HKSAR v. NG MAN YEE

DCCC 1200/2012

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 1200 OF 2012

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REASONS FOR VERDICT

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1.  The defendant pleaded not guilty to a charge of money laundering HKD 77,984,090.31 between 06 May 2006 and 19 May 2012. This sum is the amount of money deposited during the relevant period into a bank account opened by the defendant on 01 March 1994 with Hang Seng Bank, account number 287-197214-888, (HSB A/C 1).

2.  HSB A/C 1 is a “Flexiphone” telephone banking account and was opened by the defendant on 1 March 1994 (Banker’s Affirmation Ex P19).

3.  HSB A/C 1 was investigated by the police for suspicious transactions and the defendant was arrested on 19 May 2012.

4.  Banker’s records were only available from 6 May 2006 to 19 May 2012 and over this period the sum referred to in the charge was deposited into the account.

5.  On 30 November 1984 the defendant had opened a Hang Seng Bank Account 287-9-142921 (HSB A/C 2) (Banker’s Affirmation Ex P20).

6.  The defendant opened a VISA credit card account 4966-1302-7115-2505 (Visa A/C) (Banker’s Affirmation P27) at the Hang Seng Bank on 18 October 1994 which was allocated a different account number on 24 April 2004. This account was linked to HSB A/C 2.

7.  The defendant opened an account at the Hong Kong Jockey Club, a/c 08442303 (JC A/C) on 28 September 1993 (S65 B Statement Ex 31/2). From 12 December 1995, HSB A/C 1 was the nominated account for this JC A/C.

8.  The defendant’s ex-girlfriend, NG Wai-man, Connie, (Connie Ng) opened a “Flexiphone” telephone account with HSB numbered 218-075182-888 on 24 May 1993  (Banker’s Affirmation Ex P18). Connie Ng is a wanted person believed to be living in Taiwan.

9.  The prosecution case was that HSB A/C 1 was opened by the defendant so that other people could access and use this account as a conduit for money which was the proceeds of an indictable offence. It was alleged that the defendant either knew or had reasonable grounds to believe that the money passing through his account was the proceeds of such an offence.

10.  It was not disputed that the defendant opened HSB A/C 1 and that the sum referred to in the charge was deposited into it. The defendant said that he opened the account at the request of and for use by Connie Ng. The defendant said that in June 1993 Connie Ng gave birth to his daughter and in December 1993 she went to live in Taiwan. The defendant said that she was a keen investor in stocks and forex and she wanted use of the account for such investments on behalf of herself and some friends. The defendant said he trusted her and had no reason to believe that the account was used for any illegal purposes.

Prosecution Evidence

11.  The prosecution evidence was not disputed. Evidence was admitted under sections 65B and 65C of the Criminal Procedure Ordinance.

Admitted Facts – Inter alia the following facts were admitted - Ex 34:

(1) The Defendant was at all material times the named holder of the following accounts:

(i) Hang Seng Bank (HSB) a/c 287-197214-888 (HSB A/C 1)

(ii) Hang Seng Bank (HSB) a/c 287-9-142921 (HSB A/C 2)

(iii) Hong Kong Jockey Club a/c 08442303 (JC A/C)

(iv) HSBC a/c 652-025297-833 (HSBC A/C)

(v) Hang Seng Bank (HSB) Visa credit card a/c 4966-1302-7115-2505 (Visa Account), which was subsequently transferred to a new card number 4966-1320-0756-6685 on the 24/04/2004.

(2) NG Wai-man, Connie, was at all material times the holder of the following account:

Hang Seng Bank (HSB) a/c 218-075182-888

(3) The Defendant’s income and tax payable for the following periods is agreed as below:

Year	Income (HKD)	Tax payable (HKD)	Employment
2007/08	$52,848	Nil	Nelson Jewellery Arts
2008/09	$218,874	Nil	Luk Fook Holding Company Ltd
2009/10	$202,237	$5,512	Continental Jewellery (Mfg) Ltd
2010/11	$328,351	$23,288	Continental Jewellery (Mfg) Ltd

(4) NG Wai-man, Connie, has not filed any tax return, made any payment nor entered into any correspondence with the Hong Kong Inland Revenue Department for the period 22/05/2006 to 22/05/2012.

(5) The immigration movement records of the aforesaid NG Wai-man, Connie confirm that she departed Hong Kong on 5/05/2012, and, as at 16/04/2013, had not returned.

(6) The Defendant’s Hong Kong Jockey Club a/c 08442303, was opened on 28/09/1993. The statements showing transactions in this account between 20/05/2011 and 07/06/2012 are agreed and hereby tendered.

(7) The Defendant’s mailing address of his above Jockey Club account is Room 309, 3F, Ka Ying House, Ka Keung Court, Lok Fu, Kowloon.

(8) It is agreed that it cannot be established who gave instructions for banking transactions to the relevant Bank accounts of the Defendant for telephone or internet services, except to acknowledge that whoever did so must have provided the relevant pin number or password or any further security data required by the Bank.

(9) It is agreed that for the Defendant’s accounts listed as named holder above, both internet and telephone banking were in place, prior to 2006.

(10) Save for the following transactions which are agreed by the Defendant, the prosecution will not produce documentation relating to any other transactions other than that provided in the relevant Bankers Affirmations, of the Defendant’s accounts listed as named holder, in para.2(i) and 2(ii) above:

Transaction in HSB A/C 1

(i) 7/11/2006 $2,000,000 deposit by Defendant

(ii) 14/05/2007 $2,000,000 withdrawal by Defendant

(iii) 15/05/2007 $1,000,000 withdrawal by Defendant

(iv) 28/01/2010 $7,000,000 withdrawal by Defendant

(v) 6/03/2012 $2,000,000 withdrawal by Defendant

(vi) 7/03/2012 $2,000,000 withdrawal by Defendant

(11) Room 309, 3/F, Ka Ying House, Ka Keung Court, Lok Fu, Kowloon was at all material times, the residence of his parents.

(12) The property situated at Flat A, 15/F Tower 4, Metro City, Phase ll, Tseung Kwan O, Sai Kung, belongs to the Defendant and his wife as joint tenants. It was purchased by them on about 04/10/2011 for the sum of $5 million.

12.  The defendant was arrested by police officers on 19 May 2012 at his home at Flat A, 15/F, Tower 4, Metro City, Phase 11, Tseung Kwan O, Sai Kung. The officers executed a search warrant at the defendant’s home and upon search no documents relating to the HSB A/C 1 were discovered.

Financial Analysis of the Accounts – s65B statement of DPC3244 - Ex P33

13.  In this statement, DPC 3244 made a summary of the transactions to and from HSB A/C1, HSB A/C2, Visa A/C, JCA/C and the account of Connie Ng.

14.  The following summarises those transactions:

HSB A/C 1: (06/05/2006 to 26/05/2012)

Total Deposits: $79,384,090.31

Total Withdrawals: $77,325,942.00

Total number of deposits: 230

Total number of withdrawals: 238

(The majority of transactions were by account transfer)

HSB A/C 2: (22/05/2006 to 14/05/2012)

Total Deposits: $2,697,678.40

Total Withdrawals: $2,849,752.42

Total number of deposits: 33

Total number of withdrawals: 120

(The majority of transactions were by account transfer)

Transfers from HSB A/C 1 to HSB A/C 2 (28/07/2006 to 06/05/2011)

Total transfers: 20

Total sum deposited to HSB 2 $2,667,000

(There were no transfers over that period from HSB A/C 2 to HSB A/C 1)

Transfers from HSB A/C 2 to Visa A/C

Auto-pay from HSB A/C 2 monthly, commencing 11/02/2009 to 14/05/2012 (3 hire purchase transactions commencing 12/01/2009 to 04/03/2012)

Transfers from HSB A/C 1 to JC A/C: (09/06/2011 to 19/05/2012)

Number of deposits to JC A/C: 16

Total sum deposited: $1,500,000

I noted that there were further transfers from HSB 1 to JC A/C from 06/10/2006 to 09/05/2011

Number of deposits to JC A/C: 40 Total sum deposited : $4,000,000

(Bundle pages cover these transactions: 39, 943, 955, 959, 960, 966, 1113, 1117, 1125, 1128, 1135, 1138, 1141, 1144, 1147)

Transfers from JC A/C to HSB A/C 1: (09/06/2011 to 19/05/2012)

1 transfer only: $400,000

I noted that there were further transfers from JC A/C to HSB A/C 1 from 06/10/2006 to 09/05/2011

1 transfer only: $1,000,000 (24/04/2007 page 966)

Connie Ng’s Account: (24/04/2006 to 24/05/2012)

Total Deposits: $29,169,832.32

Total withdrawals: $30,460,505.00

Transfers from HSB A/C 1 to Connie Ng’s account (29/01/2007 to 17/05/2012)

Total transfers: 27

Total sum deposited to Connie Ng’s Acct: $25,200,000

Transfers from Connie Ng’s account to HSB A/C 1 (25/09/2006 to 15/05/2012)

Total transfers: 14

Total sum deposited to HSB A/C 1: $12,970,000

Evidence of Gambling Expert Sgt 53925 - Ex P28

15.  Although the JC A/C was opened in 1993 the only records available  are from 11 May 2011 to 07 July 2012.

16.  Over that period 193 bets were placed. The total value of the bets was HKD7,397,710.

Immigration Movement Records of Connie Ng – Ex P.29

17.  The immigration records only cover the period from 01 January 2010 to 09 April 2013. The records show that Connie Ng was not in Hong Kong when the transactions set out in HSB Visa A/C records took place.

18.  In 2010 Connie NG was in Hong Kong for about 29 days and the following year for about 27 days.

19.  According to the defendant, Connie Ng has been ill since around 2006 and has been unable to travel to Hong Kong since his arrest in connection with these proceedings on 19 May 2012.

Evidence for the Defence

Background

20.  The defendant gave evidence as follows:

21.  He is 46 years old and has a clear record. He is married with 2 young children. His wife was 7 months pregnant with their second child when he was arrested in May 2012.

22.  He is the sixth of 10 children. His parents lived in a public housing unit in Shek Kip Mei until they moved to Lok Fu in 2001.

23.  In 1991 he had been working as a hairdresser when he met Connie Ng who was then a moderately successful actress. She was one or two years younger than him and they had an affair. She seemed to be reasonably well off and always tipped well. He said that she lived in Whampoa Estate but he never asked her if she owned her flat. At that time he was living with his parents in Shek Kip Mei.

24.  The affair with Connie Ng occurred in 1991 to 1992 and on 23 June 1993 she gave birth to their daughter. Connie Ng and their daughter went to live in Taiwan in December 1993. The daughter is now pursuing her studies in the USA.

25.  He met his wife in 1995 when she was about 17 years of age. In 1996 his wife went to study in the USA and qualified there as a certified public account.

26.  He went to live in Taiwan in 1996. He returned in 2006 and cohabited with his wife whom he married in December 2007. His wife works as an accountant earning HKD40-50,000 per month.

27.  He started to work as a jewelry salesman in 1994 and did that type of work in Taiwan. When he came back to Hong Kong in 2006 he was unemployed for a short time before starting work in the jewelry business.

Hong Kong Jockey Club Account - September 1993 – JC A/C – Ex P20

28.  In September 1993 he opened the JC A/C which was linked to an account he had held with HSB since 1984 (HSB A/C 2). He did not gamble much and only in small amounts but he thought it would be more convenient to have a Jockey Club account. In 1994, when she was in Taiwan, Connie Ng asked if she could use his Jockey Club account.  He said that she was a heavy gambler and that she told him that her partner in Taiwan did not like her gambling and she had lost some of his money on gambling. From 1994 he ceased to use HSB A/C 2 and, from then on, it was used by Connie Ng. The defendant said that he supplied the PIN number of JC A/C to Connie Ng for her to use.

29.  On the 12 December 1995 the nominated bank account for his JC A/C was switched from his HSB A/C 2 to his HSB A/C 1.He said that he never asked her why the accounts were switched but he assumed that it was for the sake of convenience.

HSB A/C 1 – Opened 1 March 1994, Ex P19

30.  At the request of Connie Ng he opened HSB A/C 1. He said that she told him that she wanted an account in Hong Kong to continue investments that she made on behalf of herself and some friends. The defendant said that he understood the investments concerned stock and forex transactions. The defendant said that she told him that she had to remain abroad for a long period and needed someone she could trust in Hong Kong who would on occasions be required to attend the bank personally.  The defendant said that he did not pay maintenance either to her or her daughter and, as he did not perform his duties as a father, he felt that this was the least he could do because she assumed responsibility for his daughter’s upbringing and education.

31.  He said that the bank statements were sent to his parent’s home.  Connie Ng told him to throw away the statements. He never looked at the bank statements because it was Connie Ng’s money. He was not curious about the funds going through the account.  He said that, when he went to live in Taiwan in 1996, the statements continued to be sent to his parents’ home and he told his parents to throw them away. When his parents moved to Lok Fu in 2001, he arranged for statements to be sent to their new address and again they were instructed to throw them away.  He told his parents not to mention to his wife about receiving these bank statements but he said he gave them no reason. He said that they did not know about his relationship with Connie Ng or about their daughter.

32.  He said that he never used the account for his own purposes. He handled the deposit of HKD2 million and 5 withdrawals amounting to HKD14 million referred to in the Admitted Facts on the instructions of Connie Ng. He said that these transactions had to be done personally as the amounts of money involved were over HKD1 million.  He said that Connie Ng told him there was no need to keep any bank records in respect of such transactions.

HSB Visa Credit Card Account - October 1994 - Ex P27

33.  The defendant said that he opened this account in October 1994 and he used it only on the instructions of Connie Ng. This account was linked to HSB A/C 2 which at that time was used only by Connie Ng. He said that she would instruct him on what to buy using this card and, occasionally, she would authorize him to buy electrical goods for himself using this card.

34.  He said that the credit card statements were sent to his parents’ address.

35.  He said that he did not have another credit card until 2006, when he had a second credit card issued on his wife’s bank account.

36.  He said that Connie Ng was invited by his lawyers to come back to Hong Kong to give evidence but she suffers from phobia, insomnia, panic attacks and moodiness and cannot travel outside Taiwan. A medical certificate was produced as D3. He said that he last saw her in the summer of 2011 when she came to Hong Kong with their daughter who was about to continue her studies in the USA. He said that after he returned to Hong Kong in 2006 he would occasionally see his daughter when she came to Hong Kong during the school holidays. He said that she would only come for a few days and he thought she stayed with Connie Ng’s grandmother who had brought up Connie Ng. The defendant said that he thought the grandmother was her only relative. He said that he took no notice of where his daughter stayed.

37.  He said that about 7-10 days after his arrest, Connie Ng rang him and he asked her to come back to Hong Kong to clarify matters. She told him that she was still very ill and would come to Hong Kong when she was better.  He said that he never thought of asking her to send documentation showing that she was involved in legitimate business. He did not telephone Connie Ng because he did not have her telephone number. He said that he never telephoned his daughter as Connie Ng would not allow that. He said that whilst he lived in Taipei he never saw his daughter in Taipei because Connie Ng had a new partner. He said he did not know where they lived. He said he knew that his daughter went to the Taiwan International School in Taipei.

38.  He never told his wife about his relationship with Connie Ng or about his daughter. He said she only found out about these matters recently.

39.  In cross-examination the defendant said he was now aware that between May 2006 and May 2012 just over HKD77.9 million was deposited into HSB A/C 1 and that the closing balance was over HKD6 million. He said that he was now aware that there were transfers of over HKD2.6 million from HSB A/C 1 to HSB A/C 2. He said that he was now aware that the Visa Card account was paid by way of an autopay standing order from HSB A/C 2.

40.  He agreed that during the period 2006 to 2012, his income was modest rising to about HKD27, 000 per month in 2011. His wife’s income was about HKD40-50,000 per month.

41.  He said that he was now aware that from October 2006 to May 2011, a total of HKD4 million was deposited from his HSB A/C 1 to JC A/C. He was now aware that on 24 April 2007 HKD1 million was credited from JC A/C to HSB A/C 1. He is now aware that, over the 14 month period covered by the Jockey Club statements, there was one transfer of HKD 400,000 to his HSB A/C 1.

42.  He said that he was now aware that Connie Ng has an HSB bank account, P18, as shown in the Admitted Facts. He said he was not aware that the account was opened in 1993 and that it was a “Flexiphone” account the same as HSB A/C 1 which he opened at her request in 1994.

43.  He  said he was aware that when he opened HSB A/C 1, there was a list of 5 designated accounts supplied to the bank to facilitate bank transfers within the bank limit of HKD1 million. He said that the first designated account was that of Connie Ng but he did not know the other 4 persons named. He said that he was given the list by a friend of Connie Ng. He said he did not know how the friend got the list. He said he never looked at the list. He said that he assumed they were friends of Connie Ng on whose behalf she was making investments. He denied that there was no need for him to open an account on behalf of Connie Ng. He said that she told him that the reason she needed him to open an account was so that he could attend the bank personally to deal with transactions involving HKD1 million or over. The defendant said that during the period between 1994 and 1996 he made only a few transfers personally. He said that during the period he was in Taiwan, from 1996 to 2006, he only made a couple of transfers for Connie Ng. He said that, during that period, she would bring her daughter back to Hong Kong once or twice a year and he would come to meet his daughter here.

44.  The defendant disagreed that he put himself at any financial risk by agreeing to assist Connie Ng. He said he trusted her. He said that, ever since he first met her, she was always talking with others on the telephone about buying and selling stocks and shares and she always watched the stock market. He said that he was aware that Connie Ng could overdraw on the account but it never happened. He said that he did not know if there was an overdraft facility.

45.  He said that in 2007 he told Connie Ng that he was about to get married and asked if he could transfer all the accounts back to her. He said that, at that time, Connie Ng was very ill and she suggested that they wait until their daughter graduated from university. He said that Connie Ng suffered from depression. He said that he never called her because she said it would be inconvenient as she had a new partner. He said that he never asked Connie Ng if she had told her partner about the bank accounts he was holding for her. He said that it appeared that her partner was quite wealthy.

46.  It was pointed out to the defendant that para 7 at page 916 of  the Banker’s Affirmation relating to HSB A/C 1, P19, states that all telephone transfers would be confirmed in writing by the bank. The defendant said he was not aware of this and had no recollection of having received such written confirmations. He said that, on his instructions, his parents just threw away anything they received from the bank.

Directions

47.  I reminded myself that the prosecution is required to prove each and every ingredient of the offence beyond reasonable doubt, the defendant has nothing to prove. I reminded myself that if I were to disbelieve some of the evidence given by the defendant that does not mean he is guilty of the offence. I am required to consider the evidence I do accept beyond reasonable doubt and decide if that satisfies me of the guilt of the defendant beyond reasonable doubt.

48.  I reminded myself that the defendant has a clear record and that that is relevant to the issues of  propensity and credibility.

49.  I reminded myself that where the court relies on circumstantial evidence, it can only draw an inference from facts proved beyond reasonable doubt and that such an inference must the only reasonable inference that can be drawn from such facts, the inference must be an irresistible inference.

The Law relating to s 25 (1) of the Organised and Serious Crimes Ordinance Cap 455

50.  The prosecution is required to prove beyond reasonable doubt that the defendant dealt with property, knowing, or having reasonable grounds to believe, that such property, in whole or in part, directly or indirectly, represented the proceeds of an indictable offence.

51.  The actus reus of the offence is the dealing. It is not an aspect of the actus reus that the property is in fact the proceeds of an indictable offence.

52.  The Court of Appeal in HKSAR v. Pang Hung Fai CACC 34/2012 held that, in order to ascertain if the “ having reasonable grounds to believe”  limb of the offence has been established to the required standard, the court should ask itself two questions. The first question is:  what were the facts known to the defendant and the objective factual circumstances in which he found himself and of which he was aware at the time he dealt with the property which is the subject of the charge?The Court stated that it is for the prosecution to establish the facts and circumstances relied upon.

53.   The second question is: do those facts and circumstances provide reasonable grounds to believe that the property in whole or in part represented the proceeds of an indictable offence?

54.   The  Court of Appeal went on to state in Pang that the first step in determining whether a defendant had reasonable grounds to believe is to identify:

“ all the facts known to the defendant relating to the dealing with property the subject of the charge. Those facts may, depending on the circumstances of each case, extend beyond those relating to just dealing with the property and include facts known to the defendant about other persons or circumstances linked in some way to the dealing.”

Evaluation of the Evidence

55.  I have set out above in some detail the evidence of the defendant.

56.  I bore in mind that it is incumbent on the court to consider the facts as known by the defendant, or facts to which he had turned a blind eye, in determining on what factual basis the objective reasonable man test is to be considered and evaluated when working towards the defendant’s proven mens rea.

57.  The prosecution evidence in this case was not disputed. Between May 2006 and May 2012 HKD77,984,090.31 was deposited  into HSB A/C 1,  which was opened by the defendant in October 1994.

58.  When HSB A/C 1 was set up in 1994 the defendant was a man of very modest means living at home. His means remained modest.

59.  The defendant’s income during the period of the charge rose to about HKD 27,000 per month in the period 2010/11 and his wife  earned HKD 40-50,000 per month. Compared to their modest income, the amounts going through HSB A/C 1 were huge.

60.  The defendant claimed he opened HSB A/C1at the request of Connie Ng and for her use to continue investing in stocks and forex transactions on behalf of herself and friends. Connie Ng was then living in Taiwan with their daughter who was born on 23 June 1993.

61.  The defendant said that Connie asked him to open the account because she needed someone trustworthy in Hong Kong to run the account and to attend personally to transactions involving HKD1 million or more. The defendant claimed that as he was not making any contribution towards his daughter’s maintenance or education he felt that this was one of the few ways he could assist in that regard.

62.  Connie Ng had opened up a Flexiphone telephone account with HSB on 24 May 1993. I noted that this account was opened the month before their daughter was born. During the charge period,  substantial sums of  money went through  this account. The address shown in the bank statements produced is a residential address in Whampoa Gardens, Hung Hom. The defendant said that Connie Ng lived in Whampoa Gardens when he knew her in Hong Kong. The account was opened at the Happy Valley branch of  HSB.

63.  Notwithstanding his evidence, I was sure that the defendant was aware that Connie Ng had her own account in Hong Kong as he signed the opening mandate in respect of HSB A/C1 which included details of her account and the  accounts of  four other persons to whom transfers could be made by Flexiphone. The defendant said he was given these details on a piece of paper handed to him which he gave to the bank officer dealing with the account opening procedures.

64.  The defendant claimed that in 1994 he also allowed Connie Ng exclusive use of HSB A/C 2, which he had opened in 1984.

65.  The defendant said that in 1994 he also allowed Connie Ng to his JC A/C which he had opened in September 1993. The defendant said that Connie Ng was a  heavy gambler and told him that whilst in Taiwan she had gambled and lost a lot of money belonging to her wealthy partner and she wished to continue gambling without her partner knowing about it. JC A/C was initially linked to HSB A/C 2 but the defendant said that he later linked  it to HSB A/C 1 in 1995 on the instructions of  Connie Ng.

66.  According to the defendant  he opened the Visa account in 1994 at the request of Connie Ng and used it on her instructions.  He said that the account was linked to his HSB A/C 2 on her instructions.

67.  The bank statements and other banking documentation were sent to the home of his parents where he was living at the time they were set up. He said that, on the instructions of Connie Ng, all the bank statements were thrown away and he never looked at them as he considered that they concerned Connie Ng’s money. He claimed that he was not curious about them. He said that he was also instructed by Connie Ng to discard any banking documents relating to transactions he handled personally at the bank.

68.  The defendant claimed that when he moved to Taiwan in 1996 he instructed his parents to throw away the bank statements and documentation relating to these bank accounts.

69.  I gave careful consideration to the financial analysis of the four accounts produced as summarised above.

70.  The defendant said that he did not know where in Taiwan Connie Ng lived, even though he lived in Taipei for 10 years and his daughter attended the International School in Taipei. He also claimed that he even did not know her phone number as she did not want him contacting her at the home she shared with her partner as it might cause problems. The defendant claimed he did not know his daughter’s telephone number because Connie Ng did not want him to contact her.  The defendant claimed that, even when he was living in Taiwan, he would only see his daughter when Connie Ng brought her for visits to Hong Kong.

71.  The defendant claimed that he only operated the HSB A/C 1 a couple of times before he went to Taiwan and a couple of times whilst he was living in Taipei and was back for visits to Hong Kong.

72.  During the relevant period, with regard to the HSB A/C 1,  there were 468 deposits and withdrawals.  It is an admitted fact that he used the account  on six occasions. The first occasion was in 2006 when he deposited HKD2 million and the other 5 occasions were between 2007 and 2012 when he arranged withdrawals totaling HKD14 million. One of those withdrawals was for HKD7million in January 2010.

73.  There was no plausible explanation as to why Connie Ng did not use her own account for her financial dealings or why she did not simply open an account in Taiwan. In any event, the explanation the defendant claims he was given for opening HSB A/C 1 would not even begin to explain why she would want to use the defendant’s other accounts. Moreover, I found it incredible that the defendant, knowing of Connie Ng’s gambling problem, would allow her to use his Jockey Club account. Only limited information is available relating to this account but, between 11 May 2011 and 7 July 2012, 193 bets were placed and the total value of  these bets was HKD7,397,710.

74.  The defendant claimed that he kept all these arrangements and the existence of his daughter from his wife because he feared that it would affect his relationship with her. The defendant claimed that when he returned from Taiwan to live with his future wife he agreed to keep the financial arrangements with Connie Ng in place until their daughter’s education was completed.

75.  Given the fact that he lived in Taiwan from 1996 to 2006 and, according to him, he had no way of contacting Connie Ng or their daughter, the main reason for his being involved in her financial dealings, namely, his presence in Hong Kong, was no longer relevant.

76.  The defendant said that Connie Ng started to become ill in 2006 and shortly after his arrest told him that she was incapable of coming to Hong Kong to assist him because of her condition. A sick note was produced. The defendant said that, whilst he was in Taiwan, Connie Ng would come to Hong Kong with their daughter. The only immigration records produced cover the period from January 2010 to April 2013. The records show that Connie Ng was present in Hong Kong for about 29 days in 2010 and 27 days in 2011. She has not been to Hong Kong since the defendant was arrested in May 2012.

77.  I bore in mind that HSB A/C 1 had been opened 12 years before the charge period and, according to the defendant,  Connie Ng,  since 1994, had used his HSB A/C 2 , Visa account and JC A/C and during that period no issues had been raised from any source concerning the funds flowing through HSB A/C 1 or any of the other accounts.

78.  I considered the evidence of the defendant, the size and number of transactions going through the various accounts and the relationship between the defendant and Connie Ng. If the defendant’s financial arrangements with Connie Ng were as claimed by the defendant, I found it incredible that she would give the defendant instructions to discard all bank documents relating to the relevant accounts. During the charge period there were significant movements of monies amongst the various accounts involving substantial sums. The defendant was aware that millions of dollars were going through HSB A/C1. He had personally attended to the transfer of  HKD16 million. This movement of funds would require careful monitoring. Connie Ng was living in Taiwan and the account was in Hong Kong. The defendant was the only person responsible for the account and he claimed he did not even have the telephone number of the person he was allowing to use the account. It is difficult to envisage any reason why an honest person, engaged in legitimate transactions,  would request the disposal of all banking documentation relating to such accounts especially since she was purporting to handle monies and investments on behalf of others. Banks do occasionally make mistakes. An honest person dealing with such large amounts would want to make sure the statements were correct especially when dealing with money on behalf of others.

79.  According to the evidence of the defendant, his knowledge of Connie Ng’s financial dealings was vague.   The defendant said that not only did he comply with her request to discard all banking documents sent in respect of all these accounts, he claimed he never even looked at the statements nor was he curious about them. Notwithstanding his clear record, I did not believe this evidence.

80.  The defendant claimed that, throughout the whole period, he saw no documentation relating to any monies going through HSB A/C1. He claimed that even after he had been arrested, when Connie Ng telephoned him, he did not think to ask her to send documentation which might explain the provenance of the funds going through this account.

81.  Even after he married he kept the arrangement going despite wanting to keep secret the existence of his daughter and his relationship with Connie NG. He was aware that large sums of money were going through HSB A/C 1 because, during the relevant period, he himself transferred HKD16 million including a withdrawal of  HKD 7 million in January 2010.

82.  I accepted that the defendant came to know Connie Ng when she was an apparently successful starlet when he was working as a hairdresser. He said that she always tipped well.

83.  I accepted that Connie Ng had been involved in a relationship with the defendant and in 1993 she gave birth to their daughter. I accepted that she later moved to Taiwan. I accepted that he would have felt some obligation to Connie Ng who had assumed sole responsibility for their daughter’s upbringing.

84.  I had no doubt that the defendant and Connie Ng had come to an arrangement in relation to the use of HSB A/C 1.  However, I also had no doubt that the defendant had not told the court the truth as to the details of those arrangements nor about the true nature and extent of his relationship with Connie Ng.

85.  The fact that I disbelieved the evidence of the defendant about these matters does not  mean he is guilty of the offence. I have to decide on the basis of the evidence I do accept whether such evidence is sufficient to establish the guilt of the defendant to the required standard.

86.  As the Court of  Appeal has said, bank accounts are valuable personal properties. Irrespective of one’s background, cogent evidence and persuasive reasoning are required to support a story of the lending of one’s account to another in the manner described by the defendant. The defendant did not just allow her to use this one account, according to him he allowed her to use HSB A/C 2, Visa account and JC A/C.

87.  I accepted that no issues were raised from any source as to the funds flowing through HSB A/C 1 for the 12 years it operated before the charge period.

88.  Having  rejected the defendant’s account as to the true nature and extent of his dealings with Connie Ng, I was sure he had not told the court the truth as to the circumstances in which HSB A/C 1 was set up and his involvement in the way in which this account was handled. Over the relevant period, there were 230 deposits into and 238 withdrawals from this account involving substantial sums of money. Not one document has been produced to the court to explain any of the transactions. Despite the number of transactions and sums involved, no banking documentation was kept. During the relevant period the defendant was a man of modest income. I was sure that the defendant did not tell the court the truth as to the circumstances and manner in which HSB A/C 2, the Visa account and JC A/C were used.

89.  Having considered the totality of the evidence, I was quite sure that the facts and circumstances known to the defendant and the objective factual circumstances in which he found himself and was aware at the time he dealt with the property provide reasonable grounds to believe that the property in whole or in part represented the proceeds of an indictable offence. I was sure that this was a case where, even if the defendant did not in fact know he was dealing with the proceeds of an indictable offence,his lack of actual knowledge arises in a situation of wilful blindness, as there were very cogent reasons why a reasonable man would believe that they were such proceeds.

90.  Accordingly, I convict the defendant as charged.

(Browne) District Judge