods because he said that his counsel had advised against it.  He had been provided with access to his computer by the police before trial but the emails he was looking for had been deleted.

THE GROUNDS OF APPEAL

10.   The appellant represented himself in this appeal and therefore his grounds of appeal were voluminous and not always on point but I elicited four main areas of complaint:

(a) He did not accept the underlying deception of Metal Oxide S.A.. The appellant maintained that the complaint by HJM was false.

(b) The New Baoshu documents were false because they suggest that the transaction took place on 15 January 2013 when he had not withdrawn the cashier orders until 16 January 2013.

(c) He could not access his computer or emails to support his case. The police did not cooperate to allow him to do so when he asked and indirectly he suggested that this evidence had been tampered with.

(d) His trial counsel had been incompetent.  She had urged him to plead guilty.  She had refused to adduce email messages from the Guangzhou factory or text messages from Kingston to show his connection with both of them.

11.   There is absolutely no merit in the grounds advanced under (a), (b) or (c).  As to ground (a), there was never any suggestion in trial that Metal Oxide had not been deceived.  The admitted facts accept that the monies were remitted as a result of a bogus email.  Ground (b) above is the result of a misunderstanding by the appellant as to the chronology of events, which he now accepts.  The prosecution case is that there were two visits to New Baoshu.  One visit was on 15 January when an enquiry was made by the appellant and his ID was checked for the Customer Due Diligence Form and one visit was on 16 January when the cashier orders were exchanged.  As to ground (c) the appellant accepted that he had access to his computer prior to trial.  No evidence was adduced to show that the computer had been tampered with.  There was no computer evidence at all.  The gravamen of the appellant’s case was that there had been several versions of invoices but that they had been stored under different emails which were no longer in his computer and he couldn’t identify what or where they should have been held.  No issue was taken before me or below on the fact that the contents of the computer had been encased by the police upon taking possession of it and therefore it could not have been tampered with thereafter.

12.   That leaves ground (d).  There was much to be criticised in the performance of both prosecution and defence counsel in this matter, some of which was picked up by the deputy magistrate and some was not.  Nevertheless it does appear that the deputy magistrate was in error in deciding this case and that error was in part due to the poor performance of defence counsel although I must say that he was not well served by either counsel.

THE PROCEDURE ON APPEAL

13.   An appeal under section 113 of the Magistrates Ordinance, Cap 227, is by way of rehearing of the evidence before the trial court supplemented by such further evidence as the intermediate appellate court may admit under its statutory power so to do (section 118(1)(b)): Chou Shih Bin v HKSAR (2005) 8 HKCFAR 70.  It allows the judge on appeal to make whatever order the judge thinks just (section 119(1)(d)).

14.   On a rehearing, the appellate court is required to assess the evidence and come to its own conclusions as to whether that evidence proves the essential elements of the offence to the requisite standard: HKSAR v Ip Chin Kei & Others HCMA 301/2011.  It follows, that the appellate court is also required to ensure that all proper safeguards were put in place as to the admissibility of such evidence as was relied upon by the court below.

15.   This court is entitled and indeed bound to come to its own conclusion about the evidence on contested issues of fact and law.  Per James J in Histollo Pty Ltd v Director-General National Parks & Wildlife (1998) 45 NSWLR 661:

“It is not incumbent upon the appellant to show that such conclusion [whether at half time or on verdict[2]]was not open to the trial court in the sense of being a conclusion to which on the evidence, it should not have come. It is merely necessary to persuade this Court on a review of the evidence that guilt is not, to the necessary standard, proved by the prosecutor. If, as at trial, on the rehearing there is a reasonable doubt of guilt, the appeal must be upheld.”

It follows that the same approach should be applied to the test under R v Galbraith [1981] 1 WLR 1039 at the end of the prosecution case.

16.   Because this is a rehearing upon the evidence as it was before the deputy magistrate and is not a retrial, there are practical constraints placed upon the court in the exercise of its duties in making findings of fact and determinations in respect of the credibility of witnesses: HKSAR v Ip Chin Kei & Others supra.  So far as the facts are concerned this court recognises that it does not have the advantage of having received evidence at first hand which the deputy magistrate enjoyed.  The same applies to the opportunity to see and hear the witnesses.  To offset that constraint the court is entitled to have regard to the deputy magistrate’s Statement of Findings to ascertain what determinations the deputy magistrate made as to the credibility of witnesses and the reasons given for such determinations.  It also follows that this court should be able to look to the Statement of Findings to seek, if possible, to explain any anomaly as to issues of admissibility and procedure.

17.   As this is a rehearing, it is for the appellant to persuade the court that the prosecution should not have succeeded in the court below as there is a reasonable doubt as to his guilt.  It is therefore for the prosecution to persuade the court that this is not the case.  Following Lam Kau v R [1962] HKLR 234:

“It is as much for the Crown to sustain as for the appellant to seek to disturb the conviction”.

That does not mean that all of the evidence before the deputy magistrate is repeated once more in this court.  Only that evidence which the parties determine is necessary to satisfy the burden placed upon them is required to be revisited.  Some leeway may be necessary where the appellant is unrepresented upon appeal.

18.   The evidence in this case rested upon three sets of Admitted Facts P1, P12 and D1; one prosecution witness of fact; 19 prosecution exhibits including three VRIs; the oral evidence of the appellant and 10 defence exhibits.  PW1’s evidence was pivotal.  This court would be slow to reverse the finding of the deputy magistrate as to the credibility of a witness unless satisfied that his conclusion on the facts is plainly wrong: Ting Kwok Keung v Tam Dick Yuen (2002) 5 HKCFAR 336. 

Analysis of the Law and Evidence

Conspiracy

19.   Section 159(A) of the Crimes Ordinance Cap 200 states:

“(1) Subject to the following provisions of this Part, if a person agrees with any other person or persons that a course of conduct shall be pursued which, if the agreement is carried out in accordance with their intentions, either-

(a) will necessarily amount to or involve the commission of any offence or offences by one or more of the parties to the agreement; or

(b) would do so but for the existence of facts which render the commission of the offence or any of the offences impossible,

he is guilty of conspiracy to commit the offence or offences in question.”

20.   An allegation of conspiracy therefore requires an agreement to commit an offence by two or more persons, which in this case would be an agreement to deal in the proceeds of an indictable offence and that the parties to the agreement must intend to carry out that agreement.  If that is so, the offence is complete and nothing more need be done in order to make the conspirators liable under section 159(A). The mental element of conspiracy includes the intention to pursue a course of conduct which will necessarily amount to the commission of the crime in question by one or more of the conspirators.  The conspirators must intend to carry out the act prohibited by the substantive offence and that intention must satisfy the mental element required under the substantive offence although that does not necessarily mean that the mental element for the offence of conspiracy is in all cases exactly the same as the mental element for the substantive crime, although in this instance it is.

21.   This was just as well because this case was prosecuted as if it was proceeding on the basis of the substantive offence alone.  It follows that the deputy magistrate focused all of his attention upon section 25 of OSCO rather than the elements of the offence of conspiracy.

Section 25

22.   The appellant is charged with conspiracy to deal with property knowing or having reasonable grounds to believe that the property in whole or in part directly or indirectly represents any person’s proceeds of an indictable offence.  Section 25 of OSCO reads as follows:

“Section 25 Dealing with property known or believed to represent proceeds of indictable offence

(1)   Subject to section 25A, a person commits an offence if, knowing or having reasonable grounds to believe that any property in whole or in part directly or indirectly represents any person’s proceeds of an indictable offence, he deals with that property.”

23.   The actus reus of the section 25 offence is “dealing” with the property which the appellant knows or has reasonable grounds to believe represents the proceeds of an indictable offence.  It was therefore unnecessary for the prosecution to prove that the monies, as a matter of fact, were the proceeds of an indictable offence because the actus reus of this offence is the dealing with such monies[3]: The parties had agreed this evidence within the admitted facts. There was no issue that the appellant had dealt with property which was in fact the proceeds of an indictable offence. As this is a charge of conspiracy, the prosecution must nevertheless prove that the appellant agreed with at least one other person to deal in the monies.

24.   The mens rea of the section 25 offence is “knowing or having reasonable grounds to believe”that any property in whole or in part directly or indirectly represents any person’s proceeds of an indictable offence.  Clearly one cannot be guilty of knowing the property in question represents the proceeds of an indictable offence unless it is, in fact, the proceeds of an indictable offence[4].  As it was an admitted fact that the monies were the proceeds of crime, this limb of the mens rea was open to the court to make a determination upon.  The authorities on the alternative limb of what amounts to reasonable grounds to believe, including Seng Yuet Fung v HKSAR [1999] 2 HKC 833 as approved in HKSAR v Yan Suiling (2012) 15 HKCFAR 146 and HKSAR v Pang Hung Fai FACC 8/2013, are also applicable and were considered by the deputy magistrate.

25.   A charge of conspiracy to launder money under section 25, requires the prosecution to prove the conspirators knew at the time of making their agreement that what they intended to dealin were the proceeds of an indictable offence or that they intended that the property they were to deal with shall or will be the proceeds of an indictable offence[5].  On the facts of this case, given the timescale of the conspiracy as charged which was between 15 and 16 January 2013, the events which resulted in the monies in question being the proceeds of an indictable offence had already occurred.  The prosecution were therefore required to prove that the conspirators knew or had reasonable grounds to believe that the monies were already the proceeds of an indictable offence rather than intending that they should be at some point in time in the future[6].

Has the prosecution proved its case

26.   Whilst the appellant has accepted that he dealt with the monies in question, he does not accept the manner in which he dealt with those monies nor that he knew or had reasonable grounds to believe that they were the proceeds of an indictable offence.  The prosecution and defence cases are and were diametrically opposed in this respect.  The prosecution maintain that the appellant withdrew the monies by way of three cashier orders from the BoC account and exchanged them for cash from New Baoshu.  That the account was set up for the purpose of receiving the proceeds of the scam and that is why it had such a short lifespan and very little other funds.  The appellant says that he was a legitimate businessman.  He had received the funds from Kingston for the purchase of wheelchairs and he had withdrawn the three cashier orders from the BoC account and given them to Kingston at his behest.  He had nothing to do with New Baoshu and does not remember going there on the 15 or 16 January 2013.  In response, the prosecution say inter alia that Kingston is a fabrication.  No such person was in Hong Kong at the material time.

27.   In determining the issue of knowledge and having reasonable grounds to believe, the deputy magistrate relied upon the following facts[7]:

(i) The appellant could not explain why he was willing to return USD280,000 to Kingston when he had only received USD276,810.40 from him and this was their first time of doing business together.

(ii) He failed to satisfactorily explain the difference between the evidence he gave before the deputy magistrate and the answers he gave in interview.

(iii) He failed to produce documentary support for the sale and purchase of wheelchairs.

(iv) He maintained that invoices were held within his email account as attachments and not within his computer and therefore could not be retrieved when he was given access to his computer before trial.

(v) He maintained his email account had been closed down and therefore he could not access the copy invoices and provided no explanation as to why he could not obtain them from the seller.

(vi) If he could at some point print out D3 and D4 then why didn’t he print out all of the other documents before his account was closed down?  He had printed out versions of a D4 on 24 April and 24 September 2013.

(vii) There had been no proper explanation as to how his ID card had been in the hands of New Baoshu.

(viii) D9, which was intended to be an acknowledgment of payment of the monies back to Kingston says “To whom it may concern” and does not identify the appellant.

It can be seen from the above that the deputy magistrate concentrated his mind upon his rejection of the evidence of the appellant rather than upon the positive case of the prosecution in this regard.  Nevertheless, he did remind himself of the necessity to ensure that the prosecution had proved their case beyond reasonable doubt.

28.   The difficulty arose because the deputy magistrate had his mind directed to the substantive offence and not to the charge of conspiracy.  This was a fault of the prosecution who, so far as I can tell, never alluded to it.  There was no mention of this issue by either counsel.  I can find no mention of conspiracy within the opening, closing or evidence placed before the court.  There was certainly no mention of the identity of any co-conspirator between 15 and 16 January 2013, which is the very narrow time frame of the charge and which, I note, post dates the deception on Metal Oxide.  Even if the co-conspirator could not be identified, there was no evidence before the court that any such person existed nor any evidence from which the court could infer the role that such a person played between 15 and 16 January so as to be sure that the appellant came to an agreement with anyone on those dates.  As a consequence, the deputy magistrate did not address himself as to whether the appellant had agreed with at least one other person between 15 and 16 January 2013 that they would deal in the proceeds of an indictable offence, namely the USD276,810.14.  He was not assisted by either party on this point.  As it happened no injustice was done on the issue of knowledge as he found on the facts that the appellant knew that what he was dealing in were the proceeds of an indictable offence.  The fundamental error was upon the issue of agreement.  With whom had the appellant agreed?  To whom did the prosecution point as the person with whom the appellant had entered into this agreement?  Who was he supposed to be conspiring with?  This was an issue that the deputy magistrate did not address because as he said:

“...the defence in their final submission did not challenge that the prosecution are able to prove to the required standard that the moneys were the proceeds of crime. And, moreover, they did not challenge – they did not take issue on the conspiracy element as well. The principle issue, as I held was in relation to the mens rea involved.” (Emphasis added)

29.   It is true that the defence did not challenge the conspiracy but that is because the prosecution did not mention it.  I can find no record of reliance upon this charge as a charge of conspiracy at all.  I can find no acquiescence by the defence that there was no issue.  It would have been incompetent of defence counsel so to do, given that there was no evidence at all of another party.  One cannot be facing a charge of conspiracy and take no issue with it because that would result in an admission as to conspiracy and therefore an admission of guilt to the offence charged.  The court having raised the point, Mr Lui now seeks to point the finger at Kingston as the co-conspirator. The existence of Kingston was resoundingly rejected by the prosecution at trial and before this court.  They cannot now rely upon him as some unknown co-conspirator when they say he is a fabrication and was not in the jurisdiction at the time.  What role does the prosecution say that he is supposed to have played, how and when? But then counsel for the defence should have spotted this very basic point at half time and made a submission.  She did not do so nor did she do so at the end of her case. 

How should the case have been determined

30.   The evidence of PW1 was not undermined in any way and the deputy magistrate found nothing in her testimony which led to any doubt.  There is nothing to suggest to this court that I should do otherwise.  On the other hand there was no documentary evidence to support the appellant’s contention that there was a finalised deal with Kingston to purchase wheelchairs which would support the remittance of USD276,810.40 made to ARG on 15 January 2013.  That was only a bare assertion on the part of the appellant.  Whilst there is some evidence to show communication with Kingston and, by implication, the factory, there is nothing to show that a final sale and purchase had been agreed or upon what terms.  There was no evidence of the name or address of the factory or the terms of the appellant’s engagement with them.  This was despite the fact that there had been no suggestion that the second email account used for such purposes and which was in the name of the appellant’s wife, had been closed.  It was this email account that the appellant said he used to communicate with sellers i.e. the Guangzhou factory.

31.   It was not a surprise that the evidence of the appellant was rejected by the deputy magistrate.  There was very little of any substance in it and much had been made by the prosecution of the change of story given to the police in the three VRIs.  So much so that the deputy magistrate, without assistance from either counsel, felt bound to remind himself of the Lucas direction.  Even without reference to the lies told in the VRIs, there was little before the court to substantiate the case for the appellant or from which the deputy magistrate could properly infer that what the appellant maintained was true or might be true.  Nevertheless, having rejected that case, he correctly reminded himself that it was for the prosecution to prove their case beyond reasonable doubt as I do now.  In so far as the actus reus is concerned I am sure that the funds were dealt with in the manner suggested by the prosecution.

32.   The prosecution pointed to a number of facts outlined above which support the contention that the appellant must have known that the monies were the proceeds of an indictable offence.  Those were elaborated upon by the deputy magistrate and he came to the conclusion on the evidence before him that the appellant must have known that what he was dealing with were the proceeds of an indictable offence.  Given the unshaken evidence of PW1 and the fact that she maintained that she had checked the person in front of her with the ID card proffered on 15 January, I am satisfied that the prosecution have proved beyond reasonable doubt that the appellant knew that the monies he was to deal with were the proceeds of an indictable offence.

33.   However, there was no evidence before the court of a third party with whom the appellant can be said to have been in agreement between 15 and 16 January 2013.  Nor was there sufficient evidence from which the deputy magistrate or this court could draw the irresistible inference that there was another person or persons with whom the appellant had agreed to act between those dates or at any other time.  The prosecution were in possession of the appellant’s computer but did not adduce any evidence of communication with some unknown third party with whom he is said to have conspired.  It is just as likely on the facts that the appellant came up with the scheme on his own as it is that he was duped by a man whom he refers to as Kingston and had no knowledge whatsoever of the true source of the funds placed in his account.  That being the case the conviction for conspiracy cannot stand.

CONCLUSION

34.   At a rehearing the appellate court is required to assess the evidence and come to its own conclusion as to whether the prosecution has proved the elements of the offence charged[8]. The essential elements of conspiracy to deal in the proceeds of an indictable offence are:

i. an agreement;

ii. between two or more persons;

iii. to deal in the proceeds of an indictable offence;

iv. knowing or having reasonable grounds to believe that they shall or will be the proceeds of an indictable offence; and

v. intending that one or other of them would carry out the commission of the offence to which they had agreed.

There is no direct evidence upon which the prosecution relies of another person being in agreement with the appellant between 15 and 16 January 2013.  Nor is there any evidence from which such an inference can be drawn given the prosecution stance that Kingston is a fiction.  I find that the charge of conspiracy is not proved and accordingly the appellant succeeds in his appeal against conviction.  The conviction is quashed and sentence set aside.

35.   There will be no order as to costs.